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Volume 15 - Issue 1


The Promise and Challenge of Humanitarian Protection in the United States: Making Temporary Protected Status Work as a Safe Haven

Schoenholtz, Andrew I | October 1, 2019

The humanitarian program Congress created in 1990 to allow war refugees and those affected by significant natural disasters to live and work legally in the United States has only partially achieved its goals. More than 400,000 individuals have received temporary protected status (TPS). In many cases, the crisis ended, along with temporary protection. However, in about half of the designated nationalities—including the largest groups—conflict and instability continued, making this humanitarian protection program anything but temporary. Unfortunately, Congress did not provide the Department of Homeland Security (DHS) with the tools it needed to address such long-term crises. That was purposeful—Congress worried that this temporary program would lead to permanent immigration. To constrain the program, Congress required a supermajority of the Senate for any nationality to be granted lawful permanent resident status as a group, which would place such individuals on a path to citizenship. Congress has never granted group status in this way to any TPS nationality. Congress also worried that even temporary legal status for conflict refugees and other eligible humanitarian groups would act as a magnet and attract large movements to the United States. For that reason, Congress required that eligible individuals had to already be in the United States when the DHS Secretary designated their nationality for TPS. Accordingly, Congress designed TPS in a way that did not protect ongoing arrivals fleeing a humanitarian emergency. Congress should address both of these shortcomings. This article explains why and how it should do so. As DHS data shows, TPS has not acted as a magnet—even after DHS has repeatedly opened up temporary protection for some new arrivals through twenty re-designations of eleven nationalities. The data shows that it is not the policy that attracts people to the United States, but rather a fear of death or very serious harm that principally motivates flight from conflict and significant violence. Accordingly, Congress can provide the same type of temporary protection to new arrivals fleeing an ongoing crisis that many nations do, including the United Kingdom and Canada, without worrying that TPS itself will act as a magnet. Moreover, Congress did not know in 1990 that limiting access to lawful permanent resident status when a crisis does not end would effectively lead to long-term TPS programs. Over time, people put down strong roots in their communities through work, family, education, and religious institutions. Given this limitation in the current law, Congress should adopt ways to keep TPS temporary both by facilitating return when conflict ends in a reasonable period of time and by enabling those who have become part of their American communities to be recognized as such when violence and instability is prolonged. TPS policies have not resulted in a significant magnet effect after twenty-six designations and one hundred twenty-two separate extensions covering twenty-two nationalities. Accordingly, Congress can act more generously by providing a temporary measure of protection to all those who flee serious harm or devastation and by transitioning temporary protection to a permanent status for individuals who cannot return home safely after a reasonable period of time. By enacting these reforms, lawmakers will enable TPS to achieve its full potential as a robust humanitarian policy.

Children Of A Lesser God: Reconceptualizing Race In Immigration Law

Hamilton-Jiang, Sarah L | October 1, 2019

The increased public exposure to the experiences of Latinx unaccompanied children seeking entry at the United States southern border has revealed the lived reality of the nation’s pernicious immigration laws. The harrowing experiences of unaccompanied children are amplified by their interaction with a legal system plagued by a legacy of systemic racism and sustained racial caste. While immigration law currently affords minimal legal protections for these children, in application, the law continues to fall egregiously short of providing for the safety of unaccompanied children. Though critics have long attested to the legal system’s neglect of unaccompanied children, subsequent legal analysis has overlooked the intersectional role of race as it pertains to their attempts to navigate entry. This Article uses the concept of racialization to explore the legal treatment of Latinx unaccompanied children as they navigate entry to the United States. This Article demonstrates that the legal framework creates structural inequality for Latinx unaccompanied children through a concept known as “adultification.” Further, racist social and political narratives are incorporated into the law which contribute to the racialization of Latinx unaccompanied children and challenges the very vulnerability that lies at the foundation of the legal protections available for children. The Article concludes with a proposed intersectional vulnerability framework that reconceptualizes race and strengthens the rights and protections of unaccompanied children.

Note or Comment

Preschool for All: Plyler V. Doe in The Context of Early Childhood Education

Kooragayala, Shiva | October 1, 2019

In its 1982 opinion in Plyler v. Doe, the Supreme Court held that a state could not deny undocumented children living within its borders a public and free K-12 education. This Note argues that Plyler’s protections extend to publicly-funded early childhood education programs that serve children between the ages of three and five. Due to the broad support of researchers, educators, and the general public, early childhood education programs funded by local, state, and the federal governments have become an integral part of a comprehensive public education today. While these early childhood education programs are nominally open to all students who meet program-specific age, income, and geographic residency requirements, undocumented children and children of undocumented parents face a variety of indirect and direct barriers to entry that range from onerous and arbitrary identification requirements to attempted outright bans on enrollment based on immigration status. Taking a prophylactic approach, this Note details how denying access to public early childhood education programs to these young children contradicts the spirit and central holding of Plyler. In this era of judicial restraint and heightened xenophobia, the enduring precedent of Plyler offers an avenue for families, policymakers, and advocates to ensure that all children, regardless of their immigration status, can receive a comprehensive public education that includes early childhood education.