Bench Memos

Law & the Courts

Ninth Circuit Okays Termination of ‘Temporary Protected Status’ Designations

In a divided panel ruling today in Ramos v. Wolf, the Ninth Circuit ruled in favor of the Department of Homeland Security’s termination of the Temporary Protected Status (TPS) designation of four countries: Sudan, Nicaragua, Haiti, and El Salvador. Specifically, the panel majority (Judge Consuelo Callahan, joined by Judge Ryan Nelson) vacated a preliminary injunction that a district court had entered against implementation of the termination decisions.

Congress created the TPS program in 1990. TPS provides temporary relief against deportation to aliens who cannot safely return in the short term to their home nation because of a natural disaster, armed conflict, or other “extraordinary and temporary conditions.” The TPS statute authorizes DHS to designate foreign countries for TPS. TPS designations last for an initial period of six to eighteen months.

Sudan was originally designated for TPS in 1997 because of an ongoing civil war, Nicaragua in 1999 because of a hurricane, El Salvador in 2001 because of earthquakes, and Haiti in 2010 because of an earthquake. DHS terminated the TPS designations each of the four countries on the ground that the conditions that initially justified the designations no longer existed.

It might seem surprising that there would be any controversy over DHS’s authority to terminate a temporary designation years later. But after ordering DHS to provide the administrative record for its termination decisions, federal district judge Edward Chen granted plaintiffs (TPS beneficiaries from these countries and their children) injunctive relief based on their claims under the Administrative Procedure Act and the Equal Protection Clause.

The TPS statute specifically provides: “There is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” Although Callahan, dealing with dubious circuit precedent, concludes that DHS’s discretion to make TPS determinations “is not wholly unfettered,” she determines that the statute does bar the plaintiffs’ APA claim. (Pp. 31-45.)

On the Equal Protection claim, Callahan concludes that plaintiffs fail to present “serious questions” in support of their claim that the TPS terminations were improperly influenced by President Trump’s alleged “animus against non-white, non-European immigrants.” (Pp. 45-53.)

Judge Morgan Christen wrote a lengthy dissent. (Pp. 67-107.)

One minor note: The same Ninth Circuit clerk’s office that misspelled the name of its own chief judge last Friday managed to misspell the name of California attorney general Xavier Becerra.

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