[Joint House and Senate Hearing, 116 Congress]
[From the U.S. Government Publishing Office]
116th Congress } Printed for the use of the
1st Session } Commission on Security and Cooperation in Europe
======================================================================
Partially Protected? Non-Asylum
Protection in the United States
and the European Union
[GRAPHIC NOT AVAILABLE IN TIFF FORMAT]
June 14, 2019
Briefing of the
Commission on Security and Cooperation in Europe
------------------------------------------------------------------------
Washington: 2019
Commission on Security and Cooperation in Europe
234 Ford House Office Building Washington, DC 20515
202-225-1901
[email protected]
http://www.csce.gov
@HelsinkiComm
Legislative Branch Commissioners
HOUSE SENATE
CHRISTOPHER H. SMITH, New Jersey ROGER WICKER, Mississippi,
Co-Chairman Chairman
ALCEE L. HASTINGS, Florida BENJAMIN L. CARDIN. Maryland
ROBERT B. ADERHOLT, Alabama JOHN BOOZMAN, Arkansas
MICHAEL C. BURGESS, Texas CORY GARDNER, Colorado
STEVE COHEN, Tennessee MARCO RUBIO, Florida
RICHARD HUDSON, North Carolina JEANNE SHAHEEN, New Hampshire
RANDY HULTGREN, Illinois THOM TILLIS, North Carolina
SHEILA JACKSON LEE, Texas TOM UDALL, New Mexico
GWEN MOORE, Wisconsin SHELDON WHITEHOUSE, Rhode Island
Executive Branch Commissioners
DEPARTMENT OF STATE
DEPARTMENT OF DEFENSE
DEPARTMENT OF COMMERCE
[II]
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Partially Protected? Non-Asylum Protection in
the United States and the European Union
June 14, 2019
Page
PARTICIPANTS
Alex T. Johnson, Chief of Staff, Commission for Security and
Cooperation in Europe 1
Nathaniel Hurd, Senior Policy Advisor, Commission on Security and
Cooperation in Europe 2
Jill H. Wilson, Analyst in Immigration Policy, Congressional
Research Service 3
Marleine Bastien, Executive Director, Family Action Network
Movement 5
Sui Chung, Attorney at Law, Immigration Law and Litigation Group,
and Chair, Immigration and Customs Enforcement Committee, American
Immigration Lawyers Association 9
Catherine Woollard, Secretary General, European Council on Refugees
and Exiles 11
APPENDIX
Prepared statement of Jill H. Wilson 22
Prepared statement of Marleine Bastien 26
Prepared statement of Catherine Woollard 35
Partially Protected? Non-Asylum Protection in
the United States and the European Union
----------
June 14, 2019
The briefing was held at 2:00 p.m. in Room 2237, Rayburn House
Office Building, Washington, DC, Nathaniel Hurd, Senior Policy Advisor,
Commission on Security and Cooperation in Europe, presiding.
Panelists present: Alex T. Johnson, Chief of Staff, Commission for
Security and Cooperation in Europe; Nathaniel Hurd, Senior Policy
Advisor, Commission on Security and Cooperation in Europe; Jill H.
Wilson, Analyst in Immigration Policy, Congressional Research Service;
Marleine Bastien, Executive Director, Family Action Network Movement;
Sui Chung, Attorney at Law, Immigration Law and Litigation Group, and
Chair, Immigration and Customs Enforcement Committee, American
Immigration Lawyers Association; and Catherine Woollard, Secretary
General, European Council on Refugees and Exiles.
Mr. Johnson. Good afternoon, everyone. Welcome. Thank you so much
for taking the time to join us for this hearing today. My name is Alex
Johnson. I'm the chief of staff of the U.S. Helsinki Commission. I'm
here on behalf of Chairman Alcee Hastings to welcome you and really
extend his appreciation for your interest in these particular issues
related to protected status throughout the OSCE region.
First, Chairman Hastings has a particular interest in this through
his work in Florida over the years advancing, and supporting, and
advocating for the many communities within the United States who have
temporary protected status. Even at the beginning of this Congress, he
introduced H. Con. Res. 5, which specific reference to Haitians in the
United States who have temporary protected status. Through that
resolution he has sought to work with a number of Members of Congress
to explore both a pathway to citizenship as well as addressing other
issues associated with the vulnerability of those communities.
Chairman Hastings sees this as a priority, particularly in the
United States and in the OSCE region, because of the erosion of human
rights and democratic institutions that we are seeing right now. It's
particularly urgent as we look at our own domestic compliance with
commitments in the Organization for Security and Cooperation in Europe,
and how we partner with countries who are also exploring issues related
to granted protected status for vulnerable communities in their midst.
In this sense, we will have a great and tremendous conversation, a
chance to learn about how we are living up domestically to the
commitments within the OSCE related to transient community, but also
looking at how we can explore other activity in this threat throughout
the remainder of this year, especially later in the Congress.
With that, I wanted to turn you over to the capable hands of
Nathaniel Hurd, who is our resident expert working on issues related to
freedom of religion, migration, and others. Give a warm welcome to also
our panelists who are remoting in from various far locations to share
with you their wisdom and their spirit on why these issues matter, and
why we should care. Thank you so much.
With that, I will turn you over to Nathaniel's capable hands.
Mr. Hurd. Thanks, Alex. As Alex mentioned, I'm a senior policy
advisor at the U.S. Helsinki Commission.
Migration, immigration, and refugee movements are among the most
contentious subjects in the United States and Europe among policymakers
and publics. The Helsinki Commission's perch on Capitol Hill is an
excellent place to explore the legal, policy, and human implications of
one aspect--temporary protection for people who have left armed
conflict or natural disaster, but do not qualify for asylum. For more
than 43 years, this commission of lawmakers from both parties and both
chambers has been a place for substantive discussion that puts the
human person, especially the vulnerable, at the heart of the
conversation.
Today's briefing on implementation of temporary protection laws and
other measures on both sides of the Atlantic is part of that tradition.
You can follow the briefing on our Twitter handle at @HelsinkiComm. You
can also watch it live and submit questions for the panelists on our
Facebook page, which is Facebook.com/HelsinkiCommission.
Before I introduce our panelists, a few words on the format. One of
our speakers joining us by video, Marleine Bastien, will have to sign
off after about 30 or so minutes, so that she can return to the major
summit on temporary protected status that she's organized in Miami,
Florida. We're grateful that she's able to join us, even for a short
while. After Ms. Bastien speaks, I'll ask her several questions. The
rest of the panelists will then make their opening remarks, followed by
my questions for them. I'll then invite you, our in-person audience and
those of you that are watching on Facebook, to ask questions. I would
note, for those of you in the room, that the full biographies of our
panelists are in your packets. I'll be giving an abbreviated version of
them.
Jill Wilson, to my right, is an analyst in immigration policy at
the Congressional Research Service. She has worked in the field of
immigration studies for 17 years. Ms. Wilson received a BA in sociology
and anthropology from Wheaton College, and an MA in geography from The
George Washington University.
Marleine Bastien, who you can see on your video screen, is a
licensed clinical social worker and the founder and executive directive
of the Miami, Florida-based Family Action Network Movement, or FANM.
FANM has aided Haitian women, their families, and the community at
large--including with an array of social services. FANM has also
organized around a range of issues. Ms. Bastien has worked on many
campaigns over the last 30 years and is the chair of the Florida
Immigration Coalition and vice chair of the Haitian American Grassroots
Coalition.
Sui Chung, to my immediate left, is an attorney with the
Immigration Law and Litigation Group in Miami, Florida. She chairs the
Immigration and Customs Enforcement Committee of the American
Immigration Lawyers Association, or AILA, and is past president of AILA
South Florida. Ms. Chung began her career at the Board of Immigration
Appeals through the United States Department of Justice Attorney
General Honors Program. She received a juris doctor from Georgetown
University Law Center, and my favorite fun fact about her bio is that
she received a Bachelor of Arts and Bachelor of Music from Oberlin
College and Conservatory of Music.
And then finally, as you can see on your video screen, Catherine
Woollard. Catherine Woollard is joining us from Brussels. She is
secretary general of ECRE, the European Council on Refugees and Exiles.
ECRE is an alliance of 102 organizations in 41 European countries
working to defend the rights of displaced persons in Europe and in
European external policies. ECRE is based in Brussels. Its work covers
litigation, research, advocacy, and communications. Ms. Woollard earned
a Bachelor of Arts in philosophy, politics, and economics at the
University of Oxford.
