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Here to Stay
There's Nothing as Permanent as a Temporary Refugee
August 1999
by Mark Krikorian
Temporary protection for foreigners in distress has
figured prominently in discussions of immigration policy for some time.
Hondurans, Kosovar Albanians, and Colombians are only the most recent
groups considered for some kind of limited safe haven. Temporary protection
amounts to a limited grant of refugee status, offering foreigners who
would not otherwise be allowed to remain in the United States limited
sanctuary until an emergency (civil war, widespread violence, or natural
disaster) in their home country passes. For the most part, temporary protection
has been offered to aliens already in the United States, usually illegally,
who do not qualify for asylum but whom we are unwilling to deport.
As attractive as temporary protection seems on the surface,
there is an enormous, and unbridgeable, gap between the theory and the
reality. Forty years of experience have shown that "temporary"
protection almost always results in permanent settlement. Whatever the
theoretical benefits of temporary protection, it is clear that in the
real world there is nothing as permanent as a temporary refugee.
Kosovar Albanians
The changing policy toward settlement of the Kosovar
Albanians neatly illustrates this gap between theory and reality. Though
most of the Kosovo Albanians were brought legally from overseas, rather
than already here illegally, the principle of temporary protection was
still the initial model applied to their situation.
During the Sunday morning talk shows on April 4, it
was revealed that the United States would provide temporary sanctuary
to 20,000 Kosovar Albanians at our naval base at Guantanamo Bay in Cuba,
as part of a broader effort by Western countries to move Kosovar Albanians
fleeing Serbian attacks out of an untenable situation in Macedonia. Because
Guantanamo is on foreign soil, the Kosovar Albanians would not be able
to claim asylum or enter the United States.
The temporary nature of this initiative was emphasized
by Clinton Administration spokesmen: J. Brian Atwood, head of the U.S.
Agency for International Development, explained the choice of Guantanamo
by saying, "We wanted to make sure we're sending a message that this
is a temporary solution to the problem." He said the refugees would
be allowed to stay at Guantanamo for up to 18 months, but that the administration
did not expect them to remain more than six months. White House spokesman
Joe Lockhart said, "This operation will be temporary, as we fully
intend the Kosovars will ultimately return to their homes and the operation
will only transport people voluntarily."
Within days, hints began to emerge from the White House
that the Kosovars might not be sent to Guantanamo after all, prompted
by complaints from refugee-service groups that the refugees would be isolated
on the remote naval base. Then, in an April 21 speech at Ellis Island,
Vice President Gore announced that the Kosovar Albanians would be resettled
as refugees in the U.S.: "We will accept, on the American mainland,
up to 20,000 of the hurting and homeless Kosovar refugees those with close
family ties in America and those who are vulnerable. ... We will bring
them here until they are able to return home safely." But Gore continued
to insist that the refugees' stay would be temporary: "We anticipate
their return to Kosovo. . . . the ones coming to the United States, will
also be prepared to return on short notice."
By the next day, however, administration officials conceded
the obvious that many of the Kosovar Albanians would obtain permanent
residence in the United States, a benefit available after one year to
anyone admitted as a refugee. In the words of a senior administration
official, "We are going to try to create conditions in Kosovo for
these people to return, but the choice will ultimately be theirs."
Rep. Eliot L. Engel (D-N.Y.), chairman of the House Albanian Issues Caucus,
put it more plainly: "And let's face it, after a year or two, they'd
have had a taste of political freedom. They won't want to go back. . .
The reality is that the vast majority are probably here to stay."
First planeload of 453 Kosovar Albanians arrived at
Fort Dix, N.J., on May 5; the first baby was born on American soil hours
later. The war ended before the 20,000 quota was filled, and a total of
about 10,000 people were eventually resettled in the United States. By
the end of summer, only about 10 percent will have returned to Kosovo.
This shift from temporary to permanent relocation for
the Kosovar Albanians was remarkable mainly for the speed with which it
happened. Otherwise, it is simply another instance of temporary status
leading to permanent settlement. And how could it be otherwise? After
a long period of residence, any alien, however "temporary" his
nominal status, will put down permanent roots in the community that make
it increasingly difficult to deport him he may marry, have children, start
a business, buy a home, and at some point it becomes politically, and
perhaps even morally, untenable to ask him to leave.
Origins
Legislation to create a formal process for temporary
protection was debated and voted on in Congress at various points in the
late 1980s, but was not enacted into law until "Temporary Protected
Status" (TPS) was created by the Immigration Act of 1990. Prior to
the creation of this status, there was no statutory basis for permitting
illegal aliens, or nonimmigrants whose visas were expiring, to remain
in the United States without requesting asylum. But as early as 1960,
the executive branch created "Extended Voluntary Departure"
(EVD) as a temporary grant of blanket relief from deportation for nationals
of certain countries who feared returning to their homelands. EVD was
justified as an exercise of prosecutorial discretion by the Attorney General
in deciding not to force the departure of certain aliens. (See Table 1
below for grants of EVD.)
