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The Case for Protected Status for Central American Migrants | Commentary

In recent years, the United States has experienced a steady rise in unauthorized migration from Guatemala, El Salvador and Honduras, the “northern triangle” countries of Central America. A crippling set of adverse conditions — including staggeringly high crime rates, weak government institutions and scarce employment opportunities — is fueling this trend. Transnational gangs are now a formidable political force in the region, generating protracted violence that has caused thousands to flee.

The arrival of these migrants coincides with (and indeed, has stoked) debates about U.S. immigration policy and the appropriate balance between punitive and protective measures. In recent months, the Obama administration has faced criticism for detaining Central American families, and for its seeming indifference to root causes of migration. One solution to this regional challenge, which balances the on-the-ground reality in Central America with the need for a politically expedient solution — is the conferral of Temporary Protected Status upon nationals of these three countries.

TPS is an immigration remedy that exists under federal law. It allows foreign nationals who are already in the U.S. to remain here and work when it not feasible for them to return to their country of origin. The Department of Homeland Security may designate countries for TPS in cases of armed conflict, natural disasters or when there exist “extraordinary and temporary conditions” in the foreign state that make a safe return impossible. With the recent addition of Guinea, Liberia and Sierra Leone due to the Ebola crisis, a total of 11 nations are currently designated for TPS.

Conditions in El Salvador, Guatemala and Honduras more than justify a current TPS designation, and presidents of the countries have floated the idea with the White House, so far to no avail. Yet the United Nations recently declared Honduras to be the deadliest country in the world, with El Salvador and Guatemala close behind. Organized criminal groups are so powerful that international law experts have analogized the situation in the northern triangle to a conventional armed conflict. The unique mix of debilitating conditions, framed by ineffective governance and ubiquitous violence surely constitute the type of “extraordinary” conditions contemplated by the statute.

Honduras and El Salvador are on the list of current TPS designees, from when natural disasters affected the countries in 1999 and 2001, respectively. Since TPS applies only to those foreign nationals in the U.S. as of the date of designation, migrants who arrived subsequently cannot apply. According to the DHS, there were approximately 1.5 million unauthorized migrants from the three northern triangle countries living in the U.S. in 2011. While some will benefit from the executive actions announced last month, tens of thousands more will not, as the proposal encompasses only undocumented individuals who have permanent resident or citizen children, and who have been in the U.S. for at least five years.

During a time of deep public division about immigration reform, a TPS conferral upon such a large group might seem politically infeasible. In reality, pursuing this route is likely to quell some of the controversy around the executive orders, while providing a more stable, suitable status for Central American migrants.

While immigration scholars have defended the legality of the president’s actions, several state governments have nevertheless challenged the move in federal court, citing Constitutional concerns. Since TPS is explicitly authorized by Congress, a conferral is likely to dull some of the criticism around unfettered executive authority. Even if the orders are successfully implemented, a TPS conferral would shrink the size of the new program, thus making it more palatable. For those concerned about the welfare of the migrants, TPS is an acceptable, if imperfect, remedy. It will protect migrants who cannot satisfy the eligibility requirements for asylum, or who are left out of the administration’s recent announcement. Since it is linked to country conditions, the TPS status (typically extended in 18-month increments) should remain in effect until the situation in the northern triangle improves. And since TPS rests on sound statutory footing, political concerns (including arbitrary termination by a future president) are less likely to materialize. Finally, given prior TPS designations, the status is familiar to Central American migrants, and should yield a high number of applicants.

To be clear, TPS is not a panacea, either for the situation in Central America or the ongoing immigration debate. The crisis in the northern triangle will take years to resolve, and migrants will continue to trickle northwards. At a minimum, however, a TPS conferral will temporarily alleviate concerns about reintegrating over a million persons into that region. Instead, the migrants will be able to live and work in the U.S., with an appropriate level of protection. The approach also makes political sense for the Obama administration, which can invoke an immigration remedy tailored to Central America, and which has the gravitas to garner public support.

Eric Hershberg is director of American University’s Center for Latin American and Latino Studies and professor of government. Jayesh Rathod is an associate professor of law at American University Washington College of Law, and founding director of the law school’s Immigrant Justice Clinic.

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