Temporary Protected Status for Sudanese Ending – Dust Off Those Case Files
Last month the administration announced the termination of Temporary Protected Status (TPS) for Sudan, effective November 2, 2018. The September 18 announcement stated that Acting Secretary of Homeland Security Elaine Duke had “determined that conditions in Sudan no longer support its designation,” which has been in place since 1997.
The end of Sudan TPS doesn’t tip the administration’s hand about what it intends to do with other countries – after all, TPS for an estimated 49 nationals of South Sudan was extended for an 18-month period through May 2, 2019. But the move does follow the termination of TPS in May for the Ebola-affected countries of Guinea, Liberia, and Sierra Leone and the extension of TPS for Haitians for just six months “for the purpose of orderly transition” announced earlier this year. The fate of people from the seven remaining countries for which TPS is set to expire in 2018 is unknown and this uncertainty has created tremendous stress for the more than 350,000 people currently under protection, their families, and employers.
Created by Congress as part of the Immigration Act of 1990 after nearly a decade of attempts to pass authority for blanket humanitarian designations, INA §244 allows the Secretary of Homeland Security to designate TPS for nationals of any foreign state if there is an ongoing armed conflict; there has been an earthquake, flood, drought, epidemic, or other environmental disaster; or there exist extraordinary and temporary conditions in a country that prevent its nationals from returning to safety. Unusually, §244(h) limits consideration of legislation adjusting the status of TPS beneficiaries to permanent resident status to the U.S. Senate, unless waived by a supermajority. Those who negotiated the limits clearly wanted to prevent TPS from becoming “permanent” or PPS.
But, as made clear by Sudan, situations warranting TPS may not be resolved neatly within the time span of a typical TPS designation. Indeed, despite the acting secretary’s findings that conditions in Sudan warrant termination of TPS, Human Rights Watch reports that the country remains plagued by government repression, widespread use of torture, media censorship, and internal armed conflicts which have left an estimated 190,000 people displaced.
The end of TPS for Sudan isn’t just about what people face upon return, but about what the more than 1,000 Sudanese TPS beneficiaries leave behind. (This number, of course, is dwarfed by the number of people who could be impacted if TPS for El Salvador, Honduras, and Nicaragua – all of which have had TPS for more than 15 years – is not extended when their current designations run out early next year). Sudan is the longest-designated country to face TPS termination, and its end promises massive disruption of the lives of so many who depend on TPS holders, including the communities they have been part of for two decades. Take a moment to think about what you were doing in 1997 and consider leaving behind everything you’ve built since then.
With end of Sudan TPS set for next year, the immigration cases of an estimated 1,039 Sudanese TPS beneficiaries will pick up where they left off. Given an original TPS designation date of November 4, 1997, some Sudanese TPS beneficiaries (and their attorneys) will need to dust off case files that are more than 20 years old. If you’ve never handled a 245(i) adjustment or represented someone in deportation (not removal) proceedings, now would be a good time to brush up by checking out a few resources on www.AILA.org (I’ve made some recommendations at the end of this blog post).
After 20 years, its unlikely many people will “continue to hold any other immigration status that they have maintained” while registered for TPS. For most people, the termination of TPS will mean the initiation of removal proceedings or the recalendaring of those cases which were previously administratively closed. People with final orders of removal (or deportation) can expect those orders to be executed.
On the practice side, attorneys should review old case files – especially in administratively closed cases before the immigration court or Board of Immigration Appeals – to make sure that representation agreements were clear. Check in with previously represented Sudanese clients to develop a post-TPS case plan. Attorneys will need to look carefully at old asylum claims, which may pre-date today’s evidentiary requirements or material support provisions.
Although the end of Sudan TPS is the end of an era, it can also be an opportunity to bring new communities into the struggle for a road to citizenship which is being paved by the DACA movement. As we meet with clients facing TPS termination, invite them to take action. Grassroots organizing and mobilizing your community matters and can make a difference, just look at the recent victories won by the Cambodians involved with the #ReleaseMN8 campaign.
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Author recommendations:
DHS Notice Extending Temporary Protected Status for South Sudan
Court Decisions Ensure TPS Holders in Sixth and Ninth Circuits May Become Permanent Residents