Over the past two months, two major court decisions have left the lives of thousands of immigrants living in the United States under temporary protective programs with questions about their future in the U.S.
In June 2021, the United States Supreme Court unanimously ruled Temporary Protected Status (TPS) in the United States is not a legal means of entry into the country. In a separate ruling, in July, a federal judge in Texas ruled that the Deferred Action for Childhood Arrivals (DACA) is unlawful, blocking new application approvals and denying pending petitions.
Many consider these major decisions indicators of the government closing rather than opening pathways for immigrants.
DACA came to life in 2012 when the Obama administration installed a deferred action policy allowing undocumented immigrants entering the U.S. as children to be protected from deportation. The policy also allowed them to work and study at American schools. DACA recipients, however, only make up a percentage of a larger population of undocumented immigrants who came to the U.S. as children, known as “Dreamers.”
U.S. District Judge Andrew Hanen’s recent ruling found DACA unlawful and prevented the Department of Homeland Security (DHS) from accepting new applications. The motion comes as a result of a group of states, led by Texas, suing the government for the program, which they deem unconstitutional.
The ruling puts the nearly 650,000 young, undocumented immigrants living in the U.S. in difficult positions when considering their future within the country. Until a solution can be reached, they face an unpredictable environment.
“I fear, of course, being deported and I also fear I won’t be able to obtain a good job if I don’t go to college,” said Diana, an undocumented freshman at USC. “It feels like we’re always in jeopardy and we constantly have this false hope even though we worked hard and tried to compile all the documents for our application.”
Diana is not a DACA recipient, but is one of the many Dreamers whose prospects of applying to the program were left for dead following former President Trump’s recession of DACA in 2017. Trump attempted to end the program in 2017 with the support of powerful government officials like Former Attorney General Jeff Sessions. Following this attempt, DACA renewals continued but new applicants were not allowed to apply until 2020.
Diana has been public with financial difficulties coming into her first year at USC, setting up a GoFundMe to try and support her education. The added uncertainty with DACA contributes to the stress.
“To be criminalized just puts a huge target on your back and it makes you question a lot of the reasons why you’re here,” she added. “You feel like you’re not deserving.”
The precarious nature of temporary programs like DACA is often at the forefront of student’s unease.
“It’s overwhelming sometimes knowing there is so much uncertainty where if they do take away DACA, what’s going to happen to me,” a DACA recipient told Annenberg Media, who requested anonymity for safety reasons.
The anonymous recipient recalled how often she was aware of her illegal status as a child, even being told not to mention her Salvadoran heritage by her parents.
“Many kids were traveling with their parents or going places but we couldn’t and my parents didn’t like going out,” she said. “They didn’t like doing anything.”
Without a permanent solution, even those currently living under DACA face the fear of being deported, a concern that the policy was designed to protect its recipients from.
The Biden administration said in a statement in July that the Justice Department intends to appeal the decision and hopes Congress can produce a permanent solution to help DACA recipients. His hope lies with the American Dream and Promise Act, which may replace DACA in the coming months. This bill would grant Dreamers a status of “conditional permanent resident,” meaning they would be protected from deportation and allowed to work and study if they meet a series of prerequisites. It would also allow them to apply to become permanent lawful residents—or green card holders—in the future.
Transitioning to a more permanent solution is what activists and lawyers like Judith Wood, an immigration lawyer based in Los Angeles who has worked to help women fleeing from violence seek refuge in the U.S., encourage.
“I think people with DACA should be offered a road to citizenship,” Wood said in an interview with Annenberg Media. “I know that a lot of people in Congress do think that DACA recipients should be able to adjust status and become citizens.”
Attorneys like Wood emphasized the importance of a path to citizenship because temporary measures like DACA may end up leaving the fate of people’s livelihoods contingent on the current state of the government.
Since the suspension, DACA has been going back and forth between lawsuits and appeals, and the DHS was able to start accepting new applications on Dec 7, 2020. But the new ruling brings another stop to new application acceptances.
While current DACA recipients are still allowed to renew their status, this ruling may mean the loss of protections allotted by the program, barring a permanent solution passed by Congress. The decision also puts Dreamers without DACA protections in jeopardy of being shut out of the program.
Although the decision is expected to be appealed to the U.S. Court of Appeals for the Fifth Circuit, their history—siding with another Judge Hanen ruling against Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA)—indicates it is unlikely they restore DACA.
