Trump Migrant Protection Rollback Set for Full 9th Cir. Review

A federal appeals court is pushing forward with a lawsuit over the Trump administration’s decision to end temporary protections for more than 250,000 immigrants despite a recent Biden administration move to restore and extend that relief.

The full US Court of Appeals for the Ninth Circuit will hear oral arguments Thursday after rejecting a request from the Department of Homeland Security to table them. That motion was filed in response to last week’s announcement by DHS Secretary Alejandro Mayorkas that the administration would extend Temporary Protected Status for nationals of Nepal, El Salvador, Nicaragua, and Honduras.

TPS offers work permits and deportation protections to migrants who would face dangerous conditions if they returned to their home countries.

The plaintiffs, who sued in 2018 over attempts to unwind the TPS designations, argued that the hearing should go forward because DHS hadn’t disavowed the Trump administration’s position that TPS extensions should be tied to the original circumstances that justified the protections, without considering any intervening events.

Settlement talks with the Biden administration broke down last year after a Ninth Circuit panel upheld DHS’s authority to end TPS. The appeals court in February agreed to rehear the case en banc.

Not rejecting the Trump administration’s position would mean that if damage from a hurricane was cited for initial relief, a second hurricane in the same country wouldn’t be considered for a renewal of those protections, said Ahilan Arulanantham, a professor at the University of California, Los Angeles School of Law and attorney for the plaintiffs.

“They don’t even admit that there was a change of practice or say that it was unlawful to categorically exclude intervening conditions,” he said of the DHS announcement to extend TPS for the nationals covered by the lawsuit. “So that’s why we continue to believe that the court should address the claims that we raised.”

Tabling the case at this point would also be problematic because states opposed to the TPS extensions could still challenge them in court, the plaintiffs wrote in a brief opposing the administration’s motion to dismiss. If the underlying TPS terminations aren’t declared unlawful, a challenge to those extensions in another court could mean the protections are unwound, Arulanantham said.

A spokesman for DHS didn’t immediately respond to a request for comment on the court’s decision to move ahead with oral arguments.

Government attorneys argued in a brief that there was no threat of injury to the plaintiffs if the court didn’t address the Trump administration’s efforts to end TPS relief. Instead, dismissing the appeal would return the case to a lower court that had issued a preliminary injunction blocking those terminations, DHS said.

“Now that the Secretary has rescinded the challenged termination decisions, moreover, there is no remaining concrete relief that plaintiffs could obtain in this action,” the agency argued.

TPS designations last for 18 months at a time. Although they typically have been renewed fairly routinely, their short-term duration means recipients’ legal status remains precarious. Extension requests—which only apply to immigrants who’ve been in the US for a certain amount of time—are also usually accompanied by calls to expand eligibility to more recent arrivals.

Immigrant advocates have also urged passage of legislation granting long-term status to TPS recipients, such as a green card. Bipartisan House legislation introduced last week would offer a path to citizenship for Dreamers and TPS recipients, but the chances of any immigration reforms advancing in Congress remain uncertain.

Despite the temporary nature of relief, the Biden administration has expanded the use of TPS. Sixteen countries are currently designated for the protections, including new designations last year for migrants from Ukraine, Afghanistan, Cameroon, Liberia, and Ethiopia.

The case is Ramos v. Wolf, 9th Cir., No. 18-16981, oral arguments scheduled 6/22/23.