A federal appeals court ruled late Wednesday that the Trump administration acted unlawfully by ending legal protections that allowed hundreds of thousands of Venezuelans to live and work in the United States.
A three-judge panel of the 9th U.S. Circuit Court of Appeals upheld a lower court ruling that Homeland Security Secretary Kristi Noem exceeded her authority when she terminated Temporary Protected Status for Venezuelans.
However, the decision will not have any immediate practical effect after the U.S. Supreme Court in October allowed Noem’s decision to take effect pending a judge’s final decision.
An email sent to the Department of Homeland Security late Wednesday night was not immediately returned.
The Ninth Circuit panel also upheld a lower court’s ruling that Noem exceeded her authority when she decided to end TPS early for hundreds of thousands of Haitians.
A federal judge in Washington is expected to rule at any time on a request to halt the termination of Haiti’s TPS while a separate lawsuit challenging the agreement continues. The country’s TPS designation is scheduled to end on February 3.
Ninth Circuit Judges Kim Wardlaw, Salvador Mendoza, Jr., and Anthony Johnstone said in Wednesday’s ruling that the TPS legislation passed by Congress did not give the secretary of state the authority to revoke existing TPS designations. All three justices were nominated by Democratic presidents.
“The regulations contain numerous procedural safeguards to ensure that individuals with TPS enjoy predictability and stability during extraordinary and temporary conditions in their home countries,” Wardlaw, nominated by President Bill Clinton, wrote to the panel.
Wardlaw said Noem’s “illegal actions have real and significant consequences for Venezuelan Americans and Haitians who rely on TPS.”
“The record is replete with examples of hard-working, contributing members of society — mothers, fathers, wives, husbands and partners who are U.S. citizens, pay taxes, have no criminal records — who were deported or detained after losing TPS,” she wrote.
Temporary Protected Status (TPS), authorized by Congress as part of the Immigration Act of 1990, allows the Secretary of Homeland Security to grant legal immigration status to people fleeing countries experiencing civil unrest, environmental disasters, or other “exceptional and temporary circumstances” that prevent safe return to their home country.
The designated period is 6, 12 or 18 months, with extensions possible as long as conditions remain severe. The status protects holders from deportation and allows them to work, but does not provide them with a path to citizenship.
In ending the protections, Noem said that conditions in Haiti and Venezuela have improved and that it would not be in the national interest to allow temporary programs for immigrants from both countries to continue.
Millions of Venezuelans are fleeing political unrest, mass unemployment and hunger. The country is mired in a chronic crisis brought on by years of hyperinflation, political corruption, economic mismanagement and government incompetence.
Haiti was first designated a TPS in 2010, following a catastrophic magnitude 7.0 earthquake that killed and injured hundreds of thousands of people and left more than 1 million people homeless. Haitians face widespread hunger and gang violence.
Mendoza separately wrote that there was “ample evidence of animus of race and national origin,” reinforcing the lower court’s conclusion that Noem’s decision was “predetermined and her reasoning pretextual.”
“It is clear that the Secretary’s removal was not actually based on substantive policy considerations or genuine differences from the previous administration’s TPS process, but was instead rooted in stereotypes of Venezuelan and Haitian immigrants as dangerous criminals or mentally ill,” he wrote.
Government lawyers argue that the minister has clear and broad powers to make decisions related to the TPS program and that those decisions are not subject to judicial review. They also deny her actions were motivated by racial animus.