Court rulings put deportation protections for Haitians, Syrians, Somalis in flux
A view of the U.S. Supreme Court in Washington, DC, on Wednesday, Jan. 21.
Brendan Smialowski | AFP via Getty Images
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Audio transcript
[THEME MUSIC] NINA MOINI: Temporary protected status for several countries is in legal limbo. The legal immigration status, known as TPS, allows people to temporarily live and work in the US because of dangerous conditions in their home country, such as war or environmental disasters. Last fall, the Trump administration moved to end TPS for Somalia. It was set to end today, but a court ruling last week paused that. Additionally, yesterday, the Supreme Court ruled to temporarily block the end of TPS for Haitians and Syrians. Joining us to explain what this all means is Ana Pottratz Acosta, an immigration law expert, and visiting clinical professor of law at the University of Minnesota. Thanks, as always, for your time today, Ana.
ANA POTTRATZ: Of course. Thank you for having me.
NINA MOINI: For folks who might not be familiar, can you start by just laying out generally how temporary protected status works and how people obtain that status?
ANA POTTRATZ: Of course. So just to provide the 10,000-foot overview of what TPS is and who it's intended to protect, temporary protected status is a form of temporary humanitarian relief that the Secretary of Homeland Security has the authority to designate in cases of a natural disaster or civil unrest, or some other conditions that make it impossible or very difficult for nationals of that country to safely return.
So in the case of Haiti, for example, TPS was originally designated in January of 2010 after the very devastating earthquake in Port-au-Prince, and then it was redesignated in 2021, following political unrest and the assassination of the Haitian president. So that, I think, is a good example of two instances where TPS was designated due to a natural disaster and then later due to civil unrest.
And in terms of how TPS works and who is eligible for TPS, generally speaking, nationals of the country designated for TPS have to be physically present inside of the United States on the day that TPS is designated. So they file an application with US Citizenship and Immigration Services-- or USCIS-- along with proof that they are a national of the country or that they are stateless and last resided in the country that has been designated for TPS, along with other evidence. So, for example, evidence that they have not been convicted of a very serious crime or any other grounds that would make them eligible for TPS.
And usually, TPS is designated for short periods of time. So anywhere from 12 months-- and usually, the maximum is about 24 months or 2 years. And then, depending on what conditions look like, once TPS status or TPS designation is set to expire, the government has to go through a process of evaluating conditions on the ground to determine whether or not TPS should continue with a re-designation, or if it should be terminated.
NINA MOINI: Thank you so much. It's important to understand how that works, because the federal government is arguing that conditions in some of these countries have improved enough to end TPS. And it sounds like they're saying this is supposed to be temporary, but it keeps getting renewed every couple years. What do you think is the difference under the Trump administration? Are they using a different threshold for what conditions they deem to be dangerous enough or not dangerous enough? What do you think about the way that is being interpreted under this administration? Is it different than in the past?
ANA POTTRATZ: Well, one thing in particular that I would say is different compared to other administrations, including the first Trump administration in terms of the process that the government goes through-- and just to clarify the process, it's the Secretary of Homeland Security, and they're supposed to work together with other cabinet-level agencies. So usually, the State Department, the Department of Defense to evaluate conditions on the ground in order to determine whether or it's safe for nationals of that country to return.
So one difference that I would say for the current Trump administration, particularly under Secretary Noem, is that they were also considering whether or not it was disadvantageous for nationals of countries that had been designated for TPS to remain in the United States. So usually, the evaluation of conditions on the ground, that has more to do with what are the conditions in the country that has been designated for TPS versus having more of a balancing test, where you look at what's good for the United States and what's good for nationals of this country that is experiencing unrest due to natural disaster or the political situation.
NINA MOINI: OK. Some numbers here that we have. There are about 1,100 Somalis in the country under TPS. So that's not that many. We know a majority of Somali Minnesotans are US citizens. For Haitians, a larger group, around 350,000. You were talking about the environmental disasters there. Syrians, war going on around 6,000. So under TPS, what types of plans are you seeing people make under these groups? Because it's unclear what actually is going to end up happening for them.
ANA POTTRATZ: You're right, it's like a weird limbo in terms of their legal status, because on one hand, there are nationals of countries that have held TPS for many years or even decades. So they have a work permit, they have the right to stay in the country, but every 18 months or every 24 months, they have to wait and see whether or not the government is going to continue to extend TPS status for them.
