Patricia Astorga, Esq.
Licelle Cobrador, Esq.
JT Mallonga, Esq.
FILIPINO AMERICAN LEGAL DEFENSE AND EDUCATION FUND
Typhoon Haiyan, which struck the
on Philippines November 8, 2013,
decimated many areas and displaced a large segment of the population. Typhoon
experts concluded that Haiyan was one of the biggest and most powerful of its
kind to date. In its wake, Haiyan left
more than 3 million Filipinos without access to food, water, medical attention,
shelter, and other critical supplies. In addition to the millions who lost
their homes, an over 5,000 Filipinos are believed to have died in the typhoon
and the chaos that resulted afterward, with an additional 23,500 that are
injured and more than 1,600 that are still reported missing.
In the wake of Haiyan’s devastation, the Department of Homeland Security should grant Temporary Protected Status (TPS) to Filipino nationals in the
. A grant of TPS for Filipino nationals is
warranted under the Immigration and Nationality Act (the “INA”) in light of the extent of the damaged caused
by the environmental disaster as well as the “extraordinary and temporary
conditions” that currently exist within the Philippines. Moreover, humanitarian principles and the
history and purpose of TPS overwhelmingly justify TPS status for Filipino
nationals. United States
II A GRANT OF TPS IS WARRANTED UNDER SECTION 244 OF THE IMMIGRATION AND NATIONALITY ACT
TPS is one of the key humanitarian programs enacted to assist individuals in need of shelter or aid from disasters, oppression, emergency medical issues and other urgent circumstances. As outlined in Section 244 of the INA, §244, 8 U.S.C. §1254(b), TPS is warranted where:
(i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected,
(ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and
(C) the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the
Here, the current situation in the Philippines squarely meets the criteria enumerated in §244, 8 U.S.C. §1254(b)(1)(B). Specifically, Haiyan has resulted in a substantial, but temporary disruption of living in several regions in the
. Recent estimates show that Haiyan’s damage
spanned three times that of Hurricane Katrina in the Philippines and nearly United States 300 miles more than that
of Hurricane Sandy. The United Nations estimates that over
600,000 people have been displaced. A total of 16 million people are estimated to
be affected by the disaster. The damage includes $112 million in
demolished crops, $100 million in damage to livestock and fisheries, and along
with other assessments comes to a total of $288 million.  Arsenio Balisacan, the ’ economic planning
secretary, estimated that the total cost of reconstruction could reach
$5.8 billion. Furthermore, given the significant delay of
relief efforts and a lack of resources, the country is unable to handle
adequately the return to the Philippines
of its nationals living abroad. Finally,
the Philippines ,
through President Aquino, has officially requested designation under
In addition, extraordinary and temporary conditions in the
in the wake of Haiyan
prevent nationals from returning to the country safely. Specifically, many areas of the Philippines
are still undergoing rehabilitation and the process, although temporary, is
slow and has resulted in life-threatening conditions to residents of affected
areas. The Philippines Philippines
lacks the infrastructure and resources to repatriate nationals currently living
and doing so would impose an insurmountable burden on an already devastated
country. United States
III HUMANITARIAN PRINCIPLES SUPPORT A GRANT OF TPS
TPS, while outlined in a statute, is mainly a humanitarian relief, and belongs in the same category as other forms of protection granted by the United States government to foreign nationals whose lives and freedom are in danger, including asylum, protection for refugees and victims of human trafficking and deferred action for childhood arrivals. In the broadest sense, humanitarian principles are rooted in international humanitarian law, which aims to provide a safe haven to citizens whose lives are in danger in their home country. In a narrower sense, they are the principles devised to guide the work of humanitarian actors that aim to protect life and health and ensure respect for human beings.
The very history of TPS emphasizes its humanitarian roots. TPS was originally passed under the Immigration Act of 1990 to give “temporary protected status” to certain non-citizens in the
that would face a threat to life or liberty if they were required to return to
their home countries. In addition to
establishing a TPS procedure, the law also designated U.S. El Salvador as the first country whose nationals
were able to seek TPS to stay in the while their country
was re-built. At the time, over 500,000 undocumented El
Salvadorans in the United States
were potentially eligible for this new “status.” These El Salvadorans fled
their home country from civil war and political uprising for the sanctity and protection
of the U.S. . Speaking for the Congressional Record,
Senator DeConcini stated that “[o]ne of [our] responsibilities [in
offering TPS] is humanitarian concern toward the Salvadorans whose
lives have been violently disrupted and endangered by war.” Thus, in enacting TPS, Congress wanted to
ensure that the scared, desperate nationals of United States El
Salvador who fled to the United
States in hopes of protection were indeed protected from
their fear of returning to where those nationals would not be
safe in their own country. El
In the case of the
Haiyan poses a similar threat or danger to many Filipinos’ lives. Factors such as displacement, deprivation,
extreme poverty and violence brought on by Typhoon Haiyan warrant an analogous
humanitarian response from the Philippines . The concept of “safe haven” in TPS
designation covers those who do not meet the legal definition of “refugee” but
are nevertheless fleeing potentially perilous situations. United
Furthermore, a grant of TPS is an appropriate humanitarian response to the catastrophic consequences of one of the strongest storms in history, which rendered large areas of the
uninhabitable and resulted in total collapse of infrastructure with estimated
total cost of damages at Php 36, 690, 882, 497 and more than16 million persons affected. Thus, there is a compelling need to protect
Filipino nationals currently in the United States, whose safety would be
endangered by returning to the Philippines. Finally, granting TPS is consistent
with the Philippines ’
pledge to support Philippine rehabilitation and recovery efforts. United States
The benefits of TPS for Filipino nationals would be invaluable. TPS status would allow Filipino beneficiaries to legally work and reside in the
which will increase the flow of remittances to the during the recovery
from the typhoon. According to the World Bank, “remittances sent home by
migrants to developing countries are equivalent to more than three times the
size of official development assistance.” These remittances would add
significantly to the $47.4 million of humanitarian aid pledged by the Philippines .
