Trump Effort to End Protected Status Upheld by Ninth Circuit (1)

A divided U.S. Court of Appeals for the Ninth Circuit lifted a temporary injunction blocking Trump administration efforts to terminate temporary protected status for immigrants from Haiti, Sudan, Nicaragua, and El Salvador.

The lower court abused its discretion in issuing the preliminary injunction when it found that the plaintiffs’ Administrative Procedure Act claim was reviewable, and further erred in its finding that plaintiffs presented “at least serious questions going to the merits of their” Equal Protection claim, U.S. Circuit Judge Consuelo M. Callahan wrote for the 2-1 panel.

The decision ends protections for about 300,000 people who have been living in the U.S. for years with a TPS designation, which allows foreign nationals to stay and work in the U.S. after an armed conflict or natural disaster in their home countries. A host of lawsuits were filed after the Trump administration started ending temporary protected status for nationals of various countries, including El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan.

The case before the Ninth Circuit was brought by the American Civil Liberties Union on behalf of affected TPS holders. The panel concluded their APA claim was not reviewable because it didn’t challenge any agency procedure or regulation, but rather raised a challenge to the then-Department of Homeland Security Secretary’s underlying analysis of the dangers in those home countries.

The decision reverses an October ruling from Judge Edward M. Chen of the U.S. District Court for the Northern District of California, who found that the plaintiffs showed they would be irreparably harmed if their TPS designation was canceled, and that they were likely to win on the merits of their suit.

‘Racial Animus’

The ACLU’s lawyers argued that ending protections for nationals of El Salvador, Haiti, Nicaragua, and Sudan was racially discriminatory, citing President Donald Trump’s reported comment about Haiti and African nations being “shithole countries” as well as campaign statements about Mexicans being rapists.

Chen also found that Trump had expressed racial animus against “nonwhite, non-European” immigrants, and that the White House influenced the TPS termination decisions.

The Ninth Circuit panel, however, held that although the lower court’s findings were supported by record evidence, it cited no evidence linking Trump’s animus to the TPS terminations.

Callahan, a 2003 nominee of President George W. Bush, said there was no evidence Trump personally sought to influence the TPS terminations, or that any administration officials involved in the TPS decision-making process were themselves motivated by animus.

U.S. Circuit Judge Ryan D. Nelson, a 2018 Trump nominee, wrote a concurring opinion. U.S. Circuit Judge Morgan Christen, who was nominated by President Barack Obama in 2011, dissented.

“The president’s vile statements about TPS holders made perfectly clear that his administration acted out of racial animus,” Ahilan Arulanantham, senior counsel of the ACLU Foundation of Southern California and an attorney in the case, said in a statement. “The Constitution does not permit policy to be driven by racism. We will seek further review of the court’s decision.”

The plaintiffs also are represented by Sidley Austin.

“For approximately two years, the district court’s injunction prevented the Department of Homeland Security from taking action that Congress has vested solely within the discretion of the Secretary of Homeland Security—action that is statutorily precluded from judicial review,” the U.S. Justice Department said in a statement. “We applaud the Ninth Circuit’s recognition of the plain language of the Immigration and Nationality Act and its rejection of the baseless accusations of animus behind the actions taken by the Department of Homeland Security.”

The case is Ramos et al v. Wolf et al., 9th Cir. App., No. 18-16981, opinion 9/14/20.