Ms. Wilson, we'll begin with you.
Ms. Wilson. Thanks, Nathaniel, and good afternoon, everybody. As
Nathaniel said, my name is Jill Wilson and I'm an immigration policy
analyst at the Congressional Research Service at the Library of
Congress. I'd like to thank the Helsinki Commission for convening this
briefing, and for inviting me to participate.
As an analyst for CRS, I adhere to congressional guidelines on
nonpartisanship and objectivity, and so I'll confine my remarks to the
technical, professional, and non-advocative aspect of temporary
protected status, or TPS. My remarks are intended to provide some
context for our discussion today, including what TPS is, how it came
about as part of U.S. immigration law, how it's been implemented, the
recent terminations and lawsuits around those, and then recent
congressional action on TPS.
So, first, what is TPS, and why did Congress create it? As a state
party to the 1967 U.N. Protocol Relating to the Status of Refugees, the
United States agrees to the principle of non-refoulement, which asserts
that refugees should not be returned to countries where they would face
serious threats to their life or freedom on account of a protected
ground. Those grounds are race, religion, nationality, political
opinion, membership in a particular social group. This is now
considered a rule of customary international law.
Non-refoulement is embodied in several provisions of U.S.
immigration law, including one that requires the government to withhold
the removal of a foreign national to a country in which his or her life
or freedom would be threatened on the basis of one or more of those
protected grounds. But there are situations in which foreign nationals
already present in the U.S. do not meet this strict definition for
relief, but who may nevertheless be fleeing or reluctant to return to
countries in which conditions threaten their safety. Historically, the
United States provided ad hoc blanket relief in these types of
situations through discretionary actions by the executive branch. Since
1962, of those forms of relief--which are called extended voluntary
departure, or EVD, and deferred enforced departure, or DED--have been
provided in the case of about 20 countries. Liberia is the only country
currently covered by DED.
In the late 1980s, Congress began holding hearings on the need for
a statutory basis for this kind of discretionary relief, something that
would fill a gap in the law by providing safe haven for individuals
whose home countries are experiencing generalized violence or disaster,
and that would address concerns over the lack of clear standards for
country designations that had been occurring under EVD. To address
these concerns, Congress enacted TPS in 1990 as part of a broader
immigration bill, the Immigration Act of 1990. The new TPS law
specified the three circumstances under which the attorney general, now
secretary of DHS, could designate a country for temporary protection in
periods of 6, 12, or 18 months. And those were: One, armed conflict;
two, natural disaster; or, three, other extraordinary circumstances
that prevent the safe return of a country's nationals.
The law also included the procedures by which the secretary of DHS
would make subsequent decisions to either extend or terminate a
country's designation. The law also spelled out the benefits to
individuals covered by TPS, most notably that they're protected from
removal and are authorized to work. As part of the 1990s Immigration
Act, Congress also designated El Salvador for an 18-month grant of TPS.
Since then, 22 countries have been designated for TPS, some on more
than one occasion. U.S. Government has extended TPS designations for
some of these countries and has terminated it for others. Prior to the
Trump administration, there were 15 terminations--nine under Democratic
administrations and six under Republican ones.
Ten countries are currently covered by TPS, benefiting some 400,000
individuals in the United States. The Trump administration has
announced terminations for six of these ten countries on the grounds
that the conditions on which the original designations were based no
longer exist. These terminations are currently on hold pending court
action. The four countries whose designations have been extended by the
Trump administration are Somalia, South Sudan, Syria, and Yemen. The
TPS statute requires the DHS secretary to consult with, quote,
``appropriate agencies of the government,'' end quote, before deciding
whether to designate, extend, or terminate a country for TPS. But it
does not otherwise specify a process for making such decisions.
The State Department is the main agency typically consulted. State
Department officials submit information on country conditions and a
recommendation to DHS for its consideration. DHS conducts its own
research on country conditions, independently of the State Department.
In a telephone conversation, DHS officials indicated that the initial
decision to designate a country for TPS is not entirely objective and
can take foreign policy and congressional and other stakeholder
interests into account, assuming that the statutory conditions are met.
By contrast, they indicated that the extension or termination decisions
cannot take these other factors into account.
Lawsuits are ongoing, covering all six of the countries whose TPS
designations have been terminated by the Trump administration. The
legal challenges focus on the administration's process for deciding
whether to extent or to terminate the TPS designations for El Salvador,
Sudan, Haiti, Nicaragua, Honduras, and Nepal. The plaintiffs, who are
TPS recipients and their U.S. citizen relatives from those countries,
contend that DHS violated their constitutional right to equal
protection because the agency's decision to end TPS were allegedly
``motivated in significant part by racial and national origin animus.''
The plaintiffs also argue that the TPS terminations violated the
Administrative Procedures Act because DHS adopted a different approach
without adequate justification to assessing whether to continue TPS
with respect to those six countries than it had in the past.
Specifically, they claim that DHS now only considered whether the
original basis for a country's TPS designation had continued without
examining more recent events in the country that might warrant
extending the TPS designation.
Individuals covered by the ten current TPS designations reside in
all 50 states, the District of Columbia, and U.S. territories. The
largest populations live in four traditional immigrant gateway states--
California, Florida, Texas, and New York. In addition, there are six
other states that had at least 100,000 TPS recipients as of November
2018. Those are Virginia, Maryland, New Jersey, Massachusetts, North
Carolina, and Georgia.
I'll conclude by talking briefly about recent congressional action
on TPS. Congress has not made substantive changes to the TPS statute
since its enactment in 1990. Over the years, many of the legislative
proposals related to TPS have had to do with granting or extending TPS
for particular countries, none of which passed. Beginning in the 115th
Congress, however, a greater number and variety of TPS-related bills
have been introduced. They can be categorized into two groups: Those
that would restrict TPS in some way and those that would expand it.
In the restrictive category are bills that would require Congress,
rather than the DHS secretary, to designate foreign states for TPS,
bills making ineligible for TPS foreign nationals who are unlawfully
present or who are members of criminal gangs, bills restricting the
criteria for designating a foreign state, bills making TPS recipients
subject to detention and expedited removal, and bills phasing out the
program completely. In the expansion category are those bills that
would extend or grant TPS for particular countries and bills that would
prohibit Federal funds from being used to implement the recent TPS
terminations.
Most expansive are the bills that would provide longer-term status
for TPS recipients who have been living in the United States for
several years. These proposals seek to address the situation of
hundreds of thousands of TPS recipients who have lived in the U.S. for
decades, whose temporary status is now being terminated, and who have
no other mechanism by which to stay lawfully in the country. Including
in this group of bills is H.R. 6, which recently passed the House. It
would provide lawful permanence residence to TPS and DED recipients who
have lived in the United States for at least 3 years.
Now I'll turn it back to Nathaniel.
Mr. Hurd. Thank you. Ms. Bastien.
Ms. Bastien. Thank you so much. I'd like to start by thanking
Commissioner Alcee [Hastings] for creating space for us. I also would
like to start by thanking and commending Commissioner Alcee Hastings,
who has been the staunch advocate over the years of not only human
rights but, since he's been elected to Congress, he's been a strong
advocate for immigrants and to encourage and pressure those in power to
respect the rule of law and to create more spaces for those who come to
our shores in search of a safe haven. Thank you very much to
Commissioner Hastings.
At FANM we are right here in the middle of Little Haiti, where our
office is located. We have been organizing around TPS and other issues
since 1981. I'm going to talk a little bit about TPS, and then all the
stuff that's been going on in Haiti. Throughout its history, as we
know, Haiti has suffered a lot of natural disasters, including
cyclones, hurricanes, tropical storms, floods, and earthquakes. From
1998 to 2010, for example, Haiti has been a bread basket for a series
of storms and hurricanes, including Hurricane George in 1998, Hurricane
Ivan and Jeanne in 2004, Hurricane Wilma in 2005. In 2008, just to give
you an example, Haiti saw, for one, three but four hurricanes, which
resulted in 2,000 killed livestock and then many of the food shortages
around the Nation.
