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What’s Wrong With Temporary Protected Status and How to Fix It

Exploring a Complementary Protection Regime

Introduction

The Trump administration’s decisions (Blitzer 2018) to terminate Temporary Protected Status (TPS) for Nicaraguans, Haitians (DHS 2017), Salvadorans (USCIS 2019a), Sudanese (USCIS 2017), and Hondurans (Lind 2018) would leave thousands of people who have long enjoyed protection in the United States facing the sudden and terrifying prospect of removal. While the merits of the claims for a continuing need for temporary protection for particular nationality groups ought to be fairly examined, the purpose and effectiveness of the TPS statute itself should also be evaluated.

This article looks at not only inadequacies in the TPS regime but also protection gaps in the US asylum system. It evaluates whether TPS is the most appropriate and workable mechanism for the United States to use to protect foreigners from generalized conditions of danger in their home countries. The US protection regime should be changed to make it more responsive to the risks many asylum seekers actually face by creating a broader “complementary protection” standard and a more effective procedure for assessing individual protection claims, while reserving “temporary protection” for rare situations of mass influx that overwhelm the government’s capacity to process individual asylum claims.

TPS came about to address protection needs created by gaps in the US asylum system. The US Refugee Act of 1980[1] essentially incorporated the international refugee definition from the United Nations’ 1951 Refugee Convention (UNHCR 2010), saddling the United States with an asylum system that very narrowly interpreted the refugee definition (Robinson and Frelick 1990). Claims by Central Americans fleeing the brutal civil wars of the 1980s were overwhelmingly rejected, despite widespread human rights abuses and massive displacement (ibid.).

In 1990 Congress created TPS,[2] which authorized the attorney general to designate any foreign country or part of a country for TPS if it met one of three criteria:

  1. An ongoing armed conflict there that would pose a serious threat to the personal safety of its returning nationals;

  2. A request from a foreign government not to return its nationals because of an environmental disaster such as an earthquake, flood, drought, or epidemic that caused substantial but temporary disruption of living conditions; or

  3. Other extraordinary and temporary conditions that prevent nationals of the state from returning in safety.

While providing blanket protections that very likely have saved lives, TPS has been a blunt instrument that has frustrated advocates on both sides of the larger immigration debate. Its flaws are clear. First, as an early critic of TPS, Senator Alan Simpson (R-WY), often pointed out, there is nothing so permanent in US immigration law as a temporary status. TPS has been in effect for 10 years for Haitians, 19 for Salvadorans, 21 for Hondurans and Nicaraguans, 23 for Sudanese, and 29 for Somalis (USCIS 2019b). While extensions of TPS throughout a period of many years may, in fact, reflect conditions in the designated countries that have essentially remained in protracted crisis, the quasi-permanence of many of the designations both contradicts congressional intent for TPS to be used for temporary, short-term situations and leaves beneficiaries in “legal limbo,” which, in the words of one commentator, “run[s] contrary to the policy goals of fostering integration and full membership within American society for long-term foreign residents” (Bergeron 2014, 29).

Second, the status affords protection on a blanket basis only for nationals of the designated country who were already in the United States at the time of the designation. Nationals of a country designated for TPS who arrive in the United States the next day are ineligible for temporary protection. Consequently, it benefits people who did not actually experience a natural disaster or civil war, and, more importantly, it excludes those who subsequently seek refuge from the calamity that directly harmed or threatened them.

Third, the process for choosing countries to be designated for TPS has lacked transparency and has been highly political, in which immigration concerns and foreign policy considerations have weighed heavily (Kerwin 2014, 56). The resulting patchwork of protected populations seems arbitrary. An asylum seeker in the United States may come from a country experiencing armed conflict, but if their country is not designated for TPS, they have no basis for seeking protection from the generalized threat of violence.

Despite its inadequacies, TPS has remained the only available choice for many people facing dire situations. It is an inadequate mechanism that should be at least partly replaced by new forms of protection. Fortunately, better models are readily available in the practice of many other countries.

