Temporary Protected Status: Understanding how the Biden Administration Is Laundering its Failed Border Policies

Confronted with growing public opposition and scrutiny from the U.S. House of Representatives after a record-setting 252,320 illegal aliens were apprehended at the southern border in December 2022, the Biden Administration in January 2023 announced a new border security strategy (U.S. Customs and Border Protection, n.d.). The crux of the new policy was to expand the population of aliens subject to immediate expulsions at the border under Title 42 authority until the public health emergency ended on May 11, 2023, and also begin paroling 30,000 inadmissible aliens each month from Cuba, Haiti, Venezuela, and Nicaragua into American communities via an international airport of the alien’s choosing (Law, 2023a) (U.S. Citizenship and Immigration Services (USCIS), 2023b). Several months later, the Department of Homeland Security introduced a separate parole program for aliens at the southern border that allowed them to schedule an appointment using the CBP One mobile application and be allowed in at a port of entry. Unfortunately for the American people, categorically paroling inadmissible aliens into the U.S. is unlawful and simply diverts illegal aliens from areas between the ports of entry to the ports of entry (Law, 2023b). Conservative states have sued, and the Biden Administration must be expecting the federal courts to strike down these parole programs. In an attempt to launder their unlawful actions, the Biden Administration is now resorting to granting these illegal aliens Temporary Protected Status (TPS) to allow them to remain in the U.S.

Congress created Temporary Protected Status (TPS) to offer aliens temporary immigration relief when catastrophic events occur in their home country that prevent them from returning home when required by the terms of their visas. As described by U.S. Citizenship and Immigration Services (2023c), “The Secretary of Homeland Security [formerly the Attorney General] may designate a foreign country for TPS due to conditions in the country that 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.”

While TPS may seem like a niche, lawful authority, it has been weaponized by the administrations of Presidents Clinton, George W. Bush, Obama, and Biden to grant amnesty by executive fiat. As a general principle of U.S. immigration law, aliens who are not lawful permanent residents (LPR, or green card holders) are admitted temporarily and are expected to depart the country at the end of their authorized stay.[1] Illegal aliens, whether they entered without inspection (EWI) or overstayed a visa, have no legal right to be in the United States and are removable. 

The benefits of TPS are more expansive and generous than simply preventing an alien from falling out of status or temporarily tolling unlawful presence. Aliens with TPS can obtain Employment Authorization Documents (EADs, or work permits), Social Security numbers, driver’s licenses, and the ability to travel internationally and be allowed back into the United States. Because historically nearly all TPS beneficiaries are illegal aliens, a population that never intended to return to their home countries voluntarily, obtaining TPS is the functional equivalent of amnesty without the path to U.S. citizenship.

Background

Before TPS was created, there was no statutory basis to provide temporary immigration relief. Beginning in the 1960s, various presidential administrations used “Extended Voluntary Departure” (EVD) to offer categorical relief for aliens who expressed fear of returning to their home countries. The executive branch cited the attorney general’s prosecutorial discretion authority as the basis to grant EVD. Examples of past presidents issuing EVD orders for nationals of certain countries over the decades include orders for Cuba (1960s); aliens from Indochina (1970s); and certain aliens from Afghanistan, Ethiopia, Poland, and Uganda (1980s).

In April 1990, President George H.W. Bush created “Deferred Enforced Departure” (DED) through Executive Order (EO) 12711, giving about 80,000 nationals of the People’s Republic of China temporary deportation reprieve due to the 1989 government crackdown on demonstrators (Exec. Order No. 12711). Although it was not specifically articulated in the EO, President George H.W. Bush cited as the underlying authority for DED his constitutionally interpreted power to conduct foreign relations (USCIS, 2023a).[2]

Temporary Protected Status – Statutory Blanket Relief

Two major factors drove Congress to enact TPS through the Immigration Act of 1990 (Pub. L. 101-649). First, Congress was concerned with the inconsistent application of EVD and DED by various presidents, both in the justification for and the length of deportation reprieve. TPS would remedy that by establishing clear-cut statutory parameters for temporary immigration relief. Additionally, there was reportedly wide-scale unwillingness by lawmakers to deport the large illegal alien population of Salvadorans who unlawfully entered the United States after civil war broke out, then continued, in El Salvador in the 1980s.

