USCIS’s Unlawful Change Leaves Longtime TPS Beneficiaries Without Protection from Deportation If Admin Succeeds in Efforts to End TPS
Change Was Authorized by then-Acting USCIS Director Ken Cuccinelli, Whose Appointment Was Held Illegal by a Federal Court
Seven TPS Beneficiaries From El Salvador and Haiti Lead Legal Fight to Restore Critical Path to Permanent Residence
Washington, D.C. — Today, seven Temporary Protected Status (TPS) beneficiaries and the Central American Resource Center (CARECEN) sued the Trump administration for its December 2019 rule unlawfully impeding TPS beneficiaries’ path to permanent residence in the U.S. This disruptive change was issued by USCIS without any advance notice or opportunity for public input, without explanation, and in violation of the Immigration and Nationality Act and the Administrative Procedure Act. The new policy is also challenged as unconstitutional because it was motivated by the Trump administration’s anti-immigrant bias. Democracy Forward, the Catholic Legal Immigration Network, Inc. (CLINIC), Montagut & Sobral, PC, and Debevoise & Plimpton, LLP represent the plaintiffs in this lawsuit.
USCIS’s rule, disguised as a mere “clarification” in a “Policy Alert,” is also unlawful because it was authorized by then-acting USCIS Director Ken Cuccinelli, whose appointment was ruled illegal by a federal court in March in response to a separate lawsuit brought by Democracy Forward, CLINIC, RAICES, and Debevoise & Plimpton LLP. That ruling invalidated several of Mr. Cuccinelli’s other policies because he lacked the authority to implement them. On August 14, the Government Accountability Office (GAO) further concluded that both Ken Cuccinelli, in his current role at DHS, and Acting DHS Secretary Chad Wolf were appointed illegally and are therefore ineligible to serve in their current roles. For similar reasons, Cuccinelli’s December 2019 changes to the TPS program are invalid.
“The Trump administration continues its relentless crusade against immigrants with the most recent attack on the thousands of TPS beneficiaries lawfully in our country. These are our neighbors, our children’s classmates. We greet them at church, at work, and on the streets of our communities,” said CARECEN Director of Legal Services Pamela Yee. “CARECEN stands firm and ready to assist and defend this community of long-term immigrants and their families. We are proud that the District is known as a safe harbor for vulnerable populations, and we will work tirelessly with other allies and local partners to protect the rights that immigrants have worked so hard to acquire.”
“This major change affects the futures of tens of thousands of long-term U.S. residents and their American families,” said Anna Gallagher, CLINIC executive director. “It is part of a litany of attacks by the Trump administration on TPS, a program created by Congress that stabilized the lives of hundreds of thousands of people who fled war, conflict and natural disasters. CLINIC will continue to advocate for TPS holders and challenge the Trump administration in court when it breaks the law.”
“Yet again, the Trump administration is circumventing the law to hurt immigrants who are lawfully in this country,” said Democracy Forward Executive Director Anne Harkavy. “Ken Cuccinelli — who was unlawfully installed to lead USCIS when his anti-immigrant track record was too extreme for Senate confirmation — is once again the architect of a measure designed to destabilize the lives of our immigrant neighbors by illegally impeding their ability to secure permanent residence in the U.S.”
The TPS program has long allowed immigrants from countries afflicted by armed conflict, natural disaster, or an epidemic — countries President Trump has derided as “shitholes” — to seek and acquire legal, temporary protection from deportation. But many of the over 400,000 TPS beneficiaries living in the U.S. today — many of whom have lived in the U.S. for decades and have U.S. citizen family members — will now be unable to adjust their status to permanent residence because of the Trump administration’s latest policy. Permanent resident status would allow beneficiaries to remain in the communities in which they have established long-standing ties and to live their lives without fear of being removed from the United States. The Trump administration has long sought to end the TPS program — and has already removed country designations for numerous countries — but has thus far been prevented from scuttling it through a series of lawsuits.
Before the Trump administration implemented this unlawful new policy, USCIS had previously allowed TPS beneficiaries like the plaintiffs to become eligible for adjustment to permanent resident status by temporarily departing the United States (with USCIS’s permission) and then lawfully returning under a grant of “advance parole.” Upon their return, the individual was viewed as having satisfied any outstanding deportation or removal order, clearing the way for him or her to apply for adjustment of status through USCIS. But the Trump administration’s new rule erases the legal effect of departing the United States and lawfully returning under a grant of “advance parole” so that, upon their lawful return, the TPS beneficiary is still viewed as ineligible to adjust his or her status. This new rule upsets the settled expectations of TPS beneficiaries and the legal services organizations, like CARECEN, who serve them, and firmly binds TPS beneficiaries to the precarious position they are now in.
As a consequence of the unlawful change now being challenged in court, the seven individual plaintiffs have no practical means of securing permanent status while also remaining in the United States, which many have called their home for upwards of 20 years. They now face an uncertain future, one in which their ability to remain connected to their U.S. citizen family members, communities, and livelihoods has been thrown into serious doubt.
The Trump administration’s rule was clearly motivated by the administration’s animus against immigrants of color. President Trump has derided TPS beneficiaries as the product of “shithole countries,” and Mr. Cuccinelli has a long and ugly history of attacking immigrants of color, including by comparing them to rats, raccoons, and other pests.
Now, potentially tens of thousands of TPS beneficiaries are prevented from using an established process for securing permanent status in the United States at a time when the Trump administration has done all it can to end their ability to remain even temporarily.
The suit was filed on August 26 in the U.S. District Court for the District of Columbia. Read the complaint in full here.
Democracy Forward is a nonprofit legal organization that scrutinizes Executive Branch activity across policy areas, represents clients in litigation to challenge unlawful actions, and educates the public when the White House or federal agencies break the law.
CARECEN’s mission is to foster the comprehensive development of the Latino population in the Washington metropolitan region by providing direct legal services, housing counseling, citizenship education, and community economic development, while promoting grassroots empowerment, civic engagement, and civil rights advocacy.
The Catholic Legal Immigration Network, Inc., or CLINIC, advocates for humane and just immigration policy. Its network of nonprofit immigration programs — more than 370 affiliates in 49 states and the District of Columbia — is the largest in the nation. CLINIC provides substantive legal and program management training and resources, as well as advocacy support at state, local and national levels.
Montagut and Sobral P.C. is an Immigration law firm in Falls Church, VA which has been in business since 1986. Their attorneys have over 100 years of combined experience practicing immigration law, and currently the majority of their clients are from Central America.