By Attorney Sara N. Cross
A federal judge has issued a preliminary injunction that blocks the Trump administration from ending the Temporary Protected Status (“TPS”) for over 300,000 people from four countries: Haiti, El Salvador, Honduras, and Sudan. This means that the Trump administration must keep the TPS program running for those countries while the lawsuit remains active.
TPS protects foreign nationals from certain designated countries affected by armed conflict, natural disasters, and health epidemics. It allows these people to stay in the U.S. and work legally. The program was originally signed into law by President George Bush in the 1990s. TPS was set to terminate for Sudan on November 2, 2018; for Haiti on July 22, 2019; for El Salvador on September 9, 2019; and for Honduras on January 5, 2020.
In issuing the injunction, U.S. District Judge Edward Chen stated that the beneficiaries of this program, if deported, “indisputably will suffer irreparable harm and great hardship.” He found that there was substantial evidence showing that the U.S. government lacked “any explanation or justification” to end the TPS program for the four countries, which amounted to a violation of the Administrative Procedures Act.
Judge Chen also stated that this lawsuit raises “serious questions as to whether a discriminatory purpose was a motivating factor” in the Trump administrations’ decision to end this program from each of the named countries; if so it would violate the Constitutional guarantee of equal protection under the law.
TPS has become an important issue since President Trump took office. Recently, Federal Circuit Courts in the Ninth and the Sixth Circuits have held that a grant of TPS qualifies as an admission under Section 245 of the Immigration and Nationality Act (“INA”). Thus, when a person is granted TPS, they are considered to have been “inspected and admitted or paroled” into the U.S., thereby satisfying a crucial requirement for adjustment of status.
Following the Ninth Circuit’s Precedent Decision, a District Court in California held that a grant of TPS status by USCIS constituted an “entry” in relation to the bar stated in Section 245(c)(2) of the INA. This bar states that a person, “must maintain continuous lawful status since entry to the United States.” The California District Court held that the grant of TPS status is the date of entry to the country, and as long as the person maintains lawful TPS status continuously since their initial grant, then they shall be deemed as “being in and maintaining” lawful immigrant status. Importantly, the plaintiff in the District Court case was a national of El Salvador, who initially entered the U.S. without inspection, but was granted TPS in 2001 and continuously reapplied and received renewal to his TPS status. Also notable is that the petitioner for his relative petition was his U.S. citizen mother.
In California, at least, this decision may significantly help people who have entered the U.S. unlawfully, but who have since obtained and maintained lawful TPS status. For a person in this position, who knows that their TPS status will terminate on a specific date, they should immediately find out whether they may be potentially eligible to apply for permanent resident status (“green card”). It is imperative that an Immigrant Visa Petition (“I-130”) be filed as soon as possible from a Legal Permanent Resident or U.S. Citizen spouse, parent, or child over 21-years-old. The petition should be filed as soon as possible, as it normally takes USCIS many months to process. Once an I-130 is approved, and provided a visa is available for that category, a person then can file an adjustment of status application. Please also note that only U.S. citizens over 21-years-old may file petitions for their parents.
This latest injunction against ending TPS for Haiti, El Salvador, Honduras, and Sudan, gives those who have benefitted from the program a little more time to navigate the U.S. immigration system in hopes of obtaining lawful permanent status in the U.S. Contact a knowledgeable and experienced immigration attorney today to discuss your options.