As a result, in the enacting legislation, Congress specifically designated El Salvador for an 18-month grant of TPS, affecting about 200,000 Salvadorans already in the United States on the date of enactment (section 303, Pub. L. 101-649). This initial designation expired in 1992 and the attorney general did not extend it. Instead, President George H.W. Bush granted this largely illegal alien population DED through December 1994—the very blanket form of relief Congress was attempting to discourage the executive branch from using by statutorily creating TPS.[3]

Grounds for TPS

Congress established TPS, now found in section 244 of the Immigration and Nationality Act (INA), providing the DHS secretary[4] the authority to designate a foreign country for TPS due to one or more of the following circumstances: (1) ongoing armed conflict; (2) an environmental disaster; or (3) extraordinary and temporary conditions (8 U.S.C. § 1254a(b)(1)). 

The mere existence of any of these factors is not enough. Instead, the law requires that the ongoing armed conflict “would pose a serious threat to [the] personal safety” of the country’s nationals if they returned (8 U.S.C. § 1254a(b)(1)). If an environmental disaster is the basis for the designation, the law requires that the home country request the designation and be “unable, temporarily, to handle adequately the return” (8 U.S.C. § 1254a(b)(1)). In the case of extraordinary and temporary conditions, the conditions must prevent the alien “from returning to the state in safety” ((8 U.S.C. § 1254a(b)(1))). This additional requirement under each prong of the TPS statute will be of particular relevance later in this report. An initial grant of TPS is between six and 18 months, at the secretary’s discretion (8 U.S.C. § 1254a(b)(2)).

Alien eligibility for TPS

To be eligible for TPS, the alien generally must (1) be a national of the country designated for TPS or a person without nationality who last habitually resided in the designated country; (2) file for TPS during the registration period; (3) have been continuously physically present in the U.S. since the announced effective date of the designation; and (4) have been continuously residing in the U.S. since the date specified by the secretary for that country’s designation.

An alien is ineligible for TPS (or may lose TPS) if he or she (1) has been convicted of any felony or two or more misdemeanors committed in the U.S.; (2) is found inadmissible under application provisions of section 212(a) of the INA, including non-waivable criminal and security-related grounds; (3) is subject to any mandatory bars to asylum; (4) fails to meet the continuous physical presence and continuous residence requirements; or (5) fails to timely register for TPS (8 U.S.C. § 1254a(c)).

Benefits of TPS

TPS offers an alien a temporary immigration status. Because most, if not all, of the beneficiaries are illegal aliens, a grant of TPS is quite lucrative. In addition to generally having a reprieve from deportation, aliens with TPS are also able to obtain EADs (work permits), Social Security numbers, driver’s licenses, and the ability to travel internationally and be allowed back into the United States. 

The plethora of benefits available to an illegal alien with TPS underscores the inherent flaw in the current application of this statutory authority. Illegal aliens, whether they are EWI or overstayed their visa, have no intention of returning to their home countries. At some point, because of some catastrophic event that occurred (or that the executive branch claims occurred) in their home countries, the federal government rewards illegal aliens with a grant of TPS. 

Executive Branch Abuses of TPS – A ‘Temporary’ Status that Never Ends

With the lone exception of El Salvador’s original designation in 1990, which Congress designated in the statute, the authority to designate countries for TPS has been delegated to the executive branch. Despite this delegation, Congress did put parameters around initial designations and the review process of any already-designated country. These statutory parameters have been routinely disregarded by multiple administrations of both political parties, resulting in prolonged continuation of TPS and its underlying benefits, despite countries no longer satisfying the criteria.

