Their Lawsuit Prevented 400,000 Deportations. Now It’s Biden’s Call.
Trump tried to end a 30-year program that shielded migrants, many fleeing conditions that U.S. foreign policy helped foster. What does America owe them?
Cristina Morales got the news that she was going to lose her legal right to live and work in the United States via text. The news devastated Morales. But the texts from her friends arrived while Morales, who was then 37, was at the Catholic school where she ran the after-school program. She believed that part of her job was to create a safe place for children, so she said nothing about her despair at work. “You need to have a happy face,” she told me. “No matter how bad you feel.”
Morales kept up the pretense in the car with her family on the way home. As her 11-year-old son and 13-year-old daughter sang in the back seat, she swallowed her tears and tried not to look at her husband. Their children had no idea that Morales was not an American citizen. She and her husband didn’t talk about her status because they didn’t want to taint the kids’ lives with fear. Only a handful of people knew that Morales was a beneficiary of a program called Temporary Protected Status (T.P.S.), which allows some immigrants to reside in the United States while their home countries are in crisis. About 411,000 immigrants had T.P.S. in 2020. More than half of them came from El Salvador, like Morales. The rest emigrated from Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria or Yemen.
Less than a year after President Donald Trump took office, his administration began to dismantle the program. Over the course of eight months in 2017 and 2018, the Department of Homeland Security ordered the departure of 98 percent of T.P.S. recipients by canceling the designation for every country except Somalia, South Sudan, Syria and Yemen. In a January 2018 news release, the Department of Homeland Security announced Secretary Kirstjen Nielsen’s decision to terminate T.P.S. for El Salvador, stating that “the original conditions” that prompted the designation in 2001 “no longer exist.” That’s when Morales received the life-changing texts.
We need to be positive, Morales’s husband told her that night in January. Maybe it’s a misunderstanding. When he led the family in evening prayer, he asked God to keep families together. After their children went to bed, Morales sat on the couch in the study and wept. This is it, she thought, looking around her home. I’m going to lose everything, just like that.
Morales knew what deportation looked like. In Northern California, where she has lived since she was 12, ICE raids were so frequent under President Barack Obama that many members of her church stopped attending Mass, afraid that they might be arrested en route to services. During the 2016 election, kids at school would tell Morales that they were afraid agents were going to come and take their parents.
For years, Morales met with local police and government officials to advocate for the undocumented parishioners in her church. Now, faced with the possibility of her own deportation, she decided it was time to advocate for herself. Days after Nielsen’s decision, Morales contacted a local committee of the National T.P.S. Alliance, a grass-roots organization that began advocating for T.P.S. holders during the final months of the Obama administration. Soon she and her daughter, Crista Ramos, became the lead plaintiffs in Ramos v. Nielsen, a suit with 14 plaintiffs representing T.P.S. holders from El Salvador, Nicaragua, Haiti and Sudan as well as their U.S.-citizen children.
Ramos v. Nielsen kept T.P.S. holders safe from deportation during Trump’s presidency. Put together by four organizations — the National Day Laborers Organizing Network, the Central American Resource Center, the National T.P.S. Alliance and the American Civil Liberties Union — this lawsuit won a preliminary injunction in the U.S. District Court for the Northern District of California in fall 2018. The injunction suspended the termination of T.P.S. for six countries. During the discovery process, the plaintiffs’ attorneys turned up documents that revealed how Trump officials disregarded the recommendations of America’s own foreign ambassadors as well as the advice of senior officials in the State Department. Ending T.P.S. for El Salvador in particular, many of these experts warned, could damage America’s national security by undermining efforts to curtail illegal immigration and transnational gangs.
But last September, the Ninth Circuit Court of Appeals decided that the District Court had no jurisdiction to overturn the Trump administration’s decision, a ruling that is likely to affect legal cases involving Honduras and Nepal as well. The plaintiffs may continue to litigate that decision. But unless Congress passes legislation that grants T.P.S. holders permanent status or President Biden’s administration issues new T.P.S. designations for the six countries, the forced removal of 402,000 T.P.S. holders could begin as soon as October. Because they are the parents of some 273,000 U.S. citizens — most of them under the age of 21, like Morales’s children — it could also turn into the largest family-separation operation in American history.
For 20 years, the T.P.S. program allowed Morales to be a taxpaying, homeowning legal resident. But it also made her every achievement precarious. “The Trump administration terrorized those with T.P.S. and DACA, threatening massive deportation,” Morales said during a Zoom meeting with leaders of the National T.P.S. Alliance in February, referring to both her own program and the Deferred Action for Childhood Arrivals policy, which protects undocumented people who arrived as minors. If Biden and the Democrats can’t provide permanent solutions for these two groups — whose regular background checks make them the most-vetted immigrants in America — Morales wonders how anyone can trust them to help the millions of other immigrants whose fates currently hang in the balance.
We often speak of immigration as if it were one unified issue. But though Democrats hold the presidency and Congress, they will find it exceptionally difficult to solve the many problems of our byzantine system. In the United States, immigration has a separate legal system with separate courts and separate laws, where some of the fundamental principles of our normal judicial system — like independent judges, the right to legal representation and the right to a trial by jury — simply do not exist. Immigration policy is decided by several different parts of the federal bureaucracy, including the Justice Department, the State Department and the Department of Homeland Security. Immigration enforcement involves an enormous apparatus that may include federal Border Patrol officers, ICE agents and local police departments, as well as detention centers that range in quality from canvas tents to refurbished prisons. Immigration is a legal issue, a labor issue, a security issue and a foreign-policy issue.
To speak of reforming this entire system with one comprehensive bill is mystifying, but that’s exactly what several major national immigration rights organizations have been doing for decades. That certainly seemed to be the new administration’s strategy when, hours after Biden was inaugurated as president, it released a four-page “fact sheet” detailing a bold plan for comprehensive immigration reform. Among its dozens of provisions, the plan would allow undocumented people to apply for a kind of temporary legal status, would make it easier for students with advanced STEM degrees to remain in the United States, would shield workers who report labor violations from deportation and would make many T.P.S. holders immediately eligible for legal permanent residency.
The fact sheet read like an immigration advocate’s wish list, yet all the T.P.S. activists I spoke with in January greeted it with more skepticism than joy. No comprehensive immigration-reform bill involving legalization has made it through Congress since 1986, and the repeated failure of such bills left T.P.S. holders vulnerable when Trump won the presidency in 2016. “T.P.S. holders have been held hostage to the idea of comprehensive immigration reform,” said Pablo Alvarado, a founder of the National T.P.S. Alliance and a longtime immigration rights activist. In the 1990s and 2000s, when Salvadoran T.P.S. holders spoke of their desire for permanent residency, they knew that their history as political refugees made them almost as sympathetic as undocumented minors. But national organizations based in Washington, hoping for a bill that might help all undocumented immigrants, urged them not to advocate for themselves. “We were told you have to wait because we’re going for the whole enchilada,” Alvarado said.
Homeland Security may use T.P.S. to grant foreign residents temporary legal status when they cannot return home safely because of an armed conflict, a natural disaster or any other kind of humanitarian crisis. For each country, the department issues a new decision every six to 18 months about whether its T.P.S. designation will be prolonged. If it is, beneficiaries like Morales can apply to renew their T.P.S. cards by paying another fee and going through another background check. T.P.S. sets a precise window for eligibility: When Morales received her status in 2001, only Salvadorans already living in the United States when several earthquakes struck El Salvador could receive the benefit. A Salvadoran who arrived a month later could not.
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