320,000-Plus Venezuelans Receive Amnesty Lite

Biden further weaponizes Temporary Protected Status

By Robert Law on March 10, 2021

In the 1972 Summer Olympics, American swimmer Mark Spitz captured an astounding seven gold medals. A feat that seemed unbeatable until countryman Michael Phelps in 2008 bested that performance with eight gold medals. Whether or not he is the originator of this phrase is unclear, but when asked for his reaction to Phelps's triumph Spitz said, "Records are meant to be broken."

This observation also applies to bad records, as witnessed by Monday's announcement that President Biden's Department of Homeland Security (DHS) was granting Temporary Protected Status (TPS) to all Venezuelans in the country as of March 8, 2021, regardless of their current legal status. According to DHS, at least 320,000 Venezuelans, most of whom are illegal aliens, can now receive TPS, obliterating the previous high of 262,500 Salvadoran illegal aliens who benefited from the George W. Bush administration's 2001 TPS designation based on an earthquake in El Salvador.

On its face, TPS is a temporary form of relief that generally allows certain aliens to remain in the United States for a period of time if the DHS secretary determines that conditions in the home country temporarily prevent the country's nationals from returning safely. Once the DHS secretary has designated a country for TPS, beneficiaries are not removable, are permitted to work in the United States, and may receive permission to travel abroad. In practice, as Mark Krikorian has often noted, there is nothing temporary about TPS. This abuse of TPS by multiple administrations has transformed a temporary benefit into amnesty lite — permission to stay in the United States and work. What more could illegal aliens ask for? All thanks to something happening in the home country they never intended to willingly return to.

The legal framework Congress established for TPS is found at Immigration and Nationality Act (INA) section 244. Under the law, the DHS secretary may designate a foreign country for TPS due to (1) ongoing armed conflict; (2) an environmental disaster; or (3) extraordinary and temporary conditions. According to Monday's Federal Register notice, Secretary Mayorkas designated Venezuela for TPS under the third prong, found at INA 244(b)(1)(C):

(C) the [Secretary] finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the [Secretary] finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.

Under the header, "Why was Venezuela designated for TPS?", the notice leads off with a generalized declaratory statement that "Venezuela is currently facing a severe humanitarian emergency." The corresponding footnote merely cites a January 2021 Human Rights Watch report on Venezuela without any additional text or explanatory parentheticals. The notice then throws up a laundry list of conditions:

Economic contraction; inflation and hyperinflation; deepening poverty; high levels of unemployment; reduced access to and shortages of food and medicine; a severely weakened medical system; the reappearance or increased incidence of certain communicable diseases; a collapse in basic services; water, electricity, and fuel shortages; political polarization; institutional and political tensions; human rights abuses and repression; crime and violence; corruption; increased human mobility and displacement (including internal migration, emigration, and return); and the impact of the COVID-19 pandemic, among other factors.

By my count, that is 16 itemized conditions plus the 17th catch-all "among other factors". Any guesses if coffee rust is an "other" factor?

This list is striking for several reasons. First, the extensive number of factors suggests the Biden administration is trying to offset factual shortcomings to meeting the legal standard with a "quantity over quality" approach. To that point, the notice only provides additional justification on seven of the listed factors, or less than half. I guess we are expected to take their word for it on the other ones. Next, the list includes factors that blatantly fail to satisfy the statutory requirement for designation. Again, the standard is not that there are generalized "extraordinary and temporary" conditions but that the precise existence of those conditions prevents these aliens from returning in safety. Taking the notice at face value, there is no explanation on how any of the following economic conditions prevent Venezuelans from safely returning: (1) economic contraction; (2) inflation and hyperinflation; (3) deepening poverty; (4) high levels of unemployment. Being a poor country is not a basis for a TPS designation and I am certain many Americans are experiencing some of these same economic hardships, especially after the Covid-19 induced economic collapse. Similarly, the notice is silent on how (5) reduced access to and shortages of food and medicines; (6) a severely weakened medical system; (7) the reappearance or increased incidence of certain (unnamed) communicable diseases; (8) a collapse in basic services; or (9) water, electricity, and fuel shortages prevent all Venezuelans currently in the United States from safely returning to their home country. Again, many Americans have limited access to many of these same services and it goes without saying that Covid-19 has strained the U.S. medical system for the past year.

