Decision to end Venezuelan TPS is 'frivolous' and can be defeated in court, report says

The Trump administration’s decision to end Temporary Protected Status for Venezuelans was “frivolous”, politically motivated and of questionable legality, a public policy research think tank said Thursday, adding that after reviewing the measure it concluded that there are strong grounds to challenge it in court.

In a report released Thursday morning, the National Foundation for American Policy said the administration failed to conduct a serious analysis of the economic, public health and human rights conditions of Venezuela that could support the assertion that conditions in the country have improved to the point that its citizens no longer need protection.

“The Trump administration ended Temporary Protected Status for Venezuelans without conducting an analysis of the economic, public health and human rights conditions in the country, calling into question the legality of its decision,” the report said.

Two weeks after president Trump took office, his administration eliminated the deportation protections granted by the previous administration in 2023 to 350,000 Venezuelans seeking refuge in the United States, making them vulnerable to being sent back to the South American country within 60 days.

The development came after strongman Nicolás Maduro agreed to take back all Venezuelans deported from the United States following a meeting in Caracas with special envoy Richard Grenell. At least two plane loads with 190 Venezuelan deportees have landed in the South American country since then.

When announcing the end of the 2023 TPS, Homeland Security Secretary Kristi Noem said Venezuela no longer meets conditions to have the designation, citing that it was contrary to the national interests of the United States and claiming that the South American country has shown “notable improvements in several areas”.

But Noem did not cite a single source supporting the conclusion of notable improvements, which contradicted her own agency’s assessment delivered less than two weeks earlier, in which Secretary Alejandro Mayorkas, citing 52 sources, favored continuation of the protection status, the report said.

“It is arbitrary and capricious under the Administrative Procedure Act to ignore key facets of the TPS statute to achieve a political result,” the report argues. “It would be unlawful for Noem to revoke Mayorkas’s decision on TPS for Venezuela without good cause.”

The analysis highlighted that Noem did away with Mayorkas’s Jan. 10 decision to renew Venezuelan TPS only three days after being sworn in. This is “not sufficient time for a serious analysis of country conditions”.

Noem said the administration had undertaken an extensive review of conditions in Venezuela, but did not cite any sources in the Federal Register notice.

The analysis emphasized that there is ample evidence supporting that conditions in Venezuela are not safe for returning migrants. These include the U.S. State Department’s human rights report, published in April 2024, which stated that “there were no significant changes in the human rights situation in Venezuela during the year,” and highlighted dozens of examples of horrific conditions in Venezuela that included extrajudicial killings and enforced disappearances.

The political and human rights situation in Venezuela deteriorated further in the months after the State Department published its critical report on the country due to Maduro’s election, widely viewed as fraudulent, and the government’s repression of protesters. The Venezuelan government holds more than 1,100 political prisoners as of Feb. 5, 2025.

There is legal precedent suggesting that Nomen’s decision could be defeated in court, the report highlighted.

In the 2019 case Saget v. Trump, a federal court found that the Trump administration’s termination of TPS for Haiti was likely unlawful and granted a nationwide injunction. “The sequence of events leading up to the decision to terminate Haiti’s TPS was a stark departure from ordinary procedure, suggestive of a pre-determined outcome not anchored in an objective assessment, but instead a politically motivated agenda,” the court said.

Jacob Hamburger, a visiting assistant law professor at Cornell Law School, believes a court could make a similar determination if the Venezuela termination is challenged, the report cited.

Hamburger agreed that the Trump administration’s Federal Register notice did not indicate that DHS considered evidence on conditions in Venezuela and agreed that the quick decision after Noem was sworn in suggests that it is unlikely a substantive review took place.

In addition, Noem’s claims that maintaining TPS for Venezuelans is not in the national interest of the U.S. because members of the Venezuelan gang Tren de Aragua entered the country unlawfully and committed crimes can be challenged because the February 5 Federal Register notice fails to state that DHS already denies applications to renew TPS for individuals who have committed criminal offenses, including a felony or two misdemeanors.

Attorney Ira Kurzban, author of Kurzban’s Immigration Law Sourcebook, believes that the Federal Register notice’s claim that ending TPS was in the national interest is incorrect because it rests on “blaming all Venezuelan TPS beneficiaries for members of the Venezuelan gang Tren de Aragua”, the report said.

Kurzban claims DHS is asserting that “all Venezuelans with TPS must depart the United States because of the existence of gang members of the same nationality and without evidence that the TPS beneficiaries are gang members.”

Another legal avenue for Venezuela TPS supporters could be that DHS failed to meet a Feb. 1, 2025, deadline to determine TPS for Venezuela. Under the statute, failure to meet the 60-day deadline should result in an automatic extension of at least six months. Attorneys believe this will be another issue in any litigation, the analysis said.