Flores v. United States Citizenship and Immigration Services: Clearing the Way to Admission for Temporary Protected Status Beneficiaries

• Author: Jose´ A. Juarez, Jr.
• Position: J.D. Candidate, Capital University Law School, May 2016; B.S. Political Science, Illinois State University, 2007. Thank you, Lauren, for your encouragement, understanding, and support during my law school career and this writing process. Thank you to my parents for constantly pushing me to be the best man that I can be. As a first-generation ...
• Pages: 549-577

FLORES V. UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES: CLEARING THE WAY TO

ADMISSION FOR TEMPORARY PROTECTED

STATUS BENEFICIARIES

JOSÉ A. JUAREZ, JR.*

I.!INTRODUCTION

There are approximately eleven million undocumented immigrants

living in the United States today.1 Of those eleven million, more than three-

hundred thousand have been granted Temporary Protected Status.2

Temporary Protected Status is the “statutory embodiment of [a] safe haven”

for undocumented immigrants who do not meet the definition of refugee

under the Immigration and Nationality Act3 but are nevertheless fleeing or

unwilling to return to “dangerous situations” in their home countries.4

Moreover, individuals with Temporary Protected Status are also “liv[ing] in

a state of legal limbo that can persist indefinitely . . . without ever leading to

citizenship” or legal permanent residence.5 One such undocumented

immigrant living in legal limbo is Evelyn Hernandez.6

Copyright © 2017, Jose A. Juarez, Jr.

* J.D. Candidate, Capital University Law School, May 2016; B.S. Political Science,

Illinois State University, 2007. Thank you, Lauren, for your encouragement, understanding,

and support during my law school career and this writing process. Thank you to my parents

for constantly pushing m e to be the best man that I can be. As a first-generation American

with parents from Mexico and Central America, the topic of immigration has been close to

my heart. I hope this Note can illustrate that there are immigrants deserving of immigration

laws that are pro-immigrant. I am grateful for the opportunity to present m y view on a topic

that can affect many immigrants that are fleeing dangerous conditions in their home countries.

We are blessed to live in a country where we can feel safe and embrace different points of

view. Lastly, this Note would not have been possible without the encouragement of Jennifer

Peyton and the support and guidance of Professor Scott Anderson.

1 Tessa Berenson, Donald Trump Calls for Deporting Undocumented Immigrants, Letting

Some Back In, TIME (Jul. 29, 2015), http://time.com/3977763/donald-trump-immigration-

policy [http://perma.cc/WL83-24ZE].

2 Nancy Lofholm, Temporary Protected Immigrants Have No Path to Citizenship,

DENVER POST (Mar. 21, 2013, 3:04 PM), http://www.denverpost.com/ci_22844967/

temporary-protected-immigrants-have-no-path-citizenship [http://perma.cc/5KPX-8KZ9].

3 See 8 U.S.C. § 1101(a)(42) (2012).

4 LISA SEGHETTI ET AL., CONG. RESEARCH SERV., RS20844, TEMPORARY PROTECTED

STATUS: CURRENT IMMIGRATION POLICY AND ISSUES 2 (2015).

5 ROBERTO G GONZALES, LIVES IN LIMBO: UNDOCUMENTED AND COMING OF AGE IN

AMERICA 9 (2015).

6 Leslie Berestein Rojas, ‘Temporary Protected’ Status Immigrants Hope to Be Included

in Immigration Reform, 89.3 KPCC (Apr. 8, 2013), http://www.scpr.org/blogs/

550 CAPITAL UNIVERSITY LAW REVIEW [45:549

Evelyn Hernandez is a native of El Salvador who left her family in 1992

at the age of 18 after a long civil war ended in her home country.7 She left

El Salvador seeking asylum and entered the United States without

authorization.8 Her request for asylum was ultimately rejected.9 On January

13, 2001, El Salvador “suffered a devastating earthquake” and experienced

two additional earthquakes on February 13 and 17, 2001.10 These

earthquake resulted in “1,100 deaths, 7,859 injuries, and over 2,500 missing”

Salvadorians.11 They also destroyed “220,000 homes, 1,696 schools, and

856 public buildings.”12 On March 9, 2001, El Salvador was designated for

Temporary Protected Status by the Secretary of Homeland Security.13

Under the Immigration and Nationality Act, the Attorney General may

designate a foreign country for Temporary Protected Status due to an

ongoing-armed conflict, an environmental disaster, or other extraordinary

and temporary conditions.14 The Secretary found that the earthquakes

multiamerican/2013/04/08/13207/permanent-temporary-immigrants-hope-to-be-included

[http://perma.cc/KZ4Q-ZZZW].

7 Id. “Over 75,000 civilians died at the hands of government forces during the civil war

in El Salvador,” which lasted from 1980 to 1992. El Salvador: 12 Years of Civil War, CTR.

FOR JUST. & ACCOUNTABILITY, http://www.cja.org/article.php?list=type&type=199 [http://

perma.cc/3WFC-MRZA].

8 Rojas, supra note 6.

9 Id. At the moment, she will also be inadmissible to the United States because she has a

prior removal order. Id.; see 8 U.S.C. § 1182(a)(9)(A)(ii) (2012). For this Note, we will

assume that Evelyn did not apply for asylum and the only inadmissible ground is that she

entered and remained without authorization, in violation of 8 U.S.C. § 1182(a)(9)(B).

10 Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg.

14214 (Dep’t of Justice Mar. 9 2001) [hereinafter Designation of El Salvador].

11 Id.

12 Id.

13 Id.

14 It is important to note that the authority of the Attorney General to designate and grant

TPS was transferred to the Secretary of Homeland Security. Homeland Security Act of 2002,

Pub. L. No. 107-296, 116 Stat. 2135, 2311 (2002). Section 1517, codified at 6 U.S.C § 557

(2015) provides:

With respect to any function transferred by or under this chapter

(including under a reorganization plan that becomes effective under

section 542 of this title) and exercised on or after the effective date of this

chapter, reference in any other Federal law to any department,

commission, or agency or any officer or office the functions of which are

so transferred shall be deemed to refer to the Secretary, other official, or

component of the Department to which such function is so transferred.

Id. (em phasis added); compare Temporary Protected Status, U.S. CITIZENSHIP & IMMIGR.

SERVS., http://www.uscis.gov/humanitarian/temporary-protected-status [http://perma.cc/

X5SV-KHSG] (stating the Secretary of Homeland Security is responsible for designation),