TPS Decision-making Process

Congress created a process for initial designations that is different from the way the DHS secretary handles the review of a country already designated for TPS. An initial designation is discretionary, meaning that a country can satisfy all of the statutory requirements for TPS but the DHS secretary can still decline to make the designation. This discretionary statutory language is found at section 244(b)(1) of the INA:

The Attorney General, after consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if-

In contrast, the review process of an already-designated country is non-discretionary.  The statutory language that controls the review process is found in section 244(b)(3)(B)-(C):

(B) Termination of designation

• If the Attorney General determines under subparagraph (A) that a foreign state (or part of such foreign state) no longer continues to meet the conditions for designation under paragraph (1), the Attorney General shall terminate the designation by publishing notice in the Federal Register of the determination under this subparagraph (including the basis for the determination). Such termination is effective in accordance with subsection (d)(3),but shall not be effective earlier than 60 days after the date the notice is published or, if later, the expiration of the most recent previous extension under subparagraph (C).

(C) Extension of designation

• If the Attorney General does not determine under subparagraph (A) that a foreign state (or part of such foreign state) no longer meets the conditions for designation under paragraph (1), the period of designation of the foreign state is extended for an additional period of 6 months (or, in the discretion of the Attorney General, a period of 12 or 18 months).

To simplify, this means that if the secretary finds that the underlying conditions no longer exist, he must terminate the TPS designation. But if the secretary finds that the underlying conditions continue to exist, then he must extend the designation. The only discretion afforded the secretary is the length of an extension, which can be for six, 12, or 18 months (8 U.S.C. § 1254a(b)(3)(C)).

This lack of discretion in reviewing existing TPS countries is critical to understanding how various administrations of both political parties have disregarded the statutory structure of TPS to continuously renew certain countries’ designations. Again, as explained above, the existence of an ongoing armed conflict, natural disaster, or extraordinary and temporary conditions is not enough to allow the secretary to extend (or renew) a TPS designation. The law requires that the ongoing armed conflict “pose a serious threat to [the] personal safety” of the country’s nationals if returned; the environmental disaster requires that the home country request the designation and be “unable, temporarily, to handle adequately the return”; and the extraordinary and temporary conditions must prevent the alien “from returning to the state in safety” (8 U.S.C. § 1254a(b)(1)).

Every administration since the creation of TPS, except for the Trump Administration, ignored this limiting factor for any country that receives a TPS extension, yet the federal government returns aliens without TPS to that country. Under the principle of non-refoulment, the United States does not deport aliens to a country where it is known they will suffer harm or persecution. Therefore, if the United States returns any alien to a country, it is de facto “safe” for the TPS population to return home. And if it is safe to return, the country fails to meet the requirements of TPS, and the secretary is compelled to terminate the designation.

Another avenue of abusive application of TPS is the continued issuance of nonimmigrant, meaning temporary, visas to other aliens from a TPS-designated country. Temporary visas inherently mean that the alien is expected to depart the country at the appropriate time. It would be a complete failure of government, both DHS and the Department of State, to issue nonimmigrant visas and allow these aliens into the country if it was not believed the stay would be temporary. If these aliens not covered by TPS are able (and expected) to return to their home country, then the TPS population is similarly capable of returning. Yet no country designated for TPS has ever had the issuance of nonimmigrant visas suspended during the period of designation. This “safe for thee, but not for me” contradiction further supports the conclusion that TPS is being applied as a form of executive amnesty (everything short of a path to citizenship) to a subset of a country’s nationals who are being held to a standard outside of the statutory framework by which the executive branch is supposed to be bound.

“Redesignation” of TPS – executive amnesty for aliens who came after the original event

The premise for TPS is providing temporary immigration relief to aliens already in the United States when a catastrophic event occurs in their home country. Yet, beginning with TPS Liberia in 1997, the executive branch unilaterally created a new authority called a TPS “redesignation,” which it uses to move up the eligibility cutoff date and cover aliens who came to the United States after the event that resulted in the initial grant of TPS.

The term “redesignation” cannot be found anywhere in section 244 of the INA but makes its first appearance in the 1997 Federal Register notice where the legacy Immigration and Naturalization Services claims, “Subsection 244(b)(1) of the Act implicitly permits the Attorney General to ‘redesignate’ (that is, to designate under the TPS program a country that has been previously designated), as well as designate for the first time, if she first finds that the required conditions are met. The act of redesignation is referenced in subsection 244(c)(1)(A)(I), which requires that ‘the alien has been continuously physically present since the effective date of the most recent designation of that state” (63 Fed. Reg. 51958)(emphasis in original).

