The permanent temporary program that makes illegal immigrants legal

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More than 1 million foreigners from 16 countries live legally in the United States under a program that protects them from deportation despite having entered without a visa.

Although the program is called “Temporary Protected Status,” it has become, in practice, permanent protection for most of the migrants, who are predominantly from Venezuela, El Salvador, and Haiti.

The news media, Democrats, and some federal courts treat temporary exemption from immigration law as an inalienable right. Some migrants have lived in the U.S. on TPS for more than 20 years.

Every TPS grant issued in the last 15 years has been extended except for three that Donald Trump allowed to expire when he was president. When he has said he wouldn’t extend TPS to other countries, news media have treated it as though he were revoking a fundamental right and “deporting legal immigrants.”

TPS has entered the political debate, and because it involves Trump and immigration, hysteria and misunderstanding often drown out the facts.

Congress cedes power Congress used to pass safe-haven and refugee bills for specific countries hit by hurricanes or communist takeovers. Around 35 years ago, Congress, as it does with most issues, decided to cede that power to the executive branch of the federal government.

The Immigration Act of 1990 gave the Justice Department the power to grant TPS to all nationals of a particular country or parts of a country affected by a natural disaster, civil war, or similar catastrophe. Individual migrants have to apply for TPS, which is granted automatically unless they are known to have committed serious felonies. For 18 months following a TPS declaration, these foreigners are immune from deportation and may work legally.

The late Rep. Joe Moakley, during a 1990 congressional debate over the bill, described TPS as “a statutory framework for the attorney general to afford temporary protected status to nationals of countries subject to extraordinary and temporary conditions.”

“We are dealing with individuals in circumstances where it is our judgment that they are not here permanently, but we are not going to be sending them home in the short term either,” former Rep. Bruce Morrison explained. “This statutory framework allows us to recognize that nonimmigrant temporary status for the humanitarian relief of these individuals whose return home would be dangerous.”

Permanent protected status Temporary Protected Status was supposed to be temporary, but the law granted the DOJ and, later, the Department of Homeland Security the power to renew TPS for 18 months an indefinite number of times. The argument for allowing this was that disaster recovery sometimes takes longer and we shouldn’t send foreigners home whose countries need longer to recover.

But a majority of TPS grants have never been allowed to expire, and in recent years, this has become more extreme: Only three of the 16 TPS designations issued in the past 15 years have been allowed to expire, and all of those expirations came under Trump.

In 2014, the Obama administration granted TPS to nationals of three West African nations hit by the Ebola epidemic: Guinea, Sierra Leone, and Liberia. Obama extended these grants in 2016, well after the epidemic had ended along with the U.S. travel ban to those countries. Only when Trump came into office did normal immigration law again apply to migrants from these countries.

When Trump tried to let other older TPS grants expire, the news media rose in fury and liberal activists blocked him in court.

In 1998 Hurricane Mitch, the deadliest hurricane in 200 years, devastated much of Central America. Honduras and Nicaragua were hardest hit. Thousands of refugees from the storm made their way north to the U.S., where they either entered illegally or were apprehended at the border and released.

In January 1999, President Bill Clinton granted TPS to Nicaraguans and Hondurans illegally in the U.S. This protected them from deportation for 18 months and granted them work permits for that period.

More than 25 years later, some Nicaraguans and Hondurans are still here on that same Temporary Protected Status. Presidents George W. Bush and Barack Obama renewed TPS for Honduras and Nicaragua every 18 months.

Salvadorans were granted TPS in February 2001 following a series of earthquakes that killed more than 1,000 people and inflicted widespread damage. More than 180,000 Salvadorans still live here under that grant, according to data from the Pew Research Center.

When Trump took office more than 18 years after Hurricane Mitch and 16 years after the Salvadoran earthquake, he said he would let these old TPS grants expire.

Protesters rose up against this decision, and the Washington Post argued that El Salvador was still unsafe to return to: “El Salvador has one of the world’s highest homicide rates, fueled by horrific gang violence, and it remains one of the poorest countries in the hemisphere.” El Salvador is not in the top 10 in murder rates, and its GDP per capita is in the middle quintile of nations.

The New York Times objected that Trump, in letting a temporary status expire, was “dismantl[ing] the program.” It argued that “many of the people affected had been living in the United States for years” and noted that the TPS recipients “have built lives in the United States.”

That hardly sounds temporary.

TPS beneficiaries sued in federal court and prevented TPS from expiring for 300,000 migrants already in the U.S. from Haiti following a 2010 earthquake, Sudan after a civil war, Nicaragua, and El Salvador.

In 2021, political collapse in Haiti triggered another wave of refugees without visas, and the Biden administration issued a new TPS grant protecting this wave, hundreds of thousands of Haitians, from deportation and allowing them to work. More than 10,000 of them, famously, found work and homes in Springfield, Ohio.

Trump told reporters Thursday that he would let Haiti’s TPS expire, triggering another round of condemnation. Axios reported that Trump was planning on “deporting legal immigrants.”

Whether “legal immigrants” is the correct term for TPS beneficiaries is a semantic question, not a substantive one. The broader point is that Trump’s critics treat temporary status as permanent and speak as though the president has the duty to extend it.

Given Haiti’s dysfunction, there’s an argument that Trump should extend TPS for Haitians and expedite any asylum applications from them. Theresa is also a good argument against that, which is that America cannot or should not play an enabling role for those in power over dysfunctional nations.

If Trump becomes president again and refuses to renew Haiti’s TPS when it expires in 2026, he will be within his rights, and at that point, it would be false to call Central Americans or Haitians here with no visa “legal immigrants.”

Crazy idea: Congress could act This may sound surprising in an age when the executive branch keeps grabbing power, but Congress has the ability to act on this. Congress gave TPS authority to the executive branch, and it can change it. The House and Senate could pass a law that makes TPS indefinite or that makes a president’s decision to end the status subject to congressional approval.

Alternatively, Congress could pass a law protecting Haitians from deportation or giving them asylum status.

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In all likelihood, this won’t happen because Congress too is dysfunctional. Democrats are, in any case, content to cede power to the executive branch when it strengthens their agenda. They want to make the temporary program effectively permanent, and they would doubtless sue Republican presidents if they ever treat it as temporary.

For Republicans, the course of action should be one of reform and good governance.

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