The transition to permanent residence of "temporary"
refugees was present from the start. In the 1960s, the thousands of Cubans
fleeing Castro's regime were allowed to stay under EVD until Congress
passed the Cuban Adjustment Act in 1966, which granted them, and thousands
to follow, the right to remain permanently. In the 1970s, thousands fled
the communist takeover of Indochina, and they too were granted EVD until
Congress in 1977 made their status permanent. And in 1987, more than 5,000
people from Afghanistan, Ethiopia, Poland, and Uganda who had EVD were
granted amnesty by Congress in legislation championed by Sen. Jesse Helms
(R-N.C.).
In April 1990, President Bush issued Executive Order
12711 giving an estimated 80,000 nationals of the People's Republic of
China temporary protection from deportation, as a result of the 1989 government
crackdown on democracy activists there. Afraid that a grant of EVD to
those fleeing a left-wing regime could be used as a precedent to demand
EVD for those fleeing the friendly right-wing regime in El Salvador, the
administration made up a new status, "Deferred Enforced Departure,"
which was an administrative stay of deportation ordered by the president.
DED was, for all intents and purposes, identical to EVD. The final result
was the same as well in 1992, Congress passed the Chinese Student Protection
Act, which made this temporary status permanent by allowing Chinese who
entered before the issuance of the executive order to apply for a green
card. Though students were supposed to be the beneficiaries of this legislation,
a large number perhaps the majority of those receiving green cards were
actually illegal aliens from the province of Fujian, smuggled into the
United States by "snakehead" gangs.
TPS Defined in Statute
Finally, in 1990, Congress passed the Immigration Act
which, among other things, empowers the Attorney General to grant Temporary
Protected Status to people whose countries are suffering war or natural
disaster. The relevant section of the Immigration and Nationality Act
reads:
The Attorney General, after consultation with
appropriate agencies of the Government, may designate any foreign state
(or any part of such foreign state) under this subsection only if:
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the Attorney General finds that there is an ongoing
armed conflict within the state and, due to such conflict, requiring the
return of aliens who are nationals of that state to that state (or to
the part of the state) would pose a serious threat to their personal safety;
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the Attorney General finds that (i)
there has been an earthquake, flood, drought, epidemic, or other
environmental disaster in the state resulting in a substantial, but
temporary, disruption of living conditions in the area affected; (ii) the foreign state is unable, temporarily, to
handle adequately the return to the state of aliens who are nationals
of the state; and
(iii) the foreign state officially has requested designation
under this subparagraph; or
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the Attorney General finds that there exist extraordinary
and temporary conditions in the foreign state that prevent aliens who
are nationals of the state from returning to the state in safety, unless
the Attorney General finds that permitting the aliens to remain temporarily
in the United States is contrary to the national interest of the United
States.
(Interestingly, this last provision puts the Attorney
General in the perverse position of determining that it is in the national
interest to allow illegal aliens to reside in the United States.)
The chief impetus behind the creation of TPS was the
government's unwillingness to deport thousands of illegal aliens from
El Salvador, which was engulfed in civil war during much of the 1980s.
In fact, section 303 of the Act specifically designated Salvadorans for
TPS. Almost 200,000 illegals were thus able to avoid deportation for a
period of 18 months. However, when the Salvadorans' TPS expired in 1992,
the administration still chose not to deport them and simply reverted
to the old practice of granting ad hoc status, this time re-using the
label Deferred Enforced Departure.
Though DED for Salvadorans ended in 1996, there is little
prospect of their deportation. The 1990 settlement of a class-action lawsuit
allows Salvadorans protected under TPS and DED to re-apply for asylum
on the grounds that their previous asylum applications had allegedly not
been given proper consideration for political reasons. In addition, the
Nicaraguan Adjustment and Central American Relief Act of 1997 (NACARA)
allows Salvadorans to apply for cancellation of removal (this is a form
of individual amnesty for long-term illegal aliens whose deportation would
cause "extreme hardship") under the more-lenient, pre-1996 rules;
the Clinton Administration said earlier this year that it is considering
a blanket finding of "extreme hardship" for Salvadorans applying
for green cards under this provision, resulting in what amounts to an
unlegislated mass amnesty.
The near certainty that temporarily protected Salvadorans
will end up staying permanently underlines the fallacy of such humanitarian
deferrals of deportation. Nor has the creation of the formal process of
TPS made any difference in this regard. Liberians were the first group
to receive TPS, in 1991; by 1998, there was a significant effort in Congress
to grant TPS Liberians permanent residency. Rep. Patrick Kennedy of Rhode
Island introduced a bill to that effect, saying that "after seven
years of providing them this special protected status we can't pull the
rug out from under them." The Liberian case also demonstrates how
TPS is almost routinely extended Liberians first received TPS in 1991,
and it has been periodically extended. A "final" extension of
TPS granted through September 1998 was followed by yet another one-year
extension.
