Exclusive – Kobach: It’s Time to Stop Abusing the Temporary Protected Status Law

Acting Director of Homeland Security Elaine Duke testifying before the Senate Committee on Homeland Security and Governmental Affairs on Capitol Hill in Washington, Wednesday, Sept. 27, 2017. (AP Photo/Pablo Martinez Monsivais)
AP Photo/Pablo Martinez Monsivais

Earlier this week, the acting Secretary of Homeland Security, Elaine Duke, made a bad decision – a really bad decision. She refused to end the “temporary protected status” (TPS) of approximately 57,000 Honduran nationals who would otherwise be considered illegal aliens. Instead, she extended their permission to continue living in the United States for another six months.

The Hondurans are enjoying their temporary protected status courtesy of a law that Congress enacted in 1990 to allow the executive branch to delay deporting illegal aliens to any country that is too dangerous to return to. The law permits the DHS Secretary to designate such countries only under certain circumstances. There must either be an ongoing war, or “an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions.” The DHS Secretary can give the nationals of such country a reprieve from deportation that is as short as six months or as long as eighteen months. And it can be extended indefinitely. With it comes employment authorization so the otherwise-illegal aliens can work legally in the United States.

So what’s the recent disaster that prevents the Hondurans from being deported back to their home country, you ask? It’s Hurricane Mitch, which hit Central America nineteen years ago in 1998.

It is an absurd abuse of the law to continue extending the Honduran illegal aliens’ stay in the United States when an entire generation of Hondurans has been born since the hurricane. Indeed, almost half the population of Honduras has no memory of Hurricane Mitch whatsoever, since the country’s median age is 22.6.

By ignoring the fact that it was safe for Hondurans to return, the Obama administration transformed the Honduran TPS designation into a de facto amnesty – extending it again and again. We expected the Trump administration to return sanity to the TPS program. But, sadly, this recent decision continues the Obama administration’s abuse of the law.

To understand just how outrageous this decision is, consider that the 9.3 million people who live in Honduras are not suffering from the ravages of a 1998 hurricane. Indeed, the U.S. State Department observed this (obvious) fact and informed DHS that it was safe for the Hondurans in the United States to return to their homeland. Just ask the 880,000 international travelers who visit Honduras annually.

Let’s put that in perspective. 880,000 foreigners travel to Honduras for business or pleasure in a year; but it’s too dangerous for 57,000 Hondurans to go back?

The decision to extend the Hondurans’ TPS status makes a mockery of the law. It stretches the definition of “temporary” beyond recognition. It also runs contrary to the Trump administration’s promise to enforce our immigration laws as written.

Further illustrating the thinking behind the decision was the fact that acting Secretary Duke (correctly) decided to end the TPS protection for approximately 5,300 Nicaraguans in the United States – TPS protection that also started in 1998 with Hurricane Mitch. But she didn’t end it immediately; instead, she gave the Nicaraguans another fourteen months of permission to remain in the United States before they have to leave. That’s not what Congress envisioned when the law was written. The law states that when the TPS designation is no longer warranted and an official notice is published, the aliens have 60 days to get their affairs in order and depart – not fourteen months.

Another important TPS decision is coming in January 2018. The overextended TPS designation for 200,000 Salvadorans and 50,000 Haitians in the United States is about to expire, and DHS will have to decide what to do. The State Department has already declared that it is safe for them to return to their home countries. Hopefully, DHS will get it right next time and enforce the law as it was intended.

Kris W. Kobach is the elected Secretary of State of Kansas. An expert in immigration law and policy, he coauthored the Arizona SB-1070 immigration law and represented in federal court the ten ICE agents who sued to stop Obama’s 2012 executive amnesty. In 2017 President Trump named him Vice Chairman of the Presidential Commission on Election Integrity. His website is kriskobach.com.


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