The Ninth Circuit Acts Responsibly – for a Change – in Ending Temporary Protected Status

“Nothing lasts longer than a temporary government program,” President Reagan once said. That adage certainly applies to the Temporary Protected Status program. TPS was intended to give only short-term permission for aliens to be in the U.S., but that permission has often gone on seemingly without end.

Fortunately, a three-judge panel of the 9th Circuit Court of Appeals, in a 2-to-1 decision, has just dissolved an injunction that prevented the Department of Homeland Security (DHS) from ending TPS for aliens from Sudan, Nicaragua, El Salvador, and Haiti who have been in the U.S. for decades.

As Judge Consuelo Callahan explained in Ramos v. Wolf, the TPS program was created in 1990 to provide “temporary relief to nationals of designated foreign countries that have been stricken by a natural disaster, armed conflict or other ‘extraordinary and temporary conditions in the foreign state.” It is codified at 8 U.S.C. §1254a; 21 countries and the Province of Kosovo have received TPS designations.

Initial TPS designations last for a period of 6 to 18 months. Sixty days before the end of the designated time-period, DHS is supposed to determine whether the conditions – such as a hurricane – that led to TPS status still exist. If DHS does nothing to terminate the TPS designation, it is automatically continued. The statute also very specifically says that the courts have no jurisdiction to review the decision by DHS to make the designation in the first place or to terminate it.

Between 2017 and 2018, the Trump administration terminated the TPS designations of Sudan, Nicaragua, El Salvador, and Haiti. These countries had one major thing in common – they had been on the TPS list for about two decades, with only one exception. Sudan was designated for TPS in 1997 because of an ongoing civil war; Nicaragua in 1999 due to the devastation wreaked by Hurricane Mitch; El Salvador in 2001 because of the after-effects of three earthquakes; and Haiti in 2010, also due to an earthquake. Not very temporary.

All of these countries had their TPS status extended multiple times, often due to reasons removed from the original events that caused TPS status to be granted – additional natural disasters, ongoing economic instability, and other health and safety concerns. As the detailed explanations provided by DHS pointed out, conditions in these countries had improved substantially since they were first designated for TPS (which is unsurprising given the extended time period elapsed since then and the extensive international aid many had received), to the point where it was safe for the aliens to return to their native countries.

Yet aliens from those countries filed lawsuits claiming that the terminations were illegal under the Administrative Procedure Act (APA), because the administration didn’t give “adequate” reasons for ending TPS. They also claimed violations of the Equal Protection Clause of the Fifth Amendment, alleging the terminations were done with a discriminatory purpose.

Showing how bizarre this lawsuit is, three TPS terminations occurred in 2016, the last year of the Obama administration. No one sued or claimed that the terminations were discriminatory or that the explanations given by the Obama administration were “inadequate.” Prior to 2017, there were nine other terminations of TPS for other countries. At the same time that the plaintiffs claimed the Trump administration was acting with “animus” toward aliens, particularly Muslims, the administration extended TPS for residents of Somalia, South Sudan, Syria, and Yemen. Some animus.

The TPS statute specifically says that there can be “no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of” a TPS designation. Thus, the panel concluded that this statute prohibits review of “country-specific TPS determinations,” but not “unconstitutional practices and policies used by the agency in reaching those determinations.”

Though the aliens claimed that DHS acted unconstitutionally by failing to consider “intervening events” when making TPS designation decisions, the panel held that the statute clearly places the choice of whether to consider intervening events in the hands of DHS. So the aliens’ claims under the APA failed because they do not concern any overarching “practices or policies,” meaning they are not subject to review by the courts.

As for their claim under the Equal Protection Clause, which, although contained within the 14th Amendment, has been incorporated by the Supreme Court into the Due Process Clause of the 5th Amendment, the court held that to prevail, the aliens had to show that “racial discrimination was at least ‘a motivating factor’ for the challenged TPS terminations.” The only evidence they had were some comments made by President Trump about immigrants, such as a speech in 2018 in which he referred to MS-13 gang members as criminals and compared them to snakes. This, they claimed, displayed racial animus and improperly influenced the TPS designations.

The Ninth Circuit majority criticized the district court’s acceptance of this claim, stating that the lower court had made a logical leap despite “the glaring lack of evidence tying the President’s alleged discriminatory intent to the specific TPS terminations.” There was no evidence, for instance, “that the President personally sought to influence the TPS terminations, or that any administration officials involved in the TPS decision-making process were themselves motivated by animus against ‘non-white, non-European’ countries.”

Regardless of the view one may take regarding the president’s statements, there was no evidence that his remarks were a motivating factor in DHS’s TPS decisions.

Thus, the panel ruled that the aliens’ claims under the APA were not reviewable, nor did their Equal Protection claim reach the “serious questions” standard needed for a preliminary injunction. As a result, the Ninth Circuit vacated the district court’s injunction and remanded the case.

Congress instituted the TPS program because we are a compassionate nation. It was designed to provide temporary relief for those whose countries have been thrown into chaos as a result of extraordinary circumstances, which, by definition, necessarily cannot endure for the decades that the TPS designations at issue here have lasted.

It was not meant to be used as a way of getting around our selective rules that govern the immigration of aliens into the United States. Prior administrations that failed to end TPS when circumstances had changed acted irresponsibly in failing to administer the program as it was intended.

Hans A. von Spakovsky is a Senior Legal Fellow and Courtney Baer is a member of the Young Leader’s Program at The Heritage Foundation. Von Spakovsky is the co-author of “Who’s Counting? How Fraudsters and Bureaucrats Put Your Vote at Risk” and “Obama’s Enforcer: Eric Holder’s Justice Department.”