Temporary Protection: Towards a New Regional and Domestic Framework

Abstract

During the past thirty-five years, the United States has seen the direct influx of thousands of individuals leaving politically unstable countries. While some seeking entry have proved themselves to be refugees and obtained permanent protection in the United States, far more, including a large number of people fleeing civil war, natural disasters, or comparable forms of upheaval in their home countries, have failed to demonstrate that they would be targets of persecution. Yet, their return to their home countries has been complicated by the very circumstances that led to their flight: conflict, violence, and repression. Over time, the United States developed a series of ad hoc responses that protected such individuals, culminating in the Immigration Act of 1990 (“IMMACT”), which provided legislative authority for Temporary Protected Status (“TPS”). Nevertheless, after eight years, many problems remain in the application of the law. Solving these problems will contribute both to better immigration control and more humane responses to future crises.

Current policies fail on two accounts. First, the temporary protection provision in the law generally has failed to protect the vast majority of those in danger as a crisis develops and unfolds. If the United States government protects significant numbers at all, protection is provided outside the confines of the United States. Even so, the mechanisms for responding extraterritorially are not well developed. Second, current policies regarding protection in the United States do not provide the control mechanisms to ensure that protection is not abused and that return, when appropriate, is effected.

The choice to admit people for temporary protection has been a difficult one for the United States for two main reasons: the lack of control over entry; and the inability to implement a fair but firm end game. These constraints together with the fear of litigation challenging domestic protection regimes have led policymakers to keep protection seekers offshore, such as on Guantanamo, or to return them directly to countries they fled without providing an opportunity for them to present requests for protection. But not having a fully developed regional or domestic capability for addressing these complex movements comes at a considerable cost. Estimates for the agency costs of handling the 1994 Cuban exodus through the use of offshore safe havens were more than $500 million. Further, an immigration system that cannot fairly and efficiently process protection seekers lacks credibility for which it pays a significant public cost.

Keywords: immigration laws, humanitarian, refugees, temporary protected status, TPS, mass migration, asylum