And I would say that I saw this more for nationals of Venezuela. And what's interesting too about the order yesterday, is that last year the Supreme Court came out differently. So there is also a lawsuit challenging the termination of TPS designation for Venezuelan nationals. But in that case, the Supreme Court did allow termination of TPS to move forward. Whereas in this decision that was issued yesterday, they aren't allowing it to go forward. So in my experience with Venezuelan nationals, it really felt, to a large degree, like the rug was pulled out from under them.
The political situation in Venezuela, of course, is still fairly fraught. At the time when TPS was terminated for Venezuela, they were still under the Maduro dictatorship. Even with Maduro ousted, the conditions in Venezuela still remain very difficult, particularly for political opposition folks. So it is very challenging and also very frightening for people to face the possibility of needing to return to their country of origin, particularly when conditions there are not that great.
NINA MOINI: And conditions could not be great for decades to come. I think a lot of people wonder, is there a path to citizenship under TPS, or are you in this perpetual every two-year cycle? I think that is what the administration and some of its supporters are saying-- ultimately needs to perhaps be adjusted. What do you think about that?
ANA POTTRATZ: Well, yes. And that, I think, is one of the limitations of TPS. Technically, there is no path to permanent status. It's in the name itself-- Temporary Protected Status. So you're limited and only have it for 18 months or 24 months at a time. Often-- and I think this is kind of reflective in Somali nationals and Syrian nationals having a lower number of individuals being granted TPS. Often, what happens is that while you have TPS, you may be pursuing a concurrent form of relief.
So for example, you might have a pending application for asylum, or I've seen this come up for nationals of El Salvador-- and El Salvador has held TPS status since 2001. Life happens while you're living here with TPS. So many of them have a US citizen child who is now 21 and then can sponsor them for permanent residence through a family-based petition. So while there isn't a direct path through TPS per se, often, people are able to pursue more permanent forms of status concurrently while they hold TPS. But that said, it is a limitation, and there is no direct path. And at other points in time, there have been one-off legalization bills that have been passed by Congress for individuals with long-term TPS.
NINA MOINI: OK. That's good to know what are the different options on a path to citizenship under TPS. Ana, thanks so much for stopping by the show again and sharing your knowledge with us. Always appreciate your time.
ANA POTTRATZ: Yeah, thank you for having me.
NINA MOINI: Ana Pottratz Acosta is a visiting clinical professor of law at the University of Minnesota.
ANA POTTRATZ: Of course. Thank you for having me.
NINA MOINI: For folks who might not be familiar, can you start by just laying out generally how temporary protected status works and how people obtain that status?
ANA POTTRATZ: Of course. So just to provide the 10,000-foot overview of what TPS is and who it's intended to protect, temporary protected status is a form of temporary humanitarian relief that the Secretary of Homeland Security has the authority to designate in cases of a natural disaster or civil unrest, or some other conditions that make it impossible or very difficult for nationals of that country to safely return.
So in the case of Haiti, for example, TPS was originally designated in January of 2010 after the very devastating earthquake in Port-au-Prince, and then it was redesignated in 2021, following political unrest and the assassination of the Haitian president. So that, I think, is a good example of two instances where TPS was designated due to a natural disaster and then later due to civil unrest.
And in terms of how TPS works and who is eligible for TPS, generally speaking, nationals of the country designated for TPS have to be physically present inside of the United States on the day that TPS is designated. So they file an application with US Citizenship and Immigration Services-- or USCIS-- along with proof that they are a national of the country or that they are stateless and last resided in the country that has been designated for TPS, along with other evidence. So, for example, evidence that they have not been convicted of a very serious crime or any other grounds that would make them eligible for TPS.
And usually, TPS is designated for short periods of time. So anywhere from 12 months-- and usually, the maximum is about 24 months or 2 years. And then, depending on what conditions look like, once TPS status or TPS designation is set to expire, the government has to go through a process of evaluating conditions on the ground to determine whether or not TPS should continue with a re-designation, or if it should be terminated.
