Appeals court cites limits on Noem’s authority in TPS terminations

A federal appeals court said the Trump administration broke the law when it moved to end Temporary Protected Status protections for hundreds of thousands of Venezuelans, affirming that Homeland Security Secretary Kristi Noem exceeded her authority. The decision, issued by a three-judge panel of the U.S. Ninth Circuit Court of Appeals on Jan. 28, upheld a lower-court ruling that the secretary lacked the power to undo an existing TPS designation.

The appeals court’s ruling did not immediately change the practical situation for people affected by the administration’s TPS decisions because the U.S. Supreme Court had allowed the Noem action to take effect in October while the final outcome remains pending. In a separate statement sent by email, a spokeswoman for the U.S. Department of Homeland Security described the appellate decision as “an order illegal and activist del poder judicial federal” and said federal judges were continuing to “socavando nuestras leyes de inmigración,” according to the report.

DHS also maintained that TPS is meant to be temporary. Tricia McLaughlin, the department’s deputy undersecretary, said TPS was designed to be time-limited, and she emphasized that the agency’s view of country conditions supported the administration’s approach, including by stating that the decision to remove Venezuelan President Nicolás Maduro would bring stability to Venezuela.

The three-judge panel and what it said about TPS

In its Wednesday ruling, the Ninth Circuit panel said the TPS statute passed by Congress does not grant the secretary authority to terminate an existing TPS designation early. The panel included judges Kim Wardlaw, Salvador Mendoza Jr. and Anthony Johnstone, all of whom were nominated by Democratic presidents, according to the report.

Wardlaw wrote that the TPS law contains “numerosas salvaguardas procesales” designed to provide people with TPS predictability and stability during extraordinary, temporary conditions in their countries of origin. She also wrote that Noem’s “acciones ilegales … han tenido consecuencias reales y significativas” for Venezuelans and Haitians who rely on TPS in the United States.

The report said Mendoza expanded on the reasoning, writing that there was “amplia evidencia de animosidad racial y de origen nacional” supporting the lower court’s conclusion that Noem’s actions were “predeterminadas” and that her rationale was a “pretexto.” Mendoza said the record showed the decisions were not based on meaningful differences from the prior administration’s TPS procedures, but were rooted in a “diagnóstico estereotipado” portraying migrants from Venezuela and Haiti as dangerous criminals or mentally unstable.

The panel also included an account of how TPS termination affected individuals, with the report describing examples of people the court said had been deported or detained after losing TPS. The report said Wardlaw pointed to cases involving workers and contributors who she described as family members of U.S. citizens, paying taxes and having no criminal records, among those affected.

Haitians’ TPS: appeals court affirms ruling while a pause request is set for review

The Ninth Circuit ruling also confirmed that Noem exceeded her authority when she ended TPS protections for hundreds of thousands of Haitians. Haitians were first included under TPS in 2010 after a 7.0-magnitude earthquake killed thousands of people, injured others, and left more than a million people without homes, according to the report.

The report said Haitians facing TPS termination now confront hunger and gang violence, and that McLaughlin said prior administrations had treated TPS for Haiti as a “programa de amnistía de facto,” noting the earthquake occurred more than 15 years ago. The report said protections for Haitian TPS holders were set to end Feb. 3 unless a court order intervened.

The next step described in the report was a decision by a federal judge in Washington on a request to pause the suppression of TPS for Haiti. The request was expected to be ruled on while a separate lawsuit challenging the TPS termination continues, the report said.

What TPS is and how it works

Congress created TPS under the Immigration Act of 1990, and the program allows the secretary of Homeland Security to grant legal immigration status to people who flee their countries because of civil conflicts, environmental disasters, or other “condiciones extraordinarias y temporales” that prevent safe return. The report said TPS is typically granted for periods of six, 12 or 18 months, and it can be extended if conditions remain critical.

The report said TPS shields its holders from deportation and allows them to work, but it does not provide a path to naturalization.