Analysis Immigration

What Is Deferred Enforced Departure? It’s Complicated.

Tina Vasquez

"When someone's whole life has been built here—they've created a family, started a business, become a reliable employee, bought a home—no one gains by disrupting these lives and communities by ending their status and providing no way for them to adjust their status and lawfully remain in the U.S. This is very much tragic for America."

On Tuesday, we wrote about the plight of Nancy Harris, a Liberian teacher in Alabama and a recipient of Deferred Enforced Departure (DED), a designation that can only be authorized or extended by the president. Later that day, as had been expected, President Donald Trump effectively terminated the status for Liberian people in the United States.

While the decision generated some headlines, it is abundantly clear that DED remains a little-known designation. Questions swirl about DED recipients from Liberia, with few outlets able to identify even the number of DED recipients currently residing in the United States.

To explain more about DED status, Rewire.News consulted with U.S. Citizenship and Immigration Services (USCIS) and a DED expert, Royce Bernstein Murray, who is also the policy director at the American Immigration Council. We will update this piece should new information emerge.

What is DED for Liberia?

DED is an administrative stay of removal authorized by the president for a designated group of foreign nationals. The status has only been granted to five countries since it was first implemented in 1990. DED can only be granted at the discretion of the president under his/her office’s power to conduct foreign policy. 

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How do you receive DED status?

According to an official from USCIS, eligibility requirements for DED are up to the discretion of the president and any relevant requirements established by the Department of Homeland Security (DHS). Applicants for immigration benefits are subject to criminal and national security background checks, but DED differs from other benefits in that there is no formal application process.

“There is no form associated with DED. This means they do not apply for DED but are instead covered by DED,” a USCIS official said in an emailed statement to Rewire.News.

Over the years, Liberians in the United States have benefitted from DED and Temporary Protected Status (TPS). What’s the difference

DED often is conflated with TPS. They overlap in some ways, but designations are made on different grounds.
In the aftermath of two civil wars, which killed an estimated 250,000 people in Liberia from 1989 to 2003, Liberians in the United States received TPS. During that same period, in 1999, President Bill Clinton first authorized DED for Liberians, a designation they held until a shift back to TPS in 2002. President George W. Bush’s administration eventually terminated TPS for Liberia, but allowed the TPS recipients to be covered by DED in 2007.
So, Liberians who were first granted TPS in the 1990s through 2002, later received protection under DED. “Those with DED now are the people who have been here the longest, the people who have legally resided in the U.S. since 2002,” Bernstein Murray added.
Bernstein Murray further explained: “The idea that we would send 10,000 people, which is the number of people at that time who had TPS, back to a war-torn country, was obviously absurd and would have created a bad relationship with Liberia. You can see how the different conditions in Liberia lead to different statuses.”

A separate TPS designation for people from Liberia, Guinea, and Sierra Leone was established from 2014 to 2017 during and immediately after the West African Ebola outbreak, benefiting Liberians who were more recent arrivals. TPS enabled them to stay until the threat of Ebola had ended. Bernstein Murray said this is important to clarify because there are more recent Liberian arrivals who had TPS and who don’t benefit from DED at all; their status as TPS recipients was directly tied to the Ebola crisis. (It’s important to note that the Trump administration terminated TPS for this population of Liberian immigrants last year. The elimination of numerous TPS authorizations for different countries signals a bigger push by the administration to end the humanitarian program entirely.)

“I know it sounds confusing, but the gist of it is that TPS and DED have operated in tandem with different groups of Liberians benefiting from each. TPS is a better benefit than DED, so there may have been people who instead of benefitting from DED switched over to TPS because they qualified for both,” Bernstein Murray said.

What do TPS and DED offer?

While both TPS and DED status can be life-changing for people holding those designations, they offer limited benefits. As long as they abide by the laws of the United States, TPS and DED recipients can apply for work authorization and are not subject to deportation.

“Technically DED could include more benefits, but that’s at the discretion of the president, depending on what they want to do,” Bernstein Murray said. “That being said, the president couldn’t authorize benefits beyond what the law authorizes. For example, the president couldn’t decide to make DED recipients citizens because that would be a constitutional matter.”

How many Liberian DED beneficiaries are there?

Because there is no application or registration for DED, the official number of Liberian DED recipients is unknown. According to USCIS, the maximum number of Liberians covered by DED would be approximately 3,600, the number of Liberians who held TPS when it was terminated in 2007. Roughly 840 Liberian DED recipients who applied for and currently have work authorization will be affected by Trump’s decision to end DED for Liberia.

What does Trump’s “wind-down” period for Liberians mean? Is DED over or not? 

Trump has established “wind-down periods” for termination of multiple programs affecting various groups of immigrants—a delay in the effective date of the decision—who have some form of temporary status, including recipients of Deferred Action for Childhood Arrival (DACA) and TPS. Liberian DED recipients get one year before DED expires and in the meantime, they have stays of deportation and can renew their work permits.

“Unless something drastic unfolds in Liberia, I would not expect any new extensions to be granted for DED,” Bernstein Murray said. “This may sound needlessly technical, but if there were to be any change in the status, it would require a brand new decision, a brand new designation, rather than an extension.”

But that doesn’t mean DED is dead as a foreign policy instrument. For example, DHS recently terminated TPS designations for countries like Haiti, which is still experiencing hardships after multiple natural disasters and a cholera outbreak, and El Salvador. Bernstein Murray told Rewire.News that Trump could give them DED.

