The Ninth Circuit Acts Responsibly – for a Change – in Ending Temporary Protected Status
“Nothing lasts longer than a temporary government program,” President Reagan once said. That adage certainly applies to the Temporary Protected Status program. TPS was intended to give only short-term permission for aliens to be in the U.S., but that permission has often gone on seemingly without end.
Fortunately, a three-judge panel of the 9th Circuit Court of Appeals, in a 2-to-1 decision, has just dissolved an injunction that prevented the Department of Homeland Security (DHS) from ending TPS for aliens from Sudan, Nicaragua, El Salvador, and Haiti who have been in the U.S. for decades.
As Judge Consuelo Callahan explained in Ramos v. Wolf, the TPS program was created in 1990 to provide “temporary relief to nationals of designated foreign countries that have been stricken by a natural disaster, armed conflict or other ‘extraordinary and temporary conditions in the foreign state.” It is codified at 8 U.S.C. §1254a; 21 countries and the Province of Kosovo have received TPS designations.
Initial TPS designations last for a period of 6 to 18 months. Sixty days before the end of the designated time-period, DHS is supposed to determine whether the conditions – such as a hurricane – that led to TPS status still exist. If DHS does nothing to terminate the TPS designation, it is automatically continued. The statute also very specifically says that the courts have no jurisdiction to review the decision by DHS to make the designation in the first place or to terminate it.
Between 2017 and 2018, the Trump administration terminated the TPS designations of Sudan, Nicaragua, El Salvador, and Haiti. These countries had one major thing in common – they had been on the TPS list for about two decades, with only one exception. Sudan was designated for TPS in 1997 because of an ongoing civil war; Nicaragua in 1999 due to the devastation wreaked by Hurricane Mitch; El Salvador in 2001 because of the after-effects of three earthquakes; and Haiti in 2010, also due to an earthquake. Not very temporary.
All of these countries had their TPS status extended multiple times, often due to reasons removed from the original events that caused TPS status to be granted – additional natural disasters, ongoing economic instability, and other health and safety concerns. As the detailed explanations provided by DHS pointed out, conditions in these countries had improved substantially since they were first designated for TPS (which is unsurprising given the extended time period elapsed since then and the extensive international aid many had received), to the point where it was safe for the aliens to return to their native countries.
Yet aliens from those countries filed lawsuits claiming that the terminations were illegal under the Administrative Procedure Act (APA), because the administration didn’t give “adequate” reasons for ending TPS. They also claimed violations of the Equal Protection Clause of the Fifth Amendment, alleging the terminations were done with a discriminatory purpose.
https://pjmedia.com/columns/hansvonspakovskyandcourtneybaer/2020/09/25/the-ninth-circuit-acts-responsibly-for-a-change-in-ending-temporary-protected-status-n970624