A federal appeals court ruled late Wednesday that the Trump administration acted illegally when it ended legal protections that allow millions 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’s decision that found Homeland Security Secretary Kristy Noem overstepped her authority when ending temporary protected status for Venezuela.
The decision will not have immediate practical effect after the US Supreme Court in October allowed Noem’s decision to be enforced until the justices make a final decision.
An email sent to the Department of Homeland Security Wednesday night was not immediately returned.
The 9th Circuit panel also upheld the lower court’s finding that Nome exceeded its authority in deciding to end TPS early for millions of Haitians.
A federal judge in Washington is expected to rule any day on a request to halt the termination of TPS for Haiti while a separate lawsuit challenging it continues. The country’s TPS designation is ending on February 3.
Ninth Circuit Judges Kim Wardlaw, Salvador Mendoza, Jr. and Anthony Johnstone said in Wednesday’s decision that the TPS law passed by Congress did not authorize the secretary to vacate an existing TPS designation. All three judges were nominated by Democratic presidents.
“The law contains many procedural protections that ensure that persons with TPS enjoy predictability and stability during extraordinary and temporary circumstances in their home country,” Wardle, who was nominated by President Bill Clinton, wrote for the panel.
Wardlow said Noem’s “unlawful actions have had real and significant consequences” for Venezuelans and Haitians in the United States who rely on TPS.
“The record is littered 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 — being 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 countries facing civil strife, environmental disasters or other “extraordinary and temporary conditions” to prevent safe return to that country.
Designations are awarded for terms of six, 12 or 18 months, and extensions may be granted as long as conditions remain severe. The status prevents holders from being deported and allows them to work, but it does not give them a path to citizenship.
Ending the protections, Noem said the situation in both Haiti and Venezuela had improved and that it was not in the national interest to allow immigrants from the two countries to remain in the temporary program.
Millions of Venezuelans have fled political unrest, massive unemployment and hunger. Due to years of high inflation, political corruption, economic mismanagement and ineffective government, the country has been in crisis for a long time.
Haiti was first designated for TPS in 2010 following a devastating 7.0 magnitude earthquake that left millions dead and injured, and more than 100,000 homeless. Haitians face widespread hunger and gang violence.
Mendoza separately wrote that there was “substantial evidence of hostility of racial and national origin” that strengthened the lower court’s conclusion that Noem’s rulings were “prejudiced and pretextual to his reasoning.”
“It is clear that the Secretary’s vacatur actions were not based on sound policy considerations or real differences with respect to the prior administration’s TPS procedures, but instead were rooted in stereotype-based diagnoses of Venezuelan and Haitian immigrants as dangerous criminals or mentally ill,” he wrote.
Attorneys for the government 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 have also denied that his actions were motivated by caste hatred.