This is abusive statutory interpretation. While nothing in section 244 of the INA precludes a country from being designated on multiple grounds, a second (or further) instance requires different current conditions that meet the statutory criteria. For example, a country whose sole international airport is destroyed by an earthquake might qualify for TPS and then, years later, a war breaks out that could warrant a separate, distinct designation. That is not how past administrations, or the Biden Administration, have acted, reflected by the “redesignation” period covering the exact same length of time as the extension of the original designation. Are we really to believe that multiple distinct events that satisfy the criteria for TPS always fall within the pre-established review timeline of a TPS designation? Of course not. Instead, these administrations use the periodic review period to shift the date to cover any alien who found his or her way into the United States after the initial designation. This prospect of TPS for aliens who were not prevented from being returned in safety at the time of the event (because they weren’t in the U.S.) encourages illegal immigration, human trafficking, and smuggling or abuse of our immigration laws (through overstaying a visa) in order to obtain a work permit and other benefits for which the alien should otherwise be ineligible.

Judicial Branch Abuses of TPS

During the Trump Administration, federal district court judges improperly blocked the termination of six TPS designations. The language of section 244 of the INA makes clear that judges have no basis for intervening in TPS decisions, whether that is a termination or an initial designation (including a decision to decline to designate). The controlling language is found at section 244(b)(5)(A):

There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.

While many TPS designations have been extended for years (or decades in some instances) far beyond legitimacy, there were examples of TPS designations being terminated before the Trump administration. These examples include the following countries that had relatively short TPS designation periods: Lebanon (1991-1993), Kuwait (1991-1992), Rwanda (1995-1997), Bosnia-Herzegovina (1995-2000), the Kosovo Province of Serbia (1998-2000), Guinea-Bissau (1999-2000), Angola (2000-2003), and Guinea (2014-2017) (Wilson, 2023).

But it also includes some countries that had TPS designations for longer periods of time and yet eventually were terminated. These include: Liberia (1991-1999), Burundi (1997-2007), Montserrat (1997-2004), and Sierra Leone (1997-2017) (Wilson, 2023).

Courts intervene to block Trump Administration terminations

Opponents of the Trump Administration frequently engaged in “lawfare,” the practice of suing on every policy in order to delay its implementation. This was a particularly common tactic by the advocates of unlimited immigration, beginning with challenging President Trump’s January 2017 EO 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which used the authority of section 212(f) of the INA to suspend the entry of immigrants and nonimmigrants from certain countries that the federal government had previously identified as presenting heightened concerns about terrorism (8 U.S.C. § 1182(f)). Critics and the media inaccurately dubbed this a “Muslim ban,” and it was thwarted by the courts for more than a year. Once the case eventually reached the U.S. Supreme Court, the justices ruled in favor of President Trump and the proclamation was finally allowed to be implemented (Trump v. Hawaii, 2018).

Despite the clear statutory language barring judicial review of TPS decisions, advocates brought several lawsuits trying to stop the termination of the following TPS designations: El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan (Ramos v. Nielsen, 2018; Bhattarai v. Nielsen, 2019). Sympathetic activist judges obliged by finding standing for the plaintiffs to sue, then proceeded to issue injunctions that prevented the Trump Administration from effectuating the terminations. This maintained the status quo for these illegal aliens, who were allowed to keep their work permits, driver’s licenses, and other benefits while the cases wound their way through the courts. In September 2020, the U.S. Court of Appeals for the Ninth Circuit subsequently vacated one of the lower court injunctions that blocked the terminations from going into effect (Ramos v. Wolf, 2020). The litigation is technically ongoing, but due to the change in administrations, the Biden Administration does not appear to be vigorously defending these lawful terminations.