Alternative Models in Other Asylum Systems: Complementary Protection Distinct from Temporary Protection

Many countries around the world conduct a two-pronged assessment when considering a claim for protection. They include all European Union (EU) member states,[3] Albania,[4] Australia,[5] Bosnia,[6] Canada,[7] Finland,[8] Macedonia,[9] Mexico,[10] Montenegro,[11] New Zealand,[12] Norway,[13] Serbia,[14] South Africa,[15] South Korea,[16] Switzerland,[17] Turkey,[18] and Ukraine.[19] First, these systems examine claims using the international refugee definition from the 1951 Refugee Convention: a well-founded fear of being persecuted on account of race, religion, nationality, membership in a particular social group, or political opinion. But asylum seekers who do not meet this definition can also be recognized as needing a complementary status as a protected person if they can establish that, if returned, they would face a real risk of serious harm for reasons other than a fear of being persecuted (McAdam 2005).

The European Union and Mexico provide useful alternative models for the United States. Both the member states of the European Union[20] and Mexico[21] incorporate a two-pronged inquiry into their refugee status determination procedures for arriving asylum seekers. The EU Qualification Directive[22] sets out the standards of eligibility for international protection, including, for those who do not qualify as refugees under the 1951 Refugee Convention, a category of complementary protection (termed subsidiary protection) that protects people who would face a real, individual risk of serious harm to life or person arising from:

  1. The death penalty or execution;

  2. Torture or inhuman or degrading treatment or punishment; or

  3. Indiscriminate violence in situations of international or internal armed conflict.

The inclusion of the first two elements in the Qualification Directive (McAdam 2007) is traceable to the obligation of its member states under Article 3 of the European Convention on Human Rights[23] not to subject anyone to torture or to inhuman or degrading treatment or punishment, and to Protocols 6 and 13, which abolish the death penalty. The EU Charter of Fundamental Rights, which is binding on all EU member states, forbids states from removing, expelling, or extraditing anyone to a state where they “would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment” (EU 2012, 19).

Outside Europe, some countries, such as New Zealand[24] and Australia,[25] have specifically cited the International Covenant on Civil and Political Rights (ICCPR) in articulating grounds for complementary protection that include the prospect that the person would face cruel, inhuman, or degrading treatment or punishment.

The EU Court of Justice (Elgafaji)[26] has interpreted the third element of the Qualification Directive’s complementary protection standard on indiscriminate violence arising from armed conflict as referring to a “threat…to a civilian’s life or person” (EU 2009) rather than a specific act of violence.

In the European Union, beneficiaries of complementary protection enjoy the same basic rights as Convention refugees, including protection from forced return (refoulement), work authorization, and social benefits, although there are differences in the number of years for which residence permits are issued and lesser benefits for those granted complementary protection, such as family reunification.

Mexican law recognizes refugee status based on either of two standards. An asylum seeker can qualify as a refugee on the basis of either the 1951 Refugee Convention definition or the broader definition in the 1984 Cartagena Declaration[27] on Refugees, which includes as refugees “persons who have fled their country because their lives, safety or freedom have been threatened by generalized violence, foreign aggression, internal conflicts, massive violations of human rights or circumstances which have seriously disturbed public order.”

In addition, Mexican law[28] includes a standard of complementary protection for “a foreigner who has not been recognized as a refugee,” but who cannot be returned to his or her country because “his or her life would be threatened or he or she would be in danger of being subjected to torture or other cruel, inhumane, or degrading punishment or treatment.”

Mexico’s refugee and complementary protection standards are particularly significant in the current Central American context for two reasons.[29] First, as in all other jurisdictions with complementary protection, neither the Cartagena-derived part of the refugee definition nor the complementary protection standard requires a nexus to political opinion or the other grounds for protection in the Refugee Convention. Second, neither standard requires the existence of an ongoing armed conflict as the source of a serious threat, which is often a requirement in other jurisdictions where complementary protection is available, such as the European Union.

This means that a person fleeing gang or domestic violence could qualify for refugee status or complementary protection based on a real risk of serious harm delinked from the need to establish that the persecutor’s motivation is the victim’s race, religion, nationality, social group, or political opinion, or that the harm arose from an armed conflict. Although in practice there remains a considerable gap between Mexican law and its implementation (Human Rights Watch 2016, 48), the Mexican refugee status determination procedure is structured to require only a single examination to assess claims sequentially according to the Refugee Convention, Cartagena Declaration, and complementary protection standards.

The 1969 Africa Refugee Convention (UNHCR 1969) incorporates these broader causes of forced displacement into the refugee definition itself. Many African states have incorporated the broader definition into domestic refugee law. For example, Nigeria’s refoulement provision in its 1989 Refugees Act[30] is based not only on the 1951 Refugee Convention but also on the Africa Refugee Convention, insofar as it prohibits the return of anyone whose “life, physical integrity or liberty could be threatened on account of external aggression, occupation, foreign domination or events seriously disrupting public order in any part or the whole of that territory.”

