[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]

      
                                      
    The Helsinki process, formally titled the Conference on Security 
and Cooperation in Europe, traces its origin to the signing of the 
Helsinki Final Act in Finland on August 1, 1975, by the leaders of 33 
European countries, the United States and Canada. As of January 1, 
1995, the Helsinki process was renamed the Organization for Security 
and Cooperation in Europe (OSCE). The membership of the OSCE has 
expanded to 56 participating States, reflecting the breakup of the 
Soviet Union, Czechoslovakia, and Yugoslavia.
    The OSCE Secretariat is in Vienna, Austria, where weekly meetings 
of the participating States' permanent representatives are held. In 
addition, specialized seminars and meetings are convened in various 
locations. Periodic consultations are held among Senior Officials, 
Ministers and Heads of State or Government.
    Although the OSCE continues to engage in standard setting in the 
fields of military security, economic and environmental cooperation, 
and human rights and humanitarian concerns, the Organization is 
primarily focused on initiatives designed to prevent, manage and 
resolve conflict within and among the participating States. The 
Organization deploys numerous missions and field activities located in 
Southeastern and Eastern Europe, the Caucasus, and Central Asia. The 
website of the OSCE is: .


    The Commission on Security and Cooperation in Europe, also known as 
the Helsinki Commission, is a U.S. Government agency created in 1976 to 
monitor and encourage compliance by the participating States with their 
OSCE commitments, with a particular emphasis on human rights.
    The Commission consists of nine members from the United States 
Senate, nine members from the House of Representatives, and one member 
each from the Departments of State, Defense and Commerce. The positions 
of Chair and Co-Chair rotate between the Senate and House every two 
years, when a new Congress convenes. A professional staff assists the 
Commissioners in their work.
    In fulfilling its mandate, the Commission gathers and disseminates 
relevant information to the U.S. Congress and the public by convening 
hearings, issuing reports that reflect the views of Members of the 
Commission and/or its staff, and providing details about the activities 
of the Helsinki process and developments in OSCE participating States.
    The Commission also contributes to the formulation and execution of 
U.S. policy regarding the OSCE, including through Member and staff 
participation on U.S. Delegations to OSCE meetings. Members of the 
Commission have regular contact with parliamentarians, government 
officials, representatives of non-governmental organizations, and 
private individuals from participating States. The website of the 
Commission is: .


               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.
[GRAPHICS NOT AVAILABLE IN TIFF FORMAT]

                                   [all]

  

            This is an official publication of the Commission on
                    Security and Cooperation in Europe.

                  < < < 

                  This publication is intended to document
                  developments and trends in participating
                  States of the Organization for Security
                     and Cooperation in Europe [OSCE].

                  < < < 

           All Commission publications may be freely reproduced,
            in any form, with appropriate credit. The Commission
            encourages the widest possible dissemination of its
                               publications.

                  < < < 

                      www.csce.gov       @HelsinkiComm

                 The Commission's Web site provides access
                 to the latest press releases and reports,
                as well as hearings and briefings. Using the
         Commission's electronic subscription service, readers are
            able to receive press releases, articles, and other
          materials by topic or countries of particular interest.

                          Please subscribe today.