A confidential memo from the final days of the Biden administration laid out a plan to extend Temporary Protected Status (TPS), a legal protection that lets foreign nationals remain in the United States when their home countries face political unrest, natural disasters, or similar crises, to more than 3.1 million noncitizens. The document, obtained by Sen. Eric Schmitt, R-Mo., shows Biden advisers believed years of litigation would hold the incoming Trump administration at bay before it could undo any new protections.
What the memo proposed
The January 2025 memo estimated new TPS eligibility for roughly 1.5 million Guatemalans, 600,000 Ecuadorians, 464,000 Nicaraguans, and 455,000 Venezuelans, with smaller populations from Ukraine, Sudan, and Afghanistan included in the figures. Schmitt said those numbers totaled more than 3.1 million people.
Biden advisers acknowledged that TPS applications typically take six months to process, a timeline that made last-minute designations difficult to finalize before Trump took office. The larger expansion never materialized. Biden did extend existing TPS protections for nearly 1 million noncitizens one week after the memo was written, an action Schmitt pointed to as proof the document had a concrete policy effect.
The litigation strategy inside the document
The memo was direct about its legal calculus. Trump's first-term efforts to terminate TPS for Sudan, Nicaragua, Haiti, El Salvador, Nepal, and Honduras had all been blocked by federal courts. Biden's team resolved that litigation by redesignating Haiti for TPS or withdrawing termination orders for other countries.
The document noted that pro-migrant advocacy groups were prepared to fight again. Stakeholders cited in the memo argued the new protections were "likely to hold in court" and that they were ready to litigate any effort by Trump to terminate or slow implementation. The memo also flagged a path for Trump: courts blocked his first-term attempts largely because his administration failed to produce an adequate factual record to support termination, a gap a better-prepared second term could close.
How the document surfaced and what Schmitt says it means
Schmitt obtained the memo from Archivist of the United States Edward Forst, acting through his authority as chairman of the Senate Judiciary Subcommittee on the Constitution. He characterized the document as evidence that Biden tried to turn TPS into a deportation shield for millions, including, he alleged, members of Tren de Aragua.
Several Democratic senators had submitted requests for new TPS actions before Trump took office, according to the memo. They included Michael Bennet of Colorado, Catherine Cortez Masto of Nevada, Cory Booker of New Jersey, Richard Durbin of Illinois, Mazie Hirono of Hawaii, Ben Ray Lujan of New Mexico, Tammy Duckworth of Illinois, and Alex Padilla of California. None of their requests produced new country designations before the administration ended.