On Wednesday, President Biden issued a memorandum to the Secretary of Homeland Security, directing him to halt the deportation of Palestinians currently in the U.S. for a period of 18 months. He also authorized the Department of Homeland Security (DHS) to grant these aliens work permits. Approximately 6,000 Palestinians in the U.S. will be allowed to stay in the U.S. under President Biden’s order.
The basis for the President’s order was a legally dubious authority, called Deferred Enforced Departure (DED). DED is a concept, developed over the course of decades, that allows the President to offer blanket protection from deportation, work authorization, and even permission to travel internationally, to any population of aliens for any period of time. It is not authorized by statute and, indeed, its use has never been upheld by the Supreme Court. Nevertheless, various administrations have justified its authority to grant DED under the President’s power to conduct foreign affairs and the Secretary’s broad powers of prosecutorial discretion. In practice, DED functions much like Temporary Protected Status, except that there are no statutory limits on its application because it has never been authorized by Congress.
Two other populations, Liberians and Hong Kong residents, are also currently protected by DED.
Liberia was first granted Temporary Protected Status in 1991 due to ongoing armed conflict. Presidents George H.W. Bush and William Clinton extended TPS several times until, in 1999, then-Attorney General Janet Reno (who oversaw the Immigration and Naturalization Service) ended TPS for Liberians. After that decision to terminate, President Clinton authorized DED for the population, citing the “fragile political and economic situation” in the country. Then, in 2002, then-Attorney General Ashcroft granted TPS for Liberia, until it was terminated by Secretary Chertoff (who served under the George W. Bush administration). Upon that decision by Chertoff to terminate in 2007, President Bush granted DED to Liberian nationals to those who had originally received TPS in 1991. President Obama then extended DED, and eventually President Trump issued a memorandum to terminate it in March 2020. On inauguration day—30 years after the original designation – President Biden reversed the Trump order and reinstated DED for Liberians, and then extended it in 2022.
President Biden also granted DED to Hong Kong residents in August 2021, citing his “constitutional authority to conduct the foreign relations of the United States.” In his memorandum, Biden stated, “By unilaterally imposing on Hong Kong the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL), the PRC has undermined the enjoyment of rights and freedoms in Hong Kong.” On January 26 of this year, Biden extended the protection through 2025.
Aside from the lack of statutory authority, the use of DED is particularly controversial because most aliens seeking protection will only do so because they are, in fact, deportable. That means that they are in the U.S. illegally or they are legal aliens who have committed crimes that will trigger deportation proceedings. There may be some legal aliens, such as tourists or students, whose visas will expire and will be eligible for DED. However, those are likely to be a small portion of the total population.
The President’s order for Palestinians contains several exceptions that seek to address some of these concerns, but these exceptions are of limited practical use. For example, the memo bars aliens who have been convicted in the United States of any felony or two or more misdemeanors from obtaining DED. However, that will not include aliens who are charged with felonies, have pled down a felony charge, or aliens who have a conviction for a serious misdemeanor. The memo also bars eligibility for aliens who are inadmissible or deportable on national security grounds. This exception, however, presumes that the federal government will actually be able to identify the alien and any terrorist ties. Who will the federal government call to confirm or probe relevant information? The Palestinian Authority? Hamas?
Finally, the memo also gives the Secretary of Homeland Security broad discretion to exempt aliens whose presence in the U.S. “is not in the interest of the U.S. or presents a danger to public safety.” This exception similarly presumes the federal government will have sufficient information to identify an alien and uncover his criminal record in Gaza or anywhere else. It also relies on Secretary Mayorkas to use his discretion wisely.
The same day the President issued the memorandum, U.S. Citizenship and Immigration Services (USCIS) posted an alert on its website, stating it will soon issue a Federal Register notice to provide additional information regarding eligibility and the application process.
