The Trump administration is making a mockery of protecting immigrants

U.S. Department of Homeland Security Secretary Markwayne Mullin has temporarily deprived Democrats of a potent midterm rallying cry and averted a crisis for El Salvador’s president, one of President Donald Trump’s top fanboys, by tacitly agreeing to continue shielding 170,000 El Salvadorans from deportation — a protection that was set to expire on Sept. 9.

DHS now says that a decision “will be made at the appropriate time,” in effect suspending the immigrants and their families in a fearful limbo.

The administration may yet seek to deport the Salvadorans. After all, the second Trump administration has already stripped more than 1 million immigrants from 13 countries of such protection, often willy-nilly and in seeming contravention of the conditions set by Congress when it created a program for Temporary Protected Status (TPS) some three decades ago. Under its terms, the U.S. grants temporary permission to live and work in the U.S. to those unauthorized immigrants whom the U.S. judges are unable to return to a designated country because of conflict or environmental disaster.

But even if the administration doesn’t strip Salvadorans’ protections, Mullin’s recent nondecision perfectly captures the moral and intellectual bankruptcy of its crusade against TPS. The move also highlights the urgent need for Congress to strengthen the program it created and stop ceding its powers to shape immigration policy through legislation.

A look back at TPS’ origins in the landmark Immigration Act of 1990 helps to explain why. Prior to the act’s passage, no laws on the books provided blanket protection from deportation to citizens of crisis-ridden countries in the U.S. illegally. Instead, the executive branch relied on an ad hoc mechanism called “executive voluntary departure” (EVD). At the recommendation of the secretary of state, the attorney general could exercise a form of prosecutorial discretion and not pursue a given country’s citizens for removal. From 1960 to 1990, the U.S. granted that status at various times to 16 countries, including Poland, Iran and Uganda.

Compared with the case-by-case handling of individual refugees and asylum applicants from all over the world, EVD was downright loosey-goosey. A 1988 congressional report argued that the criteria under which protection was granted were subjective and opaque. The Immigration and Naturalization Service couldn’t track the number and whereabouts of EVD’s beneficiaries, much less screen them. The program operated pretty much at the discretion of the executive branch.

That discretion could yield some uneven outcomes. Indeed, the refusal of the Reagan administration to grant EVD to Salvadorans spurred Congress’ creation of TPS. Fleeing conflicts in El Salvador, Guatemala and Nicaragua during the 1980s, hundreds of thousands of Central Americans had come to the U.S. seeking refuge. But the White House thought that granting Salvadorans sanctuary, either as individual asylum seekers or temporarily as an EVD group, would discredit its efforts to support El Salvador’s repressive right-wing regime. So it brushed them off as would-be economic migrants.

Some high-profile carnage tipped the balance, not least the murder of six Jesuit priests in San Salvador in November 1989. When the 1990 Immigration Act subsequently made its way through Congress, it included an amendment authorizing the attorney general to designate a country’s nationals for “Temporary Protected Status” because of either an ongoing armed conflict, environmental disaster or extraordinary and temporary conditions preventing the safe return of their nationals.

El Salvador was singled out for protection, for a period of 18 months.The legislators who championed TPS stressed the “T” for “temporary.” The attorney general (and subsequently, DHS secretary) could extend a country’s TPS if it continued to meet the conditions for designation. But the program made no provisions for a path to permanent residence, nor did it confer the ability to sponsor relatives and reunite families. Congress reinforced that message by stipulating that any future legislation to create a TPS pathway to permanent residence must pass the Senate by a three-fifths majority.

And yet despite these good intentions to ensure that the status was indeed temporary, the program spiraled down what was often the path of least political resistance. Several TPS designations, for instance, have been extended more than a dozen times. But even as these increasingly long-term TPS recipients settled down, got married, built businesses and knit together communities, their fate in the U.S. continued to depend on periodic review. Moreover, their inability to confer legal status on overseas family members, in turn, opened a new channel for unauthorized immigration that fattened the cartels. Under a well-meaning but feckless Biden administration reeling from a border surge, the number of TPS beneficiaries tripled, from around 410,000 to nearly 1.3 million.

The Trump administration’s response has been to blow up the program, to the cheers of the MAGA faithful. As Tricia McLaughlin, an assistant secretary at the Department of Homeland Security, crowed a year ago, when yet another TPS designation was yanked, “This is what restoring sanity to America’s immigration system looks like.”

Is it sane to send Afghans, Burmese, Haitians, South Sudanese, Syrians and Yemenis back to countries whose levels of violence, persecution and instability have prompted the State Department to issue do-not-travel warnings to Americans? The surreal reasoning behind some of these terminations is right out of Orwell or Kafka. It certainly doesn’t comport with Congress’ intention to create a transparent, consistent and accountable framework for granting temporary protection from deportation.

DHS’ recent cold feet about ending El Salvador’s TPS designation are the ultimate tell that the U.S. is back in the bad old days of putting political considerations above facts on the ground and humanitarian need. After all, El Salvador is one of the few countries where conditions have markedly improved since its citizens received a new grant of TPS in 2001, following earthquakes that killed thousands and displaced almost one-fifth of its population.

But booting out El Salvadorans who have been here for more than two decades would trigger heart-rending headlines that the White House doesn’t want before the midterms. There are, for instance, 150,000 U.S. citizen children with a parent who is a Salvadoran TPS recipient. Trump is already underwater in public opinion polls for his handling of immigration. He doesn’t need more bad press on this front. And he also doesn’t want to hammer his Salvadoran buddy President Nayib Bukele, whose country is housing several hundred U.S. deportees in a new mega-prison for $6 million, has crypto business ties with Trump’s secretary of commerce and relies heavily on remittances from Salvadorans working in the U.S.

Yet there is a salutary lesson for the U.S. and its Congress in what happened to El Salvador’s first TPS designation, the one that legislators inserted directly into the statute. Roughly 187,000 Salvadorans registered for TPS after it was instituted in January 1991. When it expired 18 months later, President George H.W. Bush granted them “deferred enforced departure” — another executive branch workaround — for a year, which President Bill Clinton (reminder: a Democrat) then terminated in 1994. Eventually, many of the Salvadorans were able to qualify for permanent residence under the bipartisan Nicaraguan Adjustment and Central American Relief Act.

In other words, the system worked: TPS was not extended, a short-term executive branch protection kicked in and Congress passed a law that delivered many of the Salvadorans from limbo. You may or may not agree with the outcome, but all the players were coloring inside the lines.The same thing could have happened to the Salvadorans granted TPS in 2001.

In a better world, the House of Representatives would have taken up and passed the Senate’s 2014 bipartisan “Gang of Eight” immigration reform bill, which included provisions that would have potentially allowed Salvadorans and other TPS holders to apply for permanent residence. The U.S. will always need statutory, temporary protection for individuals who might not qualify as refugees. TPS needs to be fixed, with tighter constraints on extensions and certifications, not junked. Instead of allowing a mad king to flout the spirit if not the letter of one of its more sensible legislative initiatives, Congress must do its job and grasp the nettle of immigration reform.

James Gibney is an editor for Bloomberg Opinion. He was in the U.S. Foreign Service from 1989 to 1997 in India, Japan and Washington.