Political Considerations Illegally Tainted the Decision To End Protections for Hundreds of Thousands of U.S. Immigrants

State Department officials warned Trump not to revoke protections for immigrants” by Nicole Narea, Vox, November 7, 2019

Before today, it was known that the Trump administration’s decision to terminate protections for hundreds of thousands of Temporary Protected Status (TPS) holders originally from El Salvador, Honduras, and Haiti had moved forward despite strong concerns raised in U.S. embassy cables by career diplomats. A report released today by Sen. Robert Menendez (D-NJ), ranking member of the Senate Foreign Relations Committee, reveals that the termination decision may have additionally been infected by a legally impermissible consideration: the personal and political reelection interests of the president.

The law on TPS is clear: Once the secretary of homeland security designates a country for TPS, the secretary must extend that designation until the department concludes that the country no longer meets the conditions necessary for the designation. According to the statute, the termination determination is intensely fact-based, considering factors such as whether or not the country can safely accommodate the return of its nationals.

According to newly released documents, the advice provided by career U.S. Department of State personnel to then-Secretary of State Rex Tillerson was clear: Either TPS should be extended for all three countries, or terminations should be delayed by 36 months in order to ameliorate the serious harms that could result from ending the protections any sooner. The State Department’s highest-ranking career diplomat, Thomas Shannon—the undersecretary of state for political affairs at the time—sent a private message to Tillerson advising him that the three countries “cannot manage a quick return of the more than 400,000 people covered by TPS” and that the right decision was “obvious: extend TPS for the countries indicated.” The Bureau of Population, Refugees, and Migration as well as the U.S. ambassador or acting chief of mission in the three countries also recommended that TPS be extended. The Bureau of Western Hemisphere Affairs and Tillerson’s own Office of Policy Planning submitted a joint recommendation that TPS be terminated only after a 36-month wind-down period—the same guidance contained in the State Department’s recommendations included with Tillerson’s formal letter, which was transmitted to then-acting Secretary of Homeland Security Elaine Duke.

The only individuals within the State Department who advocated for a more aggressive termination of TPS were on Tillerson’s personal staff in the Office of Policy Planning—political appointees who filed an unvetted memorandum of dissent arguing that delaying the termination effective dates for 36 months “would put the wind-down of the program directly in the middle of the 2020 election cycle.” Ultimately, Tillerson followed this advice, recommending that Duke terminate the protections following an 18-month wind-down period. By introducing electoral considerations into the TPS termination calculation, the Trump administration’s political appointees not only placed politics ahead of U.S. national security and foreign policy interests as well as the safety of TPS holders and their American citizen children, but also illegally tainted the decision. Courts reviewing the legality of the administration’s decision to end protections for individuals from El Salvador, Honduras, and Haiti should review whether this impermissible consideration provides further evidence that the decisions were arbitrary and capricious or otherwise unlawful.

For more on how to reframe the immigration debate, see CAP’s report: “Restoring the Rule of Law Through a Fair, Humane, and Workable Immigration System.”