Safe Haven and Politics
ON May 4 of this year, President Bush, in a letter to President Alfredo Cristiani of El Salvador, established the "Deferred Enforced Departure" program for Salvadorans. In passing, Mr. Bush mentioned that he, regretfully, was unable to extend temporary protected status (TPS) for the Salvadorans as the program did not allow for an extension. Strictly speaking, Bush was correct; however he did not mention he had purposely ignored the general TPS statute permitting the United States attorney general to desi gnate a country's nationals for temporary protection.
The deferred departure program offers work authorization and protection from deportation until June 30, 1993, for those Salvadorans registered in the TPS program. With the passage of the Immigration and Nationality Act of 1990, Salvadorans in the US, as of Sept. 19, 1990, were allowed to register for an 38-month work authorization and protection from deportation. In the same legislation a general statute was created that would, upon action by the attorney general, provide benefits for other US foreign na tionals. On June 30, 1992, benefits for Salvadorans ended, and the Bush program began.
Under the general statute the attorney general is authorized by Congress to designate a country's nationals for TPS coverage when a civil conflict in that country poses a serious threat to one's safety upon returning, when an environmental disaster has disrupted living conditions in the area, when the foreign state would be unable to adequately handle the return of nationals, or when the foreign state has requested temporary protected status designation. Even though the Salvadoran TPS statute did not pro vide for an extension of its benefits, the general TPS statute did.
Immigrant rights advocates, members of Congress, the FMLN, and the Salvadoran government all lobbied the White House for Salvadoran designation - to no avail. However, a more important consideration was the purposeful disregard for a program created by Congress to cover situations such as the Salvadoran one. Congress has already stated the procedure by which safe haven is to be provided for foreign nationals living in the US. The Bush administration chose to implement its own program.
Now the administration has complete discretion to set up the procedures to be followed in registering for deferred enforced departure as well as the criteria on who qualifies. The administration has used this discretion to bar some Salvadorans from deferred departure registration even though they had previously registered for TPS status. Delays and contradictory statements have plagued the implementation of the program as the Immigration and Nationalization Service scrambles to draft the procedures neede d by immigration legal service providers across the nation to register Salvadorans for deferred departure. Delays and contradictions could have been avoided by use of the general TPS statute, wherein procedures have already been established, and which has been used to provide TPS to nationals from Kuwait, Liberia, and Somalia.
Although not a complete victory for its advocates, enactment of the statutes creating the Salvadoran TPS program and the general TPS program was a victory of sorts for those who had long claimed that international law protected from forced deportation individuals fleeing civil conflict or natural disasters in their home countries. Enactment of TPS was an affirmation of a serious US responsibility and commitment to provide safe haven.
But now the question is safe haven for whom? The passage of the Immigration and Nationality Act of 1980 supposedly put an end to political considerations in the adjudication of asylum applications. But nothing changed. After several years of discriminatory treatment, Salvadoran and Guatemalan asylum applicants finally won a settlement granting new asylum interviews under a new adjudication process designed to eliminate foreign policy considerations. This was in 1990.
The general temporary protected status statute is generous in the discretion that it provides the attorney general to designate, extend, or terminate TPS benefits. If the administration had so determined, additional TPS coverage for Salvadorans under the general statute would not have become a reality. Numerous clauses exist in the statute to allow an escape from providing TPS coverage, and judicial review is expressly barred. Pressured by all sides and events in El Salvador for an extension of TPS benef its, while at the same time aware of the implications an extension would have in an election year, the Bush administration ducked the issue.
In so doing, a dangerous precedent has been established and once again political considerations have come into play. This time, domestic politics. Advocacy for the temporary protected status statutes was justified by turning to international law for guidance, international jurisprudence gradually finding acceptance in other parts of the world as a means to provide temporary safe haven to individuals fleeing an emergency. This accomplishment has been severely tarnished by the actions of the Bush administr ation, and the lives of approximately 200,000 Salvadorans placed into the arena of domestic politics and subject to the whims of a president desperately seeking reelection.
