Why is the United States ending temporary protected status for Afghans?

When the Trump administration announced last week it would allow the legal status of many Afghans in the country to expire, it sparked an outcry of concern among activists: How could the United States ship vulnerable refugees back to the Taliban? Immigration officials in the Trump administration are asking a different question: How did temporary protected status—a single provision among volumes of immigration law—become a means of providing blanket amnesty with no expiration date?

Section 244 of the Immigration and Nationality Act outlines the use of temporary protected status (TPS) in U.S. immigration. “It’s a provision of the act that’s become—it’s been abused, respectfully, over the years by serial administrations who have simply been on autopilot,” said Andrew Arthur, a resident fellow in law and policy at the Center for Immigration Studies.

The Department of Homeland Security said last week that Secretary Kristi Noem had reviewed conditions in Afghanistan and Cameroon and determined that those countries no longer satisfied the statutory requirements that would allow the federal government to extend their refugees’ TPS. The changes are part of a larger effort by the Trump administration to rein in what it sees as the overuse of TPS. Critics of the move argue that deporting TPS recipients could violate some of the United States’ international obligations and put vulnerable people in danger.

What is temporary protected status?

Before refugees from a foreign country can receive temporary protected status in the United States, the secretary of homeland security must determine whether certain conditions exist. If that country faces ongoing armed conflicts, natural disasters, epidemics, or other temporary situations that prevent that country from being able to receive back refugees who fled to the United States, the homeland security secretary can grant TPS designation.

Once inside the United States, refugees with temporary protected status are protected from deportation and allowed to obtain work authorization documents and travel authorization papers, according to the Department of Homeland Security. During TPS refugees’ time in the United States, U.S. Immigration and Customs Enforcement cannot detain them based on their immigration status.

Temporary protected status is not a pathway to permanent legal status in the United States, according to the Department of Homeland Security. But while someone is in the country on a TPS designation, they can apply for the ability to stay permanently.

“The whole idea behind temporary protected status … is that it’s supposed to be temporary,” said Arthur. “Temporary protected status has become something that Congress never intended it to be.”

Congress originally created TPS so that officials had a legal option for not deporting people who for some reason could not return home, Arthur explained.

“The classic example of what Congress intended temporary protected status to be was Montserrat,” he said. The United States gave Montserrat a TPS designation following a volcanic eruption in 1997, which allowed hundreds of citizens from the Caribbean island to remain in the United States legally because they could not safely return home.

“As soon as things settled down and people either resettled back to Montserrat, or alternatively, went to the United Kingdom—where most of them went—that designation no longer became necessary,” Arthur said.

But in the years after the Monserrat eruption, administrations began using TPS differently. “Look at the TPS designation for El Salvador, for example, which has been ongoing now, I think, for 24 years,” Arthur said. “Once those designations are in place, they become a quasi-permanent status.”

Why does the TPS designation no longer apply to Cameroon and Afghanistan?

The Department of Homeland Security told WORLD that Noem decided to revoke the temporary protected status designation for Afghanistan based on a joint analysis of the country’s conditions, carried out by U.S. Citizenship and Immigration Services and the U.S. State Department.

WORLD reached out to USCIS for comment about what in its review indicated that Afghanistan no longer merited a TPS designation but did not immediately receive a response. The State Department has a “do not travel” warning in effect for U.S. citizens regarding Afghanistan, warning Americans of terrorism, civil unrest, armed conflict, crime, kidnapping, and risk of wrongful detention.

As for Cameroon, the State Department merely encourages Americans to “exercise increased caution” when traveling to the country, saying that armed conflict, crime, terrorism, civil unrest, and kidnappings are risks in some parts of the country. Noem decided to revoke temporary protected status for the country following a review of conditions inside its borders, the Department of Homeland Security said.

Sending Afghan and Cameroonian TPS recipients back is going to be easier than sending home residents of countries like El Salvador, Arthur explained. That’s because Afghanistan’s and Cameroon’s TPS designations are relatively recent, compared to other recipients. There aren’t as many people who’ve had children and grandchildren in the United States since receiving TPS, he said.

