PASADENA, Calif. (CN) – A Justice Department attorney told a Ninth Circuit panel Wednesday that federal law bars the judiciary from reviewing the Trump administration’s 2017 decision to strip temporary legal protections from hundreds of thousands of immigrants.
Congress created temporary protected status, or TPS, in 1990 to protect immigrants and refugees from deportation when they’re unable to return home due to natural disasters or armed conflicts, among other conditions.
The Trump administration terminated TPS for more than 300,000 immigrants from Sudan, Nicaragua, Haiti and El Salvador in 2017. The following year, however, U.S. District Judge Edward Chen blocked the cancellations, finding evidence the administration acted out of animus toward nonwhite immigrants.
Chen also found TPS holders were likely to succeed on claims that the sudden cancellation violated the Administrative Procedures Act.
The federal government appealed, arguing “discriminatory animus” played no role in the decision to alter TPS designations.
“That the president has advanced an immigration policy that places America’s interests foremost and emphasizes a “merit-based” system for entry of aliens in no way supports the conclusion that the decisions the secretaries made in this case were motivated by racial animus towards the aliens who had benefited from TPS,” the Justice Department wrote, adding the plaintiffs’ interpretation of Trump’s comments were “ uncharitable and erroneous.”
Justice Department attorney Gerard Sinzdak told the panel Wednesday that TPS cancellation in 2017 followed federal law and was not unlike any other “routine” agency action.
But U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, expressed doubt, citing an email sent to former White House chief of staff John Kelly by former Homeland Security secretary Elaine Duke that said the changes would be “a strong break with past practices.”
U.S. Circuit Judge Nelson, a Donald Trump appointee, shifted the panel’s attention to Judge Chen’s decision to request more records, legal errors he said should result in vacating the injunction and perhaps remanding the case to a different judge.
“Why isn’t that error itself reason enough to vacate?” said Nelson. “Nearly 95% of what the court relied on were documents outside of the administrative record.”
Sinzdak said he wasn’t seeking that relief but added Chen should only have ordered additional discovery after a finding of bad faith.
Plaintiffs’ counsel Ahilan Arulanantham of the ACLU disagreed, arguing the additional discovery had been discussed by both parties as part of a court order to produce a “full record.” Arulanantham added the “legal errors” should not be grounds for vacating the injunction.
“There is a real logic to keeping the injunction in place,” Arulanantham said. “People would lose their protections to work legally and others may even be deported.”
Christen suggested the panel may order additional briefing on the discovery matter.
Arulanantham told U.S. Circuit Judge Consuelo M. Callahan, a George W. Bush appointee, judicial review of equal protection claims is allowed when “animus” by the president has influenced agency action.
Nelson told Arulanantham that Trump’s public statements about nonwhite immigrants – including that they come from “shithole countries” and that Haitians “all have AIDS” – came after the TPS cancellation.
And Christen noted there’s nothing unusual about a president influencing policy decisions.
“What’s remarkable about that?” Christen said. “It seems to be in the job description.”
The panel did not indicate when it would rule. If the panel vacates, TPS protections could end 120 days after the court issues a mandate order – often months after the ruling.
A separate but related case challenging the cancellation of TPS protections for more than 100,000 people from Nepal and Honduras, is stayed pending the outcome of the case heard Wednesday.
In a rare sight, hundreds of immigrant rights advocates rallied outside the Richard H. Chambers Courthouse, playing Latin American music and launching cheers that could be heard throughout Wednesday’ hearing.
The rally, organized by the National TPS Alliance, involved plaintiffs in the case. Lead plaintiff Crista Ramos told the crowd after the hearing that TPS holders should be allowed to live and work in the U.S.
“We’re gonna continue fighting and raising awareness about this issue,” said Ramos, who was born in California and whose mother is a TPS holder from El Salvador. “We deserve to have our families together. We deserve to live with our parents.”
Arulanantham told reporters that “justice” for TPS holders can only come from permanent legal protection to remain in the U.S.
“Justice for people from these six countries looks like permanent residence,” Arulanantham said. “This court case will not give them permanent residence. That’s something that has to come through the political process and that struggle will continue regardless of if we win or lose here.”