Temporary Protected Status and Deferred Enforced Departure

Summary

Background

In addition to TPS, two other discretionary forms of blanket relief from removal known as deferred enforced departure (DED)⁸ and extended voluntary departure (EVD)⁹ are available options. The discretionary procedures of DED and EVD have been used on a country-specific basis to provide relief the Administration feels is appropriate, usually in response to war, civil unrest, or natural disasters. Several presidents, notably President George H.W. Bush and President Barack Obama, have cited presidential authority under the U.S. Constitution when they issued executive orders providing DED.¹⁰ The statutory authorities typically cited by the agency for DED and EVD procedures are the section of immigration law that confers prosecutorial discretion for general enforcement and the section of the law covering the authority for voluntary departure.¹¹ Unlike TPS, the Secretary of State need not be consulted when DED or EVD is granted.

The discretionary procedures of DED and EVD continue to be used to provide relief the Administration maintains is appropriate, and the executive branch's position is that all blanket relief decisions require a balance of judgment regarding foreign policy, humanitarian, and immigration concerns. In contrast to TPS, aliens who benefit from EVD or DED do not necessarily register for the status with USCIS, but they trigger the protection when they are identified for deportation. If, however, they wish to be employed in the United States, they must apply for a work authorization from USCIS.

Country

Current Expiration Date

El Salvador

February 13, 2001

September 9, 2016

204,000

Guinea

November 20, 2014

May 21, 2016

2,000

Haiti

January 12, 2011

July 22, 2017

50,000

Honduras

December 30, 1998

July 5, 2016

61,000

Liberia

November 20, 2014

May 21, 2016

4,000

Nepal

June 24, 2015

December 24, 2016

10,000-25,000

Nicaragua

December 30, 1998

July 5, 2016

2,800

Sierra Leone

November 20, 2014

May 21, 2016

2,000

Somalia

May 1, 2012

March 17, 2017

270

South Sudan

January 25, 2016

November 2, 2017

Sudan

January 9, 2013

November 2, 2017

450

Syria

January 5, 2015

September 30, 2016

5,000

Yemen

September 3, 2015

March 3, 2017

500- 2,000

Source: CRS compilation of USCIS data.

In 1990, when Congress enacted the TPS statute, it also granted TPS for one year to nationals from El Salvador who were residing in the United States. Subsequently, the Attorney General, in consultation with the State Department, granted TPS to aliens in the United States from the following countries: Liberia from March 1991 to October 2007; Kuwait from March 1991 to March 1992; Rwanda from June 1995 to December 1997; Lebanon from March 1991 to March 1993; the Kosovo Province of Serbia from June 1998 to December 2000; Bosnia-Herzegovina from August 1992 to February 2001; Angola from March 29, 2000, to March 29, 2003; Sierra Leone from November 4, 1997, to May 3, 2004; and Burundi from November 4, 1997, to May 2, 2009.

On July 9, 2011, South Sudan became a new nation.¹² With South Sudan's independence from the Republic of Sudan, which has had TPS since 1997, some questioned their continued eligibility for TPS under the Sudan designation. With the new designation of South Sudan, some individuals now qualify for TPS under the South Sudanese designation, while others may still qualify under the Sudan designation.¹³

Rather than extending Salvadoran TPS when it expired in 1992, the George H. W. Bush Administration granted DED to what was then estimated as 190,000 Salvadorans through December 1994. The George H. W. Bush Administration also granted DED to about 80,000 Chinese following the Tiananmen Square massacre in June 1989, and the Chinese retained DED through January 1994. In December 1997, President Clinton instructed the Attorney General to grant DED to the Haitians for one year due to country conditions.

