SAN FRANCISCO (CN) — A lawyer representing migrants who had their temporary protected statuses terminated under the Trump administration argued in federal court Wednesday that the case should not be considered moot, even though President Joe Biden restored his clients’ status after winning the 2020 presidential election.
Ahilan Arulanantham, representing migrant plaintiffs who sued the Trump administration in 2018 over its decision to terminate TPS status for 300,000 immigrants from Haiti, El Salvador, Nicaragua and Sudan, argued against a motion to dismiss the case, saying that his clients are still at risk of ongoing injury because their status can be changed on a whim — as soon as next year’s presidential election.
U.S. Senior District Judge Edward Chen said that there was “no real likelihood” of a reversal of the plaintiffs’ temporary protected statuses, and asked Arulanantham why the case isn't moot.
“We primarily believe that the case is not moot because the voluntary cessation exception applies,” Arulanantham said. That exception states that a case can only be considered moot if it is 'absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.'"
Government lawyers have argued that the case is moot because there is no current risk of injury to plaintiffs since Biden reversed Trump’s decision.
Arulanantham said he was seeking clarity on a simple question: is temporary protected status decision-making governed by law?
“400,000 people, including our clients and their families, have sought for five years clarity on the basic question of whether TPS decision making is governed by law. Is it governed by the [Administrative Procedure Act] at all and the arbitrary constraints on decision-making? Is it governed by the Fifth Amendment? And if the government breaks the rules, does any court have the power to then enforce those legal rules?” he said.
Arulanantham said his clients are entitled to that clarity.
“What would the government have to do to moot this?” Chen asked Arulanantham.
Arulanantham answered that he wanted the government to admit that its decision to terminate temporary protected status to migrants from the four countries in 2018 was illegal, not just factually incorrect, and he wanted the government to stop defending it in court.
“If they just said it was illegal, then we would not be here,” he said.
Arulanantham repeatedly mentioned that his clients were in limbo because they fear their temporary protected status will be terminated if Biden loses the 2024 presidential election.
“Are we just going to be left in the same position that we were in 2016?” he asked.
“We can’t declare something not moot because of a potential election,” Chen replied.
Arulanantham said that there was a 50-50 chance that the next administration could look just like the administration from 2017.
“And the response will be, if that eventuality happens, this issue will no longer be moot, it will be very much alive,” Chen replied,
Government lawyer Chris Lynch said there was no risk of imminent harm to the plaintiffs so the case and that if temporary protected status is terminated at a later date, plaintiffs will have to litigate it at that point.
“The government has gotten rid of the challenged policies,” Lynch said.
Lynch said that it is impossible to predict or promise that temporary protected status will last indefinitely, but that the government has committed to keeping in place temporary protected status protections for the four countries “for as long as they possibly can.”
“We can’t predict how future elections or policies will happen … A legislature can pass a new law in the future, a new president can take different executive actions, and we can’t predict those things,” Lynch said.
Chen took the matter under submission.
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