Creating a More Responsive and Seamless Refugee Protection System: The Scope, Promise and Limitations of US Temporary Protection Programs

Abstract

Temporary protection programs can provide haven to endangered persons while states and nongovernmental organizations (NGOs) work to create durable solutions in sending, host and third countries.1 They have the potential to further the interests of forced migrants in protection, states in effective and coordinated migration management, and the international community in solidarity. US temporary protection programs rest primarily on executive discretion and have not been substantially revisited for nearly 25 years. “Parole” represents the primary vehicle for temporarily admitting noncitizens for emergency and humanitarian reasons.2 Prior to 1980, the United States used parole to admit large refugee and refugee-like populations to whom (in most cases) it later extended lawful permanent resident (LPR) status. The 1980 Refugee Act made the US refugee resettlement program the primary vehicle for refugee admissions, limited the use of parole to individuals (not groups), and created a presumption against granting parole to refugees. The United States provides immigrant (permanent) visas to abused, neglected and abandoned children, as well as to certain Iraqis and Afghanis who worked for the US military or for military contractors. It can also award up to 5,000 nonimmigrant (temporary) “T” visas each year to victims of human trafficking and up to 10,000 nonimmigrant “U” visas to survivors of crime who assist law enforcement officials in investigating and prosecuting crimes. However, since 1980, the United States has lacked a dedicated legal vehicle for admitting other refugee-like populations. Temporary protected status (TPS) applies to noncitizens from states experiencing armed conflict, the aftermath of natural disaster, or other extraordinary, temporary conditions that make it unsafe to return. The TPS statute allows the secretary of the US Department of Homeland Security (DHS) to designate states or regions within states for TPS, although the United States has never limited TPS to substate groups. TPS does not cover persons from designated states who arrive following the effective date of the designation, even those who fled great peril. TPS recipients cannot petition for the admission of close family members. In addition, TPS cannot be granted to persons in substantial need of protection from undesignated states. Like refugees and asylees, TPS recipients receive work authorization. Unlike refugees or asylees, they are not eligible for resettlement benefits or deemed “qualified” for most federal public benefit programs. They can apply for political asylum and immigration benefits. However, TPS does not, in itself, lead to permanent status or other durable solutions. Beyond TPS, the executive branch can exercise its discretion not to remove persons who fall outside its law enforcement priorities, including persons who might otherwise suffer violence, extraordinary hardship, or death at home. This paper outlines international standards for the design and operation of temporary protection programs, describes the US refugee protection program writ large, and identifies gaps in protection. It recommends that Congress create a nonimmigrant “protection” visa for noncitizens who are at substantial risk of persecution, danger, or harm in their home or host countries, and that DHS expand its use of parole for de facto refugees and individuals in refugee-like situations. It also argues that the United States should prioritize the reconstruction and development of TPS-designated states and work to establish regional migration and development agreements covering North America, Central America and the Caribbean. Congress should also pass legislation to extend LPR status to long-term recipients of temporary protection. In particular, it should advance the “registry” date to January 1, 1999 (which would provide LPR status to most noncitizens in the country since that date) and it should automatically move up the registry cut-off date each year thereafter by one year. It should also pass broad immigration reform legislation, including a legalization program that would credit years in receipt of temporary protection toward the time required to “earn” legalization. And it should allow temporary protection recipients to apply affirmatively for “cancellation of removal” (which brings LPR status) after 10 years. DHS should also create a more inclusive TPS determination process by hosting quarterly public hearings on conditions in TPS-designated and TPS-eligible nations. It should also re-designate more states for TPS in order to allow persons from designated states who have fled dangerous conditions and entered the United States between the initial designation and re-designation periods to qualify for TPS.