Why Did DHS Designate Lebanon for TPS When It Is Already Covered by DED?

On October 17, 2024, the U.S. Department of Homeland Security (DHS) announced a new Temporary Protected Status (TPS) designation for Lebanon because of Israel’s military response in Southern Lebanon to attacks from Hezbollah. The TPS designation follows President Biden’s July 2024 decision to grant Deferred Enforced Departure (DED) to Lebanese nationals for nearly the same reason.

TPS protects aliens from removal if they entered the United States prior to a country’s TPS designation and provides beneficiaries work authorization. Congress limited TPS designation periods to no longer than 18 months, providing the DHS secretary options to extend or terminate given specific conditions.

Federal law only permits the secretary of Homeland Security (in consultation with the secretary of State) to designate a country for TPS (or extend a designation) if the secretary of Homeland Security determines that a country is experiencing at least one of the following, limited circumstances:

1. An ongoing armed conflict within the country such that requiring the return of nationals to that country would pose a serious threat to their personal safety;
2. A natural or environment disaster resulting in a substantial, but temporary, disruption of living conditions and the foreign state is temporarily unable to adequately handle the return of their nationals; or
3. “Extraordinary and temporary” conditions in the foreign state that prevent nationals of the state from returning safely (unless the secretary determines that permitting such aliens to remain temporarily in the United States is contrary to the national interest of the United States).¹

In this instance, DHS Secretary Mayorkas designated Lebanon because he believes conditions in Lebanon satisfy both the first (“an going armed conflict”) and third (“extraordinary and temporary conditions”) eligibility criteria. Even here, despite the existence of an armed conflict between Israel and Hezbollah, it is questionable as to whether the second prong of either criterion, that “requiring the return of nationals to that country would pose a serious threat to their personal safety”, is satisfied by conditions in Lebanon. That is because large regions of the country are currently free from conflict. Regardless, only Secretary Mayorkas has the authority to make that determination and, under federal law, any decision to designate, extend, or terminate TPS is precluded from judicial review.²

Secretary Mayorkas’s decision to designate Lebanon for TPS brings up another question: Why now, when President Biden has already designated the country for DED? No other country is both designated for TPS and covered by DED.

Like TPS, aliens who are covered by DED are protected from removal from the United States and may apply for work authorization from U.S. Citizenship and Immigration Services (USCIS). However, unlike TPS or other executive actions that shield removable aliens from immigration enforcement, DED is not predicated upon DHS’s exercise of prosecutorial discretion. Rather, DED was created as an offshoot of the president’s foreign affairs powers under Article II of the U.S. Constitution.

DED provides the executive branch more flexibility than TPS. Because DED is derived solely from the president’s foreign affairs powers and has no statutory basis, there are no procedural requirements or legal thresholds that must be met for the president to issue, renew, or extend the protection. Accordingly, the president can continue to issue and extend DED with or without any articulation of the specific foreign policy interests that are served through its continued use.

So long as the president believes that granting protection from removal and work authorization is in the foreign affairs interests of the United States, the argument goes, the president can create this extra-statutory immigration program. The president can do this regardless of whether such a program stands in direct conflict with federal immigration statutes.

Moreover, designating additional countries for TPS does not come without its costs to the federal government. Because USCIS must adjudicate TPS applications and correlated work authorization applications for each beneficiary every 18 months, the portfolio adds significantly to the agency’s already strained workload.

In 2023, the USCIS Ombudsman (a Biden-Harris administration political appointee) emphasized in their annual report to Congress that “Processing work authorization for these populations in itself is a never-ending task for the agency.” The USCIS Ombudsman explained that this growing population means “that the agency carries a larger and more complex workload with each new designation or extension”. Indeed, USCIS has experienced severe financial challenges since FY 2020, resulting in historic processing times for many of the immigration benefits it administers and its political leadership asking for taxpayer funding, despite having a business model that is meant to be entirely funded by application fees.

So again, why grant TPS to a country that already has DED? There are a few potential reasons, all linked to the presidential election:

The first important reason is that, as we learned during the Trump administration, TPS benefits are much harder to terminate by an incoming administration than benefits granted under DED. Because DED is entirely based on presidential discretion, little can be done in the courts or by Congress to reverse a DED termination. The Biden-Harris administration has time and time again shown voters that increasing the number of aliens in the United States with work authorization is a major policy priority. This furthers that end in the long term.

Second, designating Lebanon for TPS allows the Biden-Harris administration to provide work authorization and protection from removal to even more Lebanese nationals who are removable or who have traveled back to Lebanon since President Biden extended DED to Lebanon in July. To be eligible for DED under President Biden’s July order, a Lebanese national must have continuously resided in the United States since the date of the order (July 26, 2024) and not voluntarily returned to Lebanon after the date of the order. Now, any Lebanese national who entered in the intervening three months, by October 16, 2024, (and is otherwise eligible) can also remain in the United States and can be granted work authorization.

But perhaps the strongest reason is the upcoming presidential election. Many of the largest Lebanese communities are in important battleground states.

Michigan, most notably, has the largest population of Lebanese Americans (approximately 70,000). There, Trump and Harris are polling neck to neck, with a poll collected by FiveThirtyEight showing 48 percent going for Trump and 48 percent going for Harris. Any additional votes for Harris could make all the difference. Pennsylvania is another important swing state with a large Lebanese community and incredibly close polling, with Trump leading Harris by just 0.3 percent.

Moreover, Harris needs to make significant gains against Trump in Florida and Ohio. Florida has the third-largest Lebanese American population, and Ohio the seventh, in the United States. Trump is leading Harris by 5.7 percent in Florida and leading by 8.5 percent in Ohio.

Of course, Lebanese voters are not the only voters the Harris campaign might think it can attract with these kinds of policies. This strategy is also another step to pacify far-left and progressive Democrats, including many non-Lebanese Arab Americans, who oppose Vice President Harris’s positions on the Israel-Hamas war and oppose Israel’s airstrikes in Lebanon. Many of these Arab Americans live in larger numbers in these states and have protested the current administration’s stances on the war.

Finally, because TPS designations are not reviewable by the courts, there is no effective way to challenge a secretary’s determination that the return of Lebanese nationals to their home country poses a serious threat to their safety. Obtaining standing in court (or the ability to bring a lawsuit) challenging the grant of immigration benefits is significantly more difficult than obtaining standing to challenge a decision to rescind benefits, even without the existence of a statute prohibiting judicial review. With such unreviewable discretion, if you were Secretary Mayorkas, why would you not designate Lebanon for TPS?

End Notes

¹ It is clear that Congress designed TPS to be a temporary benefit, to be terminated when the conditions that inspired the TPS designation improve. TPS was never meant to provide a long-term or permanent immigration status for aliens living in the United States illegally. Numerous administrations, however, have caved to political pressure to extend TPS for nationals of these countries despite the statute’s clear directives.

Many of countries with TPS, for example, were designated decades ago. Some were premised on years-old or decades-old storms, such as 24-year-old Hurricane Mitch, which has protected nationals from Honduras and Nicaragua from deportation since 1998, despite no longer posing disruptions in these countries. Today, 17 countries hold current TPS designations, and over 800,000 people hold TPS benefits in the United States.

² Of course, this did not stop a federal court in the U.S. District Court for the Northern District of California from intervening in former Secretary of Homeland Security Nielsen’s determinations that TPS for El Salvador, Haiti, Honduras, Nepal, and Nicaragua were no longer permissible under INA § 244, in two cases: Ramos, et al. v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) and Bhattarai, et al. v. Nielsen, et al., No. 19-cv-00731 (N.D. Cal. March 12, 2019).