Similarly, South Africa’s 1998 Refugee Act[31] defines refugees according to both the 1951 Refugee Convention and the Africa Refugee Convention, including any person who “owing to external aggression, occupation, foreign domination or events seriously disturbing or disrupting public order in either a part or the whole of his or her country of origin or nationality, is compelled to leave his or her place of habitual residence in order to seek refuge elsewhere.”

Gaps in Protection in the US Asylum System

The contrast these models present with the United States is striking, and it highlights serious protection gaps in US law. The first gap is the lack of a protection standard for people at real risk of serious harm based on cruel, inhuman, or degrading treatment or punishment. Although the United States fulfills its obligations under the 1984 UN Convention against Torture[32] by not returning people who more likely than not would be tortured, it is also a party to the 1966 International Covenant on Civil and Political Rights (ICCPR). The UN Human Rights Committee, the expert body that interprets and assesses state compliance with the ICCPR, has said, “States parties must not expose individuals to the danger of torture or cruel, inhuman or degrading treatment or punishment upon return to another country by way of their extradition, expulsion or refoulement” (UNHRC 1992).

US courts have instead focused on the distinction between the definition of torture in Article 1 of the Convention against Torture and the definition of cruel, inhuman, and degrading treatment or punishment in Article 16.1, as these relate to the non-refoulement obligation. Article 16.1 calls on states parties to prevent cruel, inhuman, or degrading treatment “in any territory under its jurisdiction,” whereas Article 3 on non-refoulement refers only to a person who “would be in danger of being subjected to torture.” The United States has interpreted this to mean that the obligation against cruel, inhuman, or degrading treatment applies only to territories directly under US jurisdiction, but the prohibition on torture applies everywhere, so the United States is obligated not to return a person to a territory outside US jurisdiction where he or she would face the threat of torture.

In In re J-E-,[33] the US Board of Immigration Appeals dismissed the appeal of a Haitian man who showed that he would most likely be subjected to inhuman and degrading treatment on return, saying, “[W]e find that the respondent has failed to establish that these severe instances of mistreatment are so pervasive as to establish a probability that a person detained in a Haitian prison will be subject to torture, as opposed to other acts of cruel, inhuman, or degrading punishment or treatment” (292). Thus has the United States rejected any obligation to prevent people from being returned to face the risk of cruel, inhuman, or degrading treatment or punishment that does not rise to the level of torture.

The second gap in the US asylum regime is the absence of a ground for protection for newly arriving asylum seekers who are fleeing situations of indiscriminate violence or other exceptional circumstances that would threaten their lives or personal security. TPS applies only to members of designated nationalities who were already in the United States before the events that caused the forced displacement. Therefore, people not fleeing persecution or torture but rather escaping other serious harm from armed conflict, environmental disasters, and other extraordinary situations are for the most part left unprotected if they come from countries that have not been designated for TPS or arrive in the United States after the date their countries were designated for TPS.

Consider the 1992 landmark US Supreme Court case INS v. Elias-Zacarias,[34] involving a young Guatemalan man who fled forced recruitment by guerrillas during the civil war of the mid-1980s and asked for asylum because he was afraid the guerrillas would “take me and kill me.” Justice Antonin Scalia, writing for the majority, held that he was not eligible for refugee status because he had not established that he would be persecuted because of his political opinion.

“It is quite plausible, indeed likely,” Scalia wrote, “that the taking would be engaged in by the guerrillas in order to augment their troops, rather than show their displeasure, and the killing he feared might well be the killing in the course of resisting being taken.” In other words, if you face a real threat of being killed by guerrillas in a civil war, US law does not afford you any avenue to protection unless you can show that they are going to kill you for very particular reasons that are enumerated in the refugee definition.

Nor was TPS of any help to Elias-Zacarias; it applies only to nationals of the designated countries who are already in the United States at the time of the designation. Guatemala was not on the list of designated countries at the time despite being in the midst of a civil war. Even if it had been on the list, TPS would not have helped Elias-Zacarias if he had arrived after the cutoff date.

