In a last minute presidential memorandum, President Trump ordered “deferred enforced departure” to prevent the removal (deportation) of most Venezuelans for a limited period of time. This action, which falls short of designating Venezuela for Temporary Protected Status (TPS), may be surpassed before long with the incoming Biden Administration.
Deferred enforced departure is a discretionary benefit to allow someone to remain in the US despite being deportable, but only for a limited period of time. This is just a fancy way of saying prosecutorial discretion in the immigration context – the Trump Administration is not giving anyone lawful status, but rather preventing their deportation for a period of time.
Deferred enforced departure has previously been extended to certain citizens of China, Haiti, Liberia, and on some other occasions. It has typically been used on a temporary basis to prevent suffering and hardships for people from other countries facing unrest, war, or humanitarian disasters.
The presidential memorandum defers the removal (deportation) of Venezuelans present in the US as of January 20, 2021. It is extremely broad but has some restrictions. It does not apply to people who voluntarily returned to Venezuela, did not continuously reside in the US after the effective date, are inadmissible under terrorism grounds, convicted of certain crimes, were deported prior to the effective date, or who present security or foreign policy issues for the US Government.
In short, most Venezuelans should qualify unless they have criminal convictions or unique circumstances, so long as they are in the US as of January 20, 2021. The full requirements are listed in the memorandum.
It is not clear why Trump decided that announcing this decision on the last full day of his presidency was the right moment. He had four years to allow Venezuelans to apply for TPS, which would have been an easy and powerful solution for many Venezuelans currently struggling to have their asylum cases heard. These cases are clogging up the USCIS offices and courts when they could be funding USCIS operations and giving people reliable work permits and status in the US.
Most likely the Biden Administration will announce programs that surpass and overshadow this announcement. There is little doubt that Biden will announce TPS for Venezuelans but it has not yet been announced. For the moment, some individuals may benefit if ICE and the immigration courts step down enforcement efforts against Venezuelans.
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