LWV joins over 125 advocacy and civil rights organizations to call upon President Biden and DHS Secretary Alejandro Mayorkas to exercise their executive authority to designate Mexico for Temporary Protected Status (TPS) as a result of the country’s worsening COVID-19 crisis.
The Honorable Joseph R. Biden
The White House
1600 Pennsylvania Avenue
NW Washington, D.C. 20500
The Honorable Alejandro Mayorkas
Secretary U.S. Department of Homeland Security
3801 Nebraska Avenue NW
Washington, D.C. 20016
RE: REQUEST FOR TEMPORARY PROTECTED STATUS FOR MEXICO
Dear President Biden and Secretary Mayorkas:
The undersigned 128 local, regional, and national organizations write to request that you use your authority to issue designations of Temporary Protected Status (TPS) to roughly 4.9 million undocumented immigrants from Mexico. We respectfully request that the Secretary of the U.S Department of Homeland Security (DHS) designate Mexico for TPS in consultation with the State Department and U.S. Citizenship and Immigration Services (USCIS), especially in light of the ongoing risk to Deferred Action for Childhood Arrivals. TPS would provide employment authorization and protection from deportation for millions of undocumented people in the United States and provide significant incentive for Congress to subsequently provide an eventual legislative roadmap to citizenship. As you know, the Secretary has substantial discretion to designate countries for TPS, and Congress explicitly stated that an “epidemic” is an acceptable ground for designation in addition to “extraordinary and temporary” conditions and did not limit the use of TPS through a numerical ceiling. Such a designation would also likely be largely immune from many judicial challenges, as Congress also established a bar for most legal challenges. Indeed, nearly 50 legal experts sent you a letter stating that your administration has the legal and statutory authority to utilize TPS for Mexico.
It will likely take a significant amount of time to undo the Trump administration’s harmful immigration policies, and many efforts may be delayed by the courts. In the meantime, your administration has the legal authority to protect significant number of undocumented people who cannot return to Mexico safely under current conditions. The Trump administration cruelly and boldly wielded its executive authority on immigration against immigrant communities, and your administration has the opportunity to use that power boldly to help immigrants instead. A broad use of TPS has the potential to serve as a “down payment” toward more permanent reform. In the past, temporary executive relief has often strengthened, not undermined, efforts to achieve more lasting immigration reform. The Obama administration’s creation of the DACA program and strong support of TPS preceded the passage of the American Dream and Promise Act of 2019 (H.R.6) in the House of Representatives. Similarly, the use of Deferred Enforced Departure (DED) established a roadmap for the eventual passage of Liberian Refugee Immigration Fairness.
I. TEMPORARY PROTECTED STATUS
Established by Congress in 1990, TPS represents a congressional delegation of power to the executive to address emergent humanitarian crises. TPS is a temporary form of humanitarian relief that provides short-term protection from deportation and permission to work for immigrants whose country is not safe for return. The statute authorizes the DHS Secretary to designate a country for TPS if the Secretary finds that there is: (a) “an ongoing armed conflict” where deporting immigrants would “pose a serious threat to their personal safety;” (b) an “earthquake, flood, drought, epidemic, or other environmental disaster” that leads a foreign government to request TPS during recovery; or (c) “extraordinary and temporary conditions” prevent immigrants from safely returning. TPS designation is up to the discretion of the DHS Secretary, who may determine if qualifying conditions exist in any given country to cover any number of nationals for that country, as there is no numerical cap on TPS grants. Congress also wrote into the statute a bar prohibiting non-constitutional challenges regarding the Secretary’s designation, termination, and extension of TPS, meaning the statute disallows most legal challenges, including those that were successful against previous, large-scale immigration relief initiatives, such as expanded DACA and Deferred Action for Parents of Americans (DAPA) programs.
Conservative estimates put the count of undocumented immigrants from Mexico at approximately 4.9 million people, or nearly half of all the undocumented people in the United States. Additionally, there are nearly 520,000 active DACA recipients from Mexico that may also soon need protection, pending litigation that may lead to the end of DACA. These individuals and their families deserve the opportunity to participate fully in American life without the fear of being deported to dangerous conditions.
II. COVID-19 PANDEMIC AS GROUNDS FOR TPS
Notably, the law establishing TPS specifically lists examples of natural disasters as grounds for TPS, including an “epidemic;” and also provides for designation if “extraordinary and temporary” conditions exist. The COVID-19 arguably satisfies either of these grounds. The COVID-19 pandemic has currently infected over 106 million people across the world, leading to over 2.3 million deaths globally. Mexico has over 1.9 million recorded cases with over 166,000 deaths, though experts say that both numbers are likely an undercount as many Mexicans choose to fight the virus at home to avoid the neglected hospital system. Even with the undercount, Mexico is leading the world in COVID-19 mortality rate of 8.6 percent, significantly higher than the United States’ 1.7 percent rate.
As of December 2020, the U.S. Centers for Disease Control and Prevention has designated Mexico at the highest Level 4 risk and urges people to “avoid all travel to Mexico” due to a “very high” risk of COVID-19 and limited medical resources. A winter surge in cases is sending states back into the highest levels of lockdown. COVID-19 has served as both a public health crisis and a catalyst to existing troubles in Mexico, including a struggling economy, high crime rates, civil unrest, and increased poverty. Mexico has only secured enough vaccine doses to vaccinate around 17 million citizens, or only 13 percent of the country’s population of 126 million, and still faces significant obstacles to vaccinating all its people.
In light of the above, we respectfully ask that your administration designate Mexico for TPS on the basis of COVID-19. Such a designation would serve as a “bridge” for millions of people and their families who have built a life in the United States until a more permanent solution from Congress emerges. If you have any questions regarding this letter, please do not hesitate to contact [email protected]
Full List of Signatories in Attached Letter
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