Venezuelans lose protected immigrant status after two Supreme Court decisions

The Supreme Court sided with the Trump Administration in removing protected status for hundreds of thousands of otherwise-unauthorized Venezuelan immigrants. Mass deportation could be next.

The Supreme Court agreed this month that the Trump Administration was within its constitutional rights to vacate an extension of a 2023 immigration policy that had allowed hundreds of thousands of Venezuelans to live and work in the U.S. over the last several years. As a result, one of the largest populations of unauthorized migrants registered with the federal government is subject to immediate deportation.

Former Secretary of Homeland Security Alejandro Mayorkas issued an extension of the designation of Venezuela for Temporary Protected Status during the final days of the Biden Administration, allowing Venezuelans entering the U.S. without authorization to remain in the U.S. until October 2026. New Homeland Security Secretary Kristi Noem promptly terminated the 2023 designation, which was set to expire on April 7 of this year.

Advocates for Venezuelans in the U.S. secured a stay of Noem’s termination in federal district court on March 31. Judge Edward Chen concluded the government had demonstrated no harm in allowing Venezuelans to remain in the U.S. and that the termination was against the law and was “motivated by unconstitutional animus.” The Supreme Court blocked the stay on May 19 after an emergency appeal by the Trump Administration and allowed Noem’s termination to stand pending appeal. Without the extension, the designation is expired.

What is a TPS designation?

Congress created the Temporary Protected Status (TPS) program as part of the Immigration Act of 1990. It allows foreign nationals without legal authorization to remain in the U.S. and avoid deportation back to perilous situations in their home countries for a period of 6 to 18 months. The act codified through the TPS program what had in previous decades been prosecutorial discretion from the U.S. Attorney General called Extended Voluntary Departure (EVD), which temporarily paused deportations of people back to repressive regimes or civil war. The law today empowers the Attorney General and DHS Secretary to designate countries for TPS because of armed conflict, natural disaster, or “extraordinary and temporary conditions” that prevent a safe return for migrants. The law also specifically granted TPS status to migrants from El Salvador, who had been arriving illegally during the 1980s but had not been granted EVD by the Reagan Administration.

The TPS program is different from asylum or refugee resettlement programs in that it applies only to migrants already living in the U.S. Those arriving after the official designation date are not eligible for TPS, which lends some confusion about a program designed to respond to crises. Applicants must register with the U.S. Citizenship and Immigration Services (USCIS) at DHS, not have felony criminal records or drug offenses, and pay application fees.

Supporters during Congressional debate of the bill emphasized it would only give temporary reprieve to deportation. In practice, however, the Executive Branch can extend or restore designation indefinitely, which Presidents of both parties have done. TPS, therefore, has allowed migrants without a path to legal residency or citizenship to live and work in the U.S. for many years as long as their country maintains the designated status. Their children born in the U.S., under the 14th Amendment, are American citizens.

The process for making a TPS designation starts with a request from the White House, Congress, or a foreign government to examine whether a country fits the statutory categories of the program. USCIS and the State Department then review the economic and social conditions in the country and make a recommendation to the Secretary of Homeland Security, whose responsibility it is to make the designation.

Growth of TPS-eligible populations

In the first few years of the program, the number of migrants eligible for TPS were small as most countries designated by the U.S. were war-torn African or Middle Eastern nations. That changed in the early 2000s, however, when Administrations from both parties issued TPS designations for Central American and Caribbean countries with large unauthorized migrant populations living in the U.S. More than 52,000 Hondurans received TPS status after Hurricane Mitch devastated their country in 1998, and nearly 175,000 Salvadorans successfully applied after February 2001 earthquakes. In both cases, TPS designations have been renewed ever since. More than 260,000 Hatians have been eligible for TPS since a January 2010 earthquake. Another 309,000 became eligible to apply after several subsequent redesignations.

Venezuelan migrants by far make up the largest TPS designated group. A fifth of the population has fled the country since its economy started a tailspin in 2014 and repressive regimes crushed dissent. The Biden Administration designated Venezuela first in March 2021 as social conditions started to collapse, covering more than 323,000 people. As humanitarian and political crises deepened and migrants continued to stream into the U.S., the country was designated again in October 2023, making another 472,000 eligible. A total of 505,000 have successfully applied for TPS. Nearly 300,000 Venezuelans without legal status live in Florida.

The Trump Administration’s reversal

In her termination of the 2023 Venezuela TPS designation, Secretary Noem did not assert that conditions in that country had changed. She cites the provision in statute that allows TPS status to be rejected if the secretary “finds that permitting the aliens to remain…is contrary to the national interests of the United States” as well as the broader immigration policy of the Trump Administration. The termination notice references Executive Order 14159, which requested a review that TPS designations “are appropriately limited in scope and made for only so long as may be necessary to fulfill the textual requirements of that statute.” It also quotes EO 14105, which stated “the foreign policy of the United States shall champion core American interests and always put America and American citizens first.” The termination notice asserts permitting “Venezuelans under the 2023 TPS designation to remain in the United States does not champion core American interests or put American interests first. U.S. foreign policy interests, particularly in the Western Hemisphere, are best served and protected by curtailing policies that facilitate or encourage illegal and destabilizing migration.”

Because migrants apply directly to USCIS to receive TPS status, the agency has a database of more than a million people to work with as the Trump Administration pursues its mass deportation goals. TPS designations for Afghanistan, El Salvador, South Sudan, Sudan, and now the 2023 designation for 434,000 Venezuelans have expired. The status of the remainder of the Venezuelans in the system expires in September, and Haiti’s designation expires in February 2026.

Another program terminated

Still more Venezuelans lost another form of temporary authorization to remain in the U.S. Friday when the Supreme Court allowed the Trump Administration to terminate an immigrant parole program that covered more than 500,000 people. Secretary Noem ordered the termination of the CVHN parole program in March, which the Biden Administration had created to allow Cubans, Venezuelans, Haitians, and Nicaraguans to apply for entry into the U.S. if they had a sponsor who could support them financially. Authorized by Cold War-era immigration law, the parole program allowed 30,000 applicants per month from each country to enter for “urgent humanitarian reasons” or “significant public benefit.”