Ending TPS for El Salvador is legally defensible, but has troubling consequences

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The decision by President Donald Trump’s administration to cancel Temporary Protected Status (TPS) for somewhere around 262,000 Salvadorans make eminent sense from a legal perspective, but it opens up troubling questions for public policy. It is one of those rare cases where logic and common sense do not seem to align in an easy way.

TPS was originally created as a temporary status to protect vulnerable immigrants whose countries were suffering from natural disaster or political turmoil, but like many temporary government programs it has ended up lasting far longer than once predicted. The Salvadoran TPS program had first been implemented after an earthquake in 2001.

From a strictly legal perspective, a temporary program should not last for seventeen years, and the administration carefully crafted its statement to make it clear that it was ending the program because conditions after the earthquake, which had led to the TPS designation, had long since improved.

But the reality is that those covered by the Salvadoran TPS program have become deeply integrated members of American society, people who are overwhelmingly hardworking, active members of their communities, and, in many cases, parents of American-born children who have been raised in this country. The consequences of pushing a quarter million people who have become deeply integrated into US communities back into the shadows by removing their legal status are troubling, and this decision opens a series of questions that will need to be answered in the coming months and years.

The first is whether Salvadorans who have lost their TPS status will actually decide to return to their country of origin. Speculation is that very few will. Most have spent much of their adult life in the United States, and they have developed American lives that they will be unwilling to uproot. And for those with American children, which appears to be a large percentage of those affected, they are even less likely to take their families to a country that is unfamiliar to them and where homicide rates have skyrocketed in recent years.

For those who do decide to return voluntarily, questions remain about the absorptive capacities of El Salvador to receive an influx of returning migrants. The government has made plans to receive those who decide to return, and government agencies are prepared to help returning Salvadorans in obtaining documents, seeking employment, and setting up businesses. But in a country that faces significant economic and public security challenges, it remains to be seen how effective these measure will prove to be.

Undoubtedly there will be some of those who choose to return who will thrive — especially those who have saved money to start a small business or those ready to retire — but for others a journey back after so many years could prove difficult and jolting.

Several members of the US Congress have promoted the idea of passing legislation that would allow Salvadoran immigrants who have been covered by TPS to stay in the country. Given the contentious nature of immigration politics in the United States today, a legislative solution seems extremely unlikely.

There is a small window of opportunity around the current negotiations on a legislative fix for DACA — the Deferred Action for Childhood Arrivals (whose beneficiaries are often known as “The Dreamers”) — where Congress is debating a way of ensuring a legislative solution for those covered by DACA.

But it is highly unlikely that TPS recipients will be added to this legislative fix since the negotiations on DACA are already sufficiently complicated on their own. It’s not impossible, but the chances are very limited.

The administration did provide an 18 month transition period before ending TPS for Salvadorans, which will allow those affected to make a series of decisions about their future. Many will use this period to get their documents and bank accounts in order, in case they decide to return to El Salvador or are detained and deported after TPS ends. A few will undoubtedly make plans to return; most will look for ways of staying in the country, even if it means changing jobs and accepting lower wages in the underground economy. Many who had secure, American lives will find themselves living in an increasingly vulnerable situation.

It would be very unlikely for US authorities to actually target people who have held TPS status, but they will simply become subject to deportation like millions of others who lack legal status.

But politics can change over time. The Trump administration’s decision on TPS appears to be final, and it is highly unlikely in the current climate that it could be extended by the administration or reversed by legislation.

However, there may be a time in the future when the US Congress addresses the situation of hardworking immigrants who have been in the country for decades without legal status as part of a larger immigration reform. This debate seems to be a long time away at the moment, but it’s been a part of the discussion of immigration reform for more than a decade and almost certainly will return at some point.

In the end, the decision to end TPS for Salvadorans, though logical in one sense, seems far less sensible in another. While this administration has said it wants to reduce the unauthorized population, the decision to revoke TPS actually seems destined to increase the number of those who live in this country without any legal status.

Andrew Selee is President of the Migration Policy Institute. He is currently finishing a book titled 'Vanishing Frontiers: The Forces Driving Mexico and the United States Together.'