Backgrounder: Mounting evidence calls into question the validity of TPS decisions; further investigation is warranted

Last Updated

May 11, 2018

A growing body of evidence calls into question the process followed by the Trump administration in terminating Temporary Protected Status, or TPS, for countries including Honduras, El Salvador and Haiti. The Washington Post reported May 8, 2018 that former Secretary of State Rex Tillerson and other administration appointees pressured the Department of Homeland Security to end TPS, ignoring warnings from senior U.S. diplomats that mass deportations could be destabilizing to the region and might lead to a surge in unauthorized immigration to the United States.

The Catholic Legal Immigration Network, Inc. and other legal, humanitarian and human rights organizations have been tracking unprecedented irregularities in the administration’s decisions to cancel the protections of TPS for hundreds of thousands of people in addition to abnormalities in the way these decisions have been implemented. Many members of Congress have also reached out to the administration questioning TPS decisions and implementation.[1]

As TPS terminations have been announced one by one since September 2017, the administration has consistently set aside requests for extensions and/or redesignations from the affected countries, failed to follow the statutory requirement for prompt release of relevant information in the Federal Register and ignored government and private sector country conditions experts who warned about the implications of ending TPS.

CLINIC and other organizations briefed the administration about the need for TPS to continue in advance of the decisions. CLINIC prepared in-depth reports and presented specific recommendations about HaitiSyria and Nepal. Reports about conditions in Honduras and El Salvador were written by American University’s Center on Latin American and Latino Studies and the U.S. Conference of Catholic Bishops’ Migration and Refugee Services, respectively.

Prior to the May 8 Washington Post story, in 2017, reports were leaked that administration employees were digging for criminal backgrounds and public benefits fraud for Haitians in connection with the TPS decision. TPS holders are among the most vetted immigrants in this country, having to submit biometric information at each re-registration (which can be in six-, 12-, or 18-month intervals, depending on the country’s designation). There has been no claim by the administration that it found any evidence of such fraud.

Another Washington Post article described pressure last fall from White House Chief of Staff John Kelly on DHS Acting Secretary Elaine Duke to end TPS for Honduras. Multiple outlets, including ReutersCNN and the Washington Post, reported that this interference from the White House led to Duke’s resignation from DHS. The Washington Examiner reported that the incident also led to the resignation of another DHS official, James Nealon, a former U.S. ambassador to Honduras and an expert on Northern Triangle security issues.

In May, Nealon co-authored an op-ed about why TPS for Honduras should have been extended. It said the decision will undermine the United States’ investments in the Northern Triangle and regional stability.

Among the procedural problems with the decisions are long delays in providing notice in the Federal Register, which is necessary to provide TPS holders and their employers with the information to maintain work authorization as TPS winds down. The law governing TPS requires the secretary of Homeland Security to make TPS decisions at least 60 days before a designation is due to expire, and to provide formal notice on a “timely basis.” Every previous administration has interpreted this statutory requirement to include the publication of the Federal Register Notice quickly.

After the Sudan termination was announced in September 2017, the Federal Register Notice was not released for 38 days. It took 39 days for the information to be posted for Nicaragua and 56 days for Haiti after both countries were terminated in November 2017. It took 34 days after the decision for Syrian TPS was made in January 2018. For El Salvador the wait was 10 days, for Nepal it was 27 days and for Honduras, 32 days. When these notices are not timely published, it disadvantages TPS holders, employers and USCIS because it provides less time for all parties to take action on the notice, including processing re-registration applications. 

In January 2018, the administration broke with every previous decision in deciding TPS for Syria; DHS granted an 18-month extension, but failed to redesignate, meaning that more recently arrived Syrians could not apply for protection. TPS for Syria was both extended for 18 months and redesignated at every prior decision. This pattern of extending TPS for other war-torn countries but failing to redesignate was repeated for Yemen and Somalia in July 2018.

CLINIC also worked closely with experts on Nepal in arguing for an extension of TPS for the country, which endured a massive earthquake three years ago, leaving a persisting humanitarian crisis. TPS for Nepal was terminated in April with just a 12-month delayed effective date.

In May 2018, Sen. Robert Menendez, D-New Jersey asked the Government Accountability Office to investigate the decision-making process surrounding the Haiti, Nicaragua and El Salvador decisions, following a Senate Foreign Relations Committee investigation. On July 25, Senator Menendez announced that the GAO investigation is underway. As part of that announcement, State Department documents were re-released citing the serious consequences of ending TPS for El Salvador, Honduras and Haiti.

CNN reported in July 2018 on a DHS intelligence analysis and an email that then-Acting Secretary Duke sent White House Chief of Staff John Kelly regarding TPS for Nicaragua and Honduras. The DHS intelligence report shows that the administration ignored expert advice. It warned that terminating TPS could lead to an increase in people trying to cross the border without inspection as the home countries would be unable to reabsorb TPS holders, which is part of the legal analysis for deciding whether to extend or terminate TPS. 

The email from Duke to Kelly included her decision to terminate TPS for Nicaragua and to extend TPS for Honduras for six months, as she was unable to come to a decision on time due to “conflicting” documentation. She defended her decisions as sending “a clear signal that TPS is coming to a close” which she believed was “consistent with the President’s position on immigration.”

CLINIC calls for Congress and independent investigators to thoroughly review the administration’s handling of all TPS decisions to pursue justice for the more than 300,000 TPS holders and their families who are facing upheaval of their lives.

This backgrounder was prepared by CLINIC staff members. If you would like to arrange for an interview on this topic, contact Patricia Zapor.

[1] For example, Senator Kirsten Gillibrand and Representative Nydia Velazquez led a bicameral letter with nearly 100 signatures in April 2018.