With a U.N. Humanitarian Action Plan request of $301 million from the global
community to rebuild the areas affected by Haiyan, remittances will contribute
significantly to rebuilding efforts. On the other hand, if Filipinos are
not granted TPS and are forced to return to the Philippines, their return
“would impose a great burden on the rescue and restoration effort.” United States
Finally, the nonrefoulment principle, which prevents the return of a refugee to a country where his life or freedom would be threatened, supports a grant of TPS to Filipino nationals. The U.S., as a signatory to the United Nations Protocol Relating to the Status of Refugees (UN Protocol), adheres to the refoulment principle, which is exemplified in U.S. immigration law provisions such as INA §208 , 8 U.S.C. §1158, INA §241(b)(3), 8 U.S.C. §1231 and INA §101(a), 8 U.S.C. §1101(a)(42) and requires the government to withhold removal of individuals to a country in which the individual's life or freedom would be threatened. Here, forcing Filipino nationals to return to the Philippines in the middle of an environmental catastrophe that has displaced hundreds of thousands of residents would violate the nonrefoulment principle and put Filipinos’ lives in immediate danger.
IV CIRCUMSTANCES THAT WARRANTED TPS FOR OTHER COUNTRIES WARRANT TPS FOR THE PHILIPPINES
One of the best historical examples of the use of TPS came in 2010 when Homeland Security Secretary Janet Napolitano granted the protection to Haitian immigrants after the 7.0 magnitude earthquake struck Haiti. The response was strong and immediate, with approximately 100,000 immigrants that might have been deported to Haiti receiving exemptions to remain in the United States legally merely three days after the earthquake hit. Extensions have since been granted to accommodate ongoing relief efforts.
Similarly, in 1999, the United States government granted TPS to immigrants from El Salvador, Nicaragua and Honduras after Hurricane Mitch tore through Central America. Extensions of the status have kept it in effect through 2011. In the case of El Salvador, the Attorney General initially authorized Temporary Protected Status on March 9, 2001, due to a series of severe earthquakes in that country in January and February 2001. The Attorney General has extended Temporary Protected Status for El Salvador several times.
In the case of the Philippines, the widespread hardship suffered by millions of Filipinos in the wake of Typhoon Haiyan warrants a grant of TPS. In Congress’ letter to the DHS Secretary, the members highlight that the U.S. has previously approved TPS eligibility for other countries that were suffering from the terrible impact of an environmental disaster. Congress members specifically pointed to Honduras, Nicaragua, El Salvador and Haiti, as the U.S. granted TPS to these countries’ nationals after the countries were struck by intense hurricanes and severe earthquakes. The members argued that granting TPS to the Philippines would be an invaluable contribution to humanitarian relief efforts for affected nationals.
Just as Haiti was in no position to repatriate over 100,000 nationals after the earthquake of 2010, the Philippines lacks the resources to repatriate its nationals were they forced to return to the Philippines in the midst of rebuilding efforts. A grant of TPS would fulfill the purpose of the statute: to aid immigrants that cannot return to their countries because of, among other things, natural disasters. Haitians met the criteria in 2010, as did Hondurans and Nicaraguans after Hurricane Mitch in 1998 and Salvadorans, who fled massive earthquakes in 2001. Clearly, the circumstances in the Philippines warrant the same form of relief.
Finally, public policy concerns regarding a grant of TPS for Filipinos are addressed by the limitations built into the statute. First, because TPS applies only to immigrants living in the United States on a specified date, it does not encourage new waves of refugees. Furthermore, remittances sent by immigrants permitted to work in the United States through TPS would allow Americans to contribute to foreign aid without reaching into their own pockets.
For all of the foregoing legal, humanitarian and public policy reasons, a grant of TPS for Filipino nationals is necessary, warranted and justified.
 Robert Rubin, Ten Years After: Vindication for Salvadorans and New Promises for Safe Haven and Refugee Protection, 68 Interpreter Releases 97,97 (1991).
 136 Cong. Rec. S17, 106-01 (1990).