Caracas Chronicles

During an interview with Fox and Friends, the new Secretary of Homeland Security, Kristi Noem, announced that the decision to extend Temporary Protected Status for Venezuela had been vacated. Approximately 600,000 Venezuelans could be affected by this decision. What that entails is anything but straight forward. Let’s attempt to unravel how we got here and what could happen next.

How it all started

On March 8, 2021, Homeland Security Secretary Alejandro Mayorkas designated Venezuela for Temporary Protected Status, opening the door to immigration status and work authorization for approximately 300,000 Venezuelans. “The living conditions in Venezuela reveal a country in turmoil, unable to protect its own citizens,” Mayorkas said. 

Before leaving his first term, in January 2021, Trump had granted a flimsy protection to Venezuelan migrants known as Deferred Enforced Department, or DED. The TPS produced a significant upgrade. DED can be granted—and revoked—by sheer executive authority. TPS, on the other hand, requires the following of a statutory process from different agencies, including Homeland Security and the Department of State, to evaluate country conditions. Only after concluding that there are significant risks to the citizens of a certain country if they return, the Secretary of Homeland Security can designate that country for TPS. And to terminate it, the same steps should be taken in reverse. That is, Homeland Security and the Department of State should determine that those conditions are no longer met. 

As long as country conditions remain unsafe, TPS can be extended for decades. Honduras and Nicaragua had TPS designations in 1999, and they continue through this day. During the first Trump term, Homeland Security attempted to terminate TPS for those countries, among others, but they did not conduct a thorough evaluation on the conditions of each nation, so it was halted by a federal court during litigation, keeping the nationals of those countries protected.

Looking at this precedent, Venezuelans could expect to seek individual protection by requesting TPS, which is granted unless they are ineligible due to criminal convictions or gang affiliation. And they can extend it for as long as country conditions remain unsafe. Right?

Waves of migrants through the border and a second designation

By 2021, the vast majority of the Venezuelans in the US had arrived by plane, with a visa. Many had overstayed, thousands applied for asylum. Then, we started hearing more and more about the Darien Gap.

The Biden administration saw an ever-increasing number of Venezuelan migrants coming by land, through its Southern border. The government implemented harsh policies to deter migration, some not too different—and in some cases stricter—than the ones adopted by Trump a few years earlier. But they did not work, at least not at first. 

…authorities have little way of confirming that a suspect is a member of TdA since gang members do not typically broadcast their affiliation.

In October 2022, the Biden administration created a program of humanitarian parole for Venezuelans, which later expanded to include Cuba, Haiti, and Nicaragua. The idea was to create an alternative method for Venezuelans to enter the US, instead of through the border. By October 2023, hundreds of thousands of Venezuelans had arrived since the TPS designation of March 2021. While announcing harsh restrictions to asylum that many advocates consider unlawful, Secretary Mayorkas granted a redesignation for TPS, covering all eligible Venezuelans present by July 2023. Within months, Venezuelans with TPS applications more than doubled in size, and they were granted protection through April 2, 2025.

Crimmigration

By mid-2024, and with the help of Mexican law enforcement, border crossing dropped to 2020 levels. But it was too late. Trump and his cultural movement had been hammering on every platform that the border was open, and it represented a national security risk. They claimed, contrary to evidence, that there was a spike in violent crimes and that newly arrived migrants were the culprits. 

The narrative was clear: conflate immigrants with criminals. With Venezuelans, it was linking them to Tren de Aragua, which came to be known as TdA. Even when the stories were debunked, TdA labels kept being repeated ad nauseam. An article by Fox News admitted how the police determined someone was a TdA member:

Chamberlain said authorities have little way of confirming that a suspect is a member of TdA since gang members do not typically broadcast their affiliation.

“It is a real challenge to try to say, ‘Hey, 100%, you are a gang member,’” he said. “But when you look at the circumstances of this, when you look at the events of this, when you look at the individuals involved in this, when you look at the veracity and the violence involved in this, again, it is not a big step for me to say that they are TdA gang members,” he said.

During his latest presidential campaign, Trump himself only spoke about Venezuela in connection to alleged criminality from migrants. Venezuelans in the US, largely supportive of Trump and critical of Biden, were more than willing to advance this narrative.

The biggest logistical hurdle for deporting large numbers of Venezuelans is that the Maduro regime has refused to accept deportation flights since mid 2019…

After Trump’s win in November, the narrative only intensified. He promised mass deportation, in numbers never seen before, despite seemingly insurmountable legal and logistical hurdles. 

Just ten days before the transfer of power, Mayorkas took a final action to protect Venezuelan migrants before Trump returned to the White House. He extended the TPS designation that was set to expire on April 2, 2025. The other designation was set to expire on September 10, 2025, and Mayorkas combined the two, allowing them to expire on a single date for all Venezuelans with TPS, all the way on October 2, 2026. That gave a breather to many. But not for long.