In recent years, this protection gap has been felt especially harshly by people fleeing gang violence in Central America. The United Nations’ refugee agency (UN High Commissioner for Refugees [UNHCR]) maintains that people fleeing forced recruitment by gangs should be seen as having valid persecution claims under the Refugee Convention (UNHCR 2010), but the US Board of Immigration Appeals (BIA) has usually taken the opposite position.[35] In June 2018, however, after the BIA granted asylum to a Salvadoran woman who had survived nearly 15 years of horrific abuse by her husband, including numerous rapes and beatings, then-Attorney General Jeff Sessions reversed its ruling.

To reject her claim, he overruled the BIA precedent that had recognized “married women in Guatemala who are unable to leave their relationship” as members of a social group that could qualify for asylum. “Generally,” his decision said, “claims by aliens pertaining to domestic violence or gang violence perpetrated by non-governmental actors will not qualify for asylum.”[36]

The third gap relates to people who cannot return home because of natural or human-made disasters or other serious events that disturb public order. Although the drafters of the TPS statute were prescient in identifying people displaced by floods, droughts, and other environmental disasters as being in need of protection, they fell short of providing a firm basis for protecting people under existential threat who did not meet the existing refugee definition (Betts 2013). First, by limiting TPS to people already in the United States at the time of the designation, they chose not to create a mechanism to protect the actual victims forced from their homes by such natural catastrophes. Second, they failed to define the relevant basis for providing protection. While the impulse to protect survivors of hurricanes and earthquakes is laudable, the focus on environmental drivers of forced displacement distracts from a definition grounded in a need for international protection based principally on the seriousness of the harms one would likely face on return regardless of cause.

Third, they made protection on environmental grounds contingent on a request for TPS from the home government. A new complementary protection standard should not depend on a request from that state or be limited to environmental causes. Many governments would be loath to admit their failings and ask the United States to provide TPS for its nationals in situations of their own making, such as a Chernobyl-like environmental disaster, generalized lawlessness, or total economic collapse, and their protection should not depend on such a request.

Finally, the drafters of the TPS statute created a mechanism incapable of protecting groups and individuals from undesignated countries. Instead of providing blanket protection to the nationals of designated countries, a new complementary protection mechanism should offer an individualized process that any person can access if they meet the required criteria. It should not be tied to executive or congressional certification of particular nationalities, or limited in scope to people who are already inside the United States at a particular moment in time.

Proposed Standards, Procedures, and Benefits for Complementary Protection

A Proposed Standard

A new US standard should provide individualized complementary protection to people outside their countries who are not able to meet the 1951 Refugee Convention standard but who face a serious threat to life or physical integrity if returned because of a real risk of (1) cruel, inhuman, or degrading treatment or punishment; (2) violence; or (3) exceptional situations, for which there is no adequate domestic remedy.

Unlike the standard for qualifying for refugee protection, which under current US law often hinges on the prosecutor’s motives, this complementary protection standard suggests that the particular motive behind or cause of the harm the person would face on return to their country is less relevant than whether the person’s return would put their rights to life or physical integrity at serious risk, and whether the receiving state’s government is able or willing to exercise its responsibility to protect them.

What follows are explanations of some of the key terms in this prosed complementary protection standard.

[P]eople outside their countries

This term excludes internally displaced people. It also provides no obligation to evacuate or resettle someone experiencing these harms. Rather, it stands as a principle of non-refoulement.

[W]ho are not able to meet the 1951 Refugee Convention standard

To avoid undermining the Refugee Convention’s protection regime, but rather supplement it and close protection gaps, adjudicators should conduct a single, comprehensive examination (Executive Committee of the High Commissioner’s Programme 2005) of the claim that first assesses the applicant’s qualification for refugee status under the 1951 Refugee Convention standard, and then if necessary examines the claim under the proposed complementary protection standard.

[L]ife or physical integrity

ICCPR Article 6 guarantees the right to life, and Article 9 guarantees the rights to security of person. Although the ICCPR uses the term “security of person,” the preferred term here is “physical integrity” from Article 5(1) of the American Convention on Human Rights (ACHR),[37] which guarantees the right to “physical, mental, and moral integrity.” This term is also used to describe UNHCR’s expanded mandate: “UNHCR considers that serious (including indiscriminate) threats to life, physical integrity or freedom resulting from generalized violence or events seriously disturbing public order are valid reasons for international protection under its mandate” (UNHCR 2009, 4; emphasis added).

The Human Rights Committee’s General Comment 35 on ICCPR Article 9 says, “Security of person concerns freedom from injury to the body and the mind, or bodily and mental integrity” (VII; emphasis added). Assuming that “bodily” and “physical” are synonymous, this indicates that physical integrity is seen as a key component of “security of person.” Per the ACHR and Comment 35 on the ICCPR, the term “physical integrity” should be read as including mental integrity.