But the worst disaster of all was the earthquake on January 12,
2010, which killed 350,000 people. Over 700,000 were displaced and the
entire Haitian infrastructure was destroyed. The Haitian Government had
also suffered a lot of damages because in the capital itself it lost 28
of its 29 government ministry buildings, including the national palace,
which has yet to be rebuilt. A lot of officials of the justice
department lost their lives. The women's movement was struck by a big
blow, because with the earthquake we lost about five pillars of the
women's rights in Haiti.
Even though Haiti has qualified for TPS for many years, since 1998,
we at FANM, we organize to work regarding status for Haitians. Both
Democratic and Republican administrations have declined to recognize
Haiti for temporary protected status. However, after the earthquake in
2010, President Obama [had no choice], and through the Secretary of
DHS, Janet Napolitano, approved TPS for Haiti to allow, in his
statements, to give it the chance to recover. And then since then, over
58,000 TPS families have been benefiting from temporary protected
status.
Over the years, 2010 TPS has been renewed and re-designated without
a lot of work. We, at FANM, we usually organize and coordinate
campaigns locally, statewide, and nationally. TPS has been renewed for
the 58,000 families because it was recognized that Haiti still
qualified as a result not only of political instability, but also a lot
of damages and crises created by the cholera which was brought to Haiti
after the earthquake in 2011, which left many people contaminated and
killed. Even up to today there are still thousands of people suffering
as a result of the imported cholera in Haiti.
However, after Mr. Trump was elected, he clearly indicated his
intent to terminate TPS in 2017. When Secretary John Kelly went to
Haiti, he spent about 4 hours at the national palace, and came back to
indicate that Haiti has recovered, and that the 58,000 families could
return to Haiti. However, we, at FANM, we led a coalition to Haiti, and
we completed a fact-finding mission. In our assessment, it was
determined that Haiti has yet to recover as a result of the earthquake.
It would take years for any nation to recover from a disaster of such
magnitude, let alone an island that has been crippled by not only
natural disasters within years, but also political upheaval and
political instability.
We were able to show that not only has Haiti yet to recover from
the earthquake, a lot of Haitian families were still suffering as a
result of the imported cholera epidemic. There were still a lot of
peasants and a lot of villages suffering as a result of food shortages
resulting from Hurricane Matthew in 2016. We were able to show that at
the border of the Dominican Republic and Haiti there were thousands of
refugees who have been living at the border since 2013. The Haitian
Government has not been able to help them. If the Haitian Government
has not been able to absorb these refugees, who have been living in
squalor at the border, the assessment showed that there is no way that
Haiti could absorb the 58,000 families of temporary protected status.
So, what is going on in Haiti right now? We know that Haiti has
been having a hard time recovering from the earthquake, from the
Hurricane Matthew, from the imported cholera epidemic. Now there is an
added challenge, because for the past few months the political
situation has really worsened in Haiti. As a result of the increase of
the fuel price, as a result of the PetroCaribe corruption scandal,
Haitians have been taking to the streets of Haiti en masse, asking for
the resignation of President Jovenel Moise. They've also been
protesting as a result of many arrests and human rights abuses as a
result of the absence of rule of law and as a result of several
massacres that have happened in Port-au-Prince and in different
villages, resulting in the deaths of many, many civilians. Haitians
have been taking to the street. Since Monday, they've been on the
streets every day, resulting in additional loss of lives.
Obviously Haiti is not ready. Haiti is not safe. Haiti cannot
absorb the 58,000 TPS recipients who have been living here for an
average of 7 to 13 years. That is why we were in Washington, DC a week
ago to advocate not only Members of Congress on both sides of the
aisle, Republicans and Democrats, for the passage of the Dream and
Promise Act, H.R. 6. We are very happy that it passed the House. But as
I'm speaking to you right now, next door 300 TPS families, who have
been gravely concerned about the termination of TPS--some of them have
suffered from post-traumatic stress syndrome since the Trump
administration terminated TPS for Haiti and Honduras, Salvador,
Nicaragua, and other nations.
I must say that the TPS recipients who are in the summit next door,
they are from different nations. Why? They are there to develop a
strategy so that if H.R. 6, the Dream and Promise Act cannot go past
the U.S. Senate, we know where the hurdle will be. TPS is still needed
in Haiti. TPS is still needed in Honduras, Salvador, and Nicaragua, and
Sudan, and a few other nations. That is why we are continuing to
organize to see that these TPS families are protected from
deportations. But we also want countries to organize to find permanent
solutions so that the 300,000 TPS recipients from Haiti, from
Nicaragua, from El Salvador, from Liberia and other African nations can
live here in peace and harmony, and that they can eventually become
permanent residents with a path to citizenship.
Last, we hope that Congress will take a close look at what's going
on in Haiti today. Because even yesterday people were on the streets,
people have died. I have my mom and my sister in Haiti right now. They
are stuck in the capital. They cannot leave. The conditions in Haiti
continue to deteriorate. Haiti still qualifies for temporary protected
status. I'm going to end on that note. TPS is still applicable, not
only for the countries that qualify now, but for countries in the
future which may experience natural and political disasters like those
qualifying recently in TPS right now.
Thank you for this opportunity, and I am open to your questions.
Mr. Hurd. Thanks very much. Just a few before you have to get back
to the summit. As you mentioned, an earthquake of that magnitude would
have devastated and taken years for recovery time had it happened in
the United States or some other country like it. But it happened in
Haiti. Just before asking the question, a little bit of historical
context. In 2009, the year before the earthquake, Haiti was ranked
149th out of 182 countries on the United Nations Development Program's
Human Development Index. The index was based on life expectancy at
birth, years at school for children and adults, and per capita income.
In 2017, the last year for which the UNDP has released an index, Haiti
was 168th out of 181 countries.
My first question is whether you can give us a sense of what
conditions were like in Haiti prior to the earthquake in areas like
public health, education, crime, corruption, rule of law, and human
rights. That's one question.
Another question for you, as someone who is part of the community
in Florida, and has been not only a resident but active in the
community through your organization for many decades, what was Haiti
like before the earthquake?
The second question is: What, in your view, would be the economic
impact in Florida itself if Haitian TPS recipients had to return home?
The final question is: Decisions are going to be made in the
Congress about the legislation you just mentioned, they're going to be
made by the administration, they're going to be made by the courts.
There are implications for American-born children. Can we say a bit
more about that aspect of it? What are the implications in all of this
for American-born children?
Ms. Bastien. I'll read the questions back. I'm going to start with
the first one: What was Haiti like before the earthquake? As I
indicated, Haiti has been the bread basket for a series of natural
disasters, even prior to the earthquake. There were a long list of
political storms and cyclones that have destroyed the infrastructure. I
know that not only from hearing it from the news, but after Hurricane
Wilma, for example, FANM organized the relief effort to Haiti after
several of these hurricanes.
Economically, politically, the situation was already very unstable
as a result of these natural disasters that had destroyed a lot of the
crops, pushing farmers from their land to the capital, creating a lot
of instability, a shortage of employment and, most importantly, human
rights violation. The justice system in Haiti has always been in
trouble because of the impunity. Even those women and children who are
victimized, for example, because of arbitrary arrest, didn't have any
recourse in the justice system in Haiti. Before the earthquake, there
was a lot of instability in Haiti. The earthquake exacerbated
conditions that already existed even prior to that serious disaster.
Now, in regard to the TPS recipients, and the economic impact of
deporting 58,000 TPS recipients on Florida: I must say that 20 percent
of the TPS recipients live in Florida. The TPS recipients contribute
economically because they are employed in our school system, in our
hospitals. They are employed in the service industry. You would lose
billions of dollars if the TPS recipients were to be deported to Haiti.
The economic impact would be tremendous, because the TPS recipients,
they work, they pay taxes, and they contribute to the economy of
Florida. These are people who have been living here for a long time.
They are homeowners. They are employers. Deporting will definitely have
a serious economic impact, in addition to the humane and moral impact
that they will create to divide our families.
We also know that within the 58,000 TPS recipients, there is an
average of 27,000 U.S.-born children. Deporting the 58,000 TPS families
will have a very serious economic impact on the economy of Florida and
will also divide our families. If a permanent solution is not found to
protect the TPS recipients, we could witness the biggest mass-
deportation of U.S.-born children in the U.S. We just heard from
several of our TPS in the summit. They are still working right now to
find equality, to find humanitarian solution. We heard their pain. We
heard their anxiety. We heard their concerns about being separated from
their parents. This is really something that we'd like to highlight,
that not only the 58,000 TPS families from Haiti, but the 300,000 TPS
recipients from Haiti, from El Salvador, from Honduras, from Nicaragua,
from Sudan, and other African nations. There is an average of 375,000
to half a million U.S.-born children. This is a thing that we must take
into consideration when we consider the termination of temporary
protected status.
