[Federal Register Volume 90, Number 21 (Monday, February 3, 2025)]
[Notices]
[Pages 8805-8807]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-02183]
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DEPARTMENT OF HOMELAND SECURITY
U.S. Citizenship and Immigration Services
[CIS No. 2803-25]
Vacatur of 2025 Temporary Protected Status Decision for Venezuela
AGENCY: U.S. Citizenship and Immigration Services (USCIS), Department
of Homeland Security (DHS).
[[Page 8806]]
ACTION: Notice of Temporary Protected Status (TPS) vacatur.
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SUMMARY: Through this notice, the Department of Homeland Security (DHS)
announces that the Secretary of Homeland Security (Secretary) has
decided to vacate the January 10, 2025, decision of former Secretary of
Homeland Security Alejandro Mayorkas regarding TPS for Venezuela.
Former Secretary Mayorkas extended the 2023 designation of Venezuela
for TPS for 18 months, allowed a consolidation of filing processes such
that all eligible Venezuela TPS beneficiaries (whether under the 2021
or 2023 designations) may obtain TPS through the same extension date of
October 2, 2026, and extended certain Employment Authorization
Documents (EADs). All of this also had the effect of extending the 2021
designation. This notice vacates Mayorkas' notice immediately.
DATES: The vacatur is effective immediately.
FOR FURTHER INFORMATION CONTACT: Samantha Deshommes, Chief, Regulatory
Coordination Division, Office of Policy and Strategy, U.S. Citizenship
and Immigration Services, Department of Homeland Security, 800-375-
5283.
SUPPLEMENTARY INFORMATION:
I. Temporary Protected Status (TPS) Generally
The Immigration and Nationality Act (INA) authorizes the Secretary,
after consultation with appropriate U.S. Government agencies, to
designate a foreign state (or part thereof) for TPS if the Secretary
determines that certain country conditions exist. INA 244(b)(1), 8
U.S.C. 1254a(b)(1).\1\ The determination whether to designate any
foreign state (or part thereof) for TPS is discretionary, and there is
no judicial review of ``any determination of the [Secretary] with
respect to the designation, or termination or extension of a
designation, of a foreign state'' for TPS. INA 244(b)(5)(A), 8 U.S.C.
1254a(b)(5)(A). The Secretary, in the Secretary's discretion, may then
grant TPS to eligible nationals of that foreign state (or individual
aliens having no nationality who last habitually resided in the
designated foreign state). See INA 244(a)(1)(A), 8 U.S.C.
1254a(a)(1)(A).
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\1\ Although section 244(b)(1) of the INA continues to refer to
the Attorney General, this authority now resides with the Secretary
of Homeland Security by operation of the Homeland Security Act of
2002, Public Law 107-296, 116 Stat. 2135, as amended. See, e.g., 6
U.S.C. 557; 8 U.S.C. 1103(a)(1). The Secretary may designate a
country (or part of a country) for TPS on the basis of (1) an
ongoing armed conflict such that returning would pose a serious
threat to the personal safety of the country's nationals, (2) an
environmental disaster (including an epidemic), or (3) extraordinary
and temporary conditions in the country that prevent the safe return
of the country's nationals. For environmental disaster-based
designations, certain other statutory requirements must be met,
including that the foreign government must officially request a TPS
designation. A designation based on extraordinary and temporary
conditions cannot be made if the Secretary finds that allowing the
country's nationals to remain temporarily in the United States is
contrary to the U.S. national interest. INA sec. 244(b)(1), 8 U.S.C.
1254a(b)(1).
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At least 60 days before the expiration of a foreign state's TPS
designation or extension, the Secretary, after consultation with
appropriate U.S. Government agencies, must review the conditions in the
foreign state designated for TPS to determine whether they continue to
meet the conditions for the TPS designation. See INA 244(b)(3)(A), 8
U.S.C. 1254a(b)(3)(A). If the Secretary determines that the conditions
in the foreign state continue to meet the conditions for TPS
designation, the designation will be extended for an additional period
of 6 months or, in the Secretary's discretion, 12 or 18 months. See INA
244(b)(3)(A), (C), 8 U.S.C. 1254a(b)(3)(A), (C). If the Secretary
determines that the foreign state no longer meets the conditions for
TPS designation, the Secretary must terminate the designation. See INA
244(b)(3)(B), 8 U.S.C. 1254a(b)(3)(B).
II. Background
On March 9, 2021, Secretary Mayorkas designated Venezuela for TPS
on the basis of extraordinary and temporary conditions in Venezuela
that prevented nationals of Venezuela from returning in safety (2021
designation). See Designation of Venezuela for Temporary Protected
Status and Implementation of Employment Authorization for Venezuelans
Covered by Deferred Enforced Departure, 86 FR 13574 (Mar. 9, 2021).
On September 8, 2022, DHS extended the Venezuela 2021 TPS
designation for 18 months. See Extension of the Designation of
Venezuela for Temporary Protected Status, 87 FR 55024 (Sept. 8, 2022).