General Comment 35 states that the right to security of person obliges states parties to take appropriate measures “to protect individuals from foreseeable threats to life or bodily integrity proceeding from any governmental or private actors,” but says that the right “does not address all risks to physical or mental health and is not implicated in the indirect health impact of being the target of civil or criminal proceedings.”

The notion that people have a right to be protected from “foreseeable threats” to life or bodily integrity is particularly relevant to the non-refoulement principle that we are proposing. General Comment 35 also makes a reference to the principle of non-refoulement in this context, saying, “Returning an individual to a country where there are substantial grounds for believing that the individual faces a real risk of a severe violation of liberty or security of person such as prolonged arbitrary detention may amount to inhuman treatment prohibited by article 7 of the Covenant.”

General Comment 35 also discusses the relationship between the right to life and the right to security of person: “The right to life guaranteed by article 6 of the Covenant, including the right to protection of life under article 6, paragraph 1, may overlap with the right to security of person guaranteed by article 9, paragraph 1. The right to personal security may be considered broader to the extent that it also addresses injuries that are not life-threatening.”

[A] real risk

The real risk does not denote the severity of treatment, punishment, or violence but rather the likelihood of it happening. For example, if an asylum seeker claims he or she would face a serious threat of violence if returned to a country plagued by rampant gang violence, the person would need to establish that there is a real risk of being harmed by that violence.

The “real risk” language is drawn from the European Union’s Qualification Directive:[38] a “‘person eligible for subsidiary protection’ means a third-country national or a stateless person who does not qualify as a refugee but in respect of whom substantial grounds have been shown for believing that the person concerned, if returned to his or her country of origin, or in the case of a stateless person, to his or her country of former habitual residence, would face a real risk of suffering serious harm…and is unable, or, owing to such risk, unwilling to avail himself or herself of the protection of that country” (emphasis added).

[E]xceptional situations

This closely tracks the standard found in both the OAU Convention (UNHCR 1969) and the Cartagena Declaration (UNHCR 1984), which include in their refugee definitions people who flee events or circumstances “seriously disturbing public order.” While extreme poverty can give rise to circumstances that threaten a person’s life or physical integrity, this language excludes people seeking economic betterment from “normal” situations of extreme poverty. In addition to indiscriminate violence arising from armed conflict, examples of exceptional situations that could lead to a real risk to life or physical integrity might include rampant, unbridled lawlessness in a failed state; economic implosion with the collapse of government institutions and services; a natural or human-made environmental disaster that prevents people from returning to their country; or famine and disease arising from an environmental disaster.

[F]or which there is no adequate domestic remedy

The circumstances that give rise to serious threats to life and physical integrity should be beyond the capacity or willingness of the person’s home state to manage adequately or for which another domestic remedy (such as an international humanitarian intervention into the country of origin or an internal flight alternative) is unavailable.

A Proposed Procedure

Under this proposal, in a single, comprehensive hearing or interview, an immigration judge or US Citizenship and Immigration Service (USCIS) officer would apply one of two standards in sequential order to a person seeking protection: (1) a well-founded fear of being persecuted, or (2) a serious threat to life or physical integrity from violence or exceptional situations for which there is no adequate domestic remedy. The adjudicator would consider the standards for protection in order. Only after a comprehensive evaluation of any claim based on the 1951 Refugee Convention definition would the adjudicator examine the claim on complementary protection grounds.

To comply with the obligations under the Convention against Torture, a US immigration judge is already obliged to consider as a last resort before ordering the person removed from the country whether it is more likely than not that a returned person would be tortured. This circumscribed protection against return to being tortured does not confer on that person any immigration status or the right to adjust to a lawful status (DOJ-EOIR 2009). Likewise, although not yet recognized in US courts, obligations under the ICCPR require US immigration judges not to return anyone to face a real risk of cruel, inhuman, or degrading treatment or punishment. Because various grounds for exclusion apply in the asylum context, mostly relating to the criminal history of the person being considered, and because such exclusion grounds would presumably also extend to the grant of complementary protection, the United States needs to retain this separate post–removal order examination of claims under the Convention against Torture and the ICCPR for people who might be excluded from status on other grounds.

