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Seven days. 

The Department of Homeland Security will decide by November 23 whether 59,000 Haitians who benefit from Temporary Protected Status, or TPS, will be allowed to stay in the United States, or will be forced to return to a country that is incapable of taking them back.

Haiti was initially granted TPS in 2010, following a catastrophic earthquake that, according to government figures, killed up to 300,000 people and displaced more than a million.  TPS was reauthorize several times after that, following a record breaking Hurricane and cholera epidemic introduced by UN peacekeepers.  Hurricanes Irma and Maria compounded the damage from all of this.  

Conventional wisdom says that TPS for Haiti won’t be renewed past its expiration on January 22. Here’s why:

Last week DHS declined to extend TPS for Nicaragua, which, like Haiti, is perpetually hammered by natural disasters. In October, the State Department called for an end to TPS in Haiti and several Central American countries.  And last May, then DHS Secretary John Kelly reluctantly granted Haiti a 6 month extension, warning Haitian immigrants to use that time to “handle their affairs,” and arrange departures from the U.S.

A handful of lawmakers from both sides of the aisle who support TPS see where this is headed.  They’ve pressed DHS for an extension, and introduced bills to provide TPS beneficiaries with Permanent Residency and a path to citizenship.  But they’re up against a Trump Administration bent on banning most immigrants from entering the country, and expelling those who are already here.      

I understand it looks bad.  However, none of these factors, definitively at least, closes the door on TPS for Haiti.  To keep things in perspective, here are three things you should know.

1.  Nicaragua Didn’t Comply With The TPS Statute, But Haiti Did

Under the governing statute, TPS is permitted when conditions in an immigrant’s home country make it too dangerous to return.  But in cases that involve an environmental disaster, DHS cannot authorize TPS unless the nation at issue requests it.

Nicaragua didn’t do that.  Here’s the memo from Acting DHS Secretary Elaine Duke noting that “The Government of Nicaragua has not requested that I continue to extend its designation.”    

I don’t know of anything that allows DHS to waive this requirement.  But even if it could, this is not a situation where Nicaragua was incapable of submitting the necessary request.  Living conditions are intolerable across wide-regions of the country, but the government itself is fully functioning.  For sure a catastrophic emergency can temporarily knee-cap basic government operations, but that’s not happening in Nicaragua right now.  The government wasn’t incapable of submitting a TPS request.  It simply chose not to.  So it lost by default.

Haiti, on the other hand, did comply with the statute.  Here’s the memo delivered by Haiti’s Ambassador to the U.S on behalf of the country’s President.  DHS will have to decide whether conditions on the ground are as bad as Haiti reports, but unlike the case with Nicaragua, nothing prevents it from authorizing TPS should it reach that conclusion.  

2.  DHS Didn’t Blindly Follow The State Department on Honduras – So It Could Go It Alone On Haiti Too

There is no question the State Department’s working to end TPS for Haiti and Central America.  An October State Department report cited by the Washington Post concluded that conditions in those countries no loner warrant TPS.  

An official familiar with the report’s contents acknowledged widespread violence, corruption and poverty in the affected countries, but insisted that TPS was not an appropriate way to solve these problems.  

State’s position that TPS is an ineffective remedy, however, is a policy consideration that Congress debated and rejected when it drafted the statute.  Now that TPS is on the books, DHS is only supposed to address the questions set forth in the statute: what are the current living conditions and is the government able to receive its nationals.  

What State had to say about these two questions isn’t entirely clear because it has not publicly released its report.  We don’t know, for example, whether it rejects facts the government of Haiti set forth in its official request, and which have been corroborated by human rights organizations, or whether it accepts those facts as true, but stakes its entire position against TPS on policy grounds.

I don’t want to minimize the weight of State’s report.  It’s an obvious blow to Haiti, and DHS did cite it as an additional reason for ending TPS in Nicaragua.  

But that same report also urged DHS to end TPS in Honduras – which DHS refused to do.  Instead, DHS announced that it did not have enough information to make the call, and delayed a decision pending further review.  That triggered an automatic extension, which buys Honduras 6 additional month of TPS past its January 2018 expiration.

Could DHS reject the State Department’s recommendation on Haiti, as it did with Honduras?  It’s possible.

3.  White House Be Damned: Duke Stood Up To Kelly

John Kelly may have signaled the death of TPS in Haiti when he reluctantly renewed it in May.  But Kelly is no longer DHS Secretary.  He’s the White House Chief of Staff.  And when he tried to pressure Acting Secretary Elaine Duke to end TPS for Honduras, she stood her ground.

While traveling with President Trump in Japan, Kelly reportedly placed an emergency call to Duke upon learning that she effectively planned to extend TPS for 6 months in Honduras.  He argued that anything less than a decision to expel Honduran immigrants “prevents our wider strategic goal on immigration,” and that a delay would cause problems during the confirmation hearings of Kelly’s chosen nominee for the next Secretary of DHS.

DHS downplayed the significance of the call in a statement carefully worded to defended Duke’s independence.  According to the agency’s spokesperson, Duke “took those views and advice on the path forward for TPS and made her decision based on the law,”

Duke reportedly found Kelly’s attempt to strong arm her so troubling, however, that she threatened to resign.  A cadre of lawmakers who support TPS accused the White House of improper political interference.

DHS disputes some parts of the Washington Post article that broke this story, so it’s possible the tension between Duke and Kelly is not what it appears.  But if it turns out to be true, then we know that Duke at least has the fortitude to withstand political pressure from the White House and reach conclusions based on the merits.

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It overstates the case to say I’m optimistic on what will happen with Haiti.  But nothing definitively closes the door to TPS.  Whatever happens, we’ll find out soon.

Seven days.   

-Kathleen Bergin

Related:  TPS For Caribbean Immigrants After The Hurricanes

photo credit: Institute for Justice and Democracy in Haiti