Given the Trump administration’s anti-immigrant agenda, new protections for those losing TPS status don’t seem likely.

According to Bernstein Murray, TPS status is subject to more “specific statutory criteria” than DED. For example, a country has to be experiencing armed conflict, an environmental disaster, or some other “extraordinary and temporary conditions.” DED, on the other hand, is wide open, because again, DED derives from the foreign policy authority of the president.

“There is nothing in the Constitution—in statute or in regulations—that specifies how decisions regarding DED have to be made,” Bernstein Murray said.

Essentially, Trump could decide that the United States has foreign policy-related reasons for DED of Haitians, for example. Bernstein Murray added:

Trump can argue that Haiti is no longer struggling with the impact of the 2010 earthquake, but why not support Haiti as it continues to rebuild from that, other natural disasters, and bounce back from a cholera epidemic? There are a variety of foreign policy reasons why we should not move to deport the 50,000 Haitians who had TPS. DED would absolutely be an appropriate mechanism to utilize for Haiti, but I wouldn’t hold my breath on Trump using it for Haiti.

Who is affected by Trump’s decision to end DED for Liberia?

Bernstein Murray told Rewire.News that Trump’s decision to terminate Liberia’s DED status affects three groups of people: The DED recipients themselves, their families in the United States, and their families and communities in Liberia. She noted:

Liberian DED beneficiaries have been here for decades and now they’re suddenly being faced with tremendous uncertainty about whether they will be able to remain in the U.S., whether they’ll be to work, whether they can keep their homes and their jobs. There is a huge individual impact, but also consider that given how long this population of people has been in the U.S., many are married, they have children who are U.S. citizens—some may even have grandchildren here. Will they be torn from these families, will they be able to continue supporting them? There are so many unknowns. The third impacted population are their families and communities in Liberia. Liberia has experienced monumental struggles after the civil war and the Ebola epidemic. Losing their ability to remain in the U.S. and lawfully work jeopardizes the well-being of their families in Liberia who rely on those remittances.

Once DED officially ends for Liberia on March 31, 2019, will we see mass deportations of Liberians?

An official with USCIS told Rewire.News that the agency “shares information and coordinates with ICE in support of its immigration enforcement actions as appropriate and legally permissible.”

The good news, Bernstein Murray said, is that when information is collected by USCIS for an immigration benefit like the work authorization made possible by DED, USCIS doesn’t use that information for something else, like handing it to ICE for immigration enforcement. If this is going to occur, USCIS typically puts the public on notice. However, the personal information of those who receive immigration benefits has long been at risk of being misused, according to advocates. Anticipating anti-immigrant attacks from the Trump administration, advocates fought to limit the databases to which the administration would have access.

DACA recipients, in particular, have feared their personal information, given to the federal government in good faith, would be used by the Trump administration for mass detentions and deportations. Bernstein Murray said there are privacy restrictions in the law that limit how information can be used. That being said, the Trump administration has removed privacy protections for undocumented immigrants, meaning that those whose DACA status has already run out—or who didn’t renew—could be at risk.

Bernstein Murray said that USCIS’ “carefully worded” response about information sharing is likely because the agency would provide information to ICE on an individual who has committed a crime, for example, or is otherwise an enforcement priority of the Trump administration.

“Which is tricky because everyone is basically an enforcement priority right now,” the attorney said. “The way this would likely play out is if it came to ICE’s attention that a Liberian immigrant had committed a crime, ICE would contact USCIS to inquire as to whether or not their DED status was active or to alert them on the criminal activity. I’m currently not aware of any USCIS plans to release all of its information on DED recipients once the status expires this time next year.”

Bernstein Murray said that as the final expiration dates of various statues like TPS and DED near, it will become increasingly important to remain vigilant about moves by the Trump administration to allow the sharing of personal information between agencies for purposes not originally intended. (The Daily Beast recently reported ICE’s desire to be an intelligence agency under the Trump administration.)

While it’s hard to find bright spots during such an anti-immigrant administration, Bernstein Murray can point to the May termination of status for West African TPS recipients from Liberia, Guinea, and Sierra Leon. As of right now, these groups are not being rounded up by ICE, despite currently being in the country without authorization.

“I do not mean to diminish the impact of their status expiring, because the risk of deportation for these communities is very real. But there is some small solace in the fact that we haven’t heard of raids or mass deportations of these groups,” Bernstein Murray said.

What seems most likely is that ICE will continue its collateral arrests. Meaning, for example, that if ICE holds an arrest warrant for a Liberian immigrant, agents could enter their home and detain whoever else is at the location without authorization to be in the United States.

So, why did Trump end DED for Liberia?

Bernstein Murray said that Trump’s decision falls in line with his larger agenda of not “providing an ounce of immigrations relief to anyone his administration feels doesn’t have to have it.” This can be applied to DACA, TPS, and now DED.

“Sadly, it seems DED was simply the next in line,” Bernstein Murray said. “What I think people need to understand is that there comes a point when you end a status like DED that there are no gains for anyone involved. When someone’s whole life has been built here—they’ve created a family, started a business, become a reliable employee, bought a home—no one gains by disrupting these lives and communities by ending their status and providing no way for them to adjust their status and lawfully remain in the U.S. This is very much tragic for America.”

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