On May 22, Department of Homeland Security (DHS) secretary Alejandro Mayorkas unexpectedly announced a new Temporary Protected Status (TPS) designation for Haiti. Specifically, Mayorkas claimed that illegal alien Haitians are unable to return to their home country because of “a political crisis and human rights abuses; serious security concerns; and the COVID-19 pandemic’s exacerbation of a dire economic situation and lack of access to food, water, and healthcare. The persistent effects of the 2010 earthquake have also exacerbated the severity of the extraordinary and temporary conditions in Haiti currently.”
I analyzed the DHS press release justification for the designation at the time and showed how the Biden administration was ignoring the statutory requirements for TPS found at Immigration and Nationality Act (INA) section 244. This disregard for the TPS statute is not isolated to the Haiti decision, though; as I have detailed, it is a recurring tool of the Biden administration to give work permits to as many illegal aliens as possible in the absence of a legislative amnesty.
At the time, Mayorkas said that the new designation not only covers the approximately 55,000 illegal alien Haitians who were covered by the 2010 TPS designation due to an earthquake (and subsequent unlawful “redesignation” in 2011) but all Haitians who have subsequently overstayed a visa or snuck across the border as of May 21, 2021. While DHS failed to provide a population estimate, media outlets indicate the new designation will cover at least 100,000 Haitians. Notably, the May press release read:
It is important to note that TPS will apply only to those individuals who are already residing in the United States as of May 21, 2021 and meet all other requirements. Those who attempt to travel to the United States after this announcement will not be eligible for TPS and may be repatriated. Haiti’s 18-month designation will go into effect on the publication date of the Federal Register notice to come shortly. The Federal Register notice will provide instructions for applying for TPS and employment authorization documentation.
For more than two months, DHS failed to publish the TPS Haiti notice in the Federal Register, despite timely publishing notices for all of the TPS designations. The mystery of the delay ended on Friday, July 30, 2021 when the TPS Haiti notice finally published in the Federal Register. Stunningly, and without any prior public statements, Secretary Mayorkas moved up the cutoff date for TPS eligibility to those illegal alien Haitians in the United States on or before July 29, or two months and eight days later than what Mayorkas said at the end of May. As justification for advancing the date in direct contravention of his past decision, Mayorkas cites the assassination of Haiti’s president Jovenel Moïse on July 7.
This move by the Biden administration shows blatant disregard for the TPS statute and how Congress intended it to operate. In the May announcement, Mayorkas already cited “a political crisis” as one of the reasons for the new designation. The Federal Register notice attributes nearly all of the violence and crisis to the actions of Moïse and his regime. His assassination is literally part of that “political crisis” and arguably his removal was intended to bring stability. Even if that was not the case, advancing the cutoff date to July 29 just rewards every Haitian who was able to find his or her way into the United States after Moïse’s assassination. This was not a new, intervening event but a continuation of the preexisting conditions. There is no indication that DHS made even a passing attempt at reviewing country conditions since Mayorkas’s May decision, and the delay in publishing the Federal Register notice appears orchestrated to further expand the Haitian amnesty-lite population. To that end, Mayorkas does not even bother providing a revised estimate of the number of illegal alien Haitians who will benefit from TPS. Are we really to believe that the 100,000 Haitian estimate from May is unchanged by moving up the cutoff date more than two months? If so, then no Haitian is actually benefitting from the new cutoff date (which is not believable) and it would be unnecessary.
Unfortunately, the Biden administration is likely to get away with this action. The TPS statute makes clear that these decisions are not subject to judicial review. That provision has held true since the TPS statute was enacted, save for the four-year term of President Trump.