A few months ago, President Obama
issued an order extending Temporary Protected Status (TPS) to Haitians within
the United States. This was a response to the major earthquake
suffered in Port Au
Prince, and was designed to protect those Haitians who
found themselves in the US
illegally after the disaster. There may
be some confusion about what TPS actually is (and understandably so). Temporary
Protected Status, as the name implies, is a temporary order that is
generally given when war or extreme crisis strikes the country who receives
it. The effects of TPS for Haiti are that the government cannot deport
individuals to Haiti for the
duration of the order, neither can it initiate removal proceedings against most
illegal aliens who are citizens of Haiti.
In practice, TPS has often served
simply as an ad-hoc stopgap for difficult to handle situations. It basically puts the entire intricately
reasoned body of immigration law on hold, and due to this sweeping effect,
officials have been reluctant to use it.
For example, the immigration
and refugee issue with Somalia
was due to the absence of any sitting government to accept those deported. US officials couldn’t just drop people off
within the nation’s borders, and since no one was there to officially receive
them on behalf of the country, there was nothing left to do but grant TPS. Similarly, Honduras,
El Salvador, Nicaragua, and Sudan are also designated as having
temporary protected status. Accordingly,
the US
government cannot deport people back to those countries.
There are certainly many people
injured and displaced by wars and natural disasters. It’s a good thing when others find sympathy
for these people. But, the area of
immigration law has evolved to handle a very wide range of issues, from the
routine to the extremely rare. It works
like the rest of our legal system: on a case by case basis to secure help for
those individuals who really need it.
TPS discards that honored system in favor of blanket protections for
all.
Understandably then, there is an
abundance of problems with the frivolous or unnecessary use of TPS. First, there is the problem of TPS being over-inclusive. Sure, those who innocently boarded an
airplane in Port Au Prince while the ground was shaking do not have to worry
about going to court. But TPS can also
be claimed by Haitians who were already in the US illegally when the earthquake
happened. These must still apply for
TPS, but the immigration authorities do not examine these cases as
closely. If the records of these
individuals had gone before an immigration judge, it may have been discovered
that their intentions for being here were not entirely wholesome. It’s also not hard to imagine that someone
might use TPS as a cover to more easily plant terrorists within the US.
Foremost in the criticisms,
Temporary Protected Status is anything but Temporary. There is an implicit
doctrine within immigration law that the right to work is fundamental and
basic. Therefore, anyone allowed to
remain within the US
legally for an indefinite period of time is almost always granted a right to
work. And if this right to work is
exercised by someone with TPS, their job can serve as a basis of an application
for adjustment of status. If accepted,
the individual can remain as a permanent immigrant, called a Lawful Permanent
Resident (LPR). There is also a problem
with the executive branch getting into the habit of renewing TPS automatically. Some countries have had TPS for almost twenty
years as a result. It’s reasonable for
campaign officials to assume that when TPS expires, there will be small but
perceptible surge of complaints. Too
much complaining against a president is bad for reelection campaigns.
And perhaps that’s why immigration
issues are so volatile. Unlike criminal
law, for example, the judicial branch is not allowed to consider whether
specific acts of immigration law are permissible. In standing aside, the judiciary itself has
referred to this as the plenary
power doctrine. That means that
congress and the president, known as the political branches of government due
to their need to be reelected, have unrestrained control over this area of
law. And when something gets as much
media coverage as the Haiti
disaster, it’s not hard to understand why elected officials would respond in a way
that they think will appeal to the popular culture.
Take a look at what happened in the
case with Haiti. Originally, the government responded simply
by halting
deportations to Haiti, but certain political forces were extremely vocal in
this instance. Ironically, those who
advocated for Haitians insisted that something more permanent was needed,
specifically “Temporary” Protected Status. The Obama administration then began to
consider the issue one of its top priorities, and Newsweek eagerly published a release by the
white house press office where President Obama explains why the Haiti
issue is so important. To dissect it bit
by bit for its inconsistencies would take too long. It’s enough to say that more than a century
of belligerent US policy
toward Haiti was ignored,
and instead the President now contemplates a great opportunity for America
to show that we’re the most charitable, most giving, most compassionate nation
on earth. He’s said that “[w]hen we show not just our power, but also
our compassion, the world looks to us with a mixture of awe and
admiration. That advances our leadership.” In other words, the most significant thing
about the destruction in other countries is that it gives the US a chance to
show how much better it is.
And the way we do that is by
sweeping aside our own laws when enough people agree. The determining factor for whether someone
can stay in such an evolved country is not whether they need it or deserve it,
but whether their case is politicized enough.
I’m grateful that deserving Haitians can find a refuge within a nation
that abides by the rule of law, whether that is the US or some other country. But I can’t help but think that there might
be others who need a safe place to stay also.
Maybe their case flew under the radar of those at the associated
press. I’m only speculating, of course,
but the one group of people who really know who should stay and who should go,
immigration judges, have just been passed over in favor of the TPS order.
