Diving Back Into the Immigration Morass

The Biden Admin is running an illegal immigrant laundering operation

Q: When is an illegal not an illegal? A: When Mayorkas says so.

During the vice-presidential debate a couple weeks ago, much like the Trump/Harris presidential debate prior to it, the DNC operatives pretending to be moderators once again attempted to intervene on behalf of the Democratic candidate by ostensibly fact-checking Republican JD Vance on immigration. Inexplicably feeling the need to “clarify for our viewers” something that Tim Walz himself had already said about Springfield, Ohio and which Vance had not even challenged, moderator Margaret Brennan simply parroted a Walz claim by asserting that “Springfield, Ohio does have a large number of Haitian migrants who have legal status, temporary protected status” and then quickly attempted to change topics. Vance was having none of it, which produced the beginnings of what could have been the only interesting and unscripted discussion of the night. Alas, CBS decided that the last thing it wanted was for audience attention to be distracted from its own “journalists” by a genuine back and forth between the two candidates, and so it cut their mics, allowing Brennan and her partner in crime Norah O’Donnell to restablish their place at the center of the proceedings.

But the debate drama aside, I was interested in the actual substance of the so-called fact-check. Regardless of the truth about their dietary habits, are the Haitian migrants in Springfield actually in the country legally? Of course, strictly speaking, that question can only really be answered on an individual basis. Like citizens of any other country, I am sure there are some Haitian migrants who are indeed in the US legally, while I am equally sure that there are others who are not. But an attempt to answer this question as a more general matter reveals both how byzantine our immigration laws actually are, and ultimately how they are being gamed by our own government in order to increase the illegal immigrant population in the US while being able to claim otherwise. And the Haitians in Springfield are the perfect example of how this is being done.

First, some general background on the Rube Goldberg-esque immigration process. Generally speaking, when an alien, defined by our immigration laws as “any person not a citizen of the United States”, either shows up at a port of entry without valid entry documents such as a visa, or is caught inside the US without such documentation, that alien is automatically subject to immediate detention and placement into the removal process. It is during this removal process that the alien can request asylum or some other form of relief in an immigration court. And it is these court proceedings that are backlogged, resulting in years-long waits for hearings.

Now, again, all of these aliens (except for children, which have special rules) are subject to detention while they await their immigration court hearing. And the reason they are subject to detention in an immigration detention facility is precisely because, until the removal/asylum process determines otherwise, they have no legal basis to be in the country. They are, in layman’s terms, illegal aliens. However, while they all are subject to detention, they are not all subject to mandatory detention. With a few exceptions, DHS has discretion to “parole” illegal aliens into the country while they await their hearing date. And this is what the Biden/Harris administration is doing. On a massive scale.

So while it is true that these illegal aliens have discretionary DHS permission to be in the country, that doesn’t mean that they are here legally. Their status is “parolee”, not a lawful visitor or resident. So pretty much by definition, if a person has been paroled into the US, they are not here legally. With regard to the Haitian migrants in Springfield, however, there is an additional wrinkle, because Haiti is one of 16 countries that, by order of the Secretary of the Department of Homeland Security, have been designated for Temporary Protected Status, or TPS. What is TPS?

TPS is a legal status, created by the Immigration Act of 1990, that prevents the repatriation of aliens back to countries in which such repatriation would be, in the judgement of the Attorney General (now the Secretary of DHS), temporarily unsafe due to armed conflict, a natural disaster, or other “temporary and extraordinary conditions”. So, for example, imagine a Salvadoran going to a US university on a student visa, and just before his visa expires, an earthquake rocks El Salvador creating a massive humanitarian crisis. Rather than requiring the student to return to El Salvador in the midst of this humanitarian crisis, as his expired visa would require, the DHS can designate El Salvador for TPS, which then allows it to grant Temporary Protected Status to any Salvadoran foreign national currently residing in the US. This in turn allows those foreign nationals to legally, albeit temporarily, remain in the US until the extraordinary conditions clause, even if they have no other legal status. Anyone granted TPS is not subject to detention, and therefore strictly speaking is in the US legally, even if they were here illegally originally.

But the key word there is “remain”. TPS can only be granted to aliens that already reside in the US. TPS was not designed to rescue foreign nationals from war or natural disasters in their own countries. That is what refugee status is for. It was created to protect foreign nationals from being forced to return to a temporarily existing emergency situation.

