Negotiations between the Biden administration and attorneys representing hundreds of thousands of immigrants living in the United States under a temporary humanitarian program collapsed this week, paving the way for Trump-era decisions to revoke their legal status without the court proceedings intervene.
After more than a year of negotiations in federal courts, the Biden administration and immigrant attorneys failed to reach an agreement on how to protect groups of immigrants whom the Trump administration should no longer be allowed under the Temporary Act to live and work in the US Protected Status (TPS) program.
Due to the failure of the talks, around 337,000 immigrants from El Salvador, Nicaragua, Nepal and Honduras could lose their legal residency in the US under TPS as early as December 31. The program allows the Department of Homeland Security (DHS) to provide protection from deportation and work permits for immigrants from countries experiencing armed conflict, environmental disasters or other “extraordinary” hardships.
Attorneys representing the Central American and Nepalese immigrants said the two parties noted Tuesday that the Biden administration has not backed its proposals for a settlement in the year-long court case over the Trump administration’s efforts to end the TPS programs would agree.
Ahilan Arulanantham, an attorney representing immigrants in the case, said the failure to reach a compromise means the Biden administration will defend the Trump administration’s decisions to end TPS protections for tens of thousands of immigrants.
“The administration’s position here and its behavior over the past 18 months are profoundly at odds with the president’s pledge to protect this community,” said Arulanantham, who is also co-director of UCLA’s Center for Immigration Law and Policy. “This community has lived in limbo for the past 18 months, fearing that the Biden administration will fulfill its promise and protect it.”
During the 2020 presidential campaign, President Biden vowed to prevent the deportation of TPS holders to “unsafe” countries.
A DHS spokesman said the department could not comment on pending litigation. “Current TPS holders from El Salvador, Nepal, Nicaragua and Honduras will continue to be protected in the coming months,” the spokesperson added.
As of the end of 2021, 241,699 Salvadorans, 76,737 Hondurans, 14,556 Nepalese and 4,250 Nicaraguans were enrolled in the TPS program, according to US Citizenship and Immigration Services (USCIS).
Activists and citizens with temporary protection status march near the White House on September 23, 2022. OLIVIER DOULIERY/AFP via Getty Images
The settlement negotiations, which ended this week, stemmed from a lawsuit filed in 2018 challenging the Trump administration’s decision to bar hundreds of thousands of immigrants from Sudan, Nicaragua, Haiti and El Salvador to live under the TPS authority to live in the United States.
A federal judge in California barred the Trump administration from terminating TPS programs for those countries in October 2018, saying officials failed to adequately justify the decision and the terminations raise “serious questions” about whether they have animus against attributed to non-white immigrants. As part of the case, the Trump administration agreed to pause efforts to end TPS programs for Honduras and Nepal.
In September,. In 2020, however, the US Circuit Court of Appeals for the 9th Circuit reversed the lower court’s injunction, saying the courts could not challenge DHS’s TPS decisions. The three-member panel also said it found no direct link between President Donald Trump’s derogatory comments about non-white immigrants and the TPS terminations.
However, the 9th Circuit Court ruling did not go into effect because attorneys representing the TPS holders asked the court to retry the case “en banc” or with the participation of all active judges. Shortly after Mr. Biden took office in 2021, his administration began settlement talks with lawyers for TPS holders and suspended the court case.
Over the past year and a half, the Biden administration has announced extensions to TPS programs for Haitian and Sudanese immigrants living in the United States, but has not announced similar moves for immigrants from El Salvador, Nicaragua, Nepal and Honduras.
Now that settlement negotiations have concluded, the 9th Circuit can decide whether to grant or deny the request for a rehearing of the case, said Arulanantham, the attorney representing TPS holders.
If the court denies the request before Nov. 30, Arulanantham said the TPS programs for El Salvador, Nicaragua, Nepal and Honduras will expire Dec. 31, as outlined in a DHS announcement. But if the request is granted or not ruled on by Nov. 30, Arulanantham said the TPS programs will be extended for an additional nine months as part of a provision in the court case.
But Arulanantham said the Biden administration could have avoided that situation by extending TPS programs for El Salvador, Nicaragua, Nepal and Honduras, just as it did for Haiti and Sudan.
The Biden administration oversees a record number of TPS programs and is using the authority to protect 16 groups from deportation, including immigrants from Venezuela, Myanmar, Haiti, Afghanistan, Ukraine, Cameroon and Ethiopia.
Arulanantham said the potential demise of the programs would also affect several hundred thousand US-born children of TPS holders, some of whom have lived in the US for over two decades.
“I find it so disappointing that the Biden administration had a clear opportunity to end this suffering for all of these American children and didn’t do it,” he said.
Editor’s Note: The number of immigrants from each country covered by TPS has been updated to reflect the numbers USCIS reported to Congress.
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