What was the last question?
Mr. Hurd. You actually answered it. It was about the children.
Ms. Bastien. The implications for the families are really, really,
really serious, especially in matters like that. Children of TPS
recipients are deeply rooted in our communities, and they are children.
They can't be separated. I will end by saying that in Miami, in
Florida, we are at the intersection of immigration. Beyond TPS families
that were forced out of their countries, they build their communities
right, in South Florida, in Miami. Now they are facing displacement
again. This time there is nowhere to go. There is nowhere to go.
Mr. Hurd. Thank you. Thanks, again, for taking the time from the
summit. We hope it goes well.
We'll return to opening remarks. To my left, Ms. Chung.
Ms. Chung. Hello. My name's Sui Chung. I'm here on behalf of the
American Immigration Lawyers Association, AILA. I want to thank the
Helsinki Commission, Chairman Alcee Hastings, all of your work on TPS,
all of your engagement with us in Florida. I am also from Miami,
Florida, so I enjoyed hearing the remarks of Ms. Bastien. Also, I'd
like to thank Nathaniel and my co-panelists for today.
I'm going to briefly read some AILA statements and press releases,
as well as go over some of the challenges that TPS recipients face in
gaining permanent status. A little bit later on, I'm going to highlight
some case samples from my own work with TPS recipients and the
complexities that are involved. I think that probably the public is
under the impression that if you have TPS perhaps that leads to
permanent residence. But there's a lot of wrangling and a lot of
difficulty involved to become a permanent resident. So temporary
protected status is exactly that--temporary.
On June 4th, AILA applauded the passage of the American Dream and
Promise Act, H.R. 6, in the House of Representatives on a bipartisan
vote of 237 to 187. The bill offers permanent legal status for
``Dreamers,'' thousands of people with temporary protected status, and
deferred enforced departure holders. However, unless legislation is
passed, TPS recipients remain at risk of being detained and deported.
For more than two decades, Congress has been unable to pass laws that
provide much-needed reform to our immigration system. AILA, a
nonpartisan entity, is prepared to work with Congress to pass
immigration reform that meet the current needs of the U.S. economy,
families, and safety.
TPS recipients are at greater risk of deportation. Since taking
office, the Trump administration has attempted to end temporary
protected status for the nationals of several countries. Ending TPS for
these hundreds of thousands of individuals would end their ability to
lawfully work in the U.S. and would subject them to arrest and
deportation. This group has lived, worked, and established extensive
family and community ties within the United States. On average, TPS
recipients have been in the U.S. for 22 years.
Although the Federal courts have enjoined the termination of TPS
for some countries, these court orders are temporary. If a higher court
rules unfavorably, those with TPS would be vulnerable to losing
authorization to work and reside in the U.S., and they would be subject
to deportation. Current enforcement priorities are such that U.S.
Immigration and Customs Enforcement and U.S. Customs and Border
Protection will continue to rarely exercise prosecutorial discretion,
and instead arrest, detain, and deport people that have no criminal
history, do not present a threat to public safety, have significant
family and community ties, and contribute to the U.S. economy through
their employment and spending.
Ninety-four percent of TPS recipients are employed. In 2017, they
paid $5.5 billion in Federal, State, and local taxes. Collectively,
they have $25 billion in spending power. Loss of this entire population
would cripple the U.S. economy and harm entire communities. Eighty
percent of Americans wish to protect TPS holders and Dreamers.
TPS for Venezuela has been proposed in both the House and the
Senate. Earlier this year, on March 13th, AILA joined together with
more than 200 national, state, and local organizations whose work
focused in the areas of immigration, civil rights, human rights, labor,
faith, and education. The collective groups wrote a letter to the
Department of Homeland Security and the Department of State requesting
that Venezuela be designated for TPS under Section 244 of the
Immigration and Nationality Act. It is an objective fact that the
ongoing civil unrest and humanitarian crisis makes it impossible for
some 72,000 Venezuelan nationals and their families to safely return to
the country at this time.
The secretary may designate a country for TPS if she ``finds that
there is an ongoing armed conflict within the state, and due to such
conflict requiring the return of aliens who are nationals of that state
to that state would pose a serious threat to their personal safety'' or
``there exist extraordinary and temporary conditions in the foreign
state, but prevent aliens who are nationals of the state from returning
to the state in safety.'' Since April 2017, Venezuela has faced
unprecedented civil crisis, including persecution and killings of
citizens, medicine and food shortages, erosion of civil and human
rights, suppression of the media, arbitrary arrests, detention, and
riots.
The U.S. Department of State currently has a travel advisory in
effect warning U.S. citizens against visiting the country as a result
of ``social unrest, violent crime, pervasive food and medicine
shortages,'' and specifically noting that ``indiscriminate violent
crime is endemic throughout the country and can occur anywhere at any
time.'' Today, 4 of the top 10 most dangerous cities in the world are
in Venezuela.
With any type of proposals pertaining to TPS, what is it that we
need fixed? Generally speaking, the situations that individuals require
fixing is even something like adjustment of status to permanent
resident after marriage as an immediate relative. Probably the public
believes that marriage to a U.S. citizen would result in permanent
residency. For many TPS holders, if not most TPS holders, this requires
multiple steps and is very difficult.
Oftentimes TPS holders are in the United States already with a
final order of removal, or they did enter without initial inspection.
Accessing permanent residency is not just a simple step of a petition.
It involves multiple waivers. It could dangerous to travel abroad. It
has an element of discretion regarding hardship. It has been a long
process, and a very expensive process, for individuals who are lucky
enough to have an immediate relative petition available to them because
they have since married a U.S. citizen.
Another situation that we're trying to cure with any type of
legislation would be to patch those who have fallen out of status, who
then can't go on to access permanent residency channels. They may have
entered with status, and then unable to adjust status to permanent
residency because they've since fallen out. Because of the civil unrest
or the conditions in their country, they are unable to return. There
are also situations where individuals were unable to apply properly, or
they applied pro se, or through the assistance of perhaps a notario.
The original TPS applications were not adjudicated properly. They were
not able to access that protection from the beginning.
Finally, those that don't have an immediate relative petition, or
any relative petition, or an employment-based petition. Many TPS
recipients have employers that wish to petition for them, but that are
unable to before permanent residency because of various bars of being
out of status or initially entered without a visa admission. Multiple
steps are involved to gain permanent residency. I think that's a
question that we have to ask ourselves: What is it that we're trying to
do with H.R. 6 or any type of bill for TPS recipients? It is not
necessarily to extend temporary protected status but to move those who
have been here on average 22 years into some sort of permanent status,
to eventually become permanent residents and then on to U.S.
citizenship to become permanent members of our community.
I'll save the case samples for the question and answer.
Thank you.
Mr. Hurd. Thank you. Ms. Woollard.
Ms. Woollard. Thanks very much for the invitation to provide the
comments here. I've been asked to give a comparative perspective from
Europe. I'm going to cover three points in my brief comments. First,
what is situation in Europe when it comes to public protection
statuses? Second, the consequences of this situation. Then, third,
conclusions on the reason why this has been the response to the
contemporary arrivals of the people in Europe.
Looking at the first point, what is the situation in Europe? When
it comes to protection status, and the protection status of individuals
arriving to seek protection may be granted, we have what we call the
asylum lottery. We call it a lottery because there is inconsistent, and
therefore unfair, decisionmaking, and inconsistent use of status across
Europe. There's also a strong variation in the content of protection in
the rights that are attached to different protection statutes. In that,
I think we see similarities with the U.S. situation, in the sense that
refugee status, of course, is the gold standard, greater rights
attached, and then there are other protection statuses that are more
precarious, or more fragile.
The three main types of protection status in Europe are refugee
protection, subsidiary protection, and humanitarian protection. Refugee
protection is based on the convention grounds--persecution according to
membership with one of the groups defined in the convention. Subsidiary
protection is awarded to individuals who face a real risk of suffering
serious harm if returned to their countries of origin. Now, this
protection status is really something that's evolved because of the
limitations of the refugee convention. As we know, there are situations
of violence, other risks to an individual, who may not meet those
persecuted grounds under the convention but still cannot be returned
because there's a risk of serious harm.
