A federal appeals court ruled late Wednesday that the Trump administration acted illegally when it ended 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 found Homeland Security Secretary Kristi Noem overstepped 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 ruling to take effect pending a final decision by the justices.
In an emailed statement Thursday, a spokeswoman for the Department of Homeland Security blasted the decision as “an activist and lawless order by the federal judiciary” and said federal judges continue to “undermine our immigration laws.”
Assistant Secretary Tricia McLaughlin also emphasized that TPS was meant to be temporary.
The full 9th Circuit also upheld the lower court’s finding that Noem exceeded his authority when he decided to end TPS early for hundreds of thousands of Haitians.
A federal judge in Washington is expected to rule any day now on the request to halt the termination of TPS for Haiti while a separate lawsuit challenging it plays out. 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 the power to rescind an existing TPS designation. All three justices were appointed by Democratic presidents.
“The statute contains numerous procedural safeguards that ensure that TPS individuals enjoy predictability and stability during times of extraordinary and temporary conditions in their country of origin,” Wardlaw, who was nominated by President Bill Clinton, wrote for the panel.
Wardlaw said Noem’s “unlawful actions have had real and significant consequences” for Venezuelans and Haitians in the United States who rely on TPS.
“The document is replete with examples of hard-working, contributing members of society — who are mothers, fathers, spouses and partners of American citizens, pay taxes, and have no criminal records — who have been deported or detained after losing 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 disasters, or other “extraordinary and temporary conditions” that prevent a safe return to that country of origin.
Designations 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 deportation and allows them to work, but does not provide a path to citizenship.
In ending the protections, Noem said that conditions in both Haiti and Venezuela have improved and that it is not in the national interest to allow immigrants from the two 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 protracted crisis caused by years of hyperinflation, political corruption, economic mismanagement and an ineffective government.
In his statement Thursday, McLaughlin said President Donald Trump’s decision to oust Venezuelan President Nicolas Maduro brings stability to the country.
Haiti was first designated for TPS in 2010 after a catastrophic 7.0 magnitude earthquake killed and injured hundreds of thousands of people and left more than 1 million homeless. Haitians face widespread starvation and gang violence.
McLaughlin said previous administrations turned TPS for Haiti into a “de facto amnesty program,” noting that the earthquake happened more than 15 years ago.
In Wednesday’s ruling, Mendoza wrote separately that there was “ample evidence of racial and national animus” that strengthened the lower court’s conclusion that Noem’s decisions were “premeditated and her reasoning pretextual.”
“It is clear that the Secretary’s vacatur actions were not actually based on substantive policy considerations or real differences with the previous administration’s TPS procedures, but were rooted in a diagnosis based on the stereotype of Venezuelan and Haitian immigrants as dangerous criminals or mentally ill,” he wrote.
Government lawyers have argued that the secretary has clear and broad authority to make decisions related to the TPS program and that those decisions are not subject to judicial review. They also denied that her actions were motivated by racial animus.