Vacatur by Kristi Noem

On January 26, Kristi Noem was sworn in as the new Secretary of Homeland Security, replacing Mayorkas. Just 3 days later, on the morning of January 29, she appeared in the TV show Fox and Friends and announced that she had vacated Mayorkas’s TPS extension. She said: 

“Well, before he left town, Mayorkas signed an order that said for 18 months they were going to extend this protection to people that are in Temporary Protected Status, which meant they were going to be able to stay here and violate our laws for another 18 months. And we stopped that. Today we signed an executive order within the Department of Homeland Security in a direction that we were not going to follow through on what he did to tie our hands, that we are going to follow the process and valuate all these individuals that are in our country, including the Venezuelans that are here and members of TdA. Listen, I was in New York City yesterday and the people of this country want these dirtbags out…”

The document revoking Mayorkas decision, a vacatur, does not mention Tren de Aragua. Instead, it claims, without any substantive legal reasoning, that the consolidation of the 2021 and the 2023 TPS designations into a single expiration date was a “novelty approach” and the order lacked an explanation on “how it is consistent with the TPS statute.” Yet, it does not go on to detail how it is inconsistent with the statute. Come February 1st, this vacatur may be ripe for a legal challenge.

What will happen now?

For now, TPS remains valid through September 1, 2025, for the first group, and through April 2, 2025, for the second. A decision on the extension or revocation of the designation should be taken at least 60 days before its expiration. That is, on Saturday February 1, Secretary Noem should decide whether or not to extend TPS for the group expiring in April. 

Should she fail to make a timely decision, the TPS designation is automatically extended for 6 months, pursuant to 8 U.S.C. § 1254a(b)(3)(C). 

TPS holders cannot be detained on the basis of their immigration status, but that changes when TPS terminates.

Some still hope that, despite the inflammatory rhetoric, Noem will extend TPS for another 18 months. That is possible, I guess. If, on the other hand, she chooses to terminate the TPS designation, Homeland Security has the statutory obligation to show that Venezuela “no longer continues to meet the conditions for designation.” And this should be done after consulting with the Department of State, led by Marco Rubio. Considering the short time before then, the state of democracy, human rights violations, and the humanitarian crisis in the South American nation, it will be a tall order to justify termination.

Advocates and community associations have already started organizing in the event of no extension. Federal litigation could very well become the next step. In this case, groups of affected Venezuelans would challenge the determination of the Trump administration that Venezuela no longer meets the conditions for designation, and a very likely argument from the plaintiffs is that such a conclusion is arbitrary and capricious. 

Can Venezuelans be deported en masse? 

For as long as an immigrant is protected under TPS, his or her deportation would be unlawful. That is not to say that it is impossible, but substantial legal protections remain. TPS holders cannot be detained on the basis of their immigration status, but that changes when TPS terminates.  If federal courts fail to offer protection, then the risk of detention and deportation become far more imminent. Still under this scenario, there are major logistical issues.

Although we have no data to determine the percentages, many TPS holders also have a pending asylum claim. Others have a different status, like F-1 or H-1B. For those with an alternative status, losing TPS does not affect their ability to lawfully remain in the United States. On the other end of the spectrum, some TPS holders already have an order of removal issued by a judge, after losing their asylum claims. People in that situation would be the low hanging fruit for removal. 

Perhaps the largest group is composed of those who only have TPS and have no deportation orders. For them, removal is only viable after a potentially lengthy process before of an immigration judge, where they can seek relief with new applications like asylum, protections under the Convention Against Torture, or based on severe harm to a US citizen child after having lived in this country for more than ten years. But those are complex forms of relief and depend entirely on case-specific facts.

The biggest logistical hurdle for deporting large numbers of Venezuelans is that the Maduro regime has refused to accept deportation flights since mid 2019—except for a brief period between October 2023 and January 2024. It remains to be seen how the Trump administration can persuade them to let deportation flights into Venezuela. 

Partial answers to this issue have been proposed by the Trump administration. In one of them, Trump himself discussed transferring “criminals” to Guantanamo, the infamous American military base in Cuba, where he claims 30,000 beds will be available. But the constitutionality of that action will be challenged, and this would only cover a small fraction of what is required for “mass deportations.” 

Another is to deport Venezuelans to a third country. Some have floated El Salvador, ruled by Nayib Bukele, who is known for mass incarceration of individuals accused of being gang members. Although recent local legislation, international treaties, and Inter-American standards establish some international protections, it is hard to predict how Venezuelan deportees would be treated in El Salvador. But if they are deported under the label of being “gang members,” El Salvador’s recent history may offer a clue. 

Still, hundreds of thousands of Venezuelans will seek alternative mechanisms to remain in the United States, legally or otherwise. The diaspora will be compelled to organize, to push back, and to fight. And in the end, the ties that bind the millions of Venezuelan migrants together may surface again, more evident than ever.