10.8.18

On October 3, a federal judge in San Francisco entered a preliminary injunction barring the termination of Temporary Protected Status designations for Haiti, Sudan, Nicaragua, and El Salvador.

The lawsuit, Ramos v. Nielsen, challenges the decision of the U.S. Department of Homeland Security to terminate TPS designations for these nations. The plaintiffs were TPS beneficiaries who have resided in the United States for years and their children, who are U.S. citizens. Unless the government appeals the preliminary injunction, the injunction will remain in place until the court issues a final decision on the merits.

As we have previously reported, foreign nationals needing relief because conditions in their countries prevented safe return have been able to seek a TPS designation by the Department of Homeland Security or its predecessor. Qualifying conditions include natural disasters, civil war, and other extraordinary and temporary conditions. Those granted TPS are allowed to remain in the United States for the authorized period and are eligible to obtain employment and travel authorization and, where qualified, to seek other temporary status or permanent resident status.

TPS designation is currently available for 10 countries, but the designations are being terminated because the DHS has determined that the emergency conditions justifying the designation no longer exist. The DHS also determined that continuing difficult conditions in the country that were not qualifying conditions did not justify a TPS designation. TPS designation for Sudan was due to expire on November 2, Nicaragua on January 5, 2019, Haiti on July 22, 2019, and El Salvador on September 9, 2019.

While the preliminary injunction is in place, these TPS designations will not terminate.

The decision to terminate TPS designations obviously has a direct and substantial impact on the affected individuals, many of whom have been in the United States for several years, but also on the U.S. employers who employ many of these individuals.

Basis for the injunction

To grant a preliminary injunction, the court had to find that the plaintiffs would suffer irreparable harm, had a sufficient likelihood of success on the merits, and that the balance of the hardships favored the TPS beneficiaries and their families. In finding irreparable harm, the court noted,

[A]bsent injunctive relief, TPS beneficiaries and their children indisputably will suffer irreparable harm and great hardship. TPS beneficiaries who have lived, worked, and raised families in the United States (many for more than a decade), will be subject to removal. Many have U.S.-born children; those may be faced with the Hobson’s choice of bringing their children with them (and tearing them away from the only country and community they have known) or splitting their families apart. In contrast, the government has failed to establish any real harm were the status quo (which has been in existence for as long as two decades) maintained during the pendency of this litigation. Indeed, if anything, Plaintiffs and [friends of the court] have established without dispute that local and national economies will be hurt if hundreds of thousands of TPS beneficiaries are uprooted and removed.

The court also found that the balance of hardships weighed in favor of the plaintiffs. Finally, the court found that the plaintiffs made “a substantial showing on the merits,” saying that the DHS applied new criteria that had not been applied by prior administrations “and did so without any explanation or justification in violation of the Administrative Procedure Act.” Moreover, the court said,

There is also evidence that this may have been done in order to implement and justify a pre-ordained result desired by the White House. Plaintiffs have also raised serious questions whether the actions taken by the Acting Secretary or Secretary was [sic] influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution.

Although the Supreme Court had ruled in June in Trump v. Hawaii (Travel Ban case) that the President had broad power to decide which foreign nationals should be admitted or excluded, the Ramos court said that the TPS situation was distinguishable because 1) national security was the basis for the Travel Ban but not at issue with TPS designations; (2) the plaintiffs in Ramos were already in the United States and entitled to certain constitutional protections, unlike those outside the United States “who are seeking admission for the first time”; and (3) although the Administration had broad discretion to issue the Travel Ban, “Congress has not given the [DHS] carte blanche to terminate TPS for any reason whatsoever.”

Outlook for TPS beneficiaries

It is fair to say that the battle has just begun and that the future for TPS beneficiaries in general is uncertain.

The DHS, in terminating TPS designations, has said that it was up to Congress to come up with a legislative solution because, in the opinion of the DHS, the TPS beneficiaries were not entitled to continued status in the United States. As was the case with the Deferred Action on Childhood Arrivals, a legislative solution makes a lot of sense, but there has no favorable action on this front for either group. Meanwhile, the TPS expiration dates were fast approaching.

We expect an immediate appeal by the Trump Administration to seek to overturn the preliminary injunction. The Administration undoubtedly will be emboldened by the U.S. Supreme Court’s Travel Ban decision, which affirmed the President’s power in this area, even if based on alleged religious animus, so long as the actions “can reasonably be understood to result from a justification independent of unconstitutional grounds.”

We will continue to follow this case and will keep you posted.

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