Nearly 100 Members of Congress Seek Answers from U.S. Department of Homeland Security on Immigration Program
Washington, DC—Nearly 100 Members of Congress have written the U.S. Department of Homeland Security (DHS) demanding answers on how the agency is administering the Temporary Protected Status (TPS) program. The letter, led by Rep. Nydia M. Velázquez (D-NY) and Senator Kirsten Gillibrand (D-NY), presses Secretary Nielsen on recent TPS decisions affecting thousands of immigrants from Sudan, Nicaragua, Honduras, El Salvador, Haiti and Syria. Signed by 80 Representatives and 17 Senators, the letter argues that the agency has failed to adequately justify ending TPS status for many covered countries and, in many cases, has also failed to make decisions in a timely, transparent manner, creating fear and uncertainty among immigrant communities.
“The Trump Administration’s capricious and arbitrary rulings affecting these immigrant families have not only been inhumane, but also raise significant legal concerns,” said Rep. Nydia M. Velázquez (D-NY). “We intend to find out how Secretary Nielsen is justifying these TPS decisions and hold the agency accountable. For decades, both Republican and Democratic Administrations have regularly extended TPS coverage for these populations, yet the Trump Administration seems intent on targeting these immigrants simply to appease a far-right political base. That’s unacceptable and must stop.”
“I strongly oppose the Trump Administration’s cruel decision to kick out thousands of hardworking TPS recipients,” said Senator Gillibrand. “These men, women, and children cannot safely return to their home countries due to circumstances out of their control, and they were offered shelter here because the United States is a nation that protects people in need. That is one of our country’s fundamental values. TPS recipients are valuable, contributing members of our communities. I urge the Trump Administration to do the right thing and renew the TPS program, and I will continue to do everything I can in the Senate to protect TPS recipients.”
The letter was endorsed by more than 90 community, labor and advocacy groups.
“Terminating Temporary Protected Status (TPS) for Sudan, Nicaragua, Haiti, and El Salvador is an attack on our immigrant communities in an attempt to destroy them,” said Steve Choi, Executive Director of the New York Immigration Coalition. “Uprooting the lives of our neighbors, friends, and families is unjust and inhumane. We are signing on to this letter to Secretary Nielson because we know that TPS recipients are valuable threads in the social and economic fabric of our New York.”
“This letter offers much needed questioning of the reason for and process behind the termination of TPS for Sudan, Nicaragua, Haiti and El Salvador. Thousands of working families have unjustly, and possibly illegally, been kept in limbo and in fear by an administration intent on tearing families apart,” said Hector Figueroa, President of 32BJ SEIU, the largest property service union in the country. “32BJ and our 163,000 members join the 96 signers of this letter in requesting that the Department of Homeland Security prove to diverse communities across the country that TPS is being lawfully administered.”
“As Americans and people of faith, we have a moral responsibility to honor our promises to people we vowed to protect from being returned to harm through the TPS program," said Rev. John L. McCullough, Church World Service President and CEO. "We welcome this letter seeking transparency into the administration’s recent decisions around TPS terminations and extensions. We commend Members of Congress for strengthening oversight and accountability and pray the administration will do everything in its power to uphold our commitment to those individuals we pledged to shelter.”
“High-stakes decisions, like those surrounding the fate of 350,000 TPS holders, all of them work-authorized and long-term residents of our communities, deserve consideration based on carefully collected information, not rash decisions based on questionable data,” said Oscar Chacón, executive director of Alianza Americas. “We applaud the leadership of Representative Velazquez and Senator Gillibrand, along with the nearly 100 members of Congress who signed their names to this letter. Their efforts are not only holding DHS accountable to the correct and transparent interpretation of our laws, but also upholding our values as a nation that honors family bonds, rewards hard work, and offers safety and refuge to those in need.”
The TPS program was designed by Congress to provide a safe haven for immigrants facing armed conflict, natural disaster or other dangerous conditions in their home countries.
The full text of the letter is below.
A .pdf of the letter with a full list of signatories is online here.
A full list of endorsing advocacy groups is online here.
April 17, 2018
The Honorable Kirstjen Nielsen
Department of Homeland Security
3801 Nebraska Avenue, NW
Washington, D.C. 20528
Dear Secretary Nielsen:
As Members of Congress, we write to express our concern regarding the most recent DHS decisions on Temporary Protected Status (TPS). Over the course of the past few months, DHS has announced decisions to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador. TPS has long been viewed as a practical and effective tool for American foreign policy and key to providing a stability framework for individual countries. Given the long-standing policy of prior administrations—both Republican and Democratic—on the continued provision of such status, the reversal undertaken by the administration, and the termination of protected status for individuals with long histories in the United States is shocking and counterproductive to regional and international stability interests.
