AILA’s Asylum and Refugee Committee provides a practice pointer discussing screening TPS holders for other possible forms of relief. Special thanks to Victoria Neilson.
Practice Pointer: The End of TPS and the Possibility of Seeking Asylum
By AILA’s Asylum and Refugee Committee
With announcements by the administration that Temporary Protected Status (TPS) will likely be ending for citizens of Haiti, Nicaragua, Honduras, and El Salvador many practitioners will be screening TPS holders who have been in the United States for many years on potential eligibility for other forms of relief.
The four countries which will likely be losing their TPS status are all countries from which individuals may have fear-based claims. However, TPS holders seeking asylum will face significant challenges.
First, asylum seekers must generally submit their application within one year of arriving in the United States. INA §208(a)(2)(B). There are exceptions both for extraordinary circumstances and for changed circumstances. INA §208(a)(2)(D).
The regulations specify that maintaining lawful status is one example of an extraordinary circumstance and specifically mention TPS as a qualifying status. 8 C.F.R. § 208.4(a)(5)(iv) states, as one example, the “applicant maintained Temporary Protected Status, lawful immigrant or nonimmigrant status, or was given parole, until a reasonable period before the filing of the asylum application.” This regulatory example seems like good news for those with TPS. However, an extraordinary circumstances exception excuses timely filing only during the period of time the extraordinary circumstance existed. An asylum applicant would still need an exception to excuse any time that he was in the United States for longer than a year before he obtained TPS status.
Thus, for example, if a Honduran client arrived in the United States in 1997, received TPS status in 1999, and now seeks to file for asylum, he would still have to account for why he did not file between 1997 and 1999.2 It may well be possible for the client to argue that circumstances have changed in his home country, with the rise of international drug cartels, and that since that change he has maintained TPS status, but the applicant would have to establish both a changed circumstance (while he maintained TPS) and an extraordinary circumstance. He would also have to file within a reasonable period of time after his extraordinary circumstance — maintaining TPS status — ends. In general, it is best to file no more than six months after a one-year filing deadline exception.
Second, TPS holders who have lived in the United States for many years, in some cases decades, will face the added challenge of proving that they currently have a well-founded fear of persecution. While it is possible for an asylum seeker to win her case based solely on fear of future persecution, it is more difficult because a future fear claim does not carry a presumption of future persecution as past persecution claims do. 8 CFR §208.13(b)(1). For individuals who have lived in the United States for long periods of time, it may be challenging for an applicant to prove why she would be singled out for persecution. 8 CFR §208.13(b)(2)(iii)(B) It is also possible to win asylum based on a pattern and practice of persecution. 8 CFR §208.13(b)(2)(iii)(A) but, the government is reluctant to grant pattern and practice cases unless there are egregious and targeted human rights abuses.
In conclusion, there may be cases where TPS holders can make a strong or colorable claim for asylum, but practitioners should be aware that every case will need thoughtful analysis and there are many barriers to successful claims for these populations.
Source: AILA Doc. No. 18011207.
