Why did Mayorkas expand temporary protected status to 714,700 Venezuelans?

Department of Homeland Security Secretary Alejandro N. Mayorkas has granted an 18-month extension of Venezuela’s 2021 Temporary Protected Status (TPS) designation for 242,700 Venezuelans who already had TPS. He also redesignated Venezuela to make TPS available to approximately 472,000 more Venezuelans who have been residing in the United States continuously since July 31, 2023. 

The new designation period will begin on Oct. 3, 2023, and end on April 2, 2025. This means that Venezuelans who came here after the March 9, 2021, continuous presence deadline for the 2021 designation and remained here unlawfully until July 31, 2023, will be able to get TPS now.   

According to Mayorkas, the extension and the redesignation are warranted because of Venezuela’s increased instability and lack of safety due to enduring humanitarian, security, political and environmental conditions.  

But apparently this is not the only reason. 

A source familiar with how the designation decisions were made told NBC News that they were made after intense pressure from New York City Mayor Eric Adams and other New Yorkers. They wanted the federal government to grant work authorizations to the 60,000 migrants living in the city’s shelter system so they will not need to stay in city shelters.   

A recent survey indicates that 65 percent of them are Venezuelans. 

Most of them are asylum seekers; and asylum rules require migrants to wait about six months before they can apply for a work permit.   

Adams claims that this situation will destroy New York. “We have a $12 billion deficit that we’re going to have to cut — every service in this city is going to be impacted.” 

I agree with Adams that NYC should not have to bear the cost of caring for the undocumented migrants the administration is releasing into the country. But the work permits that are available to TPS participants are supposed to make it possible for them to remain here until it is safe to go home, not to spare the cities they settle in from the cost of taking care of them.  

The secretary’s authority is limited to designations based on one or more of the following conditions, none of which refer to assisting cities with the expense of caring for undocumented migrants: 

(1) ongoing armed conflict in a foreign state that poses a serious threat to personal safety;  

(2) a foreign state request for TPS because it temporarily cannot handle the return of its  

nationals due to an environmental disaster; or 

(3) extraordinary and temporary conditions in a foreign state that prevent its nationals from safely returning.  

In any case, the Venezuelans won’t get work permits any faster this way than they would if they applied for asylum. It has taken Citizenship and Immigration Services (USCIS) 20 months to complete 80 percent of the Venezuelan TPS applications from the 2021 designation, and almost twice as many applications are expected with the redesignation. 

The average processing time for TPS applications is 14.9 months. In fact, lengthy processing times prevent some applicants from working at all during an initial designation period.   

This isn’t the only indication that the administration should exercise more restraint in using its designation authority.  

The Biden administration has greatly expanded the number of immigrants who are eligible for TPS. It recently renewed TPS for 280,000 immigrants from El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan. It also extended, designated or redesignated TPS protections for 135,000 immigrants from Ethiopia, Haiti, Somalia and Yemen.  

TPS may encourage illegal immigration. Illegal immigration from Venezuela increased dramatically after the 2021 designation. Customs and Border Protection only encountered 2,787 Venezuelans at the Southwest border in all of fiscal 2020, and 2,274 between October 2021 and February 2022.  

This increased greatly after the designation. Between March and October of 2021, CBP encountered 46,404 illegal Venezuelan border crossers, more than 187,700 in fiscal 2022, and more than 168,000 in the first 10 months of fiscal 2023. 

Mayorkas said in the current designation announcement that “it is critical that Venezuelans understand that those who have arrived here after July 31, 2023 are not eligible for such protection, and instead will be removed when they are found to not have a legal basis to stay.” 

Andrew R. Arthur claims that this is an empty threat — and that it’s not the only empty threat Mayorkas has made. Mayorkas said in September 2021 that migrants who entered illegally on or after November 1, 2020, were priorities for removal as threats to border security, but he has nonetheless allowed more than 2.3 million aliens who entered illegally after that date to reside here free from restraint.  

TPS diverts USCIS resources. Each new TPS designation imposes a larger and more complex workload on USCIS. Processing TPS work permits in itself is a never-ending task. Making TPS available to half a million more Venezuelans will greatly increase this burden, which will greatly restrict the time available for performing adequate TPS background checks.   

Consequently, the agency may not be able to identify the violent criminals among the hundreds of thousands of Venezuelans who apply for TPS — and a current State Department travel advisory indicates there are a lot of violent criminals in Venezuela. It advises Americans not to go to Venezuela in part because violent crimes, such as homicide, armed robbery, kidnapping and carjacking, are common there.   

Lastly, the secretary may not have the authority to establish redesignations. 

Joe Chatham says the notion of redesignating a country for TPS has no basis in law. The TPS statutory provisions only discuss designations, extensions and terminations. It is outrageous to redesignate a country on the basis of the original emergency to provide work authorization and protection from deportation for people who were not in the U.S. at the time of the original designation.  

Unfortunately, the administration’s TPS designations can’t be challenged in court. INA section 1254a(b)(5)(A) provides that there is no judicial review of any TPS determination with respect to the designation, termination, or extension of a designation. But Congress can conduct oversight hearings and hold the administration accountable for improper designations. 

Moreover, we the people can make dissatisfaction with such immigration policies known in the upcoming elections. 

Nolan Rappaport was detailed to the House Judiciary Committee as an Executive Branch Immigration Law Expert for three years. He subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.  Follow him at: https://nolanrappaport.blogspot.com