President Biden issued an order final week to Secretary of the U.S. Division of Homeland Safety (DHS) Alenjandro Mayorkas to direct him to grant deferred enforced departure (DED) to sure Palestinian nationals who’re at the moment in the USA. Aliens who’ve been granted DED are shielded from elimination from the USA whereas their DED is lively and should obtain work authorization from U.S. Citizenship and Immigration Companies (USCIS).

President Biden indicated that he licensed DED to handle the deteriorating humanitarian circumstances within the Palestinian territories, primarily in Gaza, following Hamas’s October 7, 2023, assault on Israel and Israel’s ensuing navy response. DED gives comparable advantages to aliens who’re detachable from the USA as deferred motion or Short-term Protected Standing (TPS). Nevertheless, not like most government actions that protect aliens in the USA illegally from immigration enforcement, DED just isn’t predicated upon DHS’s train of prosecutorial discretion. Relatively, DED was created as an offshoot of the president’s international affairs powers below Article II of the U.S. Structure.

As long as the president believes that granting safety from elimination and work authorization is within the international affairs pursuits of the USA, the argument goes, the president is ready to create this extra-statutory immigration program.

As a result of DED is derived solely from the president’s international affairs powers and has no statutory foundation, nonetheless, there are not any procedural necessities or authorized thresholds that should be met to ensure that the president to problem, renew, or prolong the safety. Accordingly, the president can proceed to problem and prolong DED with or with none articulation of the particular international coverage pursuits which might be served by way of its continued use.

As long as the president believes that granting safety from elimination and work authorization is within the international affairs pursuits of the USA, the argument goes, the president is ready to create this extra-statutory immigration program. The president can do that no matter whether or not such program stands in direct battle with federal immigration legislation provisions.

Presidents have issued DED regardless of that undeniable fact that the Structure offers Congress, not the chief department, plenary energy over immigration. Presently, DED can be licensed for sure nationals of Liberia and Hong Kong.

Other than its doubtful authorized foundation, DED is especially controversial as a result of the vast majority of its beneficiaries are both detachable from the nation (both as a result of they entered illegally, overstayed a visa, or violated the necessities of their standing and develop into topic to elimination below present immigration legal guidelines) or had been by no means admitted to the USA with authorization to work in the USA to start with.

Whereas a minority of DED beneficiaries might at the moment have a lawful immigration standing, Congress has already created quite a few applications to supply humanitarian safety to aliens who can’t safely return to their dwelling international locations, together with, however not restricted to, asylum, TPS, and withholding of elimination. DED has primarily been used to go across the limitations set by Congress, whose members are extra accountable to the desire of the American individuals and the political course of.

Moreover, like each TPS and deferred motion, presidential orders granting DED are bought to the general public as “short-term” safety measures, however are sometimes prolonged for many years. Nationals of Liberia, as an example, have been eligible for both TPS or DED since 1991. Initially, Liberia was designated for TPS in 1991 due to an ongoing armed battle — however when circumstances in Liberia improved such that extending TPS for these nationals was not permissible below the legislation, President George W. Bush ordered DED for Liberians who benefited from the unique TPS designations. DED had been constantly prolonged by way of March 2020, below the Trump administration. President Biden, nonetheless, reversed President Trump’s determination to wind-down DED safety and renewed DED for Liberians upon taking workplace.

Not all Palestinians who’re bodily current in the USA will probably be eligible for DED below President Biden’s February 14 memorandum. President Biden restricted eligibility from those that:

1. Have both voluntarily returned to the Palestinian territories after the date of the memorandum or don’t constantly reside in the USA following the date of President Biden’s memorandum;
2. Are inadmissible or deportable below the Immigration and Nationality Act (INA) on safety or illegal exercise associated grounds or those that have been convicted of any felony or two or extra misdemeanors dedicated in the USA, or can be barred from receiving asylum (no matter whether or not they apply for asylum) below part 208(b)(2)(A) of the INA;
3. Are topic to extradition; or
4. Whose presence in the USA the secretary of Homeland Safety has decided just isn’t within the curiosity of the USA or presents a hazard to public security or the secretary of State has affordable grounds to imagine would have probably severe adversarial international coverage penalties for the USA.

Whereas these grounds are meant to alleviate safety issues surrounding the creation of this system, finally, People must depend on DHS’s capacity to establish safety dangers of aliens whose nation is at the moment at conflict and train its discretion appropriately below Secretary Mayorkas’s management. Final week, nonetheless, the U.S. Home of Representatives voted to impeach Secretary Mayorkas for dereliction of obligation and different prices associated to his position in facilitating the disaster on the U.S.-Mexico border.

USCIS indicated that it’ll publish a discover within the Federal Register to publicize the provision of DED safety for Palestinians. The discover may even present extra particulars on eligibility and utility necessities.