NINA MOINI: Thank you so much. It's important to understand how that works, because the federal government is arguing that conditions in some of these countries have improved enough to end TPS. And it sounds like they're saying this is supposed to be temporary, but it keeps getting renewed every couple years. What do you think is the difference under the Trump administration? Are they using a different threshold for what conditions they deem to be dangerous enough or not dangerous enough? What do you think about the way that is being interpreted under this administration? Is it different than in the past?
ANA POTTRATZ: Well, one thing in particular that I would say is different compared to other administrations, including the first Trump administration in terms of the process that the government goes through-- and just to clarify the process, it's the Secretary of Homeland Security, and they're supposed to work together with other cabinet-level agencies. So usually, the State Department, the Department of Defense to evaluate conditions on the ground in order to determine whether or it's safe for nationals of that country to return.
So one difference that I would say for the current Trump administration, particularly under Secretary Noem, is that they were also considering whether or not it was disadvantageous for nationals of countries that had been designated for TPS to remain in the United States. So usually, the evaluation of conditions on the ground, that has more to do with what are the conditions in the country that has been designated for TPS versus having more of a balancing test, where you look at what's good for the United States and what's good for nationals of this country that is experiencing unrest due to natural disaster or the political situation.
NINA MOINI: OK. Some numbers here that we have. There are about 1,100 Somalis in the country under TPS. So that's not that many. We know a majority of Somali Minnesotans are US citizens. For Haitians, a larger group, around 350,000. You were talking about the environmental disasters there. Syrians, war going on around 6,000. So under TPS, what types of plans are you seeing people make under these groups? Because it's unclear what actually is going to end up happening for them.
ANA POTTRATZ: You're right, it's like a weird limbo in terms of their legal status, because on one hand, there are nationals of countries that have held TPS for many years or even decades. So they have a work permit, they have the right to stay in the country, but every 18 months or every 24 months, they have to wait and see whether or not the government is going to continue to extend TPS status for them.
And I would say that I saw this more for nationals of Venezuela. And what's interesting too about the order yesterday, is that last year the Supreme Court came out differently. So there is also a lawsuit challenging the termination of TPS designation for Venezuelan nationals. But in that case, the Supreme Court did allow termination of TPS to move forward. Whereas in this decision that was issued yesterday, they aren't allowing it to go forward. So in my experience with Venezuelan nationals, it really felt, to a large degree, like the rug was pulled out from under them.
The political situation in Venezuela, of course, is still fairly fraught. At the time when TPS was terminated for Venezuela, they were still under the Maduro dictatorship. Even with Maduro ousted, the conditions in Venezuela still remain very difficult, particularly for political opposition folks. So it is very challenging and also very frightening for people to face the possibility of needing to return to their country of origin, particularly when conditions there are not that great.
NINA MOINI: And conditions could not be great for decades to come. I think a lot of people wonder, is there a path to citizenship under TPS, or are you in this perpetual every two-year cycle? I think that is what the administration and some of its supporters are saying-- ultimately needs to perhaps be adjusted. What do you think about that?
ANA POTTRATZ: Well, yes. And that, I think, is one of the limitations of TPS. Technically, there is no path to permanent status. It's in the name itself-- Temporary Protected Status. So you're limited and only have it for 18 months or 24 months at a time. Often-- and I think this is kind of reflective in Somali nationals and Syrian nationals having a lower number of individuals being granted TPS. Often, what happens is that while you have TPS, you may be pursuing a concurrent form of relief.
So for example, you might have a pending application for asylum, or I've seen this come up for nationals of El Salvador-- and El Salvador has held TPS status since 2001. Life happens while you're living here with TPS. So many of them have a US citizen child who is now 21 and then can sponsor them for permanent residence through a family-based petition. So while there isn't a direct path through TPS per se, often, people are able to pursue more permanent forms of status concurrently while they hold TPS. But that said, it is a limitation, and there is no direct path. And at other points in time, there have been one-off legalization bills that have been passed by Congress for individuals with long-term TPS.
NINA MOINI: OK. That's good to know what are the different options on a path to citizenship under TPS. Ana, thanks so much for stopping by the show again and sharing your knowledge with us. Always appreciate your time.
ANA POTTRATZ: Yeah, thank you for having me.
NINA MOINI: Ana Pottratz Acosta is a visiting clinical professor of law at the University of Minnesota.
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