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15 Nw. J. L. & Soc. Pol'y 1 (2019-2020)

handle is hein.journals/nwjlsopo15 and id is 1 raw text is: 

Copyright 2019 by Andrew I. Schoenholtz                                 Volume 15 (Fall 2019)
Northwestern Journal of Law and Social Policy

        The Promise and Challenge of Humanitarian

   Protection in the United States: Making Temporary

             Protected Status Work as a Safe Haven

                               Andrew I. Schoenholtz*


      The humanitarian program Congress created in 1990 to allow war refugees and those
affected by significant natural disasters to live and work legally in the United States has only
partially achieved its goals. More than 400,000 individuals have received temporary protected
status (TPS). In many cases, the crisis ended, along with temporary protection. However, in about
half of the designated nationalities including the largest groups conflict and instability
continued, making this humanitarian protection program anything but temporary. Unfortunately,
Congress did not provide the Department of Homeland Security (DHS) with the tools it needed to
address such long-term crises. That was purposeful Congress worried that this temporary
program would lead to permanent immigration. To constrain the program, Congress required a
supermajority of the Senate for any nationality to be granted lawful permanent resident status as
a group, which would place such individuals on a path to citizenship. Congress has never granted
group status in this way to any TPS nationality.
      Congress also worried that even temporary legal status for conflict refugees and other
eligible humanitarian groups would act as a magnet and attract large movements to the United
States. For that reason, Congress required that eligible individuals had to already be in the United
States when the DHS Secretary designated their nationality for TPS. Accordingly, Congress
designed TPS in a way that did not protect ongoing arrivals fleeing a humanitarian emergency.
      Congress should address both of these shortcomings. This article explains why and how it
should do so. As DHS data shows, TPS has not acted as a magnet even after DHS has repeatedly
opened up temporary protection for some new arrivals through twenty re-designations of eleven
nationalities. The data shows that it is not the policy that attracts people to the United States, but
rather a fear of death or very serious harm that principally motivates flight from conflict and
significant violence. Accordingly, Congress can provide the same type of temporary protection to
new arrivals fleeing an ongoing crisis that many nations do, including the United Kingdom and
Canada, without worrying that TPS itself will act as a magnet.
      Moreover, Congress did not know in 1990 that limiting access to lawful permanent resident
status when a crisis does not end would effectively lead to long-term TPS programs. Over time,
people put down strong roots in their communities through work, family, education, and religious
institutions. Given this limitation in the current law, Congress should adopt ways to keep TPS
temporary both by facilitating return when conflict ends in a reasonable period of time and by

* Professor from Practice, Georgetown Law; Co-Director, Center for Applied Legal Studies; Director,
Human Rights Institute. The author wishes to thank Kristen Blosser, Nikki Endsley, Rachel Sumption and
Sabiya Ahamed for their excellent and dedicated research, without which this Article could not have been

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