Is it a Hatch Act Violation?
Yesterday, Senator Menendez, as the Ranking Member of the Senate Foreign Relations Committee (SFRC), released a minority committee staff report outlining a highly irregular, improper, and illegal process used by the Trump administration to end Temporary Protected Status (TPS) for almost 400,000 people from El Salvador, Haiti, and Honduras. The report explains that not only did the Trump administration fail to follow the law that governs TPS in determining whether to extend TPS for these three countries, it injected electoral considerations into the official TPS decision-making process — a potential violation of the Hatch Act that prohibits federal employees from engaging in political activity while on duty.
Trump Administration Failed to Follow Immigration Law in Ending TPS
Section 244(b)(3) of the Immigration and Nationality Act requires that the “at least 60 days before [the] end of the initial period of [TPS] designation…of a foreign state…after consultation with appropriate agencies of the Government, [the Secretary of Homeland Security] shall review the conditions in the foreign state…and determine whether the conditions for such designation…continue to be met.” If those adverse conditions continue to be met, then the Secretary of Homeland Security must extend the TPS designation.
The SFRC report explains that multiple officials up and down the chain at various government agencies were consulted before TPS was officially ended for El Salvador, Haiti, and Honduras. The official analysis shows that these countries were not ready and able to absorb the return of hundreds of thousands of citizens, that conditions on the ground were extremely troubling, and the return of TPS beneficiaries could very likely cause accelerated irregular migration to the U.S. Moreover, many officials warned that ending TPS would threaten U.S. national security priorities, jeopardize U.S. counternarcotics cooperation and strengthen criminal gangs. On top of this, the Trump administration was aware of the risks to personal safety for TPS recipients if returned to home countries, and knew that the 273,000 U.S. citizen children of TPS recipients would face crime and violence if parents “chose” to keep their families together by taking their U.S. citizen children with them instead of leaving them in the U.S. and subjecting their family to separation.
In light of these facts produced by multiple career level experts in the government, the most obvious conclusion would be an extension of TPS under the law.
But the Trump administration did the opposite.
As a federal court recently found, the decision to end TPS was very likely not based upon conditions on the ground, but instead to “largely carry out or conform with a predetermined presidential agenda to end TPS.” As the then Acting Secretary of Homeland Security stated, “‘[T]his decision is really just a difference in strategy to get to the President’s objectives….The TPS program must end for these countries soon….[¶]This conclusion is the result of an America first view of the TPS decision.’”
Injecting Politics into TPS Decisions — Is it a Hatch Act Violation?
Under the Hatch Act, 5 U.S.C. 7323, federal employees “may not (1) use…official authority or influence for the purpose or interfering with or affecting the result of an election.” In other words, while federal employees are not prohibited from participating in partisan politics, they may not participate in political activity while on duty. The independent Office of Special Counsel recently highlighted multiple examples of such prohibited activity by the President’s counselor, Kellyanne Conway, in which she used her official social media accounts, her official position, and official media appearances to engage in political activity.
In an official “Action Memo for the Secretary” of State, released in Annex 3 of the SFRC report, federal employees of the State Department recommended a wind down period of 36 months for TPS recipients from Honduras, Haiti, and El Salvador “to allow adequate time for beneficiaries to arrange their departure, for countries to prepare for reception and reintegration of their citizens, and to prevent a negative impact on the national security interests of the United States.” However, one office — the Office of Policy and Planning at the Department of State — recommended a 24-month wind down period in the official memo because a 36-month wind down “would put the wind down of the program directly in the middle of the 2020 election cycle.” And, the Secretary of State appears to have noted in the memo that he chose an 18-month wind down period which became the final recommendation to DHS.
As noted above, the Immigration and Nationality Act does not contemplate the consideration of anything other than country conditions in determining whether to extend TPS. Moreover, this “2020 election cycle” factor suggests the wind down timing decision may have been made, not based on the law, but on political considerations that may violate the Hatch Act.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said: “Although the TPS action memo for the Secretary of State published in the SFRC report does not expressly advocate for a partisan political candidate, it does suggest that the Republican re-election campaign of 2020 was on the minds of federal employees who drafted the memo. It therefore looks likely the Secretary of State considered the 2020 election point made in the memo and the Secretary ultimately acted to decrease the amount of time TPS beneficiaries would have to depart the U.S., which federal employees warned would negatively impact U.S. national security. Politics should play no part in any federal policy decision, let alone one that would negatively impact our national security and the safety of TPS beneficiaries and their families. That is the purpose of the Hatch Act. But, here, the evidence suggests at least the possibility that the Trump administration decided to wind down TPS much sooner than recommended specifically because of Trump’s 2020 reelection campaign.”