Finally, we have humanitarian protection statuses, which are kind
of individual statuses, where none of the refugee laws or subsidiary
protection apply--the individual doesn't qualify for them--but there
are still reasons why they cannot be returned. Those cover a whole
variety of different cases. They include things like cases where people
have suffered violations en route, for instance, where the threshold is
not met for risk of violence, indiscriminate violence, under subsidiary
protection case.
The final type of status I want to mention is temporary protection
status. Now, the statuses just mentioned, in effect, are temporary, in
the sense that they're time bound. What has been less used recently in
Europe is the type of temporary protection status that is similar to
the TPS in the U.S., where people of a particular nationality fleeing
from a particular country will be after a particular temporary
protection regime.
Where we saw this used in Europe was in the 1990s in response to
this recent crisis in the former Yugoslavia, where individual European
countries generally dealt with that displacement by putting in place
temporary protection regimes, due to influx situation emergency. A big
question in Europe in recent years is why such a regime wasn't put in
place to cope with the increase in arrivals that took place during this
political crisis on refugee issues. I want to sometimes call it the
refugee crisis, but we prefer not to use that term.
You do see a temporary protection regime of this type in Turkey.
That is basically because Turkey has a number of restrictions in place
when it comes to refugee conventions, only on this refugee status,
essentially to Europeans. Slightly more complicated, but basically
that. And they've put in place a temporary protection regime for the
3.6 million Syrians who are currently hosted by Turkey. In the rest of
Europe, that has been a limited response in recent years.
And let me move, briefly, to the situation of these different
statuses, what we see happening within Europe. Basically, there's
widespread divergence across the countries of Europe, the 28 EU member
States. There's inconsistency in the use of different statuses. The
same person would be awarded refugee status in one country, but
subsidiary protection in another. Take the example of Syria, where of
course recognition rates are high because we know what's happening in
Syria. In some countries in Europe, the majority of Syrians arriving
receive refugee status. In other European countries, they receive
subsidiary protection status. Different entitlements then follow.
Our analysis shows that these different protection statuses have a
wide variation when it comes to the rights attached. Key rights that
are of interest and necessity for people who are seeking protection
vary. If you have refugee status, your residence rights are for a
longer duration. For subsidiary protection, less time is granted for
residential rights. In some cases, there are very stark differences.
For instance, in France, if you have refugee status, you get 10-year
residence rights. Subsidiary protection, 4 years. Slovenia, 10 years
and 1 year. Which protection status you get is, of course, extremely
important.
Family reunification has been a key issue in recent years. We've
seen a dramatic increase in the awarding of subsidiary protection,
partly because it doesn't come with the same family reunification
rights. That then means, for instance, Syrians granted subsidiary
protection don't have the same family reunification rights as those
granted a refugee status in a neighboring country. There are similar
issues with social benefits and access to citizenship.
To wrap up on that point, we're seeing the use of subsidiary
protection as an inferior protection status. So fewer rights attached.
It was introduced as something that was intended to be a temporary
nature. For that reason, it tends to have fewer rights attached to it.
However, if it's being granted to Syrians, to other caseloads, people
who are in situations of long-term displacement, in practice it hasn't
turned out to be a temporary protection status. It's something where
people have protection needs for longer times as well. One of our main
arguments is to equalize the rights attached to these different
statuses.
Let me just conclude with a few comments on the consequences of
this situation. I think, above all, what concerns us is the lack of
fairness for applicants. There are serious consequences depending on
what protection status somebody is granted, particularly in an era
where Europe is very much focused on deportation and cessation of
status as early as possible. The family separation has been increased.
This is the number of people getting subsidiary protection without
family reunification rights.
Other things, like the shortened period of residency rights, means
that we see challenges with inclusion, for instance, access to the job
market. If people's residence permit is for a limited time, it's less
likely that employers will provide jobs. We also see a situation of
secondary movement, which is movement from one EU country to another,
because of this question of different rights and the likelihood of
being given refugee status or another status. Our system creates
inefficiency because we and others, and governments themselves, are
tied up in legal challenges. We do a lot of work on litigation. Quite a
body of that work is about upgrading statuses, to try to get people's
status upgraded to a better form of status.
We see within this context in Europe an increasing use of
precarious statuses. I would give you one example there, which is
perhaps a more extreme example. Denmark, which operates outside, and
has opted out, of most of the EU asylum law, has introduced a temporary
protection status for Syrian refugees. It's now attempting to impose
the sanction to end that protection and return them to Syria. We can
discuss that more if it's of interest.
The reason this is happening stems, I think, from the response to
the 2015 European political crisis on asylum and migration, where the
strategy has been to focus on prevention and arrival into Europe,
including prevention of the arrival of refugees. An aspect of that is
creating a so-called hostile environment within Europe. These changes,
using more precarious protection statuses, is based on the idea of
deterrence, and the idea that there are pull factors drawing people to
Europe.
My final remark, I would say, is that this is part of a wider
picture where rights are at risk and where we see inconsistencies, and
therefore a situation of lottery. Recognition rates also vary hugely
across Europe. Protection rates, whatever status, may vary with certain
nationalities, from 8 percent to 98 percent, depending on which country
in Europe they lodge an asylum application in. Particularly for Afghans
and Iraqis applying for asylum in Europe, there's this huge divergence
in terms of the likelihood of recognition.
I will end there. I'm happy to provide more detail on the points
that are relevant to your discussion.
Mr. Hurd. Thank you. Before we open it up to questions from the
audience, I'm going to ask each of our speakers just a few questions
each. If you could keep your responses somewhat short to make sure that
we have time for questions from the audience, I would appreciate it.
I'll start with Ms. Wilson.
As we've heard, TPS designation is for effectively an entire
country. It covers all nationals from a country, nationals who are
currently here in the United States.
Under U.S. law, are there any mechanisms for granting temporary
protection on an individual basis, rather than on a national basis? Are
you also aware of any legislation that would amend the underlying TPS
statute to replace the designation of entire countries with temporary
protection on an individual case-by-case basis that's more akin to what
we've seen in Europe?
The final question has to do with process. The lawsuits, as we've
heard, in part rest on the argument that proper process and procedure
haven't been followed, particularly as they relate to the statute. What
can you tell us about the process of determination and extension,
termination and, in particular, whether there is anything in the
statute itself, or whether there's anything in the rules or regulations
that guide or determine those processes?
That's for you. I'll just throw my other questions out there, and
then we'll go down the line and answer them.
Ms. Chung, you hinted at this a little bit in your opening remarks.
But as a practitioner, as someone who has clients, who works with
clients every day, can you walk us through with a little bit more
granularity, the challenges, complications, and problems for your TPS
clients as they navigate the U.S. legal system? In your judgment, what
needs to be done? Who needs to do what, basically, to address those
complications and problems?
The other question that I would ask has to do with H.R. 6, and then
the statute more broadly. That legislation covers current TPS
recipients, people who are currently living in the United States who
have been granted TPS protection.
In your view, should the underlying TPS statute be amended so that
future TPS populations would be affected by that change in statute? If
you think it shouldn't be amended, if you could sort of explain why you
think it shouldn't be. But if you think it should be, you know, what
should those statutory changes be?
Then for Ms. Woollard: As you alluded, there is a mechanism that
has been used in the past, this temporary protection mechanism, that
covers entire nationalities. You mentioned examples from the Balkans.
In your view, what are the advantages and disadvantages to granting
temporary protection on an individual basis rather than on a blanket
nationality basis? Do you think that Europe should shift to a more
blanket nationality basis? Or, should they maintain the currently
mostly individual basis for non-refugee protection?
You highlighted the inconsistency between decisionmaking depending
on which country someone seeking protection ends up at. I think the
term you used was the lottery. The context, of course, is you have 28
individual member States who have their own sovereignty. What is the
best way to ensure more consistent decisionmaking, and better
protection for those seeking it, given the sovereignty of the
individual EU member States?
In a final area, something that one reads about periodically, and I
think you may have alluded to, is the issue of destitution--literally,
destitution of people who have come to Europe and are seeking
protection.
Can you expand a little bit on that as well?
We'll start with Ms. Wilson for answers.