Nepal was devastated by a massive 7.8 magnitude earthquake on April 25, 2015, killing over 8,000 people. The earthquake and subsequent aftershocks demolished much of Nepal's housing and infrastructure. Over half a million homes were reportedly destroyed.¹⁴ On June 24, 2015, citing a substantial but temporary disruption in living conditions as a result of the earthquake, DHS Secretary Jeh Johnson designated Nepal for TPS for an 18-month period.¹⁵ It is estimated that 10,000 to 25,000 nationals of Nepal are eligible for TPS under this designation. TPS for Nepal is set to expire on December 24, 2016.¹⁶

In January 2014, the Ebola virus disease was detected in West Africa, beginning in Guinea and spreading to Liberia, and Sierra Leone.¹⁷ On November 21, 2014, Secretary of Homeland Security Jeh Johnson designated Guinea and Sierra Leone for TPS through May 21, 2016,¹⁸ citing the outbreak of the Ebola in West Africa.¹⁹ The current Ebola outbreak, the first in West Africa, is the largest outbreak and as of November 21, 2014, over 2,400 had died in the two countries and there had been over 6,700 reported cases.²⁰ On June 25, 2015, the Administration extended the registration period for TPS, which expired on May 21, 2015, to August 18, 2015.²¹

The political uprising of 2011 in Syria soon grew into an intensely violent civil war that had displaced over 6 million people by 2014.²² On March 29, 2012, then-Secretary of Homeland Security Janet Napolitano designated the Syrian Arab Republic (Syria) for TPS through September 30, 2013, citing temporary extraordinary conditions that would make it unsafe for Syrian nationals already in the United States to return to the country.²³ Foreign nationals from Syria are among those subject to additional security screenings and background checks in order to obtain a visa to come to the United States because Syria is deemed a state sponsor of terrorism.²⁴ The ongoing uprising against Syrian President Bashar al Asad had escalated to the point that then-DHS Secretary Napolitano said "conditions in Syria have worsened to the point where Syrian nationals already in the United States would face serious threats to their personal safety if they were to return to their home country." In the initial granting of TPS, Napolitano made clear that DHS would conduct full background checks on Syrians registering for TPS.²⁵ On January 5, 2015, TPS was once again extended for Syria through September 30, 2016.²⁶

The civil war in Yemen reached crisis proportions last year, and the United Nations estimated that at least 5,878 people had been killed in the violence as of December 2015.²⁷ Additionally, relief efforts to the region have been difficult to deliver due to ongoing violence and considerable damage to the country's infrastructure. A DHS release stated that "requiring Yemeni nationals in the United States to return to Yemen would pose a serious threat to their personal safety."²⁸ On September 3, 2015, Secretary of Homeland Security Johnson designated Yemen for TPS through March 3, 2017, due to the ongoing armed conflict in the country. The Secretary cited that the conflict has affected 21 of Yemen's 22 governorates and "has caused an acute and rapidly deteriorating humanitarian crisis" within the country. It is estimated that 500-2,000 nationals of Yemen may be eligible for TPS. ²⁹

The devastation caused by the January 12, 2010, earthquake in Haiti prompted calls for the Obama Administration to grant TPS to Haitians in the United States at the time of the earthquake.³⁰ The scale of humanitarian crisis after the earthquake—estimated thousands of Haitians dead and reported total collapse of the infrastructure in the capital city of Port au Prince—led DHS to grant on January 15, 2010, TPS for 18 months to Haitian nationals who were in the United States as of January 12, 2010. Then-Secretary Janet Napolitano stated: "Providing a temporary refuge for Haitian nationals who are currently in the United States and whose personal safety would be endangered by returning to Haiti is part of this Administration's continuing efforts to support Haiti's recovery."³¹ On July 13, 2010, Napolitano announced an extension of the TPS registration period for Haitian nationals. Citing the difficulties nationals were experiencing in obtaining documents to establish identity and nationality, and the difficulty in gathering the funds required to apply for TPS, the registration period was extended through January 18, 2011.³²

Then-Secretary Napolitano extended and re-designated TPS for Haitians on May 17, 2011. The extension was effective July 23, 2011, and enabled eligible individuals who arrived up to one year after the earthquake in Haiti to receive TPS. The re-designation targeted individuals who were allowed to enter the United States immediately after the earthquake on temporary visas or humanitarian parole but were not covered by the initial TPS grant. The extension and re-designation was for a period of 18 months, through January 22, 2013.³³ Subsequently, the DHS Secretary extended the designation of Haiti for TPS for 18 months from January 23, 2013, through July 22, 2014.³⁴ In March 2014, TPS for Haiti was extended until January 22, 2016.³⁵

On August 25, 2015, TPS for Haiti was extended for the third time since its re-designation in 2011.³⁶

