SAN FRANCISCO (CN) — A federal judge on Thursday dismissed with prejudice the complaint of migrants from four countries who had their temporary protected statuses terminated under the Trump administration, writing that the case was moot because the Biden administration restored the temporary protected statuses of the migrants and there was no evidence that it would change their status again.
The plaintiffs originally sued the Trump administration in 2018 after the administration terminated temporary protected status for roughly 300,000 people from Haiti, El Salvador, Nicaragua and Sudan.
The plaintiffs claimed the administration’s decision was “motivated by intentional race- and national-origin-based animus against individuals from what former President Trump referred to as ‘shithole countries.’ i.e., non-white, non-European immigrants.”
In a hearing last week, the plaintiffs’ attorney, Ahilan Arulanantham, said 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, he argued — and therefore the case should not be rendered moot. He said he wanted the government to admit the Trump administration’s conduct in 2018 was illegal or else he could not be certain that the government would not rescind temporary protected status again.
The government argued that the case was moot because the government has now given new temporary protected status designations to Haiti and Sudan and has rescinded the temporary protected status terminations of the Trump administration and granted extensions for the other countries at issue.
In response, the plaintiffs argued that their claims were not moot as “a defendant cannot automatically moot a case simply by ending its unlawful conduct once sued.” The exception is based on the principle that a party should not be able to evade judicial review or defeat a judgment by “temporarily altering questionable behavior.”
U.S. Senior District Judge Edward Chen, in his 20-page opinion, wrote that there is a “stringent” standard to meet for a voluntary cessation exception; subsequent events must make it “absolutely clear” that any alleged wrongful behavior could not reasonably be expected to happen again.
“Reasonable expectation means something more than ‘a mere physical or theoretical possibility,’” Chen wrote.
According to the government, a government entity generally meets the heavy burden of establishing no reasonable expectation of recurrence when a plaintiff is challenging a regulation and the government then “changes or repeals the regulation at issue.”
The government’s position is supported by Ninth Circuit precedent, Chen wrote, in the case of Board of Trustees of the Glazing Health & Welfare Trust v. Chambers.
In that case, the Ninth Circuit found that, "in determining whether a case is moot, we should presume that the repeal, amendment, or expiration of legislation will render an action challenging the legislation moot, unless there is a reasonable expectation that the legislative body will reenact the challenged provision or one similar to it.”
Chen wrote that the government’s extension of temporary protected status are akin to regulations, “in which case, arguably, mootness should be presumed and the burden shifted to plaintiffs, i.e., to show that that there is a reasonable expectation that the government will terminate the TPS designations in the future.”
Chen wrote that the government’s policy changes had already addressed the issues brought by the plaintiffs' complaint, given that, under the Biden administration, they had either been granted temporary protected statuses or had their temporary protected status terminations rescinded.
“In short, there is no indication that the government’s policy change here is a temporary one that it will refute once this litigation has concluded,” Chen wrote.
Chen wrote that he dismissed the case with prejudice because the plaintiffs have not indicated they could plead any additional facts to overcome the deficiency in their case.
Requests for comment for the lawyers representing both parties were not returned before publishing.
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