As you know, section 244 of the Immigration and Nationality Act (INA) prescribes that a foreign state may be designated under TPS if there is: (1) an armed ongoing conflict within the state that poses a serious threat to the personal safety of returning nationals; (2) a natural disaster resulting in a substantial disruption of living conditions in the foreign state; or (3) “extraordinary and temporary conditions” that prevent those who are nationals of that state from safely returning, unless the government finds that permitting them to remain in the United States is contrary to the “national interest.” TPS was designed by Congress to protect people from being returned to harmful conditions, and offer safe haven for persons who do not meet the legal definition of a “refugee” under existing law., 
Given the unexpected decisions by your agency, we are requesting information from you to ensure that the statute governing TPS is interpreted as intended by Congress when this form of safe haven was formally codified into law. We send this request with the intent of understanding, based on the most previous TPS designations, your agency’s conclusions, and the appropriate qualitative and quantitative metrics that are being used to justify your and your predecessor’s decisions.
The most recent Federal Register records providing extension of status for these countries note that the countries whose designations have recently been terminated continued to meet the criteria for TPS designation under INA section 244(b). Yet, press releases issued by your agency, along with the most recent publications in the Federal Register, raise concern. While the notices generally note that conditions have “improved” from the time of TPS designation, some of the metrics provided as evidence are unclear, confusing, and at times irrelevant. The assessments are limited in their breadth and depth since they lack appropriate quantitative data and provide little qualitative substance.
Once decisions have been made, the delay between TPS decision announcements—which have mostly been channeled through DHS press releases—and the publication of Federal Register Notices (FRN) has been unprecedented under this administration. The statute requires that the administration “shall provide on a timely basis for the publication of notice of each such decision…in the Federal Register.” In practice, previous administrations have released FRNs within days. Yet, there are troubling trends with current practices on the timely publication of such notices:
The notice regarding Sudan was delayed by over 3 weeks;
The notices regarding Nicaragua and Honduras were delayed over 5 and a half weeks;
The notice regarding Haiti was delayed by over 8 weeks; and
The notice regarding El Salvador was delayed by a week and a half.
Arguably, the numbers above reflect an inconsistent application of your agency’s responsibilities. It is not only cruel and inhumane to force current TPS holder populations to live in a state of fear and limbo while the administration prepares the FRNs, but also opens the door for malicious actors to take advantage of immigrant communities because of information gaps on publicly accessible information.
In summary, it is our intent to understand how the countries have been able to overcome limitations and aggravating conditions that were highlighted in previous extension notices. Therefore, we would like your response to the following questions and request any relevant documentation from agencies that were consulted in each of the following decisions.
In the case of Sudan:
1. Termination of status was issued on October 11, 2017. The Federal Register notes that: “the ongoing armed conflict no longer prevents the return of nationals of Sudan to all regions of Sudan without posing a serious threat to their personal safety.”
The published notice indicated that: “further, extraordinary and temporary conditions within Sudan no longer prevent nationals from returning in safety to all regions of Sudan.” The notice later specifies that the “conflict in Sudan is limited to Darfur and the Two Areas (South Kordofan and Blue Nile states)” and notes that there is a series of time-limited unliteral “cessation” of hostilities.
a. If a ceasefire is time-limited, does that not, therefore, imply that hostile actions, including further armed conflict, is possible at any time?
b. If TPS recipients were to live or have family ties to these affected regions—and with nowhere else to go—what confidence does your agency have in the Sudanese government being able to provide for the security and wellbeing of such individuals?
c. Your agency took 23 days to publish its decision in the Federal Register. This is an extremely long time for a decision to be published and is, arguably, contrary to the spirit of the law’s requirement of “timely basis” in the Register. What caused this delay?
d. Would you reconsider the previous termination if your review, prompted by this letter, or further congressional inquiries, determine that the conditions existing in Sudan warrant continued designation under Temporary Protected Status?
In the case of Nicaragua:
2. Please describe in detail, with a list of applicable regions/departments, the status of these areas and how exactly they have been able to improve in the past 18 months? The notice provided in the Federal Register on December 15, 2017 notes that “many reconstruction projects have now been completed” and that “hundreds of homes destroyed by the storm have been rebuilt.” Such assessment is vague and provides little substance. Please provide a list of Nicaraguan state-sponsored, public-private investments, non-profit activities or international development finance programs that justify that these issues, along with the items addressed on the aforementioned notice have, in fact, been resolved.
a. The register notice on May 15, 2016 reported that Nicaragua was unable to handle the return an influx of its nationals because of volcanic eruptions and heavy rains. In 2017, it was widely reported that Tropical Storm Nate caused havoc in Central America with flooding, landslides and infrastructure damage.