Liberians in the United States have had relief from removal for the longest period of those who have had TPS or other forms of blanket relief from deportation. They first received TPS in March 1991 following the outbreak of civil war. Although that civil war ended, a second civil war began in 1999 and escalated in 2000.³⁷ Approximately 10,000 Liberians in the United States were given DED in 1999 after their TPS expired September 28, 1999. Their DED status was subsequently extended to September 29, 2002. On October 1, 2002, Liberia was re-designated for TPS for a period of 12 months, and the status continued to be extended. On September 20, 2006, however, the George W. Bush Administration announced that Liberian TPS would expire on October 1, 2007, and they were once again granted DED until March 31, 2009. On March 23, 2009, President Obama extended DED for Liberians until March 31, 2010, and on March 18, 2010, President Obama once again extended DED for Liberians through September 30, 2011.³⁸ Liberia's DED status had been extended through September 30, 2016 for Liberians who had been residing in the United States since October 2002.

Whether to grant blanket relief to nationals from neighboring Central American countries has perplexed policymakers for several decades. The only time Congress has specifically granted TPS was in 1990 to nationals of El Salvador.⁴⁰ In the aftermath of Hurricane Mitch in November 1998, then-Attorney General Janet Reno announced that she would temporarily suspend the deportation of aliens from El Salvador, Guatemala, Honduras, and Nicaragua. On December 30, 1998, the Attorney General designated TPS for undocumented Hondurans and Nicaraguans in the United States as of that date because, the Clinton Administration maintained, Honduras and Nicaragua had such extraordinary displacement and damage from Hurricane Mitch as to warrant TPS. Prior to leaving office in January 2001, the Clinton Administration said it would temporarily halt deportations to El Salvador. In 2001, the George W. Bush Administration decided to grant TPS to Salvadorans following two earthquakes that rocked El Salvador.

Over the years, the George W. Bush Administration granted, and now the Obama Administration has continued to grant, TPS to Central Americans from El Salvador, Honduras, and Nicaragua. Their rationale has been consistent when announcing the re-designation: "There continues to be a substantial, but temporary, disruption of living conditions in Nicaragua resulting from Hurricane Mitch, and Nicaragua remains unable, temporarily, to handle adequately the return of its nationals."⁴¹ Similarly, the Federal Register notice re-designating Salvadoran TPS stated: "There continues to be a substantial, but temporary, disruption of living conditions in El Salvador resulting from a series of earthquakes in 2001, and El Salvador remains unable, temporarily, to handle adequately the return of its nationals."⁴²

However, the period of arrival for the Central Americans with TPS ended in 1999 for Guatemalans and Nicaraguans and in 2001 for Salvadorans. There is renewed pressure for the Obama Administration to move the arrival period forward to encompass the Central Americans who have fled to the United States in recent years. In FY2013, El Salvador, Guatemala, and Honduras were the top countries where credible fear was found among foreign nationals who were in expedited removal.⁴³ Proponents of TPS for Central Americans cite the crime rates and security challenges in the region.⁴⁴ Those who oppose the expansion of TPS for Central Americans maintain that the country conditions do not meet the threshold for TPS.

Because aliens granted TPS are not eligible to become legal permanent residents (LPRs) in the United States, a special act of Congress is required for such aliens to adjust to LPR status. For example, Congress enacted legislation in 1992 that allowed Chinese who had deferred enforced departure following the Tiananmen Square massacre to adjust to LPR status (P.L. 102-404). The 105^th Congress passed legislation enabling Haitians to adjust status (P.L. 105-277). There is a community of Liberians who have had some type of blanket relief from removal since 1991, a temporary reprieve for 25 years that has prompted legislation to adjust their status. Provisions that would have allowed nationals from various countries that have had TPS to adjust to LPR status had been introduced in past Congresses, but not enacted.⁴⁵ The Senate-passed comprehensive immigration reform (CIR) in the 113^th Congress (S. 744) did not include specific provisions for foreign nationals with TPS to adjust status, but many would have qualified for the registered provisional immigrant status that S. 744 as passed would have established.⁴⁶

Author Contact Information

Footnotes

Section 208 of INA (8 U.S.C. §1158); Section 241(b)(3) of INA (8 U.S.C. §1231); and Section 101(a) of INA (8 U.S.C. §1101(a)(42)).