Biden Administration Weaponizes TPS to Avoid Accountability for Border Crisis

While previous administrations have misapplied the TPS authority, the Biden Administration is weaponizing it to avoid accountability for the ongoing humanitarian and security crisis caused by its failed border strategy. Before the Trump Administration, 10 countries were designated for TPS with a total covered population of less than 500,000 (El Salvador’s 265,000 accounted for more than half of the total). If activist courts had not interfered with the Trump Administration’s proper application of the TPS statute, the only countries that should have maintained TPS on January 20, 2021, were Somalia, South Sudan, Syria, and Yemen, with a combined covered population in the thousands (Kopan, 2018).

Before the situation at the southern border deteriorated into a crisis, the Biden Administration wasted no time using TPS as an executive amnesty for illegal aliens. On March 8, 2021, DHS designated Venezuela for TPS, thereby covering a record-setting (at the time) estimated covered population of 320,000 (Law, 2021a). By July 2021, the Biden Administration had added about 500,000 illegal aliens under TPS through new designations for Venezuela and Burma, plus unlawful “redesignations” to increase the covered populations for Haiti, Syria, Yemen, and Somalia (Law, 2021b). In 2022, the Biden Administration issued new TPS designations for Cameroon and Ethiopia, but at this time neither has come up for the mandatory review for extension or termination (Congressional Research Service, 2023).

The initial TPS designations for Afghanistan (including recent “redesignation”) and Ukraine share a common factor. Prior to these countries being designated for TPS, the Biden Administration unlawfully categorically paroled into the U.S. about 100,000 inadmissible aliens from each country (Law, 2023). Even if these TPS designations complied with the statutory requirements, the covered population would be far smaller if not for the unlawful mass parole that preceded them. The timing of TPS designations after the administration had misused its parole authority raises legitimate concerns that TPS was used to provide new protections to these illegal aliens in the face of litigation challenging the parole programs.

The September 20, 2023, “redesignation” of Venezuela’s TPS designation provides more evidence that the Biden Administration is using TPS to launder its unlawful border policies. According to the Department of Homeland Security press release, an additional 470,000 illegal aliens from Venezuela are believed to be eligible for TPS under the new cutoff date established by the “redesignation” (U.S. Department of Homeland Security, 2023a). Not only is that a new record—surpassing Venezuela’s initial designation population—but that means that nearly half a million illegal aliens from Venezuela have either crossed the southern border or been paroled into the U.S. in just two years. Another indicator of the political impropriety of this decision is the timing of the announcement. In September 2022, DHS extended (but did not “redesignate”) Venezuela’s TPS for an 18-month period through March 10, 2024 (87 Fed. Reg. 55024). The TPS statute requires the completion of a review of country conditions no later than 60 days before the current designation ends. Historically, and from personal experience dealing with TPS decisions, these occur around (and sometimes exactly on) the 60-day mark. Under this precedent, the TPS Venezuela decision should have been expected to be made in early January 2024, and yet it was made more than three months ahead of that schedule. It appears that the litigation challenging the categorical parole that benefits inadmissible aliens from Venezuela contributed to this unexpectedly early decision.

Then, just weeks after the TPS Venezuela “redesignation,” the Department of Homeland Security similarly extended and “redesignated” TPS for Cameroon (U.S. Department of Homeland Security, 2023b). While only 2,090 Cameroonians currently hold TPS, the “redesignation” is estimated to cover an additional 7,900 illegal aliens from Cameroon who made it into the U.S. after the initial designation.

Conclusion

However well-intentioned Congress was in creating TPS and delegating to the executive branch the authority to designate countries, this authority has been systematically abused over time by administrations of both political parties. TPS designations are continuously renewed with the stated justifications for extending protections having little or no nexus to the country conditions that underpinned the initial designation. When the Trump Administration attempted to terminate TPS designations for six countries that no longer met the statutory requirements, activist courts improperly intervened to prevent those terminations from going into effect. The Biden Administration has weaponized TPS to a new degree by granting initial TPS designations to six countries, bringing the total to 16 countries,[5] with about 1.5 million illegal aliens receiving benefits and deportation protections.

Considering the 30-year history of the executive branch using TPS to provide executive amnesty where Congress has failed to pass legislative amnesty with a path to citizenship, it is past time for Congress to rescind TPS.