According to reports from La Prensa, the country had a total of 13 deaths, 14,262 persons affected and 3,759 damaged homes in 14 departments. These numbers are significant, especially given that this was only a tropical storm. Please describe, in detail, how Nicaragua is intended to cope with disaster rehabilitation and construction projects alongside an influx of nationals in 2019 and how the storm’s impact was, in any way or form, factored into the number homes that may have been lost due to the storm from the “hundreds of homes” figure provided by your agency in its most recent notice.
b. As part of your answer to the above question, please provide an estimate of the country’s financial ability to repatriate its citizens with current safety net programs or protocol.
c. Your agency took 39 days to publish its decision in the Federal Register. This is an extremely long time for a decision to be published and is, arguably, contrary to the spirit of the law’s requirement of “timely basis” in the Register. What caused this delay?
d. Would you reconsider the previous termination if your review, prompted by this letter, or further congressional inquiries, determine that the conditions existing in Nicaragua warrant continued designation under Temporary Protected Status?
In the case of Honduras:
3. Your agency was unable to arrive at a conclusion for TPS. As a result, TPS was automatically extended for an additional period of 6 months as provided in statute. In the 2016 notice on TPS extension, it was noted that Honduras was having difficulty responding to mosquito-borne illnesses because of heavy rainfall, and that such conditions were exacerbating “persisting disruptions” caused by Hurricane Mitch. In the upcoming months, your agency will determine whether current conditions require an extension of status. Please provide an explanation of how Honduras’ public health system, along with other infrastructure, have improved sufficiently to address current needs and a sudden influx of TPS nationals.
a. As part of your answer to the above question, please provide an estimate of the country’s financial ability to repatriate its citizens with current safety net programs or protocol.
b. On November 9, 2017 it was reported that your predecessor, Acting Secretary Elaine Duke, was pressured by the White House Chief of Staff John Kelly to end TPS designation for Honduran nationals.
Ms. Duke later denied such pressure from the President’s Chief of Staff. Regardless of such denial, the idea of the White House encroaching on an agency’s legislative responsibilities raises concern, particularly if the Department of Homeland Security is able to fully execute its independent decision-making authority on nationals in receipt of TPS. Can you assure Members of Congress that you are able to exercise such statutory authority consistent with the spirit of the Immigration and Nationality Act and free from improper influence?
c. Given widespread violence and persecution, including forcible gang recruitment, police corruption, lack of a child protection system, and sexual assault and rape, what do you think is the best approach to ensuring Hondurans are not forcibly returned to life-threatening, unsafe conditions?
d. Your agency took 39 days to publish its decision in the Federal Register. This is an extremely long time for a decision to be published and is, arguably, contrary to the spirit of the law’s requirement of “timely basis” in the Register. What caused this delay?
e. Would you reconsider re-extending TPS if your review, prompted by this letter, or further congressional inquiries, determine that the conditions existing in Honduras warrant continued designation under Temporary Protected Status?
In the case of El Salvador:
4. The Federal Register published on January 18, 2018 notes that “many reconstruction projects have now been completed. Damaged schools and hospitals have been reconstructed and repaired, homes have been rebuilt, and money has been provided for water and sanitation and to repair damaged roads and other infrastructure.” This seems to contradict the 2016 extension notice, which indicated that 340,000 homes destroyed by the 2001 earthquakes remained unbuilt.
a. Please describe, in detail, the state of reconstruction and repair of infrastructure and how such projects have been able to have been completed since the date of the 2016 extension notice.
b. As part of your answer to this question, please provide raw numbers, percentages and overall percentage change, from 2016 to 2018.
c. Your agency took 9 days to publish its decision in the Federal Register. This is a stark contrast to the Administration’s approach to previous “timely basis” observations, inconsistent with previous practices executed under the current Administration and contrary to the spirit of the law’s requirement of “timely basis” for publication in the Register. What caused this delay?
d. Would you reconsider the previous termination if your review, prompted by this letter, or further congressional inquiries, determine that the conditions existing in El Salvador warrant continued designation under Temporary Protected Status?
In the case of Haiti:
5. As you know, TPS was first granted to eligible Haitians in the U.S. in 2010, following a 7.0 magnitude earthquake, affecting 3 million people (one-third of Haiti's population), displacing 1.5 million people, and causing catastrophic damage to the country’s infrastructure. Haiti was left without infrastructure for electricity, telephone services and fuel, while basic needs such as food and water were (and remain) scarce. On May 24, 2017, your agency noted that Haiti had “over 55,000 Haitians who lost their homes in the earthquake [were] still living in 31 camps for internally displaced persons without viable options to leave.” The notice also indicated that basic public health services were largely inaccessible to Haitians before and after the earthquake, and that the number of displaced persons decreased to 38,000. Yet the January 18, 2018 notice omits the public health issue, despite the Administration’s expectation of Haiti being able to successfully handle an additional 46,000 of its nationals.
a. Please describe how the country will be able to handle an influx of immigrants “in safety” with access to basic public health services stagnant at 40%.
b. Your agency took 59 days to publish its decision in the Federal Register. This is the longest your agency took to publish a decision. The 8-week delay is unequivocally contrary to the spirit of the law’s requirement of “timely basis” in the Register. What caused this delay?
c. Would you reconsider the previous termination if your review, prompted by this letter, or further congressional inquiries, determine that the conditions existing in Haiti warrant continued designation under Temporary Protected Status?
