Strengthening Temporary Protected Status Through Executive Action
By Emily M. Brown
The Temporary Protected Status (TPS) program protects migrants from deportation when their native countries have been struck by armed conflict, environmental disaster, or other extraordinary upheaval. Enacted by Congress in 1990, the program largely escaped attention and controversy for many years as presidential administrations of both parties designated, extended, and terminated TPS designations at similar rates. However, beginning in 2017, then-President Trump tried to end TPS protections for 300,000 beneficiaries—more than 95% of the total. His efforts were blocked in federal district courts, and President Biden has since rescinded the terminations and issued many new designations, expanding the program to its largest size ever and protecting hundreds of thousands of vulnerable migrants. Nonetheless, the future of TPS is more uncertain than ever now that it has become as politically polarizing as many other aspects of the national immigration debate. Many TPS holders have now held the temporary status for over two decades, and they deserve a solution to enable them to reside permanently in the U.S. Some scholars have proposed legislative reforms to enable long-time TPS holders to qualify for green cards while also making modest adjustments to the program that would make it more temporary in nature for the future. But efforts to provide a path to permanent residence for long-time TPS holders through legislation are unlikely to be fruitful in the current political climate. Meanwhile, newer TPS beneficiaries, who are fleeing armed conflict and civil strife in countries like Afghanistan, Haiti, and Venezuela, are plagued by slow processing times of their applications, keeping them out of the formal labor market, and they often remain stuck in immigration removal proceedings, which is unnecessary, costly, and could put them in greater danger of removal if a future administration terminates their TPS designation. This Article argues that this and future administrations should build on the accomplishment of extending humanitarian protection to hundreds of thousands of new beneficiaries by taking additional executive actions to benefit both long-time and new TPS beneficiaries, including designating and redesignating more countries for TPS, terminating removal proceedings for those who are eligible for TPS, and creating a parole program that will help longtime TPS holders eventually attain permanent residency.
Ohio State Legal Studies Research Paper No. 879, Buffalo Law Review, Volume 72, pp. 101-168,