A federal appeals court ruled late Wednesday that the Trump administration acted illegally when it ended Temporary Protected Status for Venezuelans, a decision that affects a congressionally created protection program tied to whether people can safely return to their home country. The 9th U.S. Circuit Court of Appeals upheld a lower-court ruling finding that Homeland Security Secretary Kristi Noem exceeded her authority when she ended TPS for Venezuelans, while the decision’s practical effect remained limited because the Supreme Court allowed Noem’s termination to take effect pending further review.
In the same 9th Circuit ruling, the three-judge panel also upheld the lower court’s decision that Noem exceeded her authority when she ended TPS early for hundreds of thousands of Haitians. The panel’s findings focused on what it said the TPS legislation passed by Congress allowed the secretary to do, and it concluded that Noem could not vacate an existing TPS designation.
Department of Homeland Security officials criticized the outcome. In an email statement on Thursday, a spokeswoman for the department blasted the ruling as a “lawless and activist order from the federal judiciary” and said federal judges continue to “undermine our immigration laws.” Assistant Secretary Tricia McLaughlin also said in the statement that TPS was meant to be temporary.
The 9th Circuit’s decision did not, by itself, necessarily change the status of people in the U.S. in the immediate term because of Supreme Court action in October. The appeals court said its decision will not have immediate practical effect after the U.S. Supreme Court allowed Noem’s termination decision to take effect pending a final decision by the justices.
The panel’s written reasoning included a discussion of the procedural safeguards it said are built into the TPS statute. Judge Kim Wardlaw wrote for the panel that “the statute contains numerous procedural safeguards that ensure individuals with TPS enjoy predictability and stability during periods of extraordinary and temporary conditions in their home country,” and she added that Noem’s “unlawful actions have had real and significant consequences” for Venezuelans and Haitians in the United States who rely on TPS.
Wardlaw said the record included examples of people who had been “deported or detained after losing their TPS,” describing some as “hard-working, contributing members of society” who are “mothers, fathers, wives, husbands, and partners of U.S. citizens” and who pay taxes and “have no criminal records.” The court’s account also tied the issue to how TPS works under law: the status, authorized by Congress in the Immigration Act of 1990, allows the homeland security secretary to grant legal immigration status to people from countries facing civil strife, environmental disaster, or other “extraordinary and temporary conditions” that prevent a safe return.
TPS designations are granted for six-, 12- or 18-month terms, with extensions possible if conditions remain dire, and holders are protected from being deported and allowed to work, though TPS does not provide a path to citizenship. In ending protections, Noem had said conditions in both Haiti and Venezuela had improved and that it was not in the national interest to allow immigrants from the two countries to stay under what she described as a temporary program.
For Haiti, the appeals court decision also comes as a separate issue is pending in Washington. A federal judge in Washington is expected to rule any day on a request to pause the termination of TPS for Haiti while a separate lawsuit challenging the decision proceeds, and the country’s TPS designation was scheduled to end on February 3.
In a separate opinion, Judge Salvador Mendoza, Jr. said he found “ample evidence of racial and national origin animus” that reinforced the lower court’s conclusion that Noem’s decisions were “preordained and her reasoning pretextual.” Mendoza wrote that it was “clear that the Secretary’s vacatur actions were not actually grounded in substantive policy considerations or genuine differences with respect to the prior administration’s TPS procedures,” and that they were instead rooted in a stereotype-based diagnosis of Venezuelan and Haitian immigrants.
Attorneys for the government argued that the secretary has broad authority related to the TPS program and that those decisions are not subject to judicial review. They also denied that Noem’s actions were motivated by racial animus.