Haiti was designated for TPS on May 22, 2021 by DHS Secretary Mayorkas. (It had previously had TPS status due to an earthquake in 2010, but President Trump had allowed that to expire in 2019). Now, whether or not this was a legitimate exercise of Mayorkas’s authority is highly questionable in the first place. After all, there was no war going on there and there had been no natural disaster. Mayorkas claimed authority under the uselessly vague “temporary and extraordinary conditions” clause, on the grounds that:

Haiti is currently experiencing serious security concerns, social unrest, an increase in human rights abuses, crippling poverty, and lack of basic resources, which are exacerbated by the COVID-19 pandemic

Of course, such problems are neither extraordinary nor temporary for many nations in the world, Haiti included. They are endemic. But nevertheless, the designation was made.

Still, that meant that only Haitians who were already in the US as of May, 2021 could be granted legal status via TPS. And according to local reporting in Springfield, Ohio, the Haitian population arrived there in roughly two waves between 2022 and 2023. So, if that is true, that would suggest that they could not actually have legal status under TPS, as Brennan claimed in her debate “fact-check”. Right?

Well, not quite.

As the name implies, a TPS designation for any given country is supposed to be temporary, and so it must expire after a maximum of 18 months. However, the Secretary has the authority to “re-designate” after expiration, turning this “temporary” status into an indefinite status at the whim of a motivated DHS Secretary. And Mayorkas is nothing if not motivated. He has re-designated Haiti for TPS twice now, once in December of 2022 after the original expiration, and again in June of 2024 after that one expired. So basically the “extraordinary and temporary” conditions that prompted the original designation will have existed for over 4 years by the time this latest one expires. So much for “extraordinary and temporary.”

And every time Mayorkas re-designates Haiti for TPS, not only is TPS extended for all of the Haitians who originally got the status in 2021, but he also gives access to TPS to all the new illegal Haitians who have arrived and been paroled into the country since then. Every time he re-designates, Mayorkas is unilaterally granting a “legal” status to a new wave of illegal Haitian immigrants, entirely outside the normal immigration process.

But here is the real kicker. Mayorkas has also designated Haiti to be one of four countries, along with Cuba, Venezuela, and Nicaragua, the nationals of which are eligible for what is called Advanced Travel Authorization (ATA), which is a new program created by the Biden/Harrris administration, and is essentially a formal invitation for certain people with no legal authority to be in the US to come anyway. ATA allows them to apply - via a simple phone app called CBP One - for “humanitarian parole”, which is usually granted to undocumented arrivals while they await for the removal/asylum process to play out, but under ATA allows them to do so from within their own country without having to travel to a port of entry or trying to cross the border illegally first. Yes, the US government is literally accepting and approving applications to enter the country illegally.

Once granted, they can actually fly on an airline into the middle of the country and will be allowed in. However, unlike most illegals, their parole is not granted pending the outcome of an asylum hearing. They don’t even need to apply for asylum. Their parole is granted for a fixed term of 24 months, which is, conveniently, just longer than the 18 month limit on TPS designations, so that anyone granted this parole will always be eligible for the next wave of TPS grants upon re-designation, before their parole expires.

Thus does Mayorkas unilaterally both allow Haitians into the country illegally via parole, and then “legalize” them via TPS once they are here. If such a process looks a little shady, it should. It is basically what a money laundering operation does, giving illegally obtained money the appearance of having been obtained legally. The ATA-to-TPS treadmill is little more than illegal-immigrant laundering.

And this process is not unique to Haiti. The current TPS list includes 16 nations. For perspective, under Trump there were 10 nations on the list, all of which had been designated prior to Trump becoming president. Trump eventually allowed 6 of them to expire. The Biden/Harris administration re-designated all 6 of those, and then added 6 more, one of which was Venezuela, which has also been given ATA status. And with ATA authorized to grant pre-approved parole to up to 30,000 undocumented immigrants per month, or 360,000 per year, you can guess which nation now tops the list of persons with approved TPS status, with 344,335 at last count. Haiti is second with 200,005.

