WASHINGTON — After more than a year of negotiation, settlement talks between the Biden administration and plaintiffs in a lawsuit over temporary protected status fell through on Tuesday, leaving more than 250,000 people at risk of deportation.
The litigation followed concerted actions 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 efforts to wind down extended use of the protections. TPS is a form of humanitarian relief granted to countries devastated by natural disasters or war and allows beneficiaries to work legally while they remain in the U.S. Created in 1990, the program currently applies to people from 15 countries.
The plaintiffs won temporary relief in 2018 when a federal district judge in San Francisco granted an injunction to block the termination of protections. But in 2020, a three-judge panel on the 9th Circuit Court of Appeals in San Francisco reversed the order in a 2-1 decision. That hasn’t taken effect because lawyers for the immigrants requested a hearing before the full court, which remains pending.
The Biden administration redesignated temporary protected status for Haiti and Sudan, but has not done so for the four other countries. Those beneficiaries could lose their protections as early as the end of 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 Donald Trump’s decision to rescind TPS “a recipe for disaster,” promising to protect beneficiaries from being returned to unsafe countries.
Emi MacLean, an attorney with the American Civil Liberties Union of Northern California, said a settlement would have provided safety and security for the TPS holders who have felt vulnerable during the last four years of litigation.
“There is a reason that people are losing faith in the [Biden] administration,” she said. “These actions leave us very concerned about whether they recognize the urgency of this issue and the fact that many lives are on the line because of their unwillingness to act.”
A Department of Homeland Security spokesperson declined to comment on pending litigation but said that “current TPS holders from El Salvador, Nepal, Nicaragua and Honduras will continue to be protected over the coming months.”
TPS holders and their U.S. citizen children brought the class-action challenge in 2018 alleging government officials had a political agenda in deciding to terminate protections for those countries and were motivated by racism. Trump administration officials countered by saying the program was never intended to provide a long-term reprieve.
Plaintiff Elsy Flores Ayala said she was frustrated that a settlement couldn’t be negotiated. Flores Ayala, 43, her husband and their 24-year-old daughter have had TPS since 2001, a year after they arrived in the U.S. from El Salvador.
El Salvador was first designated for TPS in March 2001 after two earthquakes ravaged the country, killing more than 1,000 people and displacing more than 1 million. Since then, the U.S. government has cited subsequent natural disasters and gang-related insecurity in redesignations. Nearly 200,000 Salvadorans have TPS, many of them in California.
Flores Ayala said she and her family, who live in Washington, depend on the benefits that come with TPS — she works in child care, her husband does maintenance at an apartment building and her daughter is in college. She also worries about what could happen if they lose the deportation protections. Her two youngest children, ages 17 and 21, were born in the U.S. and she fears being separated from them.
“The worry is significant because we don’t know what will happen with us,” she said.
In the pointed ruling in 2018, U.S. District Judge Edward Chen blocked the terminations, saying beneficiaries risked being uprooted from their homes, jobs and communities.
“They face removal to countries to which their children and family members may have little or no ties and which may not be safe,” he wrote. “Those with U.S.-citizen children will be confronted with the dilemma of either bringing their children with them, giving up their children’s lives in the United States (for many, the only lives they know), or being separated from their children.”
The judge, an appointee of President Barack Obama, also cited Trump’s reported comments about Haitian and African immigrants being from “s---hole countries,” noting “circumstantial evidence of race being a motivating factor.”
Through the discovery process, lawyers for the immigrants received internal communications from the Homeland Security Department during the time the decisions for terminating TPS were made.
In one instance, then-acting Homeland Security Secretary Elaine Duke wrote in a personal memo in March 2018 that “the TPS program must end for these countries soon. … This conclusion is the result of an America first view of the TPS decision.”
Career diplomats and other experts cautioned at the time that the decisions would result in significant humanitarian and political repercussions, while a Homeland Security official suggested they comb through the conditions in those countries for “positive gems” to justify their arguments that recipients no longer needed legal protections.
