The recent decision by the US Court of Appeals for the Ninth Circuit has placed the Department of Homeland Security (DHS) under scrutiny as it rules against the agency’s attempt to roll back Temporary Protected Status (TPS) for Venezuelans. This court decision, though significant, remains largely symbolic for now due to an earlier order from the Supreme Court that allows deportations to proceed as legal proceedings continue. In a unanimous ruling, Judge Kim McLane Wardlaw criticized DHS, under Secretary Kristi Noem, for lacking the statutory authority to nullify a valid TPS extension granted during the Biden administration. The Ninth Circuit emphasized the need for predictable and reliable application of TPS status, marking a victory for TPS recipients and advocates, even if its practical effects are not yet realized (JURIST).
The legal battle originates from a lawsuit by the National TPS Alliance and Venezuelan TPS holders, arguing that DHS overstepped its authority and violated the Administrative Procedure Act. U.S. District Judge Edward Chen had previously sided with this view, placing a halt on the administration’s actions until the Supreme Court applied a stay. This stay has allowed the administration to begin phasing out protections for about 348,000 individuals, though those covered by the 2021 designation remain protected until September 2025. The ruling from the Ninth Circuit affirms Judge Chen’s conclusions but remains ineffective unless the Supreme Court lifts its stay.
TPS, established to support individuals from countries plagued by armed conflict or disasters, was extended to Venezuelans in response to the nation’s humanitarian crisis. The extension granted by President Biden was aimed at providing continuity for over 600,000 migrants. However, this strategy faced immediate obstacles following President Trump’s return to office, leading to a rapid reevaluation of TPS under an executive order.
Judge Wardlaw’s opinion clearly delineates the limitations on DHS, citing the TPS statute’s prohibition on abrupt reversals and mid-period terminations. She argues that such actions must meet the law’s requirements, including a mandated 60-day notice period before termination can be executed. The summary terminations by the DHS have been widely criticized as incompatible with the legislative intent of the TPS law.
Advocates for TPS view the Ninth Circuit’s decision as a crucial affirmation of adherence to the rule of law. José Palma of the National TPS Alliance expressed confidence that justice is on their side, despite the current limitations of the ruling. The broader implications of this legal contest remain to be seen, particularly in how the balance of power between the judiciary and the executive branch will play out in immigration policy.