This week, Law Professors across the United States signed a letter to President Obama requesting to designate the countries of: El Salvador, Guatemala, and Honduras for Temporary Protected Status (TPS).
Lenni Benson, Safe Passage Project Executive Director and New York Law School Professor, and Claire Thomas, Safe Passage Project Director of Training and New York Law School Adjunct Professor of Law, both signed the request.
Dear Mr. President:
We are a group of professors at U.S. law schools and universities with experience teaching, researching and practicing in the areas of immigration, human rights, and international law. We write to offer our counsel to you and your administration as you respond to the refugee emergency involving unaccompanied children and families with children from Central America.
We recognize the challenges are complex, and that you have taken some notable steps to respond to the ongoing humanitarian crisis, such as the recent decision to engage with the United Nations High Commissioner for Refugees (UNHCR) to screen those fleeing extreme and growing violence in Central America to determine if they are eligible for U.S. protection. While these steps may help as part of a regional response to the ongoing crisis, the United States has laws and policies in place to provide immediate protection to individuals who have fled the horrific and escalating violence in the region and are here.
We urge that that the Secretary of the U.S. Department of Homeland Security (DHS), in consultation with the Secretary of State, designate the countries of: El Salvador, Guatemala, and Honduras (an area known as the “Northern Triangle”) for Temporary Protected Status (TPS). These three countries warrant TPS designation in light of the pervasive violence that has precipitated a humanitarian crisis of persons fleeing the Northern Triangle countries.
The Legislative History and Purpose of Temporary Protected Status
Historically there has always been a need to provide temporary relief from deportation to countries whose conditions had become unsafe for those individuals already in the United States. For several decades prior to 1990, the Attorney General used Extended Voluntary Departure (EVD) to grant groups of non-citizens typically from war-torn countries the ability to remain in the United States for an extended period of time.1 While EVD was a flexible tool for the executive branch, it was not codified in statute.
Responding to criticisms that EVD designations lacked clear eligibility criteria and was being used for political reasons, Congress enacted TPS in the Immigration Act of 19902 to provide a legislative program that was separate from asylum. 3 Congress intended this “’generic’ safe haven program”4 for individuals fleeing violence who might not meet the narrow U.S. refugee definition. There are several different types of emergencies that Congress believed merited TPS designations by the Attorney General (and now, the Secretary of Homeland Security since the creation of the Department of Homeland Security in 20025 ) after consultation with other relevant federal agencies, including: • “an ongoing armed conflict within the state, and due to such conflict, requiring the return of aliens who are nationals of that state to that state (or part of the state) would pose a serious threat to their personal safety;”6 or • “extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the [Secretary of Homeland Security] finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.”7
Indeed, El Salvador was the first country to receive TPS and the only country to have been granted TPS by Congress itself, which initially designated El Salvador for TPS due to civil war in the Immigration Act of 1990.8 Although the congressional designation expired in 1992, the El Salvador received a new TPS designation in 2001 based on earthquakes that devastated the country. This designation has been renewed by subsequent administrations since that time. Likewise, Honduras received a TPS designation based on a natural disaster, Hurricane Mitch that destroyed a great deal of homes and infrastructure in 1998.
Since 1990, Administrations have applied this law to numerous situations of significant violence, natural disasters, or other extraordinary and temporary conditions, including: Angola (2000-2003); Bosnia-Herzegovina (1992- 2001); Burundi (1997-2009); Kosovo Province (1998-2000); Kuwait (1991-1992); Lebanon (1991-1993); Liberia (1991-2007); Montserrat (1997-2005); Rwanda (1995-1997); and Sierra Leone (1997- 2004).9 The United States currently provides TPS to over 300,000 foreign nationals from a total of 12 countries, including: El Salvador, Guinea, Haiti, Honduras, Liberia, Nepal, Nicaragua, Sierra Leone, Somalia, Sudan, South Sudan, and Syria. For each designation, the objective has been to protect individuals’ safety with respect to major violence, natural disaster, or other extraordinary and temporary conditions, consistent with the statutory criteria.
