A newly uncovered Biden White House memo laid out plans to extend Temporary Protected Status to more than 3 million noncitizens in the administration's final days, a move Sen. Eric Schmitt says was designed to trap President Trump in years of litigation.
Schmitt, a Missouri Republican who chairs the Senate Judiciary Subcommittee on the Constitution, obtained the January 2025 memo from Archivist of the United States Edward Forst. The document, first reported by Fox News Digital, outlined how granting TPS, the federal program that temporarily shields foreign nationals from deportation due to conditions in their home countries, could block the incoming administration's enforcement agenda before it even began.
The memo's own language was blunt about the goal. It told Biden that granting TPS "will potentially protect many vulnerable people from President-elect Trump's planned mass deportations," and that advocates "are prepared to litigate efforts to terminate or slow down the implementation of TPS for specified nations by the Trump Administration." One week after the memo was produced, Biden extended TPS protections for nearly 1 million noncitizens.
The senator did not hold back about what the memo represented. Schmitt told Fox News Digital on Friday:
"My investigation uncovered that the Lame Duck Biden White House tried to keep millions of illegal aliens in our country by abusing the 'Temporary' Protected Status program."
He went further, framing the memo as a direct challenge to the results of the 2024 election:
"After the American people voted for President Trump's promise to end the TPS scam, the Biden administration tried to subvert the will of the American people. This was mass amnesty-by-decree. America is for Americans, and it is our home, it is not a permanent refugee camp."
The numbers inside the memo back up the scale of what was being considered. A chart included in the document estimated potential new TPS eligibility for roughly 1.5 million Guatemalans, 600,000 Ecuadorians, 464,000 Nicaraguans, and 455,000 Venezuelans, along with smaller populations from Ukraine, Sudan, and Afghanistan. Schmitt put the total at 3.1 million.
That figure dwarfs the nearly 1 million noncitizens Biden actually extended TPS protections for in the final stretch of his presidency. But even the smaller action, taken approximately one week after the memo, was enormous in scope.
Schmitt highlighted what he described as the most alarming recommendation in the document. Biden's senior advisors, he said, pushed the outgoing president to create 2.1 million new TPS designees in the last weeks of his term, despite the memo itself acknowledging that TPS applications take six months to process. The timeline made full implementation impossible before Inauguration Day, but the legal entanglements would have persisted long after Biden left office.
That was the point, according to Schmitt. The broader TPS expansion proposals outlined in the memo were never fully implemented. But the senator argued the intent was clear: saddle the Trump administration with a thicket of court challenges that would delay enforcement for years.
The memo also revealed that Biden's senior team had received requests from at least eight Democratic senators urging new TPS-related actions. Those senators 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.
The document specifically noted that "some stakeholders are requesting that your Administration designate nationals from new countries, most notably Ecuador and Guatemala, for TPS." Those two countries alone would have accounted for more than 2 million new TPS-eligible individuals under the memo's estimates.
TPS was created by Congress in 1990 as a temporary measure, a way to pause deportations for nationals of countries hit by armed conflict, natural disasters, or other extraordinary conditions. In practice, "temporary" has stretched into decades for some populations. The Biden administration expanded the program aggressively, granting protections to nationals of Afghanistan, Cameroon, Ethiopia, Burma, Lebanon, Ukraine, Venezuela, and Haiti, among others. The debate over what "temporary" actually means in the program has become one of the sharpest divides in immigration policy.
The January 2025 memo did not pretend the legal landscape was simple. It walked Biden through the history of his predecessor's first-term attempts to end TPS and the court battles that followed.
"The previous Administration unsuccessfully attempted to terminate TPS designations for Sudan, Nicaragua, Haiti, El Salvador, Nepal, and Honduras," the memo stated. "Courts issued preliminary injunctions blocking the Trump Administration's actions. Your administration took actions to resolve this litigation by either redesignating Haiti or rescinding the terminations."
The memo also conceded a vulnerability in that litigation history. It noted that Trump's first-term losses in court were "due in large part to [its] failure to produce a factual record in support of termination, which is something that could be rectified." In other words, the Biden White House's own advisors recognized that a better-prepared Trump administration could succeed where the first term had failed.
That assessment makes the memo's broader strategy easier to understand. If the incoming administration was likely to build a stronger legal case for ending TPS, the outgoing administration's best move was to expand the program so broadly that unwinding it would take years of litigation, regardless of the merits. The Supreme Court has since weighed in on the president's authority to end TPS, but the legal fights at the district level have continued.
The memo also flagged that Trump had said during the 2024 campaign he intended to revoke TPS protections for Haitians, and predicted the incoming administration would likely seek to rescind additional TPS designations beyond Haiti.
Schmitt characterized the full scope of the strategy in stark terms:
"Biden tried to turn TPS into a 3.1-million-person deportation shield, protect Tren de Aragua members, and trap President Trump in years of litigation."
It is worth noting that Schmitt's reference to the Venezuelan gang Tren de Aragua appears to be his own characterization. The memo excerpts quoted in the reporting do not mention the gang by name.
Fox News Digital reached out to Biden for comment on the memo. No response was noted. The lack of any public defense from Biden or his former advisors leaves the document to speak for itself, and what it says is difficult to spin.
The memo was dated January 2025, though Schmitt noted it was erroneously labeled "2024." He obtained it through his authority as subcommittee chairman from Archivist Edward Forst. The fact that the document survived in the official record at all suggests it was treated as a serious policy proposal, not an idle brainstorm.
Schmitt also noted one practical outcome. The broader TPS expansion to 3.1 million was never carried out. "Luckily, that never happened and we have been deporting Ecuadorians and Guatemalans," he said. But the nearly 1 million noncitizens Biden did extend TPS protections for remain in legal limbo, and federal judges have continued to intervene to block the Trump administration's efforts to wind down TPS protections.
In floor remarks on a related topic, Schmitt compared the situation to property rights. He argued Americans don't try to "delay enforcement of squatters" on their property, and said the country should not be a "get-rich-quick scheme for the third world."
The pattern that emerges from the memo is not subtle. An outgoing administration, having lost an election fought in large part over immigration, used its final days to expand a program it knew would be difficult to reverse, and did so with full knowledge that the legal system would slow any attempt to undo it. The memo's authors said as much in plain English. They told Biden that advocates were "prepared to litigate" and that prior court challenges had succeeded in blocking Trump's first-term efforts.
Whether that constitutes responsible governance or a deliberate effort to undermine the incoming president's mandate depends on where you stand. But the memo's own words leave little room for ambiguity about the intent. The judicial resistance to Trump's TPS rollbacks that has followed is exactly what the document predicted, and, by all appearances, exactly what it was designed to produce.
When an administration spends its last days in office building legal obstacles for its successor on the very issue voters just decided, it is not protecting vulnerable people. It is protecting a policy the public rejected.
