Memorandum of January 19, 2021, Deferred Enforced Departure for Certain Venezuelans

On the last full day of his presidency, Donald Trump issued a Presidential Memorandum to the Secretaries of State and Homeland Security, "to defer the removal of any national of Venezuela, or alien without nationality who last habitually resided in Venezuela, subject to the conditions and exceptions provided below." Deferred Enforced Departure is often abbreviated as DED.

Memorandum of January 19, 2021, Deferred Enforced Departure for Certain Venezuelans, no longer appears on the whitehouse.gov website, since it was a Trump Administration executive action. However, like all presidential actions it has been published in the Federal Register, at 86 FR 6845 (January 25, 2021).

Here is an extract of the operational part of the memorandum. The Biden Administration does not seem to have taken any action yet regarding this Trump memo, so it is unclear what will become of its directives. Although advisers should be aware of this memorandum, advising on it, assessing its current validity, or assisting in applying for benefits under it should be done only by an experienced immigration lawyer.

Memorandum extract

"Accordingly, I hereby direct you to take appropriate measures to defer for 18 months the removal of any national of Venezuela, or alien without nationality who last habitually resided in Venezuela, who is present in the United States as of January 20, 2021, except for aliens who:

(1) have voluntarily returned to Venezuela or their country of last habitual residence outside the United States;

(2) have not continuously resided in the United States since January 20, 2021;

(3) are inadmissible under section 212(a)(3) of the Immigration and Nationality Act (INA) (8 U.S.C. 1182(a)(3)) or removable under section 237(a)(4) of the INA (8 U.S.C. 1227(a)(4));

(4) who have been convicted of any felony or 2 or more misdemeanors committed in the United States, or who meet the criteria set forth in section 208(b)(2)(A) of the INA (8 U.S.C. 1158(b)(2)(A));

(5) who were deported, excluded, or removed, prior to January 20, 2021;

(6) who are subject to extradition;

(7) whose presence in the United States the Secretary of Homeland Security has determined is not in the interest of the United States or presents a danger to public safety; or

(8) whose presence in the United States the Secretary of State has reasonable grounds to believe would have potentially serious adverse foreign policy consequences for the United States.

I further direct the Secretary of Homeland Security to take appropriate measures to authorize employment for aliens whose removal has been deferred, as provided by this memorandum, for the duration of such deferral."

Availability of DED for Venezuelans under this Trump Memorandum

It is not yet possible to apply for Deferred Enforced Departure under the January 19, 2021 Trump memorandum. The memo directed DOS and DHS "to take appropriate measures to defer for 18 months the removal of any national of Venezuela, or alien without nationality who last habitually resided in Venezuela, who is present in the United States as of January 20, 2021," with certain exceptions, but the agencies have not yet announced any measures to allow Venezuelans to do so. The USCIS TPS and DED web page has not yet been updated with information on DED for Venezuelans. Again, as mentioned above, advising on the memorandum, assessing its current validity, or assisting in applying for benefits under it should be done only by an experienced immigration lawyer.

There does appear to be Congressional support for other forms of relief for Venezuelans. A Venezuelan TPS Act of 2019 had been approved by the House, but was repeatedly blocked by the Senate during the prior Congress. A January 25, 2021 Senate Committee of Foreign Relations ranking members press release, however, announced that "U.S. Senator Bob Menendez (D-N.J.)incoming Chairman of the Senate Foreign Relations Committee, today was joined by incoming Judiciary Committee Chair Dick Durbin (D-Ill.), and Senators Patrick Leahy (D-Vt.)Cory Booker (D-N.J.) and Marco Rubio (R-Fla.) in introducing the Venezuela Temporary Protected Status Act of 2021, legislation to grant Temporary Protected Status (TPS) for eligible Venezuelans fleeing the dire conditions in their home country and to strengthen migration systems in countries surrounding Venezuela. The Senators’ legislation follows a last-minute memorandum by former President Donald Trump to allow the new Administration to defer deportations of Venezuelans through Deferred Enforced Departure (DED)."