The presidential election likely means a new perspective on immigration policy. But a potentially divided Congress means that it may be difficult to enact immigration reform legislation that addresses the major problems in America’s immigration system.
One area where most observers normally think an obvious fix exists would be the restoration of the Deferred Action for Childhood Arrivals (DACA) program that the current administration had slated for termination. The problem, however, with such a quick fix is that there is an existing lawsuit in a Texas federal court challenging the legality of DACA for not having been issued with notice and comment rulemaking and also for violating the Immigration and Nationality Act (INA). The same court previously invalidated the Obama administration’s Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program for the same reasons the DACA program is being challenged, and the Supreme Court’s composition has changed since 2016 such that many more immigration cases have been adjudicated in favor of the enforcement position.
In addition, even at its most ambitious, the DACA program only helps a very small percentage of the estimated 10 to 12 million undocumented individuals living in the United States.
There is, however, a statutory program that grants unreviewable discretion to the president that could help almost all of the undocumented individuals in the United States on day one of a new presidency. Title 8 Section 1254a of the U.S. Code specifically authorizes a U.S. president to grant any foreign national Temporary Protected Status (TPS) if there is an “earthquake, flood, drought, epidemic, or other environmental disaster” in the foreign national’s home country. Pursuant to the statute, a grant of TPS provides: a) relief from removal; b) the ability to work in the United States; and c) the ability to become eligible for lawful permanent residency if the foreign national has a qualifying relative (spouse, parent or child) or U.S. employer who will petition the individual for a green card.
A proposal available under the INA that could address the flux of DACA recipients would be that, on day one of a new administration, the president would grant TPS to every foreign national without status who was present in the United States prior to March 13, 2020, which was the date the current administration declared a national emergency regarding the coronavirus outbreak. The current administration has already laid the groundwork for such a global granting of TPS by having had the director of The Centers for Disease Control and Prevention (CDC) issue a memorandum pursuant to Title 42 Section 265 of the U.S. Code that bans foreigners from entering the United States by identifying “the existence of a communicable disease” throughout the world and stating that “COVID-19 is a global pandemic that has spread rapidly.”
This TPS announcement would allow all people already present in the United States to immediately gain 18 months of legal status, and would place many people already here on a path to gain lawful permanent residency, which they cannot now gain by virtue of being in undocumented status. It would also not be subject to being overturned by the courts given how clearly the statute permits the granting of TPS for nationals of a country where there is an epidemic, and given that the current administration itself has recognized a global epidemic in its orders banning people from entering America’s land borders due to this epidemic.
The manner most conducive to removing the uncertainty for DACA recipients and others in precarious immigration statuses would not involve running the risk of: a) waiting for Congress to pass legislation given that might not ever pass; b) reinstating a deferred action or parole program that is likely to be stricken by the courts for not going through the formal regulatory process; nor c) spending over a year in the formal regulatory process trying to craft a regulatory program that may still be stricken by the courts.
The most effective solution if the goal is to provide certainty is often the easiest one, and the TPS solution simply uses the road that the current administration already paved when it excluded all foreign nationals from the United States on the basis of the existence of a global pandemic. It is axiomatic that if it is too dangerous to accept foreign nationals from countries where the COVID-19 pandemic is rampant, it is equally dangerous to remove foreign nationals in the United States to countries where the COVID pandemic is rampant.
Consequently, a new approach should be considered that involves the use of TPS and it is the more certain path to achieving the relief that was intended by the DACA program, but for a larger group of individuals.
Leon Fresco is a partner in Holland & Knight’s Washington, D.C., office where he focuses his practice on providing global immigration representation. Before joining Holland & Knight, he was the deputy assistant attorney general for the Office of Immigration Litigation at the U.S. Department of Justice’s civil division.
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