Ms. Wilson. Your first question was about what mechanisms exist in
current law that can provide protection of some sort on an individual
basis. Because this briefing is about non-asylum protection, I won't go
into that. But of course, that exists, and it is adjudicated on an
individual basis.
But there are few other mechanisms that exist that provide relief
from removal for individuals. A couple of those are things that can be
applied for affirmatively, such as parole.
This is only given in the case of an urgent humanitarian reason, or
if there's a significant public benefit. It's completely at the
discretion of DHS. Those are adjudicated, decided on an individual
basis. The conditions under which those individuals are allowed to stay
in the United States are at the discretion of DHS, and they vary.
Sometimes you're allowed to apply for work authorization. Sometimes
you're not.
Deferred action is another mechanism that's sometimes used to
provide temporary protection on an individual basis. The DACA
initiative is one example, where that was done for a group, the
Deferred Action for Childhood Arrivals. But there are other forms of
deferred action.
Then there are three mechanisms which provide individual relief in
the case of somebody who's already in removal proceedings. There's
withholding of removal under the INA, which is the Immigration and
Nationality Act, and then there's also withholding of removal under the
Convention Against Torture, or CAT. There's also deferral of removal
under the CAT.
These are three examples where somebody's in removal proceedings,
and then they claim that they would be in danger if they were to be
returned to their countries. These are mechanisms that can be
considered and decided on an individual basis.
Your second question was about whether there's any legislation
that's been introduced to replace TPS with something like we see in the
EU. That's a short answer: No. I haven't seen anything in the last two
Congresses. I'm not aware of anything before that. In terms of the
process, I mentioned some of it in my opening remarks, the process for
deciding whether a country's going to be designated initially and then
whether it will be extended or terminated after that. There are some
guidelines in the statute, but it doesn't go into specifics.
It does require the DHS secretary to consult with appropriate
agencies of government. As I mentioned, that's typically the State
Department, but it can sometimes include other agencies. For example,
when the Ebola epidemic was going on in West Africa, DHS consulted with
the CDC to track the epidemic. TPS was designated for Liberia, Sierra
Leone, and Guinea between 2014 and 2017 as a result of that epidemic.
Then in 2017, the Obama administration decided the conditions had
improved such that they were going to terminate TPS for those three
West African countries.
But in the statute, it does say that 60 days prior to the
termination date, the DHS secretary has to reexamine the conditions in
the country and make a decision about whether things have improved to
an extent that he or she determines TPS is no longer required. That
decision then has to be put in the Federal Register with the
justification, the reasoning for why he or she made the decision that
was made. Beyond what's in the statute, there's not written guidance on
the decisionmaking process. I mentioned some of the conversations that
I've had over the phone with DHS officials about this. But it's also
one of the main points of contention that's being played out right now
in the courts.
Ms. Chung. I was asked different questions, but I just want to
comment on those questions, just very briefly. Regarding parole,
deferred action withholding, deferral of removal, those are all very
difficult things to get. Right now, the administration very rarely is
patrolling asylum seekers. We're seeing that play out with the family
separation crisis that is all over the news, as well as the ``remain in
Mexico'' policy, where asylum seekers are being returned to Mexico to
wait out their time to complete their asylum process. So,
hypothetically something like parole, because you are an applicant for
asylum and you're waiting for that adjudication to occur, is supposed
to happen. But it's very difficult and not so common. There are many
criteria that have to be fulfilled--that you're not a flight risk, that
you have certain ties. So, it's not as easy as it sounds when you list
these various provisions.
Something on deferred action is typically tied with some other
benefits. Jill mentioned DACA. That is a pure sort of deferred action
program. But there are other programs that permit deferred actions,
such as Violence Against Women Act recipients, or those who were
victims of violent crimes in the United States waiting for that non-
immigrant visa. Then deferred action may be given. But these are all
conceptually things that you can do, but it's very rare and very small
to get. Even humanitarian parole in the United States is very difficult
to get. Often if we have to request that, we are going to all of you,
people on the Hill, requesting assistance in extremely compelling
circumstances.
As far as case samples, I want to illustrate just how difficult it
is when a TPS recipient wants to get permanent residency. I have a
couple of case samples that I'm going to read.
Case of F.A.: F.A. was only a child when she arrived from Haiti.
She does not know when or how she arrived but believes she may have
been drugged and brought by plane. She lived most of her childhood
without knowing she was undocumented, up until she began filing TPS
applications after the earthquake in Haiti.
In her early 20s, F.A. was working in a retail establishment when
she was held up at gunpoint. She was able to file for a nonimmigrant
visa as a victim of a violent crime committed in the United States, but
the wait time for adjudication is measured in years, and visa issuance
is backlogged for as much as 8 or 9 years. Her immediate future is
uncertain because of the future of TPS, even with a pending
nonimmigrant victim of crime visa. She cooperated with law enforcement
to help protect our communities. That's why she's being issued this
visa. She would be subject to arrest and deportation if TPS is
terminated.
Case of D.A.: D.A. was an asylum seeker in the United States and
pregnant with her third U.S.-citizen child when her spouse was suddenly
arrested and deported to Haiti. Her spouse had no crimes but had an
order of removal after losing his asylum case--despite being eligible
for Section 245[i] adjustment of status to lawful permanent resident,
after his U.S.-citizen sibling petitioned for him before April 2001.
This is a special provision, an old provision. He was eligible for it.
He could have adjusted his status. But he was arrested and deported.
Months later, after much delay by the by the immigration courts,
D.A. also lost her own asylum case before an immigration judge. She
continued to reside and worked two jobs in the U.S., separated from her
spouse, raising three of her own United States-citizen children, her
stepdaughter, while supporting her deported spouse in Haiti. Nearly a
decade later, D.A. was able to obtain TPS, and she had better access to
employment in the nursing profession. Later, her spouse was able to
rejoin her in the U.S. with lawful permanent residency. However, the
reunion was short-lived. She discovered he was unfaithful and had
another family in Haiti. He was abusive, and he violently raped her.
The two separated and she was able to petition for herself under
the Violence Against Women Act, and she was able to obtain permanent
residency in the United States through that. Because she was married to
a permanent resident and was a victim of severe domestic violence, of
extreme cruelty, she was able to access this. Had she not been able to
do this, she would be in TPS status, until TPS is terminated. Then she
would be removed and deported. Her access was a result of a very
violent situation, the same as the child example I gave. Otherwise,
they are not eligible for permanent residency in any other way, because
they don't have access to the relevant petitions or the waivers.
I have one more case example. J.A. arrived from Honduras, based on
poor and dangerous country conditions. J.A. lived in an apartment
complex where many undocumented persons resided. This region became a
target for armed robbers, as criminals know that immigrants are
hardworking and often carry cash in their homes and on their persons,
because they're unable to open bank accounts--or, it's difficult to.
One evening J.A. was talking on his porch with friends and neighbors.
Multiple armed persons attacked them, shooting him and injuring many of
them.
A police investigation ensued. J.A. cooperated, giving a
description of the incident as a victim and a witness. He continued to
be responsive to police inquiries and investigation. To this day, he
has psychological and emotional problems based on the violence he
witnessed. He is eligible for a nonimmigrant visa as somebody who is a
victim of a violent crime. However, despite repeated requests, law
enforcements are not signing the certification necessary to proceed
with that formal application. So, he is out of luck. Right now, he's in
TPS status. Once that concludes, he doesn't have any petitions
available to him to try to address any type of permanent residency, so
he will be deported.
I think you had another question for me.
Mr. Hurd. I did. The question basically was, should, in your view,
changes be made to the underlying TPS?
Ms. Chung. H.R. 6 does provide for what one of the lawsuits that
we're seeing is about.
There's a class action right now in New York to deem temporary
protected status as an admission in itself. It prevents the necessity
for people to have to travel abroad to gain permanent residency and
return. There's something called the 3-year or the 10-year bar. If
you've been here longer than 6 months, in the United States, without
status, you have a 3-year bar if you depart. If you've been here longer
than 1 year, you have a 10-year bar to return. This is what's
preventing a lot of people from being able to access permanent
residency, this 3-year but, in most cases, 10-year bar.
H.R. 6 does assist with that, in that it allows people here to have
already been considered to have been admitted just by way of the TPS
grant. Moving on to permanent residency through an immediate relative,
at times it's available through an employment-based option. That is
favorable. As far as any future for TPS, the TPS statute has to
consider these populations have been here for a long time--some of them
decades. Just the designation or the termination going away, it's a
loss of a huge population that contributes to our economy, tens of
thousands--hundreds of thousands of U.S.-born children who are here,
and their parents have to leave.