In the case of Syria:
6. Syria was first designated for TPS in 2012, as the civil war plaguing the nation made country conditions unlivable and unsafe.
A violent government repression of what began as peaceful demonstrations by the public in 2011 has become one of the most destructive and fatal conflicts in recent history.
Over 5.4 million people have fled Syria since the conflict began, and the United Nations estimates that more than 400,000 people have been killed. Reports have surfaced documenting the use of chemical weapons against civilians as recently as April, 2017. In addition to government-sponsored humanitarian and human rights violations, the Syrian people have also been subjected to violence at the hands of terrorist groups, primarily ISIL. The impact of the war on civilians is exacerbated by the inhumane tactics used by many of the warring parties, such as siege warfare, and deliberate deprival of food, medicine and water. There have been deliberate attacks on areas predominantly populated by civilians such as hospitals and schools, violating international humanitarian law and leaving no safe places for Syrians.
a. What factors ultimately led to Syria’s TPS 18-month extension? What factors ultimately led to deciding to limit registration to current holders? What criteria did you use to make that determination?
b. As part of your answer to the above question, please describe, in detail, your decision to limit registration to current recipients, considering that your agency has noted that conditions warranting the initial designation continue to exist.
Based on current statutory requirements and the precedence of previous extensions of temporary protected status for the aforementioned countries, it can be argued that the circumstances in each country fall under the definition of “extraordinary and temporary conditions” under the INA’s section 244(b)(1)(C). A foreign national returning to any of these conditions may be subject to precarious conditions, therefore compromising their ability to return to their state in safety. Such conditions may arise or worsen because of governance issues, particularly if a foreign state is unable to adequate repatriate its nationals.
It is important to note that the statute does not prevent re-designation of a TPS country under a new subparagraph, so long as the designation is consistent with the program’s purpose. As such, we request answers to the following questions:
7. Can you describe, in detail, how all the countries specified in this letter have managed to resolve their respective aforementioned circumstances, including issues that have been cited previously in earlier versions of the Federal Register, from the date of the most recent extension of status of countries under TPS.
a. In the case that a country (or countries) has/have not been able to do so, please elaborate why these circumstances were not taken into account for designation under 244(b)(1)(C).
b. Congress has not specified the definition of an immigrant’s ability under TPS to “return to their state in safety.” Please provide the Administration’s interpretation of such terminology, and include a comparative analysis of how this definition differs from previous interpretations from other Administrations.
c. If an immigrant under TPS is unable to be fully repatriated because of circumstances/limitations that were previously indicated in prior Federal Register notices, does this not jeopardize the Administration’s current interpretation of TPS statute and an immigrant’s ability to be “return[ed] to their state in safety?”
i. If a condition listed on previous register notices is based on new developments not immediately related to the original designation, but strain an individual country’s ability to respond to issues stemming from/related to the original designation, would this not be considered a “temporary or extraordinary” condition given previous designations? If so, please indicate why your agency’s discretion was unused in providing safe haven protections. If not, please provide a detailed explanation, including the appropriate metrics and methodologies, that are employed to determine whether a condition mentioned in a previous FRN is “temporary or extraordinary.”
ii. Is it your view, or the Administration’s view, that the presence of TPS holders in our country is counter to our national interests? If not, please specify, in detail, why the discretionary power provided under 244(b)(1)(C) was unused. If it is the Administration’s view that their presence in the United States is counter to U.S. interest, please specify the reasons that determine this assessment.
We also ask that you provide a copy of all non-sensitive interagency documents relevant to the consultation requirements under statute describing the TPS decisions for all the countries listed in this letter.
Given the inconsistencies and unclear methodologies employed by your agency regarding these terminations, extensions and delay on timely publication in the Federal Register, we request a response to these questions no later than 60 calendar days from the date of this letter. Your agency’s response will facilitate Congress’ assessment of the metrics and methodologies used to evaluate termination or extension of temporary protected status for all TPS holders.
Answers to these questions will also subject agencies responsible for the execution and interpretation of the “timely basis” requirement required for periodic review publication under statute.
Your timely response and collaboration will provide Congress with the adequate tools to provide further legislative remedies on an as-needed basis. Should Congress determine that your agency failed to execute the statute appropriately or as intended, additional questions and remedies will follow.