Mayorkas Extends and Expands Somali Amnesty-Lite

Cites drought, flooding, and desert locusts to award new work permits

By Robert Law on July 23, 2021

The Biden administration has once again utilized Temporary Protected Status (TPS) to dole out work permits to illegal aliens, this time for those from Somalia. 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 (DHS) secretary determines that conditions in the home country temporarily prevent the country’s nationals from returning safely. But, "There's nothing as permanent as a temporary immigration status."

Under the TPS statute (section 244 of the Immigration and Nationality Act), 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. This form of amnesty-lite has been abused by multiple administrations to extend and expand protections for reasons that bear little to no relation to the conditions that supported the initial designation. Obstructionist district judges even prevented the Trump administration from terminating TPS designations despite the statute clearly saying such decisions are not subject to judicial review.

The DHS secretary may 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. The mere existence of any of these factors is not enough for an initial designation or an extension. Instead, the law requires that the ongoing armed conflict “would pose a serious threat to [the] personal safety” of the country’s nationals if returned; the environmental disaster requires that the home country is “unable, temporarily, to handle adequately the return”; and the extraordinary and temporary conditions must prevent the alien “from returning to the state in safety”. This aspect of the statute is routinely ignored and has led to absurd reasons cited to justify a TPS extension. A prime example is when the Obama administration cited coffee rust to extend Honduras’s TPS designation, which was based on the damage caused by Hurricane Mitch in 1998.

Somalia is a case study of the permanence of TPS. The country was initially designated in 1991 under the extraordinary and temporary conditions prong of the statute. The Federal Register notice announcing that original decision contains no analysis of what specific conditions in the country satisfied the statutory criteria. TPS was continuously renewed until 2001, when President George W. Bush’s administration extended and "redesignated" Somalia’s TPS for 12 months. 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.

Using the new advanced cutoff date established by the Bush 43 decision, Somalia’s TPS designation was continuously renewed until 2012 when President Obama’s administration similarly (and unlawfully) extended and "redesignated" the TPS designation, this time adding the ongoing armed conflict prong. The TPS designation using the new advanced cutoff date established by the Obama decision was continuously renewed on the dual bases of ongoing armed conflict and extraordinary and temporary conditions for the remainder of the Obama administration and through the Trump administration.

After 30 years, it is fair to question at what point do conditions cease being “temporary” or when “extraordinary” conditions become “ordinary” conditions in the country.

Now, Biden’s DHS Secretary Alejandro Mayorkas has extended and "redesignated" Somalia’s TPS designation for another 18 months, through March 17, 2023. Consistent with previous TPS decisions, the Biden administration continues to disregard the law in order to give work permits and deportation reprieves to as many illegal aliens as it can. According to the Federal Register notice, “The ongoing armed conflict in Somalia, along with natural disasters and contagious disease outbreaks, have worsened an already severe humanitarian crisis. Since DHS last extended TPS for Somalia, a dramatic upsurge in violence, severe drought, flooding, and the spread of desert locusts have contributed to worsening food insecurity and internal displacement.” Mayorkas also cites a recent cholera outbreak and, of course, Covid-19.

Let’s unpack this. First, it is undisputed that Somalia is a failed state, economically poor, and in turmoil. That alone does not satisfy the statutory requirements of TPS as established by Congress. Like the recent Mayorkas decision to extend and "redesignate" TPS for Yemen, neither economic woes nor poverty nor the presence of Covid-19, which is worldwide, prevent Yemenis from returning to their country in safety. The same is true of droughts, floods, and desert locusts, no matter how severe. Food insecurity is tragic, but is also found in various parts of the United States. And internal displacement actually shows that there are safe places for Somalis to live within their country, though possibly not their particular neighborhood. The TPS statute contemplates aliens returning to the home country in general terms, not specific addresses.

This is not to say that the Biden administration should have terminated Somalia’s TPS designation, but no new event that satisfies the statute has occurred since 2012, and certainly not since the Trump administration extended the designation in March 2020. Instead, this ultra-vires application of TPS benefits every Somali who found his or her way into the country since the 2012 TPS extension and “redesignation”. According to the U.S. Citizenship and Immigration Services (USCIS) email announcing the Mayorkas decision, an additional 100 Somali illegal aliens will benefit.

While the total number of new work permits being awarded by this decision is lower than the total awarded under the TPS decisions made by the Biden administration, it continues the trend of using TPS to expand the population of illegal aliens unlikely to ever be returned to their home countries. In less than six months, the Biden administration has granted amnesty-lite to nearly 500,000 illegal aliens from six countries. This includes 320,000 Venezuelans, 100,000 Haitians, 1,800 Syrians, 1,600 Burmese, almost 500 Yemenis, and now 100 Somalis.