With mass amnesty legislation currently stalled in Congress, the Biden administration continues to resort to the closest alternative it can implement through the Executive Branch. Temporary Protected Status, or TPS, is supposed to be a temporary form of relief that allows certain aliens to remain in the United States for a period of time if the Department of Homeland Security secretary determines that conditions in the home country temporarily prevent the country’s nationals from returning safely. Once the DHS secretary designates a country for TPS, beneficiaries—often illegal aliens who had no intention of voluntarily returning home—are generally not removable, are permitted to work in the country, and may receive permission to travel abroad. The abusive application of TPS by multiple administrations and interference from district judges preventing the Trump administration from terminating TPS designations is why it's often said that “There’s nothing as permanent as Temporary Protected Status.” Put another way, TPS is “amnesty lite”.
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.
Former DHS Secretary Jeh Johnson initially designated Yemen for TPS for 18 months on September 3, 2015, based on the ongoing armed conflict in the country since July 2014 when “the Houthis, a northern opposition group, began a violent territorial expansion across Yemen.” On January 4, 2017, former Secretary Johnson extended Yemen’s TPS designation and “redesignated” Yemen for TPS for 18 months on the dual bases of ongoing armed conflict and extraordinary and temporary conditions. As I’ve previously written, there is no statutory basis for “redesignation” and the term cannot be found anywhere in INA 244. A “redesignation” is really a new designation which should imply that different conditions now exist in a particular country that independently meet the statutory criteria. In practice, the “redesignation” is just an unlawful tool to reward illegal aliens with amnesty-lite who came to the United States after the initial grant of TPS.
During the Trump administration, Yemen’s TPS designation was extended twice, but not “redesignated”, for periods of 18-months. In July 2018, former DHS Secretary Kirstjen Nielsen extended the designation through March 3, 2020. Then, former Acting Secretary Chad Wolf similarly extended it through September 3, 2021.
Now, Biden’s DHS Secretary Alejandro Mayorkas has extended and "redesignated" Yemen’s TPS designation for another 18 months, through March 3, 2023. While the Federal Register notice announcing this decision includes a section titled, “What is the Secretary’s authority to redesignate Yemen for TPS?”, the justification merely points to past examples of the Obama administration doing so rather than providing a specific statutory citation (which does not exist). Consistent with the Biden administration’s new TPS designations for Haiti and Venezuela, the stated reasons for the (unlawful) “redesignation” for Yemen fail to meet the statutory requirements of a designation. Neither economic woes or poverty, or the existence of Covid-19, which is worldwide, prevent Yemenis from returning to their country in safety.
Instead, this ultra-vires application of TPS benefits every Yemeni who found his or her way into the country since the 2017 TPS extension. According to the U.S. Citizenship and Immigration Services (USCIS) email announcing the Mayorkas decision, an additional 480 Yemeni illegal aliens will benefit.
In less than six months, the Biden administration has granted amnesty-lite to nearly 500,000 illegal aliens from five countries. This includes, 320,000 Venezuelans, 100,000 Haitians, 1,800 Syrians, 1,600 Burmese, and now almost 500 Yemenis.