Proposed Benefits and Duration of Protection

In the European Union, the basic rights not to be returned and to have work authorization and other social benefits are the same for people protected either as refugees or under complementary protection, but there are some differentiated benefits relating to the time of residency permits and for family reunification. Under the EU system (ECRE 2016, 24), people granted refugee status receive renewable residency permits for at least three years, whereas people granted complementary protection receive residency permits for at least one year, renewable for at least two years.

If the United States develops its own approach to complementary protection, it should not differentiate benefits between people granted asylum[39] and beneficiaries of complementary protection, particularly with regard to the residency benefit. But given the wider grounds for protection being proposed here, as well as the proposal for undifferentiated benefits for either status, it would be appropriate to consider a longer period of temporary residency status before allowing both asylees and beneficiaries of complementary protection to adjust to permanent residency.

Under current law, a grant of asylum “does not convey a right to remain permanently in the United States.”[40] An asylee may apply for lawful permanent resident status one year after being granted asylum. Under this proposal, the waiting period for both categories could be longer — for example, three years — and the government should have the opportunity to assess whether permanent protection is really needed.

While the Refugee Convention says that states “shall as far as possible facilitate the assimilation and naturalization of refugees,” it also includes a “cessation clause” that enables states to withdraw refugee status from persons no longer needing their protection. This can be based on either a refugee’s own actions, such as voluntarily reestablishing themselves in the home country or re-availing themselves of that or another country’s protection, or a fundamental, stable, and durable change (Executive Committee of the High Commissioner’s Programme 1992) in the circumstances in the country of origin that caused the person to become a refugee.

Under current US law,[41] asylum may be terminated for the same reasons as specified in the Refugee Convention’s cessation clauses (UNHCR 1999). Under this proposal, the same should apply for people granted complementary protection. This does not mean that either group would be required to relitigate their claims for protection. The burden would be on the government to show that circumstances in the country of origin had fundamentally and durably changed such that the harm that previously caused the person to seek and receive protection no longer exists or that the protected person had received the protection of another country.

A longer waiting period before allowing adjustment to permanent resident status would afford the US government a better opportunity to assess conditions in the country of origin and to allow more time to see whether the circumstances that caused a person to flee have fundamentally and durably changed such that the threats causing displacement and preventing return no longer exist, and that new threats have not arisen in the meantime. While the US government should responsibly heed the call of the Refugee Convention to assimilate and naturalize refugees — as well as beneficiaries of complementary protection — who need permanent protection, it has no obligation to continue providing surrogate protection if a home government is able and willing to meet its responsibility to protect its citizens (Frelick 2001).

As the US asylum statute itself already underscores, a grant of asylum, per se, does not convey a right to remain permanently but should be regarded at the outset as a temporary palliative that protects the refugee for a time until a durable solution can be found. What the durable solution might be is a separate question.

TPS Should Be Reserved Exclusively for Mass Influxes That Overwhelm the Asylum System

If the United States puts into place a proper complementary protection procedure, what should become of TPS? As in most other jurisdictions globally, the United States should reserve temporary protection for the extraordinary and temporary conditions created by a mass influx of people. It should provide broad and truly temporary protection based not on an individualized interview using specific eligibility criteria but rather as blanket protection for large-scale influxes of people arriving en masse at a certain time from a certain place. Temporary protection should be used — sparingly — as an emergency expedient to allow the government to cope with a mass influx that overwhelms the capacity of the individualized asylum system.

Here again, other jurisdictions provide helpful models and suggest that the United States is an outlier in its approach to temporary protection. The European Union’s basis for Temporary Protection (TP) (Skordas 2016) is strictly as an expedient in the event of a mass influx of displaced people that overwhelms individualized asylum procedures. Its TP mechanism provides one year of protection, which can be extended for a maximum of one more year. For the duration of TP, beneficiaries are entitled to residence permits, work authorization, and social assistance, as needed.

Beneficiaries of TP are allowed to lodge asylum claims, but EU member states have the option not to process their claims until TP expires. Once those claims are examined, adjudicators would, as in the regular procedure, apply both the Refugee Convention definition and the broader complementary protection standard.

In fact, in Europe TP remains a mechanism on paper, but even during what arguably was a mass influx of Syrian refugees in 2015, the European Union chose to stick with its system of individualized asylum determinations. Germany’s asylum procedure (ECRE 2013) was not overwhelmed, despite receiving by far the largest number of claimants of any EU member; it handled Syrian claims efficiently, adjudicating Syrian cases, on average, in about three months during 2015 and 2016 (Connor 2017).