What I think needs to be addressed in the future is the fact that
there needs to be something else, something beyond just TPS on a
temporary basis. If populations are here for an extensive amount of
time, we need to move into some sort of permanent residency process or
availability for them. We're doing that on a case-by-case basis, where
we're looking at a population now, and we're seeing, should they be
eligible for a permanent residency? That's a lot of wrangling and
difficulty. If it could move onto, yes, a certain amount of time has
passed, allow TPS recipients to move forward, I think that would be a
better program.
Mr. Hurd. Thank you.
Ms. Woollard.
Ms. Woollard. Thank you very much. Let me take those three
questions in turn. You're very correct in saying the three main
statuses that I referred to are designed as individual assessments. So
actually, the same caseworker will have the option of considering
refugee status if the person doesn't qualify. Then you see if there are
grounds for awarding subsidiary protection or a humanitarian protection
status.
We support individualized assessment because it is in line with
international refugee law and international human rights law, that an
individual's case is assessed, they have a fair hearing, regardless of
their country of origin, and that aspect isn't part of the assessment.
However, there may be situations of large-scale displacement, where a
temporary protection regime for a particular nationality is
appropriate.
So long as the rights that are attached to that temporary
protection status are adequate, and these will include exactly the kind
of issues that you're discussing today. The European experience was
that in the 1990s, the temporary protection regimes offered to people
fleeing former Yugoslavia were decided at the national level. They were
very inconsistent. They had different rights according to the country.
A piece of EU legislation was introduced to ensure consistency. But
that has never been invoked. It wasn't invoked in 2015 when we saw a
million people arriving.
That could have been a situation where a temporary protection
regime for those leaving Syria would have been helpful, because it
would have immediately have allowed for assumption of protection needs
for people leaving a particular place, rather than them having to enter
a status determination process. It would also have allowed for a fair
distribution across Europe of people arriving which, as you know, was
one of the reasons for the unnecessary political crisis in Europe. That
was an absence of fair responsibility sharing among the European
countries, and absence of a collective response.
Instead of putting in place a temporary protection regime, despite
having the legislation to do that, instead the EU-Turkey deal was the
solution chosen, which was to prevent people from arriving rather than
apply a particular kind of temporary regime and allow them to arrive.
That continues to be the approach in Europe.
The second question, in terms of harmonization and the lack of
consistency, one of the responses to the crisis was to try and ensure
better consistency with a raft of proposals to reform EU asylum law.
The problem there was that it was harmonization at the lowest possible
level. It removed the discretion that European countries have to offer
more favorable treatment--the proposal did. These proposals haven't
been passed. But the idea was to tackle inconsistency through a lowest
common denominator approach.
For us, this is problematic. We are concerned about the
inconsistency, because it's so unfair. But our solution to that would
be that the member States are obliged to comply with the existing
standards, rather than the standards are reduced for everybody. If we
look at the reasons for the inconsistencies across Europe, these are to
do with incompetency, poor decisionmaking, lack of capacity in asylum
systems. But I think they're also to do with issues such as political
interference, often indirect rather than direct, but political
interference in asylum decisionmaking. All of that is based on trying
to reduce protection rates, because that is the contemporary reality.
Our approach to that is to ensure support for all member States, as
well as legal proceedings where necessary, to make sure that they're
being complied.
The final question on this destitution arises from some of these
issues, but I would say to some extent it's tangential. We have
different categories of people on the move who are in situations of
destitution within Europe. In some cases, they're asylum seekers.
Destitution arises because assistance has been cut to such a low level
that it's not enough to survive on while the asylum cases are being
processed. This is introduced as a deterrent. It's part of a sort of
attempt to reduce the pull factors.
The second group is people in irregular situations. These are
people who can't access assistance because they have no status--
undocumented people, people who have moved within Europe even though
the rules say that they're not allowed to do so. The Dublin Regulation
allocates responsibility to the country of first arrival. If people
move to another country, they may lose benefits. People who don't want
to register for exactly the reasons of inconsistency that we've just
been discussing. If you're an Afghan, and you know that your chance of
being recognized in Bulgaria is 8 percent, whereas in France it's 98
percent, then clearly you have an incentive to move. But this may then
have consequences for your access to assistance and lead to
irregularity.
The final question of destitution: I'm afraid it's what we call
strategic destitution. This is the use of destitution as a political
tool. That may be to make particular countries seem less appealing, so
that people don't settle there. It may be due to the removal of
statuses. We have extreme right-wing ministers holding ministry of
interior positions in a number of European countries. They will use
that kind of tactic.
For example, in Italy, many of the reforms put in place by Matteo
Salvini, the interior minister, willfully to increase destitution of
third-country nationals in Italy. That's not necessarily something that
Salvini will suffer from, because the destitution then creates public
fear, which leads to increased votes for him and his party.
Mr. Hurd. Thank you. We'll then open it up to questions from the
audience. One of my colleagues has a microphone. If you ask a question,
please state your name and affiliation.
Yes, the gentleman in the front.
Questioner. Thank you all for doing this. I really appreciate it.
Quinn Owen with ABC News.
I have a two-part question for Ms. Wilson. First, does CRS have any
estimates and breakouts on the number of people TPS-eligible right now?
Then, to your knowledge, does H.R. 6 apply equally to all of the TPS-
designated nationalities now, and all those that would be designated
going forward?
Ms. Wilson. In terms of the estimates for the currently covered
countries, we do have numbers that USCIS, which is part of DHS, puts
out. I've got those numbers I can give to you afterwards, broken down
by country, and that includes the six that have been terminated. In
total, it's around 400,000. But certain countries are much, much
larger. El Salvador's almost half.
In terms of H.R. 6, the way it's written is that anyone who had TPS
about 3 years ago, and who has been in the country for at least 3
years, would qualify. It includes those who were from the three
countries that I mentioned earlier that were designated under the Ebola
epidemic: Liberia, Sierra Leone, and Guinea. It's actually 13 countries
that would be able to qualify, even if they've left the country,
because the way the statute is written is anyone who had TPS and has
been in the U.S. for at least 3 years prior to that date.
Mr. Hurd. Any other questions from the audience? Do we have any
from our Facebook viewers? Sir, yes, the gentleman in the middle.
Questioner. Kyle with Congressman Kim's office.
Just a quick clarifying question. If TPS is done in periods of 6 to
18 months, how does it work that many TPS recipients have been here for
2-plus decades, and certain countries have been TPS-designated for 10-
plus years?
Ms. Wilson. After the initial designation of 6, 12, or 18 months--
in practice, I don't think it's ever been designated for 6 months. It's
always been 12 or 18. But after that initial period, as a I mentioned,
60 days prior to the end of that period, the DHS secretary has to make
a determination about whether they'll extend or terminate. For these
ones that have had it for so long, it's just a factor of the fact that
it has been extended many, many times over that period.
Questioner. Can be extended indefinitely?
Ms. Wilson. Yes.
Ms. Chung. I also want to state that some persons are here prior to
the TPS designation, so they may have resided here with status, without
status, or they may even have a final order, but because of that TPS
designation they are able to then access that relief, that ability to
be here with TPS. That could, you know, play into the number of years.
Mr. Hurd. Yes, gentleman in the back.
Questioner. Hi. Thank you for joining us today.
I had a question about the role of climate change. We talk about
TPS and basically its status protecting people who are coming from
places where there's conflict, places where they wouldn't be able to
return. I'm curious about the role of climate change, whether that's
considered--or whether that will be considered in terms of migration
policy in the United States and EU, seeing as the effects of climate
change are pushing people--are a push factor for migration.
Mr. Hurd. Thank you for that question. And, your name and
affiliation?
Questioner. Susan.
Mr. Hurd. Thank you.
Sui and Catherine? Any responses to that?
Ms. Woollard. I think this takes us really to the crux of the
discussion that we're having today. What we've seen in Europe is an
attempt to deny protection to people other than those meeting the very
narrow convention grounds based on persecution. We know that there are
a number of other reasons for which people will need protection and
climate change is among them. But rather than seeing a trend toward
expanding and creating new types of protection status, we're actually
seeing the opposite happening. I think the risk is that we'll see
people displaced due to climate, multiple reasons, Climate change may
affect their security, their livelihoods, and so on--but without any
provision for a legal response to that.
