The Problem with TPS and DACA
June 8, 2021
As the names suggest, one is simply Temporary (TPS stands for Temporary Protected Status) and the other is simply Deferred (DACA stands for Deferred Action for Childhood Arrivals). These statuses leave their beneficiaries with a perpetual instability and uncertainness about their status which would be unnerving to anyone. Many are privileged enough to have never gone through the steps needed to be a nonimmigrant in a country, so please indulge me as I try to paint a picture.
Imagine that you live in your home as you have since you were 3 years old. Imagine that every few years you have to wonder if the federal government will be as kind and as benevolent as it has been every previous time as far as you can remember and will choose to renew the designation that allows you to be in the United States. Imagine that the person occupying the White House holds in their hands your ability to continue living in the only country you remember ever having lived in. The country you went to school in. The country your family, friends, siblings, and significant other are in. The country where the office you’ve been working at for the last 5 years is in.
Imagine candidates for office vilifying immigrants. Vilifying the program that allows you to live here and work here legally. Vilifying everyone who, like you, benefits from these programs solely because they were born somewhere else. Somewhere you’ve never visited. Somewhere that you don’t know the language of. Somewhere you’ve only heard nightmare stories about from your parents.
Imagine that person winning office and, soon after winning, having them say that he is eliminating the program. That there is now an expiration date on your ability to stay in the United States. Imagine that you now know that you have to leave your home, your job, your friends, your school, your significant other, and likely go to a country you don’t know surrounded by people you’ve never met. Imagine that some weeks later a court says you can stay. Another says you can’t. Another says you can. Another is reviewing the case and you have no idea which way it will go. Imagine that court says you can stay but only because the government didn’t follow the right process to eliminate the program and now you get to stay but you know that when the next candidate for office runs on a platform of vilification and scapegoating, they know exactly what process they have to follow to end the program.
That’s the life those on DACA are living. That’s the life those on TPS are living. The only way out of that life is to obtain a more permanent status and, in the United States, routes to a green card are extremely limited and the Supreme Court just made one such route even more limited.
Sanchez v. Mayorkas
On June 7, 2021 the Supreme Court of the United States, in a short, 9-page, unanimous decision ended the practice that some U.S. Circuits allowed whereby TPS recipients who entered the U.S. without admission or inspection were able to adjust their status in the United States to that of a Lawful Permanent Resident (LPR).
In an effort to avoid legal jargon, there are two ways to get a green card once you have an approved immigrant visa petition. The first is by adjusting your status in the United States through the U.S. Citizenship and Immigration Services (USCIS). The other is by leaving the country and applying through a U.S. consular post in another country. There are specific requirements to be able to adjust your status in the U.S. through USCIS including that you must be in a lawful status and that you must have been “inspected and admitted or paroled into the United States.”
What some Circuits (Sixth, Eighth, and Nineth) had done was interpret the receipt of TPS as having been “inspected and admitted” in addition to having lawful status. In effect, this allowed people who entered the United States without having been admitted or inspected (EWI in immigration jargon) to adjust their status and become residents once they had a basis to do so assuming they met all other requirements.
This new decision, however, makes it so that the law of the land, regardless of circuit, is that TPS satisfies the lawful status portion but not the admission portion. This means that people who came to the U.S. with a valid status and overstayed that status who were later granted TPS can still avail themselves of an adjustment of status process but those who entered without inspection and were later granted TPS cannot.
It’s also important to note that there exists a 3-year and 10-year bar that make it so that if you’ve been in the U.S. for more than 180 days but less than 1 year without status you trigger a bar to re-entry upon leaving for 3 years. If you’ve been in the U.S. without valid status for more than 1 year, that ban extends to 10 years. This if you even find an avenue through which to obtain an approved immigrant petition.
As you can imagine, this leaves a great number of individuals with the ability to stay in the U.S. and work legally but without any real avenue to adjust their status in the U.S. to something more permanent.
The worst part about this entire situation is that the House of Representatives, through a bipartisan, though overwhelmingly Democratic vote, has already passed a bill to address part of this exact problem. The Bill, with a unanimous 219 Democratic Yeas and 9 Republican Yeas, passed despite the 197 Republican Nays and 5 Republican No Votes on March 18, 2021.
This bill, H.R. 6, titled the American Dream and Promise Act of 2021, provides a path to permanent resident status for those who entered the U.S. as a minor and has been in the U.S. since January 1, 2021. The bill also allows certain individuals with TPS or Deferred Enforced Departure (DED) to apply for permanent residence and includes numerous other extremely beneficial humanitarian provisions.
As previously mentioned, this bill actually already passed the House over 2 months ago and is held up solely because there aren’t enough votes in the barely-Democratic-majority Senate to have a chance to become law.
The uncertainty, the instability, the absolute cruelty of the position that so many DACA and TPS recipients find themselves in is fully resolvable and within reach but-for the distaste of the GOP to do the right thing.
The need for Senate action for the sake of TPS and DACA recipients as well as a large number of individuals in this country under extremely uncertain circumstances is clear and we owe a humanitarian duty to petition our elected officials to do the right thing. Because passing this bill into law is exactly that. The right thing.