Homeland Security’s citizenship agency has created a backdoor pathway to citizenship that’s open to some of the hundreds of thousands of migrants who came to the U.S. illegally but who are now here under what’s known as Temporary Protected Status.
A new policy issued earlier this month allows TPS holders to apply for pre-approval to travel outside the U.S., and when they return they will be deemed to have been “inspected” at the border. That clears a key hurdle for those who came illegally the last time, effectively scrubbing that illegal entry from their record.
Previously they would have returned under the same status they left.
The new policy is retroactive, meaning U.S. Citizenship and Immigration Services can grant the same “inspected” status to TPS holders who left and returned even before this month’s changes.
USCIS told The Washington Times that it doesn’t know how many people to expect to take advantage of the new travel rules or apply for an adjustment of status, but the numbers could be massive, some experts said.
“I can’t guess about numbers, but this is a path to amnesty for hundreds of thousands of people who have entered the U.S. illegally,” said Ken Cuccinelli, who was acting director at USCIS and deputy secretary at the Department of Homeland Security in the Trump administration.
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Mr. Cuccinelli called the new policy “another brutal stomping of the rule of law.”
TPS grants migrants — here either illegally or legally but on short-term visas — a stay of deportation if their countries face natural disasters, war, disease or political instability. TPS is supposed to be temporary, but most are eager to try to find ways to stay permanently.
The hiccup comes if they came illegally in the first place, which means they were never “inspected” or “admitted” by border authorities. Inspection is a requirement for adjusting status.
Under the old policy, if they were to leave then come back they would be subject to a bar on their return, as a punishment for their previous unlawful presence.
Under the new policy, TPS holders will have already gotten advance permission to leave and return, surmounting the bar. And since they will be deemed “inspected” upon their return, they are now eligible for adjustment of status.
Immigrant-rights advocates have been pushing for TPS holders to be eligible for permanent status and, eventually, citizenship. The Biden administration has joined that call, but it has been unable to get that change through Capitol Hill.
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Critics said the new TPS travel rules are a way of chipping away without lawmakers.
“They’re doing via policy what Congress is not allowing them to do,” said Emilio Gonzalez, who ran USCIS in the Bush administration. “These folks are going to do everything possible to turn the immigration laws on their head.”
USCIS said TPS holders can only take advantage of the change “if they have an independent basis on which to do so.”
“They are not eligible to adjust status solely based on holding TPS,” the agency said.
That independent basis is usually holding down a job or having a qualifying family relationship that makes them eligible for a green card. Marrying a citizen or legal permanent resident is a common avenue.
The Obama administration did something similar to the TPS policy with illegal immigrant “Dreamers,” allowing them to apply for “advance parole” — a permission to leave and return and be deemed inspected.
The trips were supposed to have a valid purpose, such as education, so some colleges began offering classes that involved little more than a trip to Mexico to help DACA-enrolled students take advantage of the loophole.
As of June 2016, four years into the DACA program, about 5,000 people had taken advantage of advance parole to apply for adjustment of status.
Robert Law, who ran USCIS’ policy shop in the Trump administration, said it would be particularly odd for USCIS to approve travel by TPS holders who plan to go back to their home country — a nation that, under the definition of TPS, is still so broken that people can’t return.
“If it’s unsafe to return, how could they safely visit?” Mr. Law said.
USCIS did not address that specific issue in response to an inquiry from The Times, instead pointing to an online page about TPS travel approval in general.
Mr. Law, now director of the Center for Homeland Security and Immigration at the America First Policy Institute, said he expects many TPS holders to take advantage of the new policy.
“It’s hard to imagine a TPS beneficiary not trying this,” he said. “They could travel to Mexico or Canada, or their home country or anywhere else, and return and voila they can now get a green card if otherwise eligible.”
Jessica Vaughan, policy studies director at the Center for Immigration Studies, said TPS was intended to be temporary, and Congress was clear in stating those who received the protection weren’t supposed to have a pathway to permanent status.
The Supreme Court, in a 9-0 ruling last year, “validated” that interpretation, Ms. Vaughan said.
“On the spectrum of audacity in government regulatory actions, this one, in defiance of both Congress and the Supreme Court, is over the top,” she said. “If they don’t like the law, they should work with their allies — the Democratic majority in Congress — to try to change it.”
TPS has become controversial in the last decade.
Intended to be temporary protection, the program has instead become a permanent life for hundreds of thousands, with administrations regularly renewing the designations every 18 months.
Some migrants from El Salvador and Honduras have been living under TPS for more than two decades, and Haiti’s initial TPS designation dates back to the 2010 earthquake.
The Trump administration tried to end those designations but was blocked by court rulings.
The Biden administration has gone the other direction, generously expanding the universe of TPS holders. It has granted new designations to Afghanistan, Ukraine, Venezuela, Haiti, Burma, Cameroon, Somalia, Sudan, South Sudan, Syria and Yemen.
The Congressional Research Service calculated that more than 350,000 people held TPS as of February. That didn’t include the numbers from Ukraine, Afghanistan, Cameroon and Sudan, which had just opened new windows.
That number could soon even soar. The Biden administration is facing a deadline for a decision on whether to renew Venezuela’s status for another 18 months, and activists have asked Homeland Security to go further and re-designate the country.
That would create a new window of eligibility that would apply to Venezuelans who arrived after the current March 2021 deadline.
In a letter last week demanding the new protections, Democratic senators said 250,000 Venezuelans would qualify under a new window of eligibility. Many of those illegally jumped the southern border as part of the Biden migrant surge.
“Denying access to TPS to more recent arrivals will not serve as an effective deterrent to future border crossings given the desperation of Venezuelans to flee unsustainable conditions,” the senators wrote. “It will simply ensure that Venezuelans will live in poverty and at risk of deportation in the United States, with no other options.”
Mr. Gonzalez said it’s possible some of those new arrivals are already applying under the previous TPS designation, using fraudulent documents to try to backdate their presence.
“When you start to create a policy that stretches as far as it can go, that’s an invitation to more fraud,” he said.
That’s what happened in 1986 during the last major amnesty, when Border Patrol agents caught migrants showing up with old gas station receipts meant to try to prove they’d been in the country for years, when in fact they were new arrivals.