There has been a debate over the last 10 years about whether the
refugee convention should be opened up in order to introduce new
grounds for offering protection. The real push has come because of
climate change to offer some form of protection for those displaced
through climate. Our view, unfortunately, is that in the current
political context, it would be very unwise to open up a discussion
about the refugee convention, to open up the convention and try to
revise and reform the convention, because unfortunately it would lead
actually to the situation of a more restrictive approach rather than
the kind of expansion that we want.
Finally, I would note, the sort of patchwork that we see in Europe
with the three different types of protection status and then increasing
numbers of people in irregular situations, a lot of that is due to
climate displacement. It's a factor in the situations from which many
people are fleeing. Those who don't apply for refugee status under the
convention grounds, they're not being persecuted, but they're on
climate-related issues that are forcing them to leave. There's been
that we see, I would say, a political failure to get to grip the
consequences in terms of additional displacement that climate change is
generating.
Mr. Hurd. Thank you.
Are there any other questions from the audience or from our
Facebook viewers? I'm seeing none. I want to extend a hearty thanks to
our panelists, especially Ms. Woollard, for joining us late into the
night. It's about a 6-hour time difference with Brussels. So, we
especially appreciate you joining us.
Before we close out I also want to thank several of my colleagues,
starting with one of our Max Kampelman fellows, Annie Lentz, whose
heroics, especially with the audio-visual, you were able to see in
action today and made what was a very complicated briefing possible.
Thank you, Annie.
Thanks also to my colleague Stacy Hope, our communications
director, and Jordan Warlick, who is our events coordinator, and all
other colleagues who helped put this together.
Thanks, again.
[Whereupon, at 3:32 p.m., the briefing ended.]
=======================================================================
A P P E N D I X
=======================================================================
Introduction
Good afternoon. I would like to thank the Commission on Security
and Cooperation in Europe for convening this briefing and for including
me in it.
As an analyst for the Congressional Research Service, I adhere to
congressional guidelines on objectivity and non-partisanship and will
confine my remarks to the technical, professional, and non-advocative
aspects of Temporary Protected Status. Thus, my remarks are intended to
provide some context for our discussion today, including what Temporary
Protected Status (TPS) is, how it came about as part of U.S.
immigration law, how it's been implemented, and recent legal challenges
to TPS terminations.
What is TPS and why did Congress create it?
As a State Party to the 1967 United Nations Protocol Relating to
the Status of Refugees, which incorporates the 1951 Refugee Convention,
the United States agrees to the principle of nonrefoulement, which
asserts that refugees should not be returned to countries where they
would face serious threats to their life or freedom on account of a
protected ground (i.e., race, religion, nationality, membership of a
particular social group or political opinion). (This is now considered
a rule of customary international law.) Nonrefoulement is embodied in
several provisions of U.S. immigration law, including one that requires
the government to withhold the removal of a foreign national to a
country in which his or her life or freedom would be threatened on the
basis of one or more of the five protected grounds.
There are situations in which foreign nationals present in the
United States do not meet this strict definition for relief, but who
may nevertheless be fleeing or reluctant to return to countries in
which conditions threaten their safety. Historically, the United States
provided ad hoc relief in these types of situations through
discretionary actions by the executive branch. Since 1960, two forms of
relief--Extended Voluntary Departure (or EVD) and Deferred Enforced
Departure (or DED)--have been provided in the case of about 20
countries. Liberia is the only country currently covered by DED.
In the late 1980's, Congress began holding hearings on the need for
a statutory basis for this kind of discretionary relief from removal--
something that would fill the gap in the law by providing safe haven
for individuals whose home countries are experiencing generalized
violence or disaster and that would address concerns over the lack of
clear standards for country designations that had been occurring under
EVD.
To address these concerns, Congress enacted the TPS statute in 1990
as part of a broader immigration bill, the Immigration Act of 1990. The
new TPS law specified the three circumstances under which the Attorney
General (later, the Secretary of DHS) could designate a country--in
periods of 6, 12, or 18 months--for temporary protection: 1) armed
conflict, 2) natural disaster, or 3) other extraordinary circumstances
that prevent the safe return of a country's nationals. It also included
the procedures by which the Secretary of DHS would make subsequent
decisions to extend or terminate a country's designation. The law also
spelled out the benefits to individuals covered by TPS, most notably
that they are protected from removal and may apply for work
authorization. As part of the 1990 Immigration Act, Congress also
designated El Salvador for an 18-month grant of TPS.
Implementation of TPS and recent litigation
Since then, 22 countries have been designated for TPS, some on more
than one occasion. The U.S. Government has extended TPS designations
for some of these countries, and has terminated TPS designations for
others. Prior to the Trump Administration, there were 15 TPS
terminations, nine under Democratic Administrations and six under
Republican ones. Ten countries are currently covered by TPS, benefiting
some 400,000 individuals in the United States. The Trump Administration
has announced terminations for six of the ten countries on the grounds
that the conditions on which the original designations were based no
longer exist. These terminations are currently on hold pending court
action. The four countries whose designations have been extended by the
Trump Administration are Somalia, South Sudan, Syria, and Yemen.
The TPS statute requires the DHS Secretary to consult with
``appropriate agencies of the government'' before deciding whether to
designate, extend, or terminate a country for TPS, but does not
otherwise specify a process for making such decisions. The State
Department is the main agency typically consulted; State Department
officials submit information on country conditions and a recommendation
to DHS for its consideration. DHS conducts its own research on country
conditions independently of the State Department. In a telephone
conversation, DHS officials indicated that the initial decision to
designate a country for TPS is not entirely objective and can take
foreign policy and congressional and other stakeholder interests into
account, assuming statutory conditions are met. By contrast, they
indicated that extension or termination decisions cannot take these
other factors into account.
Lawsuits are ongoing covering all six of the countries whose TPS
designations have been terminated by the Trump Administration. The
legal challenges focus on the Administration's process for deciding
whether to extend or terminate the TPS designations for El Salvador,
Sudan, Haiti, Nicaragua, Honduras, and Nepal. The plaintiffs, who are
TPS relief recipients from those countries and their U.S. citizen
relatives, contend that DHS violated their constitutional right to
equal protection because the agency's decisions to end TPS were
allegedly ``motivated in significant part by racial and national-origin
animus.'' The plaintiffs also argue that the TPS terminations violated
the Administrative Procedure Act because DHS adopted a different
approach--without adequate justification--to assessing whether to
continue TPS with respect to the six countries than it had in the past.
Specifically, they claimed that DHS now only considered whether the
original basis for a country's TPS designation had continued, without
examining more recent events in the country that might warrant
extending the TPS designation.
Individuals covered by the 10 current TPS designations reside in
all 50 States, the District of Colombia, and U.S. territories. The
largest populations live in four traditional immigrant gateway States:
California, Florida, Texas, and New York. In addition, 6 other States
had at least 10,000 TPS recipients as of November 2018: Virginia,
Maryland, New Jersey, Massachusetts, North Carolina, and Georgia.
Congressional action
Congress has not made substantive changes to the TPS statute since
its enactment. Over the years, many of the legislative proposals
related to TPS have had to do with granting or extending TPS for
particular countries (none of which passed). Beginning in the 115th
Congress, however, a greater number and variety of TPS-related bills
have been introduced. They can be categorized into two groups: those
that would restrict TPS in some way and those that would expand it.
In the restrictive category are bills that would require Congress-
rather than the DHS Secretary-to designate foreign States; making
ineligible for TPS foreign nationals who are unlawfully present or who
are members of criminal gangs; restricting the criteria for designating
a foreign State; making TPS recipients subject to detention and
expedited removal; or phasing out the program completely.
In the expansion category are those bills that would extend or
grant TPS for particular countries and bills that would prohibit
Federal funds from being used to implement recent TPS terminations.
Most expansive are the bills that would provide longer-term status for
TPS recipients who have been living in the United States for several
years. These proposals seek to address the situation of hundreds of
thousands of TPS recipients who have lived in the United States for
decades, whose temporary status is now being terminated, and who have
no other mechanism by which to stay lawfully in the country. Included
in this group of bills is H.R. 6, which recently passed the House. It
would provide lawful permanent residence to TPS and DED recipients who
have lived in the United States for at least 3 years.
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