Haitian TPS Ends, Eventually

On November 20, 2017, Acting Secretary of Homeland Security Elaine Duke announced the end of temporary protected status (TPS) for Haiti, but with a caveat: It comes “with a delayed effective date of 18 months to allow for an orderly transition before the designation terminates on July 22, 2019.”

In an October 31, 2017 post, I explained that, as applied, TPS is anything but “temporary”. While at least the TPS designation for Haiti comes with an expiration date, 18 months seems a little extreme.

In the initial designation of Haiti for TPS, in 2010, U.S. Citizenship and Immigration Services (USCIS) explained then-Secretary of Homeland Security Janet Napolitano’s rationale for that designation:

On January 12, 2010, Haiti was struck by a 7.0-magnitude earthquake. [The Department of Homeland Security (DHS) and the Department of State (DOS)] have conducted an initial review of the conditions in Haiti following the earthquake. Based on this review, the Secretary has determined to designate Haiti for TPS for 18-months pursuant to section 244(b)(1)(C) of the [Immigration and Nationality Act (INA)] for reasons discussed below. The Department of State concurs in the designation of Haiti for a period of 18 months.

The epicenter of the earthquake was off the coast of Haiti, and only 17 km from the capital, Port-au-Prince, an area where some three million of the nation’s nine million residents reside. Aftershocks have been measured at 5.9 and 5.5 respectively, and more aftershocks are expected.

Reports indicate that the earthquake destroyed most of the capital city. Initial estimates indicate that the death toll is substantial. The International Red Cross indicates that about three million people — one-third of Haiti’s population — have been affected by the earthquake.

Reports also indicate that concrete homes have collapsed and hospitals are overflowing with victims. The Presidential Palace, the Ministry of Justice, Parliament, the tax office and other government buildings, as well as the United Nations headquarters, and the World Bank offices are among the buildings reported to be destroyed or damaged. Hospitals and schools have been destroyed. The Ministry of Public Works and the Ministry of Communication and Culture have also been damaged.

The country’s critical infrastructure, including its capacity for the provision of electricity, water, and telephone services, has been severely affected. Food and water are increasingly scarce. Fuel shortages are emerging as an immediate concern.

There is limited access to the capital city. Roads are blocked by debris and other obstacles, and the collapse of the Croix de Mission Bridge has cut off a major artery between Port-au-Prince and the northern part of the country, making it more difficult to transport food, fresh water, and medical supplies. Haiti’s main airport in Port-au-Prince, Toussaint L’Ouverture International Airport, also has suffered significant damage that is hindering access to the country.

Following that earthquake, the United States and various international organizations rushed to Haiti’s aid. For example, the United States Agency for International Development (USAID) has provided significant emergency, recovery, and reconstruction assistance to that country. Specifically:

USAID supports the creation of full-time, formal-sector employment in key industrial sectors, including agribusiness, apparel and construction by providing matching funds, technical assistance and business development services to small and medium sized enterprises. For example, USAID has leveraged over $13 million of private sector funds and created over 13,000 jobs through a matching grant program. USAID is also using public-private partnerships in Haiti to improve social and economic conditions as well as to deepen its development impact.

In addition, the agency:

Introduced improved seeds, fertilizer, irrigation and other new technologies to over 118,000 farmers; these increased yields for rice, corn, bean and plantain crops. As a result, farmers’ incomes have increased significantly. Feed the Future programs have also strengthened agricultural markets by reducing post-harvest losses and linking producers directly to markets. USAID microcredit programs have reached 57,000 small-scale farmers with an agricultural loan portfolio valued at close to $32 million.

Further, it:

Supports 164 health facilities that provide access to primary health care services for approximately 40 percent of the population. USAID trained and supports 1,500 community health workers who serve rural communities without access to nearby health services. These community health workers and educators provide health services and disseminate key health messages in coordination with USAID-supported health facilities.

Most significantly, USAID has also taken steps to clean up corruption in that country and to improve the rule of law.