Third on the list is El Salvador, which is in fact an object lesson in how TPS can be gamed by the open borders crowd. In 2001, Salvadorans (both legal and illegal) residing inside the US were granted TPS following two earthquakes in El Salvador. That status was repeatedly re-authorized, 11 separate times, by both President Bush and President Obama over the ensuing 15 years. In 2018, President Trump moved to honor the “temporary” label by finally terminating El Salvador’s designation. But a lawsuit was brought against the Trump admin arguing that, although previous presidents had unchallengeable authority to designate a country for TPS, he did not have that same authority to revoke it. Despite the fact that the law authorizing TPS explicitly says that the determination of whether to either grant or terminate TPS is not judicially reviewable, the Ninth Circuit claimed authority to review it anyway, and issued a preliminary injunction against the Trump administration’s termination, pending that plainly unlawful judicial review. The glacial pace of the justice system is such that before the legal process could be fully played out, the Biden administration had taken office and rescinded Trump’s termination of the status, and has extended it now into 2025.

Thus, an ostensibly “temporary” status for Salvadorans has now existed for nearly 25 years, and any future effort to ever terminate it will be met with even more heart-wrenching stories about how cruel it would for people who have “built a life” over decades inside the US, and who have “worked hard” and “paid our taxes”, to be forced out of the nation that they have “made their home” and in which they have raised families. And there is truth to those claims. Such stories would generate sympathy for such people from any person with a reasonable amount of empathy. The government as created its own moral conundrum by allowing and even encouraging people to use a temporary reprieve as a means of establishing roots in a place they have no right to be. Which is precisely why the Salvadoran situation should be viewed as a cautionary tale, a warning of exactly how not to administer a humanitarian program that is, both in letter and in spirit, supposed to be “temporary”.

Instead, the Biden/Harris administration, and the Democrats more broadly, seem to view it as an ideal model. Prior to 2020, Salvadorans were the only TPS-protected population that numbered more than 100,000, and they made up over half of all those with TPS. In fact, only 4 populations numbered more than even 10,000, and the total number of people with TPS was less than 450,000. Now, after expanding the number of countries designated for TPS, and after introducing ATA for 3 of them, the number of individuals the program is protecting has almost doubled, with both Haitians and Venezuelans now outnumbering even Salvadorans, and making up over half of the over 860,000 persons granted TPS.

And Biden/Harris have even introduced a new innovation in order to increase the numbers even higher. Note that, under previous administrations, the required arrival date for persons eligible for TPS remained fixed at the original designation date, even after multiple re-designations. Thus, for example, the only Salvadorans eligible for TPS, even as late as the Obama and Trump administrations, were those that had arrived in the US prior to February 2001. So the number of those eligible for TPS from any given country would never grow to more than were in the US on the original designation date. Newly arrived illegals were not eligible for TPS, even if the designation of that country was extended time and time again.

Under Biden/Harris, however, the required arrival date for nationals from most of the designated countries, including both Haiti and Venezuela, is routinely adjusted every time the country is re-designated. Which means the population of TPS-eligible people from those nations simply grows and grows and grows. Haiti was originally designated by the Biden/Harris admin in 2021, but after multiple re-designations, the required arrival date for eligible Haitians was just reset again to June 2024. For Venezuelans, it is July 2023, even though Venezuela was originally designated two years earlier in 2021, again following a re-designation. Under a newly elected Harris administration, the required arrival date would almost certainly be extended again in 2025 when the current designation expires.

So, back to the question that sent me down this immigration rabbit hole in the first place: Is Margaret Brennan’s claim that the Haitian immigrants in Springfield are in the country legally actually true? Like so much else in modern day journalism, it turns out that the claim is, at the same time, both technically true and yet completely dishonest. Yes, they have been granted temporary “legal” status, but not in the sense that most people would understand it. They have not been through the immigration process and granted a visa, either permanent or visitors, nor have they been granted asylum or refugee status. In fact, the “temporary” yet somehow permanently renewable status that they do enjoy is available to them precisely and only because they had already entered the country without having any legal basis to be here, in many cases at the very invitation of the administration whose job it is to prevent them such access.

What exactly is motivating the Democrats to do this is a matter of speculation. Make of that what you will, but understand what is really happening here. The Biden administration is engaging in the immigration equivalent of money laundering. Through its Advanced Travel Authorization program it is deliberately importing illegal immigrants from Haiti and Venezuela into the country, and then laundering them en masse into “legal” status via a vaguely defined, unilateral discretionary power that is supposed to be reserved - on an individual, case by case basis - for extraordinary circumstances. And you can take it to the bank that under another Democratic administration, this abuse of power will not just continue, but will be expanded, until such time as it can then be argued that it would be morally unconscionable to deport people who have spent a decade or so building a life in the US.

Vote accordingly.