Current Country Conditions in the Northern Triangle Merit TPS Designations Unaccompanied immigrant children and families who have arrived in increasing numbers in the last few years are fleeing armed criminal violence often caused by gangs or drug cartels as well as horrific abuse at home.10 These children and families are primarily fleeing from El Salvador, Guatemala, and Honduras, where murder rates mirror those of conflict zones. In 2015, the death toll in the Northern Triangle of Central America was 17,500, higher than in all but three zones of ongoing armed conflict: Iraq, Afghanistan, and Syria. They are not coming just to the United States—other Central American countries have witnessed dramatic increases in children and adults seeking refuge.11 Human rights violations in El Salvador, Guatemala and Honduras are compounded by the inability of the governments to protect their own citizens.12 Even the police chief and his family fled Honduras out of fear for his own safety.13 USA Today recently reported that killings grew 70 percent last year in El Salvador,14 which means El Salvador will likely become the murder capital of the world, unseating Honduras which had been the most violent and now will be second, behind El Salvador. Guatemala is close behind, as the sixth most violent country in the world. Women and girls are particular targets in these countries: El Salvador has had the highest femicide rate in the world, with Guatemala and Honduras not far behind.15
Indeed, UNHCR recently concluded that at least fifty-eight percent of unaccompanied children arriving from these countries were forcibly displaced and potentially in need of international protection.16 The UNHCR has called upon all countries in the region to recognize that there is a growing refugee situation in parts of Central America. U.S. government data also confirms that many who flee these countries have a significant possibility of establishing eligibility for asylum: in the second quarter of fiscal year 2015, U.S. asylum officers found that 88 percent of families seeking asylum from family detention centers had a credible fear of persecution.17
Given the terrible violence in their societies and the inability of their governments currently to protect them, there is no doubt that those fleeing the Northern Triangle countries, who are predominantly children and adult women, have a well-founded fear of death. They present compelling humanitarian claims for international protection, whether or not they meet the narrow U.S. asylum definition. Temporary Protected Status affords the administration an important tool to provide temporary and regularized status to an extremely vulnerable population.
In order to address ongoing flows, the immediate response of states throughout the region, including Mexico, should also be to offer temporary protection to those fleeing this serious violence. To ensure that the neighboring states provide effective protection, UNHCR should closely monitor the implementation of such humanitarian programs.
TPS Will Enable the Administration to Focus its Limited Adjudicatory Resources on a Growing, Very Large Backlog of Cases
Not only do the children, women, and other vulnerable nationals fleeing the Northern Triangle countries deserve a safe haven, but TPS also will enable the administration to deploy its limited adjudicatory resources on its very large existing caseload that is significantly backlogged. TPS will allow the administration to know the whereabouts of this population without diverting asylum officers and immigration judges away from their primary missions. Right now, for example, many immigration courts are scheduling asylum merits hearings for applicants from non-Northern Triangle countries in 2019 and 2020— three and four years out! These backlogs continue to grow as the administration uses the asylum system as the only way to address this humanitarian crisis. TPS is a group protection mechanism that makes eminent programmatic sense in order to ensure that DHS and the Department of Justice handle their large, non-emergency caseload in a timely fashion. Historically, when these agencies and their predecessors have allowed backlogs to grow significantly, they have created political emergencies that could have been prevented. Now is the time to re-focus these agencies on their very important, substantial caseloads. TPS both provides an easily administered group protection to these vulnerable individuals from Central America, and allows the adjudication system to prioritize the very large numbers of non-citizens placed into removal proceedings whose cases are currently being neglected.
This administration is well aware of the terrible violence that dominates these Northern Triangle countries. Given the urgent nature of this request and the risk placed on the lives of those who are deported, we request your timely designation of El Salvador, Guatemala, and Honduras for Temporary Protected Status. If you need additional information or have questions related to this request, please contact Erin B. Corcoran, Professor of Law at email@example.com or 603.513.5166.