But the administration has also tried to terminate the TPS status of Cuba, Nicaragua, Venezuela, and Haiti. A federal judge blocked those efforts on Monday. The Department of Homeland Securityhas also tried to terminate El Salvador’s TPS designation. That effort is currently facing legal challenges in federal court.

But some immigrant advocates argue that sending refugees back to Afghanistan, specifically, could be illegal. “Given the ongoing unrest in Afghanistan under Taliban rule and the threats, in particular, to religious minorities, [and to] those who served and supported the U.S. military and women and girls, we are very concerned that, if TPS for is withdrawn and individuals are deported to Afghanistan … that there is a very serious risk of violating our legal and moral commitments,” Matthew Soerens, vice president of policy and advocacy at World Relief, told WORLD.

Soerens explained that sending individuals back to Afghanistan would require negotiating with the Taliban—a government the United States does not recognize as legitimate but that effectively controls the country. “If our government believes Afghanistan is safe, there is likely no country on earth that it will determine to be so unsafe as to merit sustaining temporary protected status,” he said.

Last year, Congress reiterated that the United States agrees with the principle of nonrefoulement. That means the government cannot send a refugee back to a country where they would experience threats to their life or freedom on account of their religion, race, nationality, membership in a social group, or political opinions. It is not legally permitted to deport an individual to a country where their life or freedoms could be at stake for those reasons, according to Congress.

But nonrefoulement is not a sweeping designation that can apply to all the individuals in the United States who come from a certain country, explained Arthur from the Center for Immigration Studies. Nonrefoulement is a designation that has to be applied to individuals on a case-by-case basis, he said.

How many TPS recipients are in the United States from Afghanistan and Cameroon?

The National Immigration Forum last month reported that roughly 8,200 Afghan nationals and 3,200 Cameroonians were living in the United States under temporary protected status. Afghanistan’s temporary protected status designation has been in effect since May 2022 and Cameroon’s since June 2022.

Afghans living inside the United States under temporary protected status can apply for re-parole into the United States under certain circumstances, according to USCIS. If they applied for asylum while on TPS, officials could approve them, on a case-by-case basis, to continue living in the United States for up to two years after their parole period ends, according to the agency.

Not all of those Afghans and Cameroonians necessarily have to automatically head home if their TPS designation expires, National Immigration Forum President Jennie Murray explained. Their status, once TPS expires, reverts back to whatever it was before TPS kicked in. If they were already in the United States legally before the TPS designation, then they will be in the country legally after it expires. If they’re in the country illegally after the TPS designation expires, they could be put through removal proceedings in an immigration court. At that point, Arthur explained, they would have the chance to apply for asylum or provide evidence that they could be harmed if sent back to their home country.

As for how many Afghans and Cameroonians may be allowed to stay, Murray said it remained unclear. “The cookie will crumble on that,” she said.

“If an individual is from Afghanistan, for example, and they don’t have status, before we can remove them from the United States, we have to get a final order of removal on them before an immigration judge in an immigration court,” Arthur said. He added that they could then file an application for asylum or apply for some other form of relief, though whether they receive it is entirely impossible to predict.

“Between being a trial attorney and being a judge, I’ve either argued or heard somewhere around 2,000 asylum cases. And every one of those asylum cases is different,” Arthur said. “I can’t tell you how many of those people are going to have valid claims to remain.”

Will this affect translators and interpreters who worked for the U.S. military in Afghanistan before the 2021 withdrawal?

Roughly 50,000 translators and interpreters who worked for the U.S. military in Afghanistan have come to the United States since 2009. But they arrived under a special immigrant visa program, according to the U.S. State Department.

Afghan nationals brought into the country under the SIV program must have worked for the military for at least a year and must have a general or flag officer write a favorable recommendation for them. Refugees in the special immigrant visa program are not at risk of being deported, according to World Relief.

Some Afghan civil servants and members of militias that fought alongside the United States or against the Soviets in the late 20th Century and did not target non-combatants were eligible for TPS, as of June 2022, according to the Catholic Legal Immigration Network.