Until this week, I had not agreed with Trump administration officials on anything having to do with immigration. But on Monday, the acting chief of Customs and Border Protection, Mark Morgan, said at a news conference that it would be “appropriate” to extend temporary protected status (TPS) to Bahamians in the wake of the devastating Hurricane Dorian, and that “history” supported the use of TPS in situations such as this. He was right.
President Trump, of course, lost no time Monday in shooting down the idea, warning of the “very bad people” from the Bahamas who would hurt U.S. interests if allowed to enter or to remain in our country. Trump’s dismissal of TPS, and his demonization of Bahamians as criminals, should probably come as no surprise, and on Tuesday the administration said it would not grant TPS to Bahamians.
What was surprising was the CBP chief so candidly observing that the historical use of TPS supports its extension to Bahamians.
Congress enacted the law providing for TPS in 1990. It allows the secretary of the Department of Homeland Security to grant temporary legal status to individuals in the United States whose countries (or parts of their countries) have been severely impacted by armed conflict, or environmental disasters, such that it would be unsafe and inhumane to force them to return. While TPS doesn’t allow people to enter the U.S., it does allow those who are here (including those who entered without documents) to stay temporarily.
An initial TPS designation, which applies to all people from a particular country, is for six months, with extensions depending on conditions in the home country. Individuals with protected status are considered lawfully present and are granted authorization to work. But this protection does not lead to a permanent legal status. The underlying rationale of the law is humanitarian as well as pragmatic — it is cruel to return an individual to a disastrous situation and it doesn’t help the foreign country recover from a disaster if thousands are returned there.
Dorian, a Category 5 hurricane, battered the Bahamas for two days with unprecedented intensity. Winds lashed the islands at 200 miles per hour and storm surges caused extensive flooding.
In the most affected areas — the Abaco Islands and Grand Bahama Island — entire neighborhoods were obliterated, and infrastructure, including hospitals and public buildings were destroyed. The United Nations estimates that 76,000 were left homeless, and the majority of the population lost any means of livelihood as businesses were swept away.
Both Republican and Democratic administrations have granted TPS to countries that have suffered natural disasters, including hurricanes. Honduras and Nicaragua were both designated for TPS in January 1999 after Hurricane Mitch, also a Category5 event, tore through the two countries, causing massive mudslides, wiping away entire villages and destroying any means of survival.
Earthquakes with similarly devastating effects have also led to the designation of TPS status — to El Salvador in 2001, Haiti in 2010 and Nepal in 2015. And there have been numerous designations of TPS for countries embroiled in armed conflict, such as Kosovo, Bosnia and Herzegovina, Somalia, Syria and Yemen.
Trump did not couch his opposition to TPS in the law’s criteria, and whether the situation in the Bahamas merits such a humanitarian response. Instead, he resorted to attacking Bahamians. Although the extension of TPS is a discretionary act, and the president, through Homeland Security, cannot be forced to take action, this administration has occasionally been susceptible to public condemnation of its policies.
Right now would be a good moment to criticize Trump’s disregard for the plight of those suffering in Dorian’s wake, and to express support for a humanitarian response toward our Bahamian neighbors.
Karen Musalo is a law professor and the founding director of the Center for Gender & Refugee Studies at UC Hastings College of the Law. She is also lead coauthor of “Refugee Law and Policy: An International and Comparative Approach (5th edition).”