Trump Makes ‘National Interest’ Top Factor in Immigration Relief

When it axed protections for hundreds of thousands of Venezuelan immigrants in the US, the Trump administration made national security concerns the primary justification for the move.

That’s a novel approach to decision-making on the Temporary Protected Status program, which allows immigrants who can’t safely return to designated countries to remain in the US and get legal work authorization. Although TPS has long been in Trump’s crosshairs, that national security-based approach is a departure even from his first term.

It signals that the fate of humanitarian relief options will be based on factors in the US, rather than immigrants’ home countries going forward. That will likely be a core issue in any legal challenges to the termination.

“The premise of the decision appears to be that TPS designation itself is not in the national interest, and that TPS holders are somehow, by definition, ‘illegal’ immigrants,” said Ahilan Arulanantham, a professor at the University of California, Los Angeles School of Law. “That approach presents a very sharp break with how the agency viewed TPS in the past.”

Arulanantham, co-director of UCLA Law’s Center for Immigration Law & Policy, helped lead litigation during the first Trump administration challenging termination of TPS protections for countries including El Salvador, Sudan, Nicaragua, and Haiti.

National Interest

Immigrants get protections for only 18 months at a time when a country is designated for TPS and only if they meet eligibility standards, including arrival in the US before protections are issued.

The Immigration and Nationality Act states that the executive can bestow TPS if certain conditions like armed conflict or environmental disaster pose a threat to immigrants’ public safety—unless allowing them to remain in the US is “contrary to the national interest.”

At least 60 days before the status expires, the Department of Homeland Security and other federal agencies must make an objective review of conditions to determine if it’s safe for immigrants to return home or if protections should be renewed.

Late last month, the Trump administration canceled an extension of TPS protections for Venezuelans through 2026. Days later, it said it wouldn’t renew a designation set to expire April 2 for nearly 350,000 recipients from the country, sparking panic among a population facing a potential return to a country mired in an economic crisis and ruled by an authoritarian government.

Venezuela’s President Nicolas Maduro declared victory in elections last year with the US and international observers raising concerns about the veracity and transparency of results. Trump labeled opposition leaders “freedom fighters” in the run up to Maduro’s January swearing in for a third term.

Although DHS claimed improvements in the economy, crime, and public health, the agency leaned heavily on US “national interest” in justifying the termination.

Local Pressures

Regardless of conditions in immigrants’ home countries, DHS said, expanding TPS had put pressure on local communities “where local resources have been inadequate to meet the demands caused by increased numbers.” It moreover linked TPS recipients—without evidence—to Tren De Aragua, a Venezuelan gang listed as a transnational criminal organization by the US.

“It fits with Trump’s language of invasion. And it fits their overall strategy of saying we’re going to focus on America first,” said Mary Hoopes, an associate professor at Pepperdine University’s Caruso School of Law. “Both because of this potential criminality that seems to be fabricated and the idea that we don’t have local resources.”

An influx of immigrants bussed from the southern border did strain resources of local governments and charitable groups in recent years. But those challenges were also fueled by employment restrictions for asylum seekers and work permit backlogs that affected numerous immigrants including those on TPS. That prompted Democrats in Congress and local elected officials to push more urgency from DHS as well as new regulatory measures.

Venezuelans are one of the most highly-educated immigrant groups in the US; 58% of those age 25 or older have at least a bachelor’s degree, according to Pew Research Center.

DHS will decide on TPS extensions for South Sudan, Afghanistan, Cameroon, Nepal, Honduras, and Nicaragua in the first half of this year. The Trump administration should apply the national interest rationale for those extensions as well, said Lora Ries, director of the Heritage Foundation’s Border Security and Immigration Center. The TPS program has been “grossly expanded” and is need in of reform, she said.

“You don’t have to go home, but you can’t stay here anymore if you’re not eligible for any immigration benefit,” Ries said. “If an individual has a legitimate asylum claim, they should apply for that.”

Trump 1.0 Legal Fight

Temporary Protected Status relief came under target in Trump’s first term too. And he made it clear on the campaign trail he would limit temporary relief programs for immigrants like TPS and parole. His previous efforts to do so, however, were stalled by legal challenges.

Homeland Security at the time based TPS terminations for Sudan, Nicaragua, Haiti, and El Salvador almost entirely on factors like reduced violence and progress recovering from natural disasters. Immigrant advocates sued, arguing racial animus was behind the terminations. But the US Court of Appeals for the Ninth Circuit ultimately upheld the terminations in 2020, finding the claims weren’t subject to judicial review. The Biden administration later opted to maintain the protections.

Although courts can’t second guess an administration’s decision on the program, they can review whether proper procedure was followed to get there, said Jacob Hamburger, an assistant professor at Cornell Law School. This means officials must adequately consider the available evidence without a predetermined outcome in mind.

That’s true of both rationales based on circumstances in immigrants’ home countries and national security reasons. There’s often a fine line between the substance of a determination and the process that drove it, Hamburger added.

“There might be good reason to suspect,” he said, “that the entire administrative process is being based on a change in political outlook rather than actually gathering evidence.”