The U.S. Department of Defense did its part as well. Interestingly, in an article critically comparing recent U.S. government efforts following Hurricane Maria in Puerto Rico to those following its response to the Haitian earthquake, the Washington Post noted:

After an earthquake shattered Haiti’s capital on Jan. 12, 2010, the U.S. military mobilized as if it were going to war.

Before dawn the next morning, an Army unit was airborne, on its way to seize control of the main airport in Port-au-Prince. Within two days, the Pentagon had 8,000 American troops en route. Within two weeks, 33 U.S. military ships and 22,000 troops had arrived. More than 300 military helicopters buzzed overhead, delivering millions of pounds of food and water.

In Haiti, the United States was able to deploy active military combat brigades, quickly install a military commander and militarize the airspace at the invitation of Haitian officials.

In addition to U.S. forces:

The French, Italian, Dutch, Spanish and Canadian Navies sent ships that arrived within the first week (including the Italian Carrier Cavour). An Argentine military field hospital, that was part of the UN Mission in Haiti – MINUSTAH, was the only hospital left operating. Within a week, rescue and medical teams arrived from the United States, Canada, Russia, France, Chile, Peru, Jamaica, Brazil, Colombia, Cuba, Iceland, Sri Lanka, China, and Korea. From the Middle East, the government of Qatar sent a strategic transport aircraft (C-17) and the Qatari armed forces set up a hospital. The Israeli Defense Forces also established a field hospital which included specialized facilities to treat children and the elderly. Initially the relief teams were autonomous with independent logistics support. Since the functioning logistics train ended at the edge of the Port-au-Prince airport – the field hospitals and emergency response vehicles ended up clustered there as well.

Despite the significant American and international aid that has flowed to Haiti since the 2010 earthquake and the improvements in that country’s condition, however, opponents of the administration have criticized Acting Secretary Duke’s decision. According to CNN:

Democratic National Committee Chairman Tom Perez blasted the Haiti move on Twitter, saying that “Donald Trump’s cruelty knows no bounds.”

“As the proud son of two immigrants who fled an oppressive regime, I’m disgusted at the President’s heartlessness,” Perez said in a statement shared by the DNC. “With this decision, Trump is tearing families apart and turning his back on the values that have made our country great.”

Sen. Bill Nelson (D-Fla.) called the decision “unconscionable”, and Rocio Saenz, executive vice president of the Service Employees International Union (SEIU) (which claims to represent many TPS beneficiaries), stated that the move was “heartbreaking, and harmful in every way.”

In Washington, criticisms from political enemies are a part of the game, and it is fair to describe Chairman Perez, Sen. Nelson, and the SEIU as “enemies” of the Trump administration. Even erstwhile allies of the president, however, stated their disapproval of the plan to terminate the program.

For example, Rep. Ileana Ros-Lehtinen (R-Fla.) stated that she had been to Haiti twice, once following the earthquake that led to the initial designation of that country for TPS in 2010, and once following Hurricane Matthew in 2016, and could “personally attest that Haiti is not prepared to take back 60,000 TPS recipients under these difficult and harsh conditions.”

Writing in the Miami Herald on November 17, 2017, Sen. Marco Rubio (R-Fla.) opined:

If TPS is not extended, Haitians sent home will face dire conditions, including lack of housing, inadequate health services and low prospects for employment. Failure to renew the TPS designation will weaken Haiti’s economy and impede its ability to recover completely and improve its security.

In her statement announcing the termination of TPS for Haiti, however, Acting Secretary Duke presented a different picture of the situation on the ground in that country:

Since the 2010 earthquake, the number of displaced people in Haiti has decreased by 97 percent. Significant steps have been taken to improve the stability and quality of life for Haitian citizens, and Haiti is able to safely receive traditional levels of returned citizens.

Haiti has also demonstrated a commitment to adequately prepare for when the country’s TPS designation is terminated.

The secretary’s action, and the criticisms thereof, bring into focus many of the problems with the current TPS program.