“DACA faces an uphill battle for survival,” says Laurence Benenson of The National Immigration Forum, adding that even if DACA were to reach the Supreme Court, the 6-3 conservative majority is not an encouraging sign.
The Temporary Protected Status (TPS) Program was introduced in 1990 when Congress passed the Immigration Act of 1990. The program allows immigrants experiencing an ongoing armed conflict, environmental disaster, or extraordinary conditions in their designated country to enter and work in the U.S. Those who wish to be granted TPS must be a national from the list of designated countries, must have filed for registration during a specified interval and must have been physically present in the country since a specified date.
TPS recipients do not have a direct path to permanent residency (green card) or U.S. citizenship.
TPS differs from refugees seeking asylum, in that there is not an extensive process to prove specific circumstances to warrant asylum. Asylum seekers have a more direct path towards a green card and those under TPS are threatened with having their status removed at any point in time, something the Supreme Court ruling brings to the forefront.
The June Supreme Court ruling designating TPS as an unlawful means of entering the country makes it increasingly more difficult to apply for permanent residency. TPS holders who entered the country without inspection and wish to obtain a green card would have to leave the U.S. to have their visa processed at a consulate. This, however, could result in someone with an unlawful presence in the U.S. being barred for three years if they spent more than 180 days and less than a year in the country or ten years if they spent more than a year.
“This decision is a step back for the immigrant community who has very limited ways to secure relief,” said Camila Alvarez, legal director of the Central American Resource Center of LA, in a statement to immigrant communities and supporters. “The ruling reiterates that the time is now for Congress to pass legal protections and, even more importantly, to do it in the next reconciliation package and exhaust all legislative possibilities.”
For those who have established themselves in the U.S. since the time of their country’s TPS designation, the recent decision may uproot their families and businesses, warranting an immediate call for action.
“They relied on this, they paid all the fees, they did everything right, and now they’re being stripped of their rights,” said Wood, who has been working for 35 years with immigration rights and political asylum. “It’s about stripping people’s lives, sense of security and well-being who are already here and have been here for quite a while.”
Wood said she worries that those with TPS are caught between difficult circumstances, as they lack security in either the U.S. or their home countries. Immigrants with TPS often spend decades away from their origin countries and do so because of very complications that keep these countries on the TPS list.
Proponents of TPS have been pressuring the government on behalf of the hundreds of thousands of immigrants with TPS living in the country. Advocacy efforts are often headquartered in states like California, which is home to the most TPS holders in the country, with just under 18% of a population of over 400,000 foreign nationals.
“Congress could really just reverse this by simply getting the legislation passed and finally getting it signed into law and just providing this pathway for millions of people to obtain green cards,” said Erik Villalobos, a spokesperson for the National TPS Alliance, an organization created by TPS beneficiaries to advocate for and support immigrants.
The National TPS Alliance is currently pushing for legislation that supports a pathway to citizenship and their efforts have resulted in extensions to attempted terminations.
The TPS designation for El Salvador, Sudan, Nicaragua and Haiti was extended until October 4, 2021 pending the outcome of a lawsuit challenging Former President Trump’s attempt to terminate in 2019.
Despite the extension, the decision to categorize a TPS entry to the country without inspection as unlawful still leaves thousands in limbo.
Jean Lantz Reisz, the co-director of the USC Immigration Clinic, said she does not agree with the Supreme Court ruling and worries decisions like this can lead to a misunderstanding of immigration as a whole.
“I think that there’s a lot of misinformation and people think somebody is being reckless with their children by trying to cross the border or that somebody is trying to cut in line by not applying for a visa,” said Reisz. “But the reality is, a lot of people who are poor aren’t eligible for visas because the US doesn’t give visas to people unless they have financial resources.”
Reisz also believes that programs and laws like TPS should be interpreted to create a pathway for immigrants to integrate themselves into the country, become citizens and have a voice in the system.
“It’s just this idea of somebody, because of where they’re from, that’s how you determine how hard of a worker they are, what kind of crimes they’re going to commit,” Reisz said. “That’s just an antiquated, xenophobic, racist sentiment that is built into our legislative system right now. So the laws need to change.”
A solution could come in the form of something like the 2022 reconciliation package, which would include provisions such as a path to lawful permanent residence for those with DACA and TPS. As Senate Majority Leader Chuck Schumer unveiled the budget framework, he called on committee members to draft legislation for the listed goals—including “providing green cards to millions of immigrant workers and families,” according to a summary—by Sept. 15.