A federal appeals court ruled late Wednesday that the Trump administration acted illegally when it ended legal protections that allowed hundreds of thousands of people from Venezuela to live and work in the United States.
A three-judge panel of the 9th US Circuit Court of Appeals upheld a lower court ruling that found Homeland Security Secretary Kristi Noem exceeded her authority when she ended temporary protected status for Venezuelans.
The decision, however, will have no immediate practical effect after the US Supreme Court in October allowed Noem’s decision to take effect pending a final decision by the justices.
An email late Wednesday night to the Department of Homeland Security was not immediately returned.
The 9th Circuit panel also upheld the lower court’s finding that Noem exceeded its authority when it decided to end TPS early for hundreds of thousands of people from Haiti.
A federal judge in Washington is expected to rule any day now on a request to stop the termination of TPS for Haiti while a separate case contesting it proceeds. The country’s TPS nomination is scheduled to end on 3 February.
Ninth Circuit Judges Kim Wardlaw, Salvador Mendoza, Jr. and Anthony Johnstone said in Wednesday’s decision that the TPS legislation passed by Congress did not give the secretary the power to vacate an existing TPS designation. All three judges were nominated by Democratic presidents.
“The statute contains numerous procedural safeguards that ensure that individuals with TPS enjoy predictability and stability during periods of extraordinary and temporary conditions in their country,” Wardlaw, who was nominated by President Bill Clinton, wrote for the panel.
Wardlaw said “Noem’s illegal actions have had real and significant consequences” for Venezuelans and Haitians in the United States who rely on TPS.
“The record is replete with examples of hard-working, contributing members of society — who are mothers, fathers, wives, husbands and partners of American citizens, pay taxes, and have no criminal records — who have been deported or detained after losing their TPS,” she wrote.
Temporary Protected Status, or 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 strife, environmental disaster or other “extraordinary and temporary conditions” that prevent a safe return to that country of origin.
Nominations are granted for terms of six, 12 or 18 months, and extensions may be granted as long as conditions remain dire. The status prevents holders from being deported and allows them to work, but does not give them a path to citizenship.
At the end of the protections, Noem said that the conditions in both Haiti and Venezuela had improved and that it was not in the national interest to allow immigrants from both countries to stay for what is a temporary program.
Millions of Venezuelans have fled political unrest, mass unemployment and famine. The country is mired in a long-term crisis brought on by years of hyperinflation, political corruption, economic mismanagement and ineffective government.
Haiti was first designated for TPS in 2010 after a catastrophic 7.0 earthquake that killed and injured hundreds of thousands of people, leaving more than a million homeless. Haitians face widespread hunger and gang violence.
Mendoza wrote separately that there was “sufficient evidence of animus of racial and national origin” that strengthened the lower court’s conclusion that Noem’s decisions were “preordained and her reasoning pretextual.”
“It is clear that the Secretary’s vacating actions were not actually based on substantive policy considerations or genuine differences with respect to the previous administration’s TPS procedures, but were instead based on a diagnosis based on the stereotype of Venezuelan and Haitian immigrants as dangerous criminals or mentally unfit,” he wrote.
Government lawyers have argued that the secretary has clear and broad authority to make determinations related to the TPS program and those decisions are not subject to judicial review. They also denied that her actions were motivated by racial animus.