The EU mechanism for TP in the event of mass influxes and complementary protection for individual asylum seekers fleeing indiscriminate violence mirrors UNHCR guidance. In 2000, UNHCR advised its Executive Committee:

Temporary protection is an exceptional emergency device to respond to an overwhelming situation, where there are self-evident protection needs, and little or no possibility to determine such needs on an individual basis in the short term. It is distinct from complementary protection, which is a legal status offered after recognition of individual protection needs, and a determination of their nature. Temporary protection, by definition, involves a group assessment of international protection needs based on the circumstances in the country of origin, whereas complementary protection measures apply to individuals whose protection needs have been specifically examined.

Under this proposal, it is unlikely that any of the 10 countries currently designated for TPS in the United States would have qualified for blanket protection. That is because with a complementary protection standard in place, the individual asylum procedure would be capable of handling most foreseeable influxes. In fact, the only time in the past 50 years when TPS (as defined here) would clearly have been relevant was during the 1980 Mariel boatlift, when the sudden influx of 125,000 asylum seekers overwhelmed a nascent asylum system that had just come into being with the 1980 Refugee Act. Unable to cope with the influx, the US government designated the Cubans arriving en masse as “entrants, status pending”[42] and handled them in a completely ad hoc way.

As long as individualized procedures with expanded complementary and humanitarian protection standards can handle the caseload, that should be the preferred option over TPS. Also, if complementary and humanitarian protection standards are in place, there is no reason to drag out TPS year after year. A maximum of two years should generally be an adequate period to enable the government to manage a mass influx and move asylum seekers into the normal procedure to examine their individual claims.

This still leaves open the question about what to do with TPS beneficiaries who are currently faced with expiration of their protected status after many years. Many of these people have, in fact, built close and lasting ties to the United States throughout the years. Whatever is done administratively using the current available mechanisms, if Congress does create a new complementary protection standard and changes TPS along the lines suggested above, it should also legislate a pathway to apply for adjustment of status, tailored specifically for current TPS beneficiaries.

Allowing qualified current TPS beneficiaries to adjust to lawful permanent resident status would recognize they are not to blame for the unwieldy system that resulted in their permanent-temporary status that, if this proposal is adopted, would not be repeated. It would acknowledge that after many years they have accrued genuine ties to the United States and that they and their close US citizen and lawful permanent resident (LPR) family members would experience significant hardship if they were to be deported.

The current political wrangling over termination of TPS reinforces the impulse for a better system of temporary protection. But this is a package deal; both the asylum and TPS standards would need to change in this way to avoid creating further protection gaps.

US law draws a bright red line dividing refugees from other categories of forced migrants. But the real world is messier than that. While there are still millions who qualify for protection under the 1951 Refugee Convention definition, they are not the only ones who need and are deserving of protection. To the person fleeing for his or her life, it doesn’t matter that the threat comes from a tyrant intent on persecution, indiscriminate gunfire, or climate-induced famine. When that person’s own state fails to protect them and they have no other choice but to escape their country, their need for international protection is the same, and that is the reality US immigration law should face.

Acknowledgments

The author wishes to thank the following people for their comments and edits on drafts of this article: Chris Albin-Lackey, Hanna Da’Mes, Donald Kerwin, Jane McAdam, Ciaron Murnane, Katinka Ridderbos, Kathleen Rose, Andrew I. Schoenholtz, and Gerald Simpson.

Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding
The author received no financial support for the research, authorship, and/or publication of this article.

 

[1] Refugee Act of 1980, Pub. L. No. 96-212, 94 Stat. 102 (1980).

[2] Immigration Act of 1990, Pub. L. No. 101-649, Stat. 358 (1990).

[3] Directive 2011/95/EU of the European Parliament and of the Council of December 13, 2011.

[4] Albania, Law on Asylum in the Republic of Albania, No. 121/2014 [Albania], September 18, 2014, https://www.refworld.org/docid/3ae6b5c07.html.

[5] Migration Amendment (Complementary Protection) Act 2011, L. No. 121, 2011.

[6] Bosnia and Herzegovina, Law on Asylum, 11/2016, February 19, 2016, https://www.refworld.org/docid/58b575084.html.

[7] Immigration and Refugee Protection Act (S.C. 2001, c. 27).

[9] Law on Asylum and Temporary Protection, L. No. 07-3664/1 (2003).