Erin B. Corcoran Susan Martin Andrew I. Schoenholtz Professor of Law Donald G. Herzberg Director, Center for University of Professor of International Applied Legal Studies New Hampshire Migration Director, Human Rights School of Law* Georgetown University* Institute Professor from Practice Georgetown Law* Susan M. Akram Clinical Professor and Supervising Attorney International Human Rights Program Boston University School of Law* Raquel Aldana Professor of Law McGeorge School of Law University of the Pacific* Deborah Anker Clinical Professor of Law Director, Harvard Immigration and Refugee Clinical Program Harvard Law School* Sabrineh Ardalan Assistant Director Harvard Immigration and Refugee Clinical Program Harvard Law School* Lauren R. Aronson Assistant Professor of Professional Practice Director, Immigration Law Clinic Louisiana State University Law Center*David C. Baluarte Assistant Clinical Professor of Law Director, Immigrant Rights Clinic Washington and Lee University School of Law* Jon Bauer Clinical Professor of Law and Richard D. Tulisano ’69 Scholar in Human Rights Director, Asylum and Human Rights Clinic University of Connecticut School of Law* Lenni Benson Professor of Law Director, Safe Passage Project New York Law School* J. Anna Cabot William R. Davis Clinical Teaching Fellow Asylum and Human Rights Clinic University of Connecticut School of Law* Kristina M. Campbell Professor of Law Director, Immigration and Human Rights Clinic University of the District of Columbia David A. Clarke School of Law* Stacy Caplow Associate Dean for Professional Legal Education Professor of Law Brooklyn Law School* Dree K. Collopy, Esq. Co-Director and Lecturer Immigration Litigation Clinic The Catholic University of America Columbus School of Law* Denise Gilman Clinical Professor Director, Immigration Clinic University of Texas School of Law* Jennifer Gordon Professor of Law Fordham Law School* Barbara Hines Clinical Professor of Law (retired) University of Texas School of Law* 7 Geoffrey A. Hoffman Director-University of Houston Law Center Immigration Clinic Clinical Associate Professor University of Houston Law Center* Elizabeth Keyes Assistant Professor of Law Immigrant Rights Clinic University of Baltimore School of Law* Joann Kloet Clinical Supervising Attorney and Adjunct Professor Michigan State University College of Law* Jennifer Lee Koh Professor of Law and Director, Immigration Clinic Western State College of Law* Hiroko Kusuda Clinic Professor Stuart Smith Law Clinic and Center for Social Justice Loyola New Orleans College of Law* Miriam H. Marton (Mimi) Director Tulsa Immigrant Resource Network Visiting Assistant Clinical Professor of Law University of Tulsa College of Law* Boesche Legal Clinic Michelle McKinley Bernard B. Kliks Professor Associate Professor University of Oregon School of Law* M. Isabel Medina Ferris Family Distinguished Professor of Law Loyola University New Orleans College of Law* H. Marissa Montes Co-Director Loyola Immigrant Justice Clinic Loyola Law School Los Angeles Loyola Marymount University* 8 Jennifer Moore Professor of Law Weihofen Professorship University of New Mexico School of Law* Elora Mukherjee Associate Clinical Professor of Law Director, Immigrants’ Rights Clinic Columbia Law School* Karen Musalo Bank of America Foundation Chair in International Law Professor & Director, Center for Gender & Refugee Studies U.C. Hastings College of the Law* Michele R. Pistone Professor of Law Villanova University School of Law* Christina L. Pollard Visiting Clinical Professor Director of Immigration Clinic College of Law University of Idaho* Emily Robinson Co-Director Loyola Immigrant Justice Clinic Loyola Law School Los Angeles Loyola Marymount University* Carrie Rosenbaum Adjunct Professor Golden Gate University School of Law* Galya Ruffer Director, Center for Forced Migration Studies Buffett Institute for Global Studies Senior Lecturer Northwestern University* Rubén G. Rumbaut Distinguished Professor of Sociology, Criminology, Law and Society University of California, Irvine* 9 Heather Scavone Director of the Humanitarian Immigration Law Clinic Assistant Professor of Law Elon University School of Law* Barbara Schwartz Emeritus Clinical Professor of Law University of Iowa College of Law* Sarah Song Professor of Law and Political Science University of California, Berkeley* Elissa Steglich Clinical Professor Immigration Clinic University of Texas School of Law* Jacqueline Stevens Professor Political Science and Legal Studies and Director of Deportation Research Clinic, Buffett Institute for Global Studies Northwestern University* Beth Stickney, Esq. Adjunct Lecturer of Immigration Law University of Maine School of Law* Juliet Stumpf Professor of Law Lewis & Clark Law School* Stacy Taeuber Clinical Assistant Professor Immigrant Justice Clinic University of Wisconsin Law School* Margaret H. Taylor Professor of Law Wake Forest University School of Law* Claire R. Thomas Director of Training, Safe Passage Project Adjunct Professor New York Law School* 10 Diane Uchimiya Professor of Law Director of the Justice and Immigration Clinic University of La Verne College of Law* Leti Volpp Robert D. and Leslie Kay Raven Professor of Law University of California, Berkeley* Shoba Sivaprasad Wadhia, Esq. Samuel Weiss Faculty Scholar Director, Center for Immigrants’ Rights Clinic Penn State Law* Virgil Wiebe Professor of Law Robins Kaplan Director of Clinical Education Co-Director, Interprofessional Center University of St. Thomas* Michael J. Wishnie William O. Douglas Clinical Professor of Law and Deputy Dean for Experiential Education Yale Law School* Lauris Wren Clinical Professor & Director of the Asylum Clinic Maurice A. Deane School of Law at Hofstra University* Stephen Yale-Loehr Professor of Immigration Law Practice Cornell Law School*