US Supreme Court Decision Impacts Caribbean Diaspora TPS and Dreamers

US Supreme Court Decision Impacts Caribbean Diaspora TPS and Dreamers

Ambassador Curtis A. Ward

(09 June 2021) — The unanimous decision of the US Supreme Court denying adjustment of status to legal permanent resident (LPR) – green card – for certain TPS (Temporary Protected Status) beneficiaries, while a devastating blow particularly to long-term TPS beneficiaries, should not have come as a surprise. Immigration law generally, with few exceptions, precludes adjustment of status (AOS) to permanent residency for individuals who entered the United States without a valid visa, i.e., entered illegally without inspection. A few categories qualify for waivers.

Also, as expected, the ruling by the Court does not bar AOS for individuals who entered the US legally – inspected at the border and granted entry by Customs & Border Control. TPS beneficiaries who entered the US on a valid visa but overstayed are not barred from AOS if they qualify for permanent residency through family relationships or employment related sponsorships. Warning: This ruling creates opportunities for scammers who may seek to take advantage of TPS beneficiaries. It is therefore advisable for TPS beneficiaries to consult immigration law professionals, or reputable immigration service providers to verify their status and rights.

The 9-0 Supreme Court decision, written by one of the liberal members of the Court, Justice Elena Kagan, placed the burden squarely on the US Congress to grant humanitarian relief – a legal path to permanent residency – to all TPS beneficiaries affected by the decision. As is normally quite frequent, the Supreme Court seldom engages on matters under consideration by the political arm of the government. Granting permanent residency to TPS beneficiaries is one such matter.

With regard the impact on TPS beneficiaries, Haitians are the only Caribbean nationals affected by the Court’s decision. However, though barely mentioned in discussions of the Court’s decision, all Caribbean nationals among the Dreamers are impacted. Dreamers are characterized by the fact they entered the US without inspection and admission, albeit at a young age. The tens of thousands of Caribbean nationals, from every country in the region, who are Dreamers are thus barred from adjustment to LPR status.

The US House of Representatives has already passed an immigration Bill, H.R. 6 which grants a waiver of illegal entry and provides a path to permanent residency to TPS beneficiaries. H.R. 6 also grants a path to citizenship for Dreamers. As are most Bills passed by the House, H.R. 6 languishes in the vacuous labyrinth of Republican obstructionism in the US Senate. This legislative quagmire is not the purview of the Supreme Court. Respect for the separation of power clause of the US Constitution guides the Court’s decision-making, particularly on political issues.

Unless House Bill H.R. 6 is passed in the Senate and signed by the President, the only recourse for TPS beneficiaries is registration under the TPS program applicable to their countries of origins. They face an uncertain future should their country’s designation expires and not renewed by the sitting president. Former president Donald Trump driven by the anti-immigration policies of his administration ended the TPS program for several countries, including Haiti. Who can forget his derogatory reference to immigrants from “s—hole countries” including Haitians? In the meantime, Haiti’s TPS designation was kept in place temporarily through court decisions. Some TPS designations are still in litigation.

As it now stands those of the approximately 400,000 TPS beneficiaries from the 12 designated countries who entered the US on a valid visa may continue to pursue immigration benefits, including adjustment of status if they have the required qualifications. But the Supreme Court’s decision profoundly impacts tens, perhaps hundreds of thousands of TPS beneficiaries. The Supreme Court’s decision confirms that actions taken by the President can only provide temporary relief, and the power to grant permanent residency rests squarely with the US Congress.

While the TPS immigrants of El Salvador and Guatemala comprises the largest numbers of those affected, the ruling also affects thousands among the 56,453 Haitians who entered the US without a valid visa. They are barred from acquiring permanent residency.

Haiti was initially designated for TPS following the January 2010 devastating earthquake. The designation was based on “extraordinary and temporary conditions within the country, specifically the effects of a 7.0-magnitude earthquake.” Subsequent natural disasters have triggered continued humanitarian designations. Thus, the country has been designated for TPS repeatedly (2011, 2013, 2015) for 18 months periods.

However, in 2017 the Trump administration designated Haiti for only six months. Following on that designation, the Trump administration later announced termination of Haiti’s TPS status in the Federal Register in January 2018 with an effective date of July 22, 2019. Court challenges and judicial rulings extended Haiti’s designation to October 2021.

On May 22, 2021, the Biden administration issued a new 18-month designation of Haiti and their TPS status in the US will continue pending future designations or enactment of H.R. 6 in the Senate. It should be noted that there will be no blanket “amnesty” under H.R. 6 or any other subsequent legislation. The cut-off date for which benefits of the legislation apply is as of January 1, 2017, and only those living in the U.S. for at least three years prior to enactment will be eligible. Recent uninspected entries will face deportation.

The Court’s decision once again confirmed a position posited by TWP over the years, humanitarian immigration reform is everybody’s business, in particular the business of all immigrants, including Caribbean immigrants and Americans of Caribbean heritage. Advocating for a humane immigration policy and a non-discriminating immigration process are issues which must be joined by members of the Caribbean diaspora and Caribbean governments.

© 2021 Curtis A. Ward/The Ward Post