[10] Mexico, Law on Refugees, Complementary Protection and Political Asylum, Official Gazette of the Federation (Diario Oficial de la Federación [DOF]), 2011; last reform published in the DOF on October 30, 2014.

[11] Montenegro, Law on International and Temporary Protection of Foreigners, “Asylum Law” (as amended in 2018), December 29, 2016, https://www.refworld.org/docid/48650f132.html.

[12] Immigration Act 2009, Pub. Act No. 51 (2009).

[13] Norway, Immigration Act of 15 May 2008 on the Entry of Foreign Nationals into the Kingdom of Norway and Their Stay in the Realm, 2008.

[14] Serbia, Law of 2007 on Asylum, November 26, 2007, https://www.refworld.org/docid/47b46e2f9.html.

[15] Refugees Act 1998, Vol. 402, Act No. 130.

[16] Republic of Korea, Refugee Act 2012, Law No. 11298.

[17] Asylum Act of June 26, 1998, Pub. L. No. 142.32, Stat. 2016 (1998).

[18] Turkey, Law No. 6458 of 2013 on Foreigners and International Protection (as amended 29 October 2016), https://www.refworld.org/docid/5a1d828f4.html.

[19] Ukraine, Law of Ukraine on Refugees and Persons in Need of Complementary or Temporary Protection in Ukraine 2011, No. 3671-VI.

[20] Directive 2011/95/EU of the European Parliament and of the Council of December 13, 2011.

[21] Mexico Law on Refugees, Complementary Protection and Political Asylum.

[22] Directive 2011/95/EU of the European Parliament and of the Council of December 13, 2011.

[23] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, November 4, 1950, ETS 5. https://www.refworld.org/docid/3ae6b3b04.html.

[24] Immigration Act 2009, Pub. L. No. 51-131 (2009).

[25] Migration Amendment (Complementary Protection) Act 2011, Pub. L. No. 121, 2011.

[26] Meki Elgafaji, Noor Elgafaji v Staatssecretaris van Justitie, C-465/07, CJEU, 2004, https://curia.europa.eu/jcms/jcms/P_126035/en/.

[27] See the Cartagena Declaration on Refugees, Colloquium on the International Protection of Refugees in Central America, Mexico, and Panama, November 22, 1984.

[28] See the Regulations of Law on Refugees and Complementary Protection, a new regulation published in the Official Gazette of the Federation, February 21, 2012.

[29] Ibid.

[30] Nigeria, National Commission for Refugees Act, Cap N21 LFN 2004, December 29, 1989, https://www.refworld.org/docid/3ae6b522e.html.

[31] South Africa, Refugees Amendment Act of 1998. Act No. 130, November 26, 2008, https://www.refworld.org/docid/4a54bbd4d.html.

[32] United Nations (UN) Treaty Collection, https://treaties.un.org/Home.aspx?; and UN Convention against Torture, 1465 UNTS 85, December 10, 1984 (entered into force: June 26, 1987).

[33] See US Department of Justice, Executive Office for Immigration Review Board of Immigration Appeals, 23 I&N Dec. 291 (BIA 2002).

[34] INS v. Elias-Zacarias, 502 US 478 (1992).

[35] Matter of W-G-R-, 26 I&N Dec. 208 (BIA 2014), citing Matter of E-A-G-, 24 I&N Dec. 591, 595–96 (BIA 2008); and Matter of S-E-G-, 24 I&N Dec. 579, 582–88 (BIA 2008).

[36] 27 I&N Dec. 316 (A.G. 2018) in Matter of A-B-, Respondent.

[37] Organization of American States (OAS), American Convention on Human Rights, “Pact of San Jose,” San Jose, Costa Rica, November 22, 1969, https://www.refworld.org/docid/3ae6b36510.html.

[38] Qualification Directive, “Directive 2011/95/EU of the European Parliament and of the Council of 13 December 2011 on standards for the qualification of third-country nationals or stateless persons as beneficiaries of international protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted” (2011).

[39] The United States uses the term “asylees” for persons granted asylum in the United States and reserves the term “refugees” for those admitted from overseas; but both must meet the same refugee definition derived from the Refugee Convention./p>

[40] Asylum, Pub. L. 96–212, title II, §204(d)(2), Mar. 17, 1980, 94 Stat. 109.

[41] Ibid.

[42] Statement by Victor H. Palmieri, US coordinator for refugee affairs, June 20, 1980.

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