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Pakistani Temporary Protected Status Act Of 2010. Why A Fresh Law?

by Syed H. Imam, Esq.

On December 8, 2010, nine U.S. Congressmen introduced a bill to permit nationals of Pakistan to be eligible for temporary protected status ("TPS") in the United States because of the devastating flooding that occurred in Pakistan during last summer's monsoon season. This bill, which was referred to the Committee on the Judiciary, is the first step in the legislative process. Newly introduced bills and resolutions first go to committees that deliberate, investigate, and revise them before they go to general debate in the House. The majority of bills and resolutions never make it out of committee.

Similarly, in 2006, in the wake of a massive earthquake in northern Pakistan, a bill, H.R. 4073, entitled, "Pakistani Temporary Protected Status Act of 2005," was introduced in the 109th Congress. On Feb. 6, 2006, H.R. 4073 was referred to the Subcommittee on Immigration, Border Security, and Claims. Two years later when this session of Congress ended, the bill was dead.

In the first place, it is difficult to understand why any new legislative action is needed when existing law, Section 244 of the Immigration and Nationality Act, plainly authorizes the Secretary of Homeland Security to determine and designate countries for TPS, in consultation with other parts of the executive, more particularly, the Secretary of State.

As originally enacted, the Immigration Act of 1990 authorized the Attorney General to grant TPS to foreign nationals already in the United States who were temporarily unable to return to their home countries because of armed conflicts, environmental disasters, or other extraordinary humanitarian situations. On March 1, 2003, the authority to designate a country for TPS was transferred from the Attorney General to the Secretary of Homeland Security. The Secretary of Homeland Security, after consulting the Secretary of State, may now designate a foreign country for TPS where conditions in that country temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately.

The designation procedure is already explicitly established under Section 244 of the INA, and the section does not contemplate any action by Congress by way of legislation. It requires only executive action. Why is it necessary to draft a new bill and run the risk that it will simply die in committee? If the Congressmen are simply trying to counter agency inaction, wouldn't it be faster and more appropriate to sponsor a congressional resolution instructing the Secretary of Homeland Security to consider designating Pakistan for TPS? Curiously, while temporary protection status is sought through legislation for Pakistan, a House Resolution 1462 has been passed to facilitate identical treatment for Guatemala. Countries currently on the TPS list like El Salvador, Haiti, Honduras, Nicaragua, Somalia and Sudan-all have been designated under the mechanism stipulated in section 244 INA. None received this status through legislative action. Then why must be Pakistan?

Even if it is granted that a new legislation is desired or intended, it will have to be based in Congress's plenary legislative power residing in Article I of the Constitution which enumerates the powers of Congress and the specific areas in which it may legislate. The only class so far which has been granted TPS legislatively has been the Salvadorans and this was long before section 244 was added to the Act.

About The Author

Syed H. Imam, Esq., practices immigration and nationality law in New York City. He is Director of South & Central Asia Democracy Project & Fellow at the Center for the Study of Democracy, Queens University, by courtesy. As a member of Hamdard University School of Law team he helped formulate the draft Anti Money Laundering Law in Pakistan. This work constituted a substantial contribution towards the formal draft of the AML as per Pakistan Assessment Mission Report (August 2003) of UN Global Program against Money Laundering. Public policy and law, are included in his research interest. He holds a Master of Public Administration from John F. Kennedy School of Government, Harvard University and a Master of Laws in International Legal Studies, Law School, New York University. He also completed International Tax Program at Harvard Law School.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.

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