El Salvador / Migration

El Salvador’s Controversial New US Ambassador and the Future of TPS and DACA

Thursday, October 29, 2020
Katharine Valencia

The role of any representative of El Salvador in the United States has a particular weight given the number of Salvadorans living in this country. This is especially true of the Ambassador in Washington, DC, as the Embassy manages relations with Congress, the White House, and international development entities. As such, the community of Salvadoran immigrants and their families paid close attention when on September 24, President Bukele named Congresswoman Milena Mayorga, former member of the Arena party, to this vitally important post. 

Shortly after her nomination, the Ambassador-designate declared on social media that “the heart of the new agenda with Washington is explaining to our compatriots that our president is creating the conditions for their return” – a statement which logically calls into question whether Mayorga will be an ally of Salvadoran immigrants in their fight to find a permanent solution to stay in the US, or rather, if she is inclined to support the restrictive immigration policies implemented by the Trump administration. This aside from the question of how exactly the Salvadoran state could be prepared to receive hundreds of thousands of returnees. 

As expressed by an advocacy organization of Salvadoran immigrants in a letter to Mayorga, her statements “generated consternation and confusion” because the expectation of the diaspora is that the Salvadoran government will “accompany us, without hesitation, in our effort to stay in the United States.”

Against this backdrop, it is useful to review what is at stake for Salvadoran immigrants. Two of the most important US government initiatives that have benefited this population – TPS and DACA – are under threat in the era of Trump, as the president has sought to eliminate them. TPS and DACA are separate programs, although in one of her first public messages the Ambassador was not clear on this point. 

TPS (Temporary Protected Status) has prevented the deportation of almost 200,000 Salvadorans who have lived in the United States since 2001, when El Salvador suffered from two catastrophic earthquakes. (While TPS also exists for citizens of some other countries, such as Nepal and Honduras, Salvadorans represent the overwhelming majority of TPS beneficiaries.) The US government had extended this protection many times on a regular basis since then, based on the argument that El Salvador continued to be unstable and unsafe for the return of such a large group of individuals. However, Trump has attempted to do away with TPS, within the larger context of his policies of severely restricting immigration and programs that benefit migrants. 

In response, civil society has actively litigated this issue, but in September an appeals court ruled in favor of Trump, allowing the administration to move towards cancelling TPS. Although this ruling is being appealed and could come before the Supreme Court of the United States, for the moment there is the possibility that “tepesianos” and “tepesianas” will lose their status in November 2021 – a date that represents an extension compared to TPS for other countries, coming out of a negotiation between the Bukele and Trump administrations. 

Regarding DACA (Deferred Action for Childhood Arrivals), this program was implemented by the Obama-Biden administration in 2012 to protect from deportation certain undocumented individuals who arrived in the US when they were less than 16 years old, among other criteria. Close to 25,000 Salvadorans registered for DACA, making this population the largest to benefit from the program after Mexican nationals. In September 2017, the Trump administration announced its intention to eliminate the program, but, just like with TPS, this has been fought in court. The DACA case went all the way to the Supreme Court, which in June issued a ruling allowing DACA to continue, at least for the moment, for those who are already enrolled. It is very likely that there will be more DACA litigation in the near future. 

It is worth noting that the Democratic candidate for President, Joe Biden, has indicated that he would reverse Trump’s actions against TPS and DACA, and that in particular he would fight for DACA beneficiaries to obtain US citizenship. However, the nature of both TPS and DACA is temporary – they do not provide a permanent solution for immigrants, which can only occur if Congress were to pass a law regarding their status. Meanwhile, these programs are subject to the opinion of the courts (including a Supreme Court which could become even more conservative if Trump’s nominee, Amy Coney Barrett, is confirmed) and the whims of whoever is President. 

Against this backdrop of uncertainty, it is crucial for Salvadoran immigrants to be able to count on an Ambassador in the US who is clear and firm in her position in support of their rights. Let’s consider that on the one hand, there is the bilateral negotiation that achieved a (temporary) extension of TPS for Salvadorans, as well as the promises of Bukele, Foreign Minister Alexandra Hill, and recently even the Ambassador-designate, to seek a permanent solution for the diaspora. On the other hand, we look at the initial, concerning messages from Mayorga as a new diplomat, which imply political aims that do not prioritize the diaspora’s interests. We also have to consider Bukele’s tendency to submit to the demands of Trump on immigration. The strongest evidence of this tendency is the “safe third country” agreement that would require El Salvador to receive migrants from other countries who are expelled from the US. Given these factors, at minimum it is reasonable to question and be concerned about the real goals that Mayorga is looking to achieve on behalf of her fellow Salvadorans in the US. 

The new Ambassador will arrive in the US at a politically complicated moment, in a context in which this country is at an impasse and more divided than ever in the immigration debate, and with a lot of uncertainly about how DACA and TPS could be addressed by the Supreme Court in the future. As such, the Salvadoran diaspora deserves an Ambassador who will refrain from issuing ambiguous messages, and who understands and supports them on issues that are so central to their lives. It is also crucial that the new Ambassador commits to working shoulder to shoulder with this population, which is well organized and has been fighting for years to obtain a permanent status for their families. 

“You will see me engaged in unprecedented activities before Congress,” said Milena Mayorga in her first message as Ambassador-designate. We hope that these “activities” are directed towards supporting the efforts of DACA and TPS beneficiaries and all of the Salvadoran community in the US, and that she will not abandon them to solely pursue the interests of the government that has appointed her.

Katharine Valencia is an attorney in the US and Senior Legal Advisor at the Due Process of Law Foundation. She graduated from Georgetown University with a joint degree (JD, and LLM in National Security Law with honors). She has also been an adjunct professor of human rights at Georgetown. 
Katharine Valencia is an attorney in the US and Senior Legal Advisor at the Due Process of Law Foundation. She graduated from Georgetown University with a joint degree (JD, and LLM in National Security Law with honors). She has also been an adjunct professor of human rights at Georgetown. 

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