US court allows Trump to phase out Temporary Protected Status

The ruling ends humanitarian protection for about 400,000 immigrants, many who have lived in the US for decades

The National TPS Alliance unfurled banners at a December protest in the Hart Senate Office Building, urging Congress to save Temporary Protected Status for all beneficiaries.   (Bill Clark/CQ Roll Call)
The National TPS Alliance unfurled banners at a December protest in the Hart Senate Office Building, urging Congress to save Temporary Protected Status for all beneficiaries. (Bill Clark/CQ Roll Call)
Posted September 14, 2020 at 5:23pm

A U.S. federal court on Monday sided with the Trump administration over its effort to terminate Temporary Protected Status for a number of countries, potentially ending by next year humanitarian protections for some 400,000 immigrants who have lived in the United States for decades. 

Congress created the Temporary Protected Status designation in 1990 to grant individuals from countries struck by natural disaster, armed conflict or other “extraordinary and temporary conditions” the ability to stay in the United States without fearing deportation. In 2017 and 2018, the Department of Homeland Security tried to end these protections for individuals from El Salvador, Haiti, Nicaragua, Nepal and Sudan, but its attempts were blocked by various court decisions. 

In a 2-1 decision Monday, a 9th U.S. Circuit Court of Appeals panel ruled that the terminations of these designations were not reviewable by the court. It found that while the plaintiffs had sufficiently demonstrated that President Donald Trump “expressed racial animus against ‘non-white, non-European’ immigrants,” they had “cited no evidence linking the President’s animus to the TPS terminations — such as evidence that the President personally sought to influence the TPS terminations, or that any administration officials involved in the TPS decision-making process were themselves motivated by animus.”

Judge Morgan Christen, however, noted in her dissent that she would have affirmed the lower court’s injunction.

The lawsuit was first brought by the American Civil Liberty Union of Southern California and the National Day Laborer Organizing Network on behalf of nine TPS holders and five U.S. citizen children of TPS designees. Crista Ramos, a U.S.-born teenager whose mother is a TPS beneficiary, is the lead plaintiff.

Roughly 400,000 people from the countries involved in the rule are beneficiaries of the TPS designation, with Salvadorans making up the largest group. The lives of an additional 200,000 or so U.S. citizen children of TPS holders may also be affected if they are compelled to move to their parents’ country of origin or separate from them.

Current TPS for Salvadorans runs until November 2021, but for the other countries it ends March 2021. 

Ahilan T. Arulanantham, a senior counsel at the American Civil Liberties Union of Southern California, litigated the case for plaintiffs. 

He called the court’s interpretation of procedural law “wrong” and its threshold to determine racial animus “impossibly high.” Arulanantham added that his team would seek an en banc review of Monday’s ruling — a review of the decision by the entire 9th Circuit — or take the case up to the Supreme Court if necessary. He underscored that apart from rulings in other TPS cases, Congress or a shift in the White House in 2021 could intervene and alter the fate of TPS holders.

“All three branches of the government bear responsibility here, and any of the three can individually fix the problem,” he said. 

He also noted that an estimated 130,000 TPS beneficiaries were “essential workers” — keeping the American economy running during the pandemic.  

Sajjan Pandey, a California-based TPS holder from Nepal, is one of them — a gas station employee. He said that he was recovering from COVID-19, and was disappointed in the Ninth Circuit’s decision. 

“We knew from the beginning that this was going to be a hard and long fight, but I’m shocked,” he said on a press call. "I have lived here for decades … I was hoping to build a future to retire in the country."

Wilma, a Haitian TPS holder and a plaintiff in the case, expressed shock during the same call.

“We have coronavirus, we have [the] hurricane, and now this,” said Wilma, who now lives in Florida with her husband and children. She added that both she and her husband recently contracted COVID-19. “For me, [the decision] is another disaster."

Royce Murray, managing director of programs at the American Immigration Council, called the ruling "another blow at a community that's been struck hard not just by the last few years of anti-immigrant sentiment but also the COVID-19 pandemic and its economic fallout."

She said in addition to the courts, the presidential election and congressional legislation will have bearing on what happens.

"We do ultimately think that these hundreds and thousands of TPS holders need a permanent solution."

The Department of Homeland Security didn't immediately respond to a request for comment on the ruling.