On October 3, 2023, DHS extended the Venezuela 2021 TPS designation for
another 18 months with an expiration date of September 10, 2025, and
separately newly designated Venezuela, which then Secretary Mayorkas
called a ``redesignation,'' for 18 months (the Venezuela 2023
designation) with an expiration of April 2, 2025, resulting in two
separate and concurrent Venezuela TPS designations. See Extension and
Redesignation of Venezuela for Temporary Protected Status, 88 FR 68130
(Oct. 3, 2023).
The Venezuela 2023 TPS designation expires on April 2, 2025, and
the Secretary must make a decision by February 1, 2025. The Venezuela
2021 TPS designation expires on September 10, 2025, and the Secretary
must make a decision by July 12, 2025. Notwithstanding the fact that
these are both decisions that would lie with new Secretary of Homeland
Security Kristi Noem, Secretary Mayorkas took action with respect to
both designations.
On January 17, 2025, Secretary Mayorkas issued a notice extending
the 2023 designation of Venezuela for TPS for 18 months (Mayorkas
Notice). The notice was based on Secretary Mayorkas' January 10, 2025,
determination that the conditions for the designation continued to be
met. See INA 244(b)(3)(A), 8 U.S.C. 1254a(b)(3)(A). In the Mayorkas
Notice, Secretary Mayorkas did not expressly extend or terminate the
2021 designation. Instead, the notice allowed for a consolidation of
filing processes such that all eligible Venezuela TPS beneficiaries
(whether under the 2021 or 2023 designations) could obtain TPS through
the same extension date of October 2, 2026. See Extension of the 2023
Designation of Venezuela for Temporary Protected Status, 90 FR 5961
(Jan. 17, 2025). The notice also extended certain EADs. The effect of
Secretary Mayorkas' actions, however, resulted in an extension of the
2021 Venezuela TPS designation.
III. Vacatur of the 2025 Decision
The Secretary of Homeland Security is vacating the January 10, 2025
decision of Secretary Mayorkas which (1) extended the 2023 Venezuela
TPS designation and (2) allowed the consolidation of filing processes
for both designations, which had the effect of extending the 2021
Venezuela TPS designation, and (3) extended certain EADs. An agency has
inherent (that is, statutorily implicit) authority to revisit its prior
decisions unless Congress has expressly limited that authority. The TPS
statute does not limit the Secretary's inherent authority under the INA
to reconsider any TPS-related determination, and upon reconsideration,
to vacate or amend the determination.\2\
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\2\ See INA 103(a), 244(b)(3), (b)(5)(A); 8 U.S.C. 1103(a),
1254a(b)(3), (b)(5)(A); Reconsideration and Rescission of
Termination of the Designation of El Salvador for Temporary
Protected Status; Extension of the Temporary Protected Status
Designation for El Salvador, 88 FR 40282, 40285 (June 21, 2023)
(``An agency has inherent (that is, statutorily implicit) authority
to revisit its prior decisions unless Congress has expressly limited
that authority. The TPS statute does not limit the Secretary's
inherent authority to reconsider any TPS-related determination, and
upon reconsideration, to change the determination.''); see also,
e.g., Ivy Sports Medicine, LLC v. Burwell, 767 F.3d 81, 86 (D.C.
Cir. 2014) (Kavanaugh, J.) (``[A]dministrative agencies are assumed
to possess at least some inherent authority to revisit their prior
decisions, at least if done in a timely fashion. . . . ``[I]nherent
authority for timely administrative reconsideration is premised on
the notion that the power to reconsider is inherent in the power to
decide.'' (quotation marks and citations omitted)); Macktal v. Chao,
286 F.3d 822, 825-26 (5th Cir. 2002) (``It is generally accepted
that in the absence of a specific statutory limitation, an
administrative agency has the inherent authority to reconsider its
decisions.'') (collecting cases); Mazaleski v. Treusdell, 562 F.2d
701, 720 (D.C. Cir. 1977) (``We have many times held that an agency
has the inherent power to reconsider and change a decision if it
does so within a reasonable period of time.''); cf. Last Best Beef,
LLC v. Dudas, 506 F.3d 333, 340 (4th Cir. 2007) (agencies possess
especially ``broad authority to correct their prior errors'').
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[[Page 8807]]
A. Reason for the Vacatur
The Mayorkas Notice adopted a novel approach of implicitly negating
the 2021 Venezuela TPS designation by effectively subsuming it within
the 2023 Venezuela TPS designation. As described above, Secretary
Mayorkas explicitly made a determination to extend the 2023
designation. While he did not make an explicit determination to extend
the 2021 designation, he did allow consolidated filing processes for
both the 2021 and 2023 designations, which in effect extended the 2021
designation by up to 13 months. Furthermore, he allowed extensions for
certain EADs.
The Mayorkas Notice states that Existing TPS beneficiaries,
including those registered under the October 3, 2023 TPS designation or
the prior March 9, 2021 TPS designation, who wish to extend their
status through October 2, 2026, must re-register during the re-
registration period described in the January 2025 decision. This, and
other language in the Mayorkas Notice, indicate that the practical
effect of Secretary Mayorkas' decision was to combine both designations
and to provide an extension until October 2, 2026, for the population
of both designations.
