TPS suit settlement talks fail, opening door to deportations

After more than a year of negotiations, settlement talks between the Biden administration and plaintiffs in a temporary protected status lawsuit on Tuesday fell through, leaving more than 250,000 people at risk of deportation.

The lawsuit followed concerted action by the Trump administration to end TPS for the citizens of several countries — El Salvador, Honduras, Nicaragua, Haiti, Sudan and Nepal — as part of its effort to halt expanded use of the protections. TPS is a form of humanitarian assistance provided by countries devastated by natural disasters or war, allowing beneficiaries to work legally while remaining in the United States. Established in 1990, the program is currently open to people from 15 countries.

The plaintiffs received temporary legal protection in 2018 when a federal district judge in San Francisco issued an injunction to block the termination of protection. But in 2020, a three-judge panel of the 9th Circuit Court of Appeals in San Francisco overturned the order in a 2-1 decision. That didn’t work because the immigrants’ lawyers have requested a full court hearing, which is pending.

The Biden administration has reassigned temporary protected status to Haiti and Sudan, but has not done so for the other four countries. These beneficiaries could lose their protections as early as this year while the Biden administration goes to court to defend the previous administration’s decisions.

As a presidential candidate, however, Joe Biden called President Trump’s decision to repeal TPS “a recipe for disaster” and vowed to protect beneficiaries from being repatriated to unsafe countries. The Departments of Homeland Security and Justice did not immediately respond to requests for comment.

Emi MacLean, an attorney for the American Civil Liberties Union of Northern California, said a settlement would have provided reassurance and protection for TPS holders, who have felt vulnerable over the past four years of the litigation.

“There’s a reason people are losing faith in them [Biden] administration,” she said. “These actions make us very concerned that they recognize the urgency of this issue and the fact that many lives are at stake because of their unwillingness to act.”

A Department of Homeland Security spokesman declined to comment on pending litigation but said “current TPS holders from El Salvador, Nepal, Nicaragua and Honduras will continue to be protected in the coming months.”

TPS holders and their US citizen children brought the class action lawsuit in 2018, alleging that government officials had a political agenda in deciding to end protections for those countries and were motivated by racism. Trump administration officials countered by saying the program was never intended to offer long-term respite.

Plaintiff Elsy Flores Ayala said she was frustrated that an agreement could not be negotiated. Flores Ayala, 43, her husband and 24-year-old daughter have had TPS since 2001, a year after they came to the United States from El Salvador.

El Salvador was first designated for TPS in March 2001 after two earthquakes devastated the country, killing more than 1,000 people and displacing more than 1 million. Since then, the US government has cited subsequent natural disasters and gang-related rebranding uncertainties. Nearly 200,000 Salvadorans have TPS, many in California.

Flores Ayala said she and her family, who live in Washington, depend on the benefits of TPS — she works in childcare, her husband maintains a home and their daughter is in college. She also worries about what might happen if they lose deportation protection. Her two youngest children, aged 17 and 21, were born in the United States and she fears being separated from them.

“There’s a lot of concern because we don’t know what’s going to happen to us,” she said.

In the harsh 2018 decision, US District Judge Edward Chen blocked the terminations, saying beneficiaries risked being uprooted from their homes, workplaces and communities.

“They face deportation to countries with which their children and family members may have little or no ties and which may not be safe,” he wrote. “Those with children who are U.S. citizens are faced with the dilemma of either bringing their children, abandoning their children’s lives in the United States (for many, the only life they know), or being separated from their children.”

The judge, a President Obama-appointed judge, also cited Trump’s reported comments about Haitian and African immigrants coming from “fucking countries,” noting “there is circumstantial evidence that race is a motivating factor.”

During the investigation, the immigrants’ attorneys received internal communications from the Homeland Security Department during the time decisions to terminate TPS were being made.

In one instance, then-Secretary of Homeland Security Elaine Duke wrote in a personal memo in March 2018 that “the TPS program for these countries must end soon. … This conclusion is the result of an initial American view of the TPS decision.”

Career diplomats and other experts warned at the time that the decisions would have significant humanitarian and political ramifications, while a Homeland Security official suggested scouring conditions in those countries for “positive gems” to justify their arguments that recipients lacked legal protection more needed protection. TPS suit settlement talks fail, opening door to deportations

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