Patricia
Astorga, Esq.
Licelle
Cobrador, Esq.
JT
Mallonga, Esq.
FILIPINO
AMERICAN LEGAL DEFENSE AND EDUCATION FUND
(212) 221-1888
I
BACKGROUND
Typhoon
Haiyan, which struck the 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 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 Philippines United States 300 miles more than that
of Hurricane Sandy.[1] The United Nations estimates that over
600,000 people have been displaced.[2] A total of 16 million people are estimated to
be affected by the disaster.[3] 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. [4] Arsenio Balisacan, the Philippines Philippines Philippines
In addition,
extraordinary and temporary conditions in the Philippines Philippines
lacks the infrastructure and resources to repatriate nationals currently living
in the 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 U.S. El Salvador as the first country whose nationals
were able to seek TPS to stay in the United States U.S. United States El
Salvador who fled to the United
States in hopes of protection were indeed protected from
their fear of returning to El
Salvador
In the case
of the Philippines United
States
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 Philippines 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 United States ,
which will increase the flow of remittances to the Philippines 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.[10]
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.[11] 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.
CONCLUSION
For all of the foregoing legal, humanitarian
and public policy reasons, a grant of TPS for Filipino nationals is necessary,
warranted and justified.
[1]
http://www.ryot.org/typhoon-haiyan-compare-major-storms/465173
[2]
http://www.bbc.co.uk/news/world-asia-24901993
[4]
http://thinkprogress.org/climate/2013/11/22/2985961/philippine-haiyan-deaths-5200/
[5] Id.
[6]
Robert Rubin, Ten Years After: Vindication for Salvadorans and New
Promises for Safe Haven and Refugee Protection, 68 Interpreter Releases 97,97 (1991).
[7] 136 Cong.
Rec. S17, 106-01 (1990).