Immigration attorneys say the Trump Administration has started to reject its own written rules, effectively making it impossible for many people with Temporary Protected Status to get permanent residency in the United States. The move essentially cuts off a path to citizenship for TPS holders from Haiti, El Salvador, Honduras and other countries, many of whom have lived in the U.S. for decades.
The shift is a quiet, technical one, rather than a loud new policy announcement. But its results have immediately been felt by people on the receiving end.
“We have had dozens and dozens of cases impacted by this change,” said Randy McGrorty, the executive director of Catholic Legal Services of Miami, a group that works through the Archdiocese of Miami. “The new policy overturns a decade long practice. And it's happened without notice, without any legal analysis, and frankly without any justification in the law.”
The vast majority of impacted cases in South Florida come from Haitian TPS holders, “because that’s the demographic in Miami,” said McGrorty. But seemingly all beneficiaries of TPS are being targeted, he noted.
The change itself comes down to a shift in a longstanding interpretation of internal policy and law. For years, people who were protected by TPS were able to leave the U.S. and then reenter, even if they initially entered the country illegally. Upon reentering the U.S. after traveling abroad, they would technically be “paroled” into the country. This would allow them to apply to become permanent residents with U.S. Citizenship and Immigration Services (USCIS) -- a first step towards becoming a U.S. citizen.
But now, USCIS is increasingly blocking that first step from taking place.
Tatiane Silva, an immigration attorney in Miami, pointed to the recent case of one of her Haitian clients, a recipient of TPS, as an example of what is happening. Her client temporarily left the country in 2017 after getting an advanced parole document from USCIS that allowed him to travel. Upon return, he was paroled to reenter the country, and even issued a parole stamp on his Haitian passport, according to records WLRN has reviewed. WLRN is not naming the client for fear doing so could adversely impact his immigration case.
According to the USCIS’s own policy manual, someone who gets paroled into the country is able to apply to become a legal permanent resident -- even if they originally came to the U.S. illegally.
However, in a letter to the client in October, USCIS said that Silva’s client was not eligible to apply to become a permanent resident. The letter explained that USCIS now doesn’t have the jurisdiction to help someone apply to become a permanent resident for this kind of case. Rather, USCIS is routinely considering “any TPS recipient who leaves the country to revert back to whatever immigration status they had before receiving TPS protections,” said Silva.
In her client’s case, he illegally entered the US and had a final order of deportation before gaining TPS protection. Without gaining permanent residency, the moment TPS for Haitians expires -- the current date is in January of 2021 -- he will likely face immediate deportation.
“We have hundreds, if not thousands of cases in this same exact situation, and they were all approved,” said Silva. “This is a recent and abrupt change.”
Immigration attorney Ronald Haber has seen several clients and consults get this same kind of denial. All of the cases he has handled have involved Haitian TPS holders.
“What makes it especially difficult is that, a lot of my clients -- many of their friends and families have already gotten their permanent residency through this exact same process that USCIS is now saying isn’t allowed,” said Haber. “They’re moving the goalposts in the middle of the game.”
In a statement, a USCIS spokesperson told WLRN that it is “aware of the issue and it is under review.” The USCIS “is committed to adjudicating all petitions and applications in accordance with laws and regulations. USCIS is always in the process of considering and evaluating an array of measures to best align our decisions with federal immigration law,” said the statement.
“I dispute that it’s under review,” said McGrorty. He, along with several other immigration attorneys, told WLRN that he brought this issue up with USCIS directly more than six months ago, but has not received any explanation for the shift.
“If they’re reviewing it, they should stop denying cases while it’s under review,” said McGrorty.
By all accounts, these cases started to pop up last December and January, and have since increased in frequency. Through the attorney grapevine, attorneys have learned about similar cases popping up in other areas of Florida, as well as Texas and Illinois.
In many parts of the country, a TPS holder doesn’t have to travel abroad to be paroled back into the US before applying for permanent residency. Two U.S. Appeals Court decisions for the Sixth and Ninth Circuits have found that having TPS alone is considered an “admission” into the U.S., allowing someone with it to apply for permanent residency. That’s the case in California, Arizona, Alaska, Hawaii, Idaho, Montana, Nevada, Oregon, Washington, Tennessee, Ohio, Michigan and Kentucky.
Technically, TPS holders could move to one of those states, apply for permanent residency there and likely skirt the new policy altogether. “But that’s just not realistic,” said Silva.
In Florida, attorneys are not only seeing applications to become permanent residents denied by USCIS. They are also facing a parallel roadblock of USCIS simply not responding to applications for TPS recipients and keeping them pending for longer than they’ve ever seen, according to several attorneys.
“The new policy is that: there is no new policy, so we’re just going to hold you in space until we figure out if we want to make a new policy, or until this new policy that we’re creating is eventually created,” said Elina Santana, an immigration attorney and Vice President of the American Immigration Lawyers Association South Florida Chapter. “It’s incredibly confusing and wholly unfair to everyone who has pending applications.”
Technically, having TPS alone does not grant a pathway to permanent residency or citizenship. Yet by leaving the US and being paroled back in, many TPS holders with US citizen spouses and children have found a way to apply for permanent residency.
McGrorty, with Catholic Legal Services, said that after analyzing denial letters, he believes that USCIS is relying on a “bizarre” interpretation of a technical 1991 immigration law to deny that it has jurisdiction to help TPS holders adjust their immigration status.
“Some legal brain in USCIS who wants to harm the TPS community came up with a contorted way to shape that law in a way to harm TPS recipients,” said McGrorty. "It impacts people who are trying to regularize their immigration status in a way that the law allows. This is completely legal immigration."
The recent shift is creating a panic in immigrant communities, said Marleine Bastien, the executive director of the Family Action Network Movement (FANM), an immigrant rights advocacy group. In recent community meetings, families that have TPS recipients in them have began to talk about the issue.
“They feel like there is no hope. They feel hopeless. Because they are doing what advocates and the lawyers have been telling them to do. And then USCIS is turning around and saying: ‘No. No. You can’t do it,’” said Bastien.
“We don’t know what else TPS recipients can do,” she said.