The United States knows as the land of the free has always been a country that welcomes immigrants. Over at least two centuries people have traveled from near and far to find a better life in the United States.
Following the Civil War, in 1875 the Supreme Court declared regulation of immigration a federal responsibility. The first piece of legislation on immigration was the Chinese Exclusion Act of 1882 and Alien Contract Labor Law of 1885 and 1887 which prohibited certain laborers from immigrating to the United States.
Since the enactment of that first act, immigration law has evolved to crack down on illegal immigrants and provide more requirements for people to enter and remain in the U.S.
When speaking of immigration it is important to distinguish the push (poverty, civil war, famine, insecurity, natural disasters) and the pull (jobs, security, economy, schools, and better opportunities) factors.
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Push factors such as natural disasters compelled the U.S. Congress to create TPS in 1990 to establish an equitable system for granting “temporary” protection to people who are unable to return to their home country because of an environmental catastrophe.
The key word in “TPS” is “temporary,” but how is temporary defined for the purpose of immigrants’ protection? If temporary is limited in time and space what does the TPS law provide guidance on what should happen and what must happen to TPS recipients once TPS expires?
As of Nov. 3, the State Department reported that Central America and Haitians immigrants no longer needed protected status but what does that really mean for the more than 200,000 people who one way or another will be affected economically, emotionally and mentally when the protection comes to an end?
When speaking of law there are characteristics that make a law a good one. And in a democracy, the main objective of laws is to serve the best interests of the people— and the highest level of human rights and human dignity.
Many advocates, legislators, government officials and other stakeholders have over the past few months spoken to request an extension or a re-designation for TPS recipients, from many countries including El Salvador, Sudan, Yemen and Haiti, who have resided in the United States for at least the past six years. Looking at the requirements outlined in the Immigration and Naturalization Act (INA) to remain legally in the U.S., it is fair to say that whoever wants to advocate on behalf of TPS recipients is somehow missing the key issue with TPS — which is that the law is explicitly a bad and misleading piece of legislation.
One main characteristic of a good law is the “spirit of the law which contained within the letter of the law is the purpose or intent. For any given law, the spirit of the law? What was the spirit or intent of Congress when it created TPS? There are no definitive answers to know what the specific intent was but reading the letter of the law it is fair to imply the intent was to provide protection.
But if that was the intent, the protection shouldn’t have been temporary.
If by some unusual kind of circumstances the protection is temporary, the TPS law should have provided explicitly in a clear and concise manner the mechanisms, guidelines and directions of what should and must happen to TPS recipients once TPS expires.
The TPS law is a misleading piece of legislation because the black letter of the law doesn’t provide any remedy, benefit, or guidelines on what happens to TPS recipients once it comes to an end.
It is misleading because proper notice was not provided on what TPS recipients could do to have a more permanent status once they have TPS.
Almost no one who benefited from TPS told himself or herself I am here in the U.S. and I am protected against war, natural disaster and the like, but let me get ready to go back to my country to start over with the same fear and anxiety of another war, or another natural disaster once I no longer have TPS.
Therefore, because of the fact that TPS is limited in time additional guidelines should have been provided beforehand on when, what, and how the Department of Homeland Security (DHS) would process the case of TPS recipients once their country no longer meets the requirements.
Under all principles of fairness, a law that provides protection to the people cannot take that protection away without providing a definitive relief for the ones the law was enacted to protect.
The idea of protection should be permanent and only Congress can pave the way for a more permanent protected status or, Permanent Protection Status — (PPS) which is the term I was inspired to use for the first time in May 2017 as a panelist at the forum organized by the Haitian Lawyers Association and Haitian Women of Miami at the Little Haiti Cultural Complex.
No law is perfect, but some are better than others. In the case of TPS, Congress, in all fairness, can really do justice to TPS recipients by amending the law to provide more guidelines, and a more permanent protected status to TPS recipients.
Soeurette Michel is an immigration law attorney in Pembroke Pines.