Russian troops invaded Ukraine eight days ago, on February 24. Cable news has dedicated round-the-clock coverage to the dispute, effectively knocking any discussion of President Biden’s failed domestic agenda off the airways. Approximately one million Ukrainian women and children have already fled the country, with Poland offering safe haven to more than half of them. Reportedly the men were ordered to stay put and fight to defend their homeland, a notable contrast to the chaos that ensued after Biden’s botched Afghan withdrawal where it was mostly working- (and fighting-) aged men who pushed their way onto the evacuation flights.
While we're certainly not going to be deporting anyone to Ukraine in today's circumstances, Department of Homeland Security (DHS) Secretary Alejandro Mayorkas has seized on the conflict as an opportunity to grant "amnesty-lite" in the form of work permits, Social Security numbers, and driver’s licenses to approximately 75,000 Ukrainians in the United States, including illegal aliens. In the press release announcing an 18-month Temporary Protected Status (TPS) designation for Ukraine, Secretary Mayorkas justifies the grant by saying the “full-scale Russian military invasion into Ukraine . . . marks the largest conventional military action in Europe since World War II. This invasion has caused a humanitarian crisis with significant numbers of individuals fleeing and damage to civilian infrastructure that has left nearly a million individuals without electricity or water or access to food, basic supplies, shelter, and emergency medical services.”
Under section 244 of the Immigration and Nationality Act (INA), 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”.
Granting TPS at this juncture is an overly broad response by DHS and indicates that Mayorkas is more concerned with doling out work permits to the Ukrainian illegal alien population currently in the United States rather than preventing legal Ukrainians in the U.S. from falling out of immigration status through no fault of their own. To that end, U.S. Citizenship and Immigration Services (USCIS) already possesses narrower authority, known as "special situations", to help lawfully present Ukrainians avoid falling out of status. As USCIS explains on its webpage dedicated to special situations, “When applying for an extension or change of status due to a special situation that prevented your planned and timely departure, we may take into consideration how the special situation prevented your departure.” Does anyone believe a USCIS adjudicator would deny such a request under the circumstances?
The timing, duration, and justification of the TPS designation also reveal that this was a politically motivated decision by Mayorkas to grant amnesty-lite to illegal aliens in the absence of Congress passing "amnesty-premium".
Timing. The TPS statute requires the DHS secretary to analyze country conditions and consult with other appropriate government agencies before making a designation. While Secretary Mayorkas announced the designation on March 3, a USCIS source tells me that the agency was already drafting the Federal Register notice as early as Monday, February 28, just four days after Russian troops crossed the Ukrainian border. Given the uncertainty of the outcome of the fighting at this time (see below), it is unbelievable that Mayorkas truly reviewed country conditions and consulted with others in the federal government, as required by statute. Instead, it appears that Mayorkas instinctively jumped to TPS as an immigration carrot upon learning of the invasion and delayed the announcement just long enough to present the appearance of the analysis required by law.
Duration. The TPS statute allows the DHS secretary to initially designate a country for six, 12, or 18 months. Mayorkas chose an 18-month designation despite the Russia-Ukraine war having only been going on for barely more than a week with some suggesting that Russia’s attempt to overthrow Ukraine will not succeed. Most notably, just a few days ago at the State of the Union President Biden implied that Putin’s war would fail and that the Russian president is “now isolated from the world more than ever”. CBS News wrote that “Russian forces struggle to achieve their military objectives and questions arise about Putin’s grip on power”, while quoting a senior U.S. defense official as saying that Russian forces “appear to be stalled” in their efforts to overtake the Ukrainian capital of Kyiv and that Russian troops are suffering from “logistical and sustainment problems as well as integration problems”. Appearing on MSNBC, former Central Intelligence Agency Director John Brennan declared, “I believe that Putin’s days [in power] are numbered. Maybe in the double digits.”
If these assessments are true, then the war could end in the coming weeks. I already explained that “special situations” exist that would have been a more appropriate mechanism in response to the conflict. Given the uncertainty of the outcome of the war, if Mayorkas genuinely intended to provide temporary protection he should have granted TPS for just six months and then re-evaluated.
Justification. According to the DHS press release, Mayorkas is designating Ukraine on the dual grounds of ongoing armed conflict and extraordinary and temporary conditions. The dual basis structure of the designation, while permissible, exposes the permanent intention of Mayorkas’s designation. As I just detailed, some high-ranking officials are predicting the demise of Putin possibly before the end of the month. Had Mayorkas just designated Ukraine under the “ongoing armed conflict” prong, there would be no legitimate argument to keep extending TPS if the war ends soon. That’s where the “extraordinary and temporary conditions” prong comes in. This prong has become the catch-all basis that every president (except Trump) has exploited to keep extending TPS designations. Neither “extraordinary” nor “temporary” conditions are defined by statute and these administrations ignored the requirement that such conditions, whatever they are, prevent aliens from being returned in safety.
Lastly, expect the covered population to grow beyond the announced 75,000 who are physically present in the United States as of March 1. In the press release, Mayorkas claims that “Individuals who attempt to travel to the United States after March 1, 2022, will not be eligible for TPS.” This is obviously untrue. We saw with Haiti's designation last year (and this week's extension for South Sudan) that Mayorkas unilaterally changed the cutoff date after announcing his decision. The original TPS for Haiti contained the exact same sentence, just with a different date for when the Haitians supposedly had to be in the country. More likely, when Ukraine’s designation is up for renewal or termination Mayorkas (or his successor) will illegally "redesignate" the country for TPS, allowing any Ukrainian who found his or her way into the country since March 1, 2022, to also benefit.