Having easily dispensed with more than half of the factors, I now turn to some of the novel reasons given to support the designation. How about (10) political polarization; (11) institutional and political tensions; and (12) corruption? I, for one, have never seen political polarization or tension used to justify a TPS designation, and am frankly unsure that I could articulate what the difference is between polarization and tension. Or how the generalized political climate prevents aliens from returning to their home country. And, not to be flippant, but where is there currently higher political polarization or tension than the United States? The sub-header "Political Crisis" provides no insight and merely references the May 2018 Venezuelan presidential election that "lacked legitimacy" and notes that President Trump (without naming him) officially recognized Maduro's opponent as the true interim president. The notice provides no further details on corruption or how that in and of itself prevents Venezuelans from returning in safety. New Yorkers may wonder if they qualify for TPS under that interpretation.

How about (13) human rights abuses and repression or (14) crime and violence? Surely that has to be compelling. On its face, again, it sounds promising but the devil is in the details. Under the sub-header "Crime and Insecurity", the notice indicates that in mid-2020 Venezuela had "among the highest homicide and crime victimization rates in Latin America and the Caribbean." This is immediately undercut by citing an InSight Crime report that found an "a substantial decrease in homicides in 2020" in Venezuela. Facts are funny things when they undermine your predetermined conclusion. Only in the context of providing amnesty lite to illegal aliens is decreased homicides considered a negative, rather than positive, factor. Like their New York brethren, Chicagoans may wonder what benefits apply to them. Under the sub-header "Human Rights", the notice only offers up a generalized statement that "there were reasonable grounds to believe ... Maduro, had committed violations amounting to crimes against humanity." Sure, but what evidence exists that all 320,000 Venezuelans currently in the United States would be subject to these human rights abuses? Dare I suggest that individual Venezuelans with legitimate persecution claims should be able to avail themselves of asylum protections in the United States?

Which lastly brings us to the contradictory and absurd. Unsurprisingly, (15) increased human mobility and displacement (including internal migration, emigration, and return) does not include its own sub-header with an explanation. Let me translate. Internal migration means moving from one part of your country to another part. While there may be dangerous places in a country, there are also safe places. The United States certainty reflects this. Emigration means leaving the home country for a new country. But this notice fails to specifically attribute the Venezuelan emigration to any precise reason. There is ample reporting that wealthy Venezuelans have left over recent years for Europe for better economic opportunities. As stated before, economics is not a statutory basis for TPS. Return, any guesses? That's right, the Biden administration expects you to believe that Venezuelans returning home proves that 320,000 (or more) Venezuelans currently in the United States are unable to return in safety. How exactly these other Venezuelans traveling from other countries can return home is apparently an unnecessary detail to explore. Lastly, (16) Covid-19 is a pandemic affecting most of the world, not an epidemic unique to Venezuela, and epidemics fall under a different basis for TPS.

The worst part of this brazen disregard for the law is that the Biden administration will get away with it. According to INA 244(b)(5)(A), there is "no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection." Activist judges disregarded this provision when the Trump administration properly terminated six countries' TPS designations because the statutory conditions no longer existed. As a result, hundreds of thousands of illegal aliens have remained in the country with work permits (amnesty lite) while the litigation played out. As I previously warned, the TPS Syria "redesignation" was just the warm-up act adding 1,800 Syrian illegal aliens to the amnesty lite column. The Biden administration is clearly in midseason form adding at least 320,000 Venezuelan illegal aliens. How long until they capitulate to the special interest demands to give amnesty lite to almost a million Guatemalan illegal aliens?