The Mayorkas Notice did not acknowledge the novelty of its approach
or explain how it is consistent with the TPS statute. See INA
244(b)(2)(B), 8 U.S.C. 1254a(b)(2)(B) (providing that a TPS country
designation ``shall remain in effect until the effective date of the
termination of the designation under [INA 244(b)(3)(B), 8 U.S.C.
1254a(b)(3)(B)]''). This novel approach has included multiple notices,
overlapping populations, overlapping dates, and sometimes multiple
actions happening in a single document. While the Mayorkas Notice may
have made attempts to address these overlapping populations, the
explanations in the Mayorkas Notice, particularly the explanation for
operational impacts, are thin and inadequately developed. Given these
deficiencies and lack of clarity, vacatur is warranted to untangle the
confusion, and provide an opportunity for informed determinations
regarding the TPS designations and clear guidance.\3\
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\3\ See Exec. Order, Protecting the American People Against
Invasion, sec. 16(b) (Jan. 20, 2025), available at https://www.whitehouse.gov/presidential-actions/2025/01/protecting-the-american-people-against-invasion/.
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Given the exceedingly brief period in which the January 17, 2025
extension notice has been in effect and the fact that the effect of
this vacatur will restore the status quo preceding that notice, any
putative reliance interests on the extension notice are negligible.
Venezuela 2023 registrants will retain their temporary protected status
under the pre-existing designation at least until April 2, 2025. With
respect to any Venezuela 2021 registrants who elected, pursuant to the
Mayorkas Notice, to register under the Venezuela 2023 designation,
USCIS will restore their Venezuela 2021 registration. And, in any
event, any putative reliance interests arguably engendered by the
Mayorkas Notice are outweighed by the overriding interests and concerns
articulated in this notice.
B. Effect of the Vacatur
As a result of the vacatur, the 2021 Venezuela TPS designation and
the 2023 Venezuela designation remain in effect and their associated
statutory deadlines remain in effect. The statutory deadline \4\ for
each of those designations is as follows: The Secretary (1) must
determine, by February 1, 2025, whether to extend or terminate the 2023
Venezuela TPS designation and (2) must determine, by July 12, 2025,
whether to extend or terminate the 2021 Venezuela TPS designation.
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\4\ If there is an existing TPS designation for a foreign state,
the Secretary must review country conditions in consultation with
appropriate U.S. Government agencies and make a determination--at
least 60 days before the designation is set to expire--whether to
extend or terminate that country's TPS designation (i.e., whether
the conditions for the designation continue to be met). INA
244(b)(3), 8 U.S.C. 1254a(b)(3).
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If the Secretary does not make a timely determination (for example,
if the Secretary were not to make determination by February 1, 2025
whether to extend or terminate the 2023 Venezuela TPS designation),
then the statute provides for an automatic extension of the designation
for an additional period of 6 months. INA 244(b)(3)(C), 8 U.S.C.
1254a(b)(3)(C).
Pursuant to this vacatur, USCIS will no longer accept Venezuela TPS
re-registration applications (Form I-821) and associated Applications
for Employment Authorization (Form I-765) filed under the Mayorkas
Notice. For TPS beneficiaries who have already filed applications to
re-register for TPS pursuant to the Mayorkas Notice and paid any fees
associated with their applications, USCIS will cease processing their
applications, and issue refunds of any fees paid by those aliens.\5\
Additionally, USCIS will invalidate EADs; Forms I-797, Notice of Action
(Approval Notice); and Forms I-94, Arrival/Departure Record
(collectively known as TPS-related documentation) that have been issued
with October 2, 2026 expiration dates under the Mayorkas Notice. USCIS
will provide refunds to any fees paid by these aliens as well.
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\5\ As noted above, any Venezuela 2021 registrants who elected,
pursuant to the Mayorkas Notice, to register under the Venezuela
2023 designation will have their Venezuela 2021 registration
restored.
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Additionally, pursuant to this vacatur the automatic EAD extensions
provided in the Mayorkas Notice are hereby rescinded. USCIS will
provide additional guidance regarding the two Venezuela TPS
designations on a future date in accordance with applicable laws.
IV. Notice of Vacatur of Secretary Mayorkas' 2025 Decision
By the authority vested in me as Secretary under section 244 of the
Immigration and Nationality Act, 8 U.S.C. 1254a, I am vacating the
decisions announced in the January 17, 2025 notice titled Extension of
the 2023 Designation of Venezuela for TPS. In doing so, I am vacating
the (1) extension of the Venezuela 2023 TPS designation, (2) the
consolidation of filing processes for both designations, which, in
effect, resulted in the extension of the 2021 TPS designation, and (3)
the EADs that were extended. As a result, the Venezuela 2023 TPS
designation and the Venezuela 2021 TPS designation remain in effect and
their associated statutory deadlines remain in effect.
Kristi Noem,
Secretary, U.S. Department of Homeland Security.
[FR Doc. 2025-02183 Filed 1-30-25; 11:15 am]
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