PASADENA, Calif. (CN) — A divided Ninth Circuit panel on Monday voided a lower court’s injunction and will allow the Trump administration to terminate temporary protected status for 300,000 immigrants from Haiti, El Salvador, Nicaragua and Sudan.
A three-judge panel’s majority found the law forbids courts from reviewing the Homeland Security secretary’s decisions to grant, extend or revoke temporary protected status (TPS). The law, enacted in 1990, allows the executive branch to grant protection from deportation to immigrants from countries that suffered major disasters, armed conflicts, or extraordinary circumstances that warrant relief.
Sudan was designated in 1997; Nicaragua in 1999. El Salvador was designated in 2001, and Haiti was designated in 2010. Some immigrants from those countries have been living in the United States for more than 20 years. Many have had children and raised families here. They now face deportation.
The court ruling affects 300,000 immigrants and their 200,000 children, who are U.S. citizens. It could also affect the protected status of immigrants from Nepal and Honduras, who have a separate lawsuit pending in San Francisco federal court over the termination of their protected status.
A separate injunction issued by a federal judge in New York remains in effect and will continue to block the administration from ending protections for Haitian immigrants, a reality that one Trump appointee harshly criticized in the Ninth Circuit panel’s concurring opinion Monday.
Nine TPS holders and their U.S. citizen children sued the Trump administration in 2018 over its decisions to terminate TPS for the four nations in 2017 and 2018. The plaintiffs said they were not challenging specific TPS decisions, but rather the agency’s unannounced change in eligibility criteria for evaluating TPS designations. They also claimed the change in policy was motivated by President Donald Trump’s bias against nonwhite immigrants.
Writing for the majority, U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee, rejected claims that the Department of Homeland Security changed its TPS eligibility criteria without announcing it or seeking feedback from the public as required by the Administrative Procedure Act.
“Plaintiffs cannot obtain judicial review over what is essentially an unreviewable challenge to specific TPS terminations by simply couching their claim as a collateral ‘pattern or practice’ challenge,” Callahan wrote in a 54-page opinion.
The majority also found Trump’s public comments about immigrants from TPS nations — including that they come from “shithole countries” and that Haitians “all have AIDS” — were not linked by any evidence to decisions to terminate each country’s protected status.
“The mere fact that the White House exerted pressure on the secretaries’ TPS decisions does not in itself support the conclusion that the president’s alleged racial animus was a motivating factor in the TPS decisions,” Callahan wrote.
A lawyer with the American Civil Liberties Union of Southern California, which represents the plaintiffs, lambasted the Ninth Circuit’s decision in a statement Monday.
“The president’s vile statements about TPS holders made perfectly clear that his administration acted out of racial animus,” ACLU of Southern California senior counsel Ahilan Arulanantham said. “The Constitution does not permit policy to be driven by racism. We will seek further review of the court’s decision.”
In a concurring opinion, U.S. Circuit Judge Ryan Nelson, a Trump appointee, criticized the lower court for permitting evidence not included in the administrative record and for issuing a nationwide injunction without fully considering if universal relief was necessary.
Nelson argued that U.S. District Judge Edward Chen, who temporarily enjoined the TPS decisions in October 2018 , failed to follow the law when he allowed additional discovery before the government turned over all the records pertaining to its TPS decisions.
He also railed against the “increasing frequency” of courts granting universal injunctions, which he said has led to an absurd result in which a lower court in New York can supersede an appeals court’s decision in California.
“It is a strange rule indeed that would allow a district court in New York to effectively nullify our panel opinion today, even partially,” Nelson wrote, referring to a New York federal judge’s nationwide injunction against ending TPS for Haitian immigrants.
In a dissenting opinion, U.S. Circuit Judge Morgan Christen, a Barack Obama appointee, broke with her colleagues in finding that the TPS holders are challenging the process used to make TPS decisions, not the decisions themselves.
Christen cited former acting Homeland Security Secretary Elaine Duke’s email to then-White House chief of staff John Kelly in 2017, stating that her decision to terminate TPS for Nicaragua reflected a “strong break with past practice” that “will send a clear signal that TPS in general is coming to a close.”
The law instructs Homeland Security to consider “intervening events” — such as crime, poverty, unemployment and natural disasters — when it makes decisions on revoking or extending TPS. The plaintiffs claim the department abandoned its longstanding practice of considering those circumstances.
“An abrupt and unexplained change in agency policy or practice is a classic basis for an [Administrative Procedure Act] challenge, as is the allegation that an agency erroneously interpreted its governing statute,” Christen wrote.
Christen also noted ample evidence of Trump’s racially bigoted comments about nonwhite immigrants, but she acknowledged a lack of proof that former Homeland Security secretaries John Kelly, Elaine Duke or Kirstjen Nielsen held those views.
Christen said she would not have reached the equal protection claims based on Trump’s allegedly racist motives because “plaintiffs easily demonstrated a likelihood of success on the merits” of their Administrative Procedure Act claim.
Calling Trump's policy change "wrongheaded," Democratic presidential nominee Joe Biden said in a statement Tuesday he is committed to protecting TPS and will "continue to fight for a fair, humane and orderly immigration system that is defined by compassion, not cruelty."
William Martinez, an organizer with the National TPS Alliance, said the TPS community will keep working to stop the termination of protections for TPS holders on all legal and political fronts.
“We will continue to fight in the court system, in the streets, in the halls of congress and in the court of public opinion,” Martinez said in a statement. “We will exhaust every legal recourse at our disposal to protect our community and our loved ones.”
The Department of Homeland Security did not immediately respond to an email request for comment.
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