CRS Report R41753, Asylum and "Credible Fear" Issues in U.S. Immigration Policy, by [author name scrubbed]; and CRS Report RL31269, Refugee Admissions and Resettlement Policy, by [author name scrubbed].

The term "humanitarian migrant" is not defined in the INA, nor, in this context, is it meant to imply that a sympathetic policy response is warranted. Rather, it refers to factors underlying the alien's justification for immigration.

Section 244 of INA (8 U.S.C. §1254a).

8 U.S.C. §240.

Ibid.

Section 244(h) of INA (8 U.S.C. §1254a).

DED is not to be confused with deferred action, which the Department of Homeland Security defines as "a discretionary determination to defer removal action of an individual as an act of prosecutorial discretion."CRS Report R43852, The President's Immigration Accountability Executive Action of November 20, 2014: Overview and Issues, coordinated by [author name scrubbed]; and CRS Report R43747, Deferred Action for Childhood Arrivals (DACA): Frequently Asked Questions, by [author name scrubbed].

In the past, EVD status has been given to Poles (July 1984 to March 1989), Nicaraguans (July 1979 to September 1980), Iranians (April to December 1979), and Ugandans (June 1978 to September 1986). Lebanese had been handled sympathetically as a group, getting EVD on a case-by-case basis since 1976, prior to receiving TPS from 1991 to 1993. Other countries whose nationals have benefitted in the past from a status similar to EVD include Cambodia, Cuba, Chile, Czechoslovakia, Dominican Republic, Hungary, Laos, Rumania, and Vietnam.

Executive Order 12711, "Policy Implementation With Respect to Nationals of the People's Republic of China," Public Papers of the Presidents of the United States: George Bush XLI, President of the United States: 1989-1993 (Washington: GPO, 1990); and Memorandum for the Secretary of Homeland Security from President Barack Obama on the Subject of Deferred Enforced Departure for Liberians, September 26, 2014.

Section 240 of INA (8 U.S.C. §1229a); §240B (8 U.S.C. §1229c).

CRS In Focus IF10218, South Sudan, by [author name scrubbed]; and CRS In Focus IF10182, Sudan: An Overview, by [author name scrubbed].

U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, "Designation of Republic of South Sudan for Temporary Protected Status," 76, 198 Federal Register 63629-63635, October 13, 2011.

CRS Report R44303, Nepal: Political Developments and U.S. Relations, by [author name scrubbed].

Previously, legislation was introduced in the House (Nepal Temporary Protected Status Act of 2015; H.R. 2033) that would designate Nepal for TPS.

U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, "Designation of Nepal for Temporary Protected Status," 80 Federal Register 36346-36350, June 24, 2015.

CRS In Focus IF10300, Ebola in West Africa: Issues with Elimination, by [author name scrubbed].

Liberians were also designated for TPS in the announcement. See Liberians below.

U.S. Citizenship and Immigration Services, "Designation of Guinea and Sierra Leone for Temporary Protected Status," 79 Federal Register 69502-69502, November 21, 2014; U.S. Citizenship and Immigration Services, "Designation of Guinea for Temporary Protected Status," 79 Federal Register 69511-69515, November 21, 2014; and U.S. Citizenship and Immigration Services, "Designation of Sierra Leone for Temporary Protected Status," 79 Federal Register 69506-69511, November 21, 2014.

As of February 14, 2016, the Ebola breakout in Sierra Leone and Guinea had resulted in 17,928 reported cases and 6,492 reported deaths. In addition, Liberia had 10,675 reported Ebola cases and 4,809 deaths, Centers for Disease Control and Prevention, 2014 Ebola Outbreak in West Africa - Case Counts, Atlanta, GA, February 17, 2016, http://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/case-counts.html. See CRS Report IF00044, Ebola: 2014 Outbreak in West Africa, by [author name scrubbed] and [author name scrubbed] (available upon request).

See U.S. Citizenship and Immigration Services, "Extension of the Initial Registration Period for Guinea, Liberia and Sierra Leone for Temporary Protected Status," 80 Federal Register, Number 122, 36551-36552.

CRS Report R43119, Syria: Overview of the Humanitarian Response, by [author name scrubbed] and [author name scrubbed]; and CRS Report RL33487, Armed Conflict in Syria: Overview and U.S. Response, coordinated by [author name scrubbed].