The “delayed effective date” for these beneficiaries is akin to “voluntary departure”, which is granted to removable aliens to allow them to get their affairs in order before leaving in the United States. Section 240B of the INA “authorizes DHS (prior to the initiation of removal proceedings) or an immigration judge (after the initiation of removal proceedings) to approve an alien’s request to be granted the privilege of voluntary departure in lieu of being ordered removed from the United States.” By statute and regulation however, voluntary departure is limited to 120 days. It is not clear from the secretary’s statement why a year-and-a-half extension is necessary for those Haitians who have been granted TPS to depart the United States.

The termination of that status with such a lengthy “delayed effective date” makes it more likely that Haitian TPS beneficiaries will be included in any future DACA amnesty bill. While that may have been the secretary’s point, such a conclusion would be pure speculation on my part. If they are included, any such legislation should include reforms of the TPS program along the lines I have detailed in my earlier TPS post.

Further, many of the criticisms of the secretary’s actions are irrelevant to the issue of whether TPS should be extended for nationals of that country. The New York Times, for example, decries the dilemma faced by Haitians who are residing in the United States who have enjoyed the benefits of that residence under TPS. Of note is its depiction of the story of Peterson Exais.

According to the paper, Exais was rescued from the earthquake rubble and brought to the United States for medical treatment in the age of nine. In the United States, the 17-year-old has become a “promising dancer at a magnet school in Miami” with “dreams of pursuing studies at the Juilliard school.” He regrets that, if he is returned home, he “might not be able to give all that [he] could give back.”

Similarly, in his opinion piece in the Miami Herald, Rubio detailed the positive impacts that Haitian TPS beneficiaries have made on his home state: “South Florida has benefited greatly from the remarkable contributions made by many Haitian Americans in politics, business and culture. I have seen firsthand the potential of the Haitian community when given the opportunity.”

In the initial designation of Haiti for TPS, USCIS stated:

The [INA] authorizes the Secretary, after consultation with appropriate agencies of the government, to designate a foreign State (or part thereof) for TPS. One of the bases for TPS designation is “there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless [she] finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States. … The Secretary has determined, after consulting with the Department of State (DOS) and other government agencies, that there exists in Haiti “extraordinary and temporary conditions,” preventing Haitian nationals from returning to Haiti in safety and that permitting eligible Haitian nationals to remain temporarily in the United States would not be contrary to the national interest.

TPS is not a blanket authority granted by Congress to DHS to promote the aspirations of the lucky few (compared to their homebound countrymen) who benefit from such designations. Nor was it meant to create a labor pool for American employers. And Congress certainly did not create TPS as a cure for those countries that are unable on a non-temporary basis to handle the return of their nationals for economic, political, cultural, or other reasons. Rather, TPS can only be granted and extended on a nation’s inability to “temporarily” handle the return of its nationals in exceptional circumstances.

Critics of the secretary’s actions appear to believe that TPS that can only be terminated when the conditions in the designated country match those in the United States. That would be an impossible standard to meet.

One final point demonstrates the problems that accrue when TPS is extended indefinitely. The New York Times reports that almost “30,000 children have been born in the United States to Haitians with protected status,” noting that they are “citizens and entitled to stay.” That paper also alludes to the fact that some of the parents of those children may be eligible to apply for cancellation of removal under section 240A(b)(1) of the INA, if they can establish that removal would result in “exceptional and extremely unusual hardship” to those citizen children.

In addition, it cites an attorney who correctly notes that if the TPS beneficiaries remain and “are arrested, they would be entitled to deportation hearings.” Because of immigration court backlogs, that attorney asserts, if those aliens were to contest their cases, they would gain “at least” an additional “seven to 10 years” in the United States. Unfortunately, he’s right.

TPS is similar to another pressing topic of the day, opioid use. If a patient is in true pain, administering opioids will be a palliative. The longer that the drug is used, however (especially when it is no longer needed), it becomes habit-forming, and the subsequent withdrawal itself becomes a painful process with its own set of deleterious consequences.

This is not to say that TPS should not be granted when appropriate. But, as I have argued before, improper extension of that status to any given country makes it less likely that (like opioids) it will be prescribed in any except under the most extreme circumstances in the future.

Expect this to be the first, however, not the last, that you will hear about the status of these Haitian TPS beneficiaries.

Click HERE to read more from this author.

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