Federal District Court Judge Ana Reyes of the District of Columbia recently issued an injunction telling Homeland Security Secretary Kristi Noem that she cannot end “Temporary Protected Status” (TPS) for Haitians who are in the U.S. Of course, Reyes had to blatantly violate federal law to do it because she has no jurisdiction to issue such an order!
In her order, Reyes, a Biden appointee (no surprise), stated that the termination “shall be null, void, and of no legal effect.” She added that Haitians will continue to receive “the protections and benefits previously conferred by the TPS designation, including work authorization and protection from detention and deportation, and the valid period of work authorization extends during the stay.”
What is TPS? Under federal immigration law, 8 U.S.C. § 1254a, Congress gave the Secretary of the Department of Homeland Security the authority to provide temporary lawful status to aliens in the U.S. TPS can be granted to aliens who cannot safely return to their native country due to an “ongoing armed conflict”; “an earthquake, flood, drought, epidemic, or other environmental disaster…resulting in a substantial, but temporary, disruption of living conditions”; or other “extraordinary and temporary conditions” unless allowing them to remain would be “contrary to the national interest.”
Numerous presidential administrations have granted TPS to various groups due to everything from civil wars to hurricanes. That includes Haitians, who were first granted TPS in 2010 by Barack Obama in response to the earthquake that shook the island that year. It was extended repeatedly until the current administration terminated TPS of Haitians effective as of Feb. 3, which is when Reyes stepped in and entered her improper order.
Why do I say it was improper? For the simple reason that the same federal statute that gives the executive branch the authority to temporarily grant lawful status to aliens who would otherwise be in this country illegally also bars federal courts from interfering in, or questioning, the TPS process or the secretary’s judgement.
The law gives the Homeland Security secretary the sole discretion to decide about TPS status after “consultation with appropriate agencies of the Government.” It then says quite clearly “[t]here is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation” under this statute. Could this be any clearer? No judicial review means no judicial review – apparently Judge Reyes doesn’t understand that or is willfully ignoring it. Since I assume she has an adequate comprehension of the English language, I suspect it is the latter.
Thus, aliens whose TPS is revoked have no right to be in federal court in the first place to contest that revocation, and no federal judge – including Ana Reyes – has the jurisdiction to question the judgment of Secretary Noem, or to issue an injunction interfering in that judgment.
Despite the clear, unambiguous language of that statute, Reyes claims that the law does not actually give Noem “unbounded discretion to make whatever determination she wants, any way she wants.”
Really? Where in the statute does it say that?
The fact that this injunction is the result of Reyes’ politics and ideology is obvious from the language in her order, which reads like a pro-illegal immigration policy fight in Congress. Reyes criticizes Noem for complaining about the “strains unlawful immigrants place on our immigration-enforcement system.” “Her answer?” Reyes says, is to “[t]urn 352,959 lawful immigrants into unlawful immigrants overnight.”
Reyes then goes on to assert that these Haitians are all employed and “contribute billions in taxes” to our economy. She complains that Noem is turning “the insured into the uninsured,” which will strain our healthcare system. Are those legal arguments about the applicable statute? Obviously not. They are the arguments that a Representative Ana Reyes could make in Congress if she were an elected member of that body, which, of course, she is not.
She is supposed to be a judge applying a clear-cut law, a role she obviously has a difficult time fulfilling. It is Judge Reyes, not anyone in the executive branch, who is abusing power when it comes to the TPS status of Haitians who are in this country.
The administration has vowed to appeal this decision to the Supreme Court, if necessary. It should. But the D.C. Circuit, which oversees Judge Reyes, should save the High Court the trouble by staying Reyes’s injunction and issuing a strongly worded opinion criticizing her blatant overreaching and pointing out that the “no judicial review” provision that Congress intentionally and deliberately put into the statute means what it says.
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