U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, "Designation of Syrian Arab Republic for Temporary Protected Status," 61 Federal Register 19026-19030, March 29, 2012.

No nonimmigrant visa under §101(a)(15) of the INA shall be issued to any alien from a country that is a state sponsor of international terrorism unless the Secretary of State determines, in consultation with the Attorney General and the heads of other appropriate U.S. agencies, that such alien does not pose a threat to the safety or national security of the United States.

Secretary of Homeland Security Janet Napolitano, "Temporary Protected Status (TPS) for Syrian Nationals," press release, March 23, 2012, http://www.dhs.gov/ynews/releases/20120323-napolitano-statement-syria-tps.shtm.

U.S. Department of Homeland Security, U.S. Citizenship and Immigration Services, "Extension and Redesignation of Syrian Arab Republic for Temporary Protected Status," 77, 80 Federal Register 245-252, January 5, 2015.

CRS Report R43960, Yemen: Civil War and Regional Intervention, by [author name scrubbed].

U.S. Citizenship and Immigration Services, "DHS Announces Temporary Protected Status Designation for Yemen," press release, September 3, 2015, http://www.uscis.gov/news/dhs-announces-temporary-protected-status-designation-yemen

U.S. Citizenship and Immigration Services, "Extension of the Designation of Yemen for Temporary Protected Status," 80 Federal Register 53319-53323, September 3, 2015.

The issue of Haitian TPS has arisen several times in the past few years, most notably after the U.S. Ambassador declared Haiti a disaster in September 2004 due to the magnitude of the effects of Tropical Storm Jeanne. A series of tropical cyclones in 2008 resulted in hundreds of deaths and led some to label the city of Gonaives uninhabitable. The Administration of President George W. Bush did not grant TPS or other forms of blanket relief to Haitians, nor was legislation that would have provided TPS to Haitians, such as H.R. 522 in the 110^th Congress, enacted. Opponents to Haitian TPS traditionally argue that it would result in an immigration amnesty for unauthorized Haitians and foster illegal migration from the island. CRS Report RS21349, U.S. Immigration Policy on Haitian Migrants, by [author name scrubbed].

U.S. Department of Homeland Security, "Statement from Secretary Janet Napolitano," press release, January 15, 2010.

U.S. Citizenship and Immigration Services, "Extension of the Initial Registration Period for Haitians Under the Temporary Protected Status Program," 75 Federal Register 39957, July 13, 2010.

U.S. Department of Homeland Security, "Secretary Napolitano Announces Extension of Temporary Protected Status for Haitian Beneficiaries," press release, May 17, 2011.

U.S. Citizenship and Immigration Services, "Extension of the Designation of Haiti for Temporary Protected Status," 77 Federal Register 59943-59948, October 1, 2012.

U.S. Citizenship and Immigration Services, "Extension of the Designation of Haiti for Temporary Protected Status," 79 Federal Register 11808-11814, March 3, 2014.

U.S. Citizenship and Immigration Services, "Extension of the Designation of Haiti for Temporary Protected Status,"80 Federal Register 51582-51588, August 25, 2015.

CRS Report RL33185, Liberia's Post-War Development: Key Issues and U.S. Assistance, by [author name scrubbed].

U.S. Citizenship and Immigration Services, "Filing Procedures and Automatic Extension of Employment Authorization and Related Documentation for Liberians Provided Deferred Enforced Departure," 75 Federal Register 15715, March 30, 2010.

U.S. Citizenship and Immigration Services, "Designation of Liberia for Temporary Protected Status," 79 Federal Register 69502-69502, November 21, 2014; and U.S. Citizenship and Immigration Services, "Extension of the Initial Registration Period for Guinea, Liberia and Sierra Leone for Temporary Protected Status," 80 Federal Register, Number 122, 36551-36552.

U.S. Congress, House Committee on the Judiciary, Subcommittee on Immigration and Border Security, Asylum Abuse: Is it Overwhelming our Borders?, 113^th Cong., 1^st sess., December 12, 2013.

CRS Report R41731, Central America Regional Security Initiative: Background and Policy Issues for Congress, by [author name scrubbed] and [author name scrubbed].