Concerns about temporarily protected aliens settling
permanently may be of less concern when relatively small numbers of people
are involved, as has been the case with many grants of TPS (see Table
2). But such concerns are salient when large numbers are granted TPS;
this is certainly the case with the December 1998 grant of TPS for 18
months to an estimated 90,000 Hondurans and 60,000 Nicaraguans, in response
to the devastation wreaked on those countries by Hurricane Mitch. (Advocacy
groups were unsuccessful in getting TPS extended to about 500,000 Salvadorans
and Guatemalans, though deportations of these groups were suspended for
several months.)
The fallout from Hurricane Mitch in Central America
is precisely the kind of natural disaster TPS was intended to address,
and if the 90,000 Hondurans were to leave after the expiration of their
TPS status, then the legislation would have served its purpose (the Nicaraguans
won't be leaving because they are already eligible for amnesty under NACARA).
But history gives us little reason to expect this will happen; their TPS
status is likely to be extended, perhaps replaced by DED, until such time
as the aliens in question have either become permanent residents through
some other means or until Congress passes legislation legalizing their
status. Few, if any, will ever depart voluntarily or be removed.
Prospect of TPS Attracts Illegals
Temporary protection, whether institutionalized or ad
hoc, is not merely a tool of foreign policy or a stratagem to avoid deporting
politically popular illegal aliens. In recent months it has become clear
that the prospect of receiving TPS is also a magnet for new illegal
immigration. Since the beginning of this year, thousands of people from
Colombia are believed to have arrived illegally or overstayed tourist
visas because of that country's deteriorating economy and escalating violence.
The Colombian government estimates that 65,000 people left the country
in the first four months of this year, many going to the United States,
and that up to 300,000 more could leave by the end of the year. A Colombian
ethnic organization in Miami estimates that 15,000 families have fled
to South Florida in the past few months, many arriving as tourists but
overstaying their visas.
The lobbying effort to procure TPS for these illegal
aliens is gaining momentum. In July, thousands of people demonstrated
in Miami, Chicago, Houston, and elsewhere, demanding TPS. Rep. Lincoln
Diaz-Balart, a Republican congressman from Miami with many Colombian constituents,
has written President Clinton demanding looser requirements for granting
political asylum to Colombians. And the U.S. Committee for Refugees has
starting a letter-writing effort to have Colombian illegal aliens granted
TPS.
Guantanamo
The exception that proves the rule of permanent settlement
of temporary refugees is the Haitian boat people given safe haven at the
U.S. naval base in Cuba's Guantanamo Bay. During the 1994-95 rafter crisis,
there were as many as 20,000 Haitians and 30,000 Cubans at Guantanamo,
where the administration said they would remain, rather than be allowed
to enter the United States. With regard to the Cuban rafters, the administration
said unequivocally in the summer of 1994 that no one given safe haven
at Guantanamo would ever be allowed into the United States. Reno addressed
those in Cuba contemplating flight: "You will not be processed not
be processed for admission to the United States." White House spokeswoman
Dee Dee Myers was emphatic in an exchange with a reporter: [Myers:] "There
is no plan to take or house any refugees here in the United States. Period."
[Reporter:] "So you're saying in the future that will never happen?"
[Myers] "That's correct." Later in the same press conference,
Myers reiterated: "Anyone who is picked up at sea will be given safe
haven, access to safe haven. ... But they will absolutely in no way have
any way of coming to the United States."
Naturally, that changed after a few months, and by May
1995, the administration announced that all the Cubans, except for criminals,
would be admitted, in yet another example of temporary protection evolving
into permanent settlement.
But the Haitians did not receive the same treatment.
The assertions that safe haven would not result in permanent residence
were similar: toward the end of the return of the Haitians, a State Department
release said "under no circumstances will any Haitian currently at
Guantanamo be admitted to the United States." But, unlike the case
of the Cubans, the administration did not back down. After the ouster
of the Haitian military regime in September 1994 by U.S. forces, almost
all the Haitian boat people were returned. The exception is instructive:
it would appear that temporary safe haven can work only when offered outside
the territory of the United States, to a group with little domestic constituency,
fleeing from a country the United States will soon invade and occupy.
Needless to say, this set of conditions will be very rare.
The rhetoric of temporary protection may have a certain
political appeal, and the formal articulation of a TPS mechanism is at
least tidier than the extra-legal methods employed before 1990. But it
is clear that the concept of temporary protection has not been, and cannot
be, successful i.e., truly temporary. It is simply a lie if used as a
fig leaf to cover political unwillingness to enforce the law or as a back
door to permanent immigration. Therefore, if Congress or the Administration
consider it advisable to admit refugees or give amnesty to illegal aliens,
simple honesty demands that these actions be called by their real names.
Mark
Krikorian is executive director of the Center for Immigration Studies.
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