Court blocks Trump administration from terminating TPS for 4 countries

4 Oct 18

UNITED STATES

A federal judge in California has issued a nationwide temporary injunction in the case Ramos, et al, v. Nielsen, which blocks the Trump administration from terminating Temporary Protected Status, or TPS, for four countries—Haiti, Sudan, Nicaragua and El Salvador.

Late last year and early this year, the administration terminated TPS designation for several countries. The four countries at issue represent more than 300,000 TPS holders who would be subject to deportation when the designation expires. The lawsuit was brought by TPS beneficiaries and their U.S. citizen children who argue that the administration violated the Administrative Procedures Act and the Equal Protection Clause in terminating the programs.

The court said that the plaintiffs would suffer irreparable harm if it did not issue an injunction. The plaintiffs, many of whom have been in the U.S. legally for two decades and have U.S. citizen children, would have to decide between leaving the only country their children have known and separating their families. In addition, the government not only would not face harm from an injunction, but state and local economies would suffer if 300,000 TPS beneficiaries are uprooted and deported. “The balance of hardship tips decidedly in plaintiffs’ favor,” wrote U.S. District Court Judge Edward M. Chen in a 43-page decision.

The judge also found that the plaintiffs were likely to succeed on the merits. On the Administrative Procedures Act, he said that the “wealth of record evidence” showed that the Department of Homeland Security changed its policy regarding TPS designations, such as disregarding current conditions if they were not the original basis of the TPS designation, and did not provide a rationale for such a policy change. On the Equal Protection Clause argument, he said the plaintiffs raise serious questions as to whether a discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations, including evidence that DHS acted under pressure from Trump and statements by Trump indicating that he harbors an animus against non-white non-European aliens.

Key points:

  • The injunction will preserve the status quo regarding validity of TPS documents and work authorization for TPS beneficiaries of the four countries until the case is resolved on the underlying claims. The court ordered DHS to report within 15 days on steps it has taken to preserve the status quo.
  • A status conference was set for Oct. 26 to discuss setting a trial schedule.

Background: TPS designation allows DHS to provide temporary legal status and eligibility to apply for an employment authorization document to individuals who are unable to return to their home countries in extraordinary events such as armed conflict or natural disasters.

Haiti was originally designated for TPS in 2010 following a magnitude 7.0 earthquake. The designation was extended four times by the Obama administration, and the Trump administration extended it once for a six-month period before announcing in January 2018 that it would be terminated as of July 22, 2019. Sudan was designated for TPS status in 1997 due to ongoing armed conflict and was extended 15 times by the Clinton, Bush and Obama administrations. DHS announced it would terminate the designation as of Nov. 2, 2018. Nicaragua was designed in 1999 due to Hurricane Mitch and was extended 13 times by three administrations. DHS announced in December 2017 that it would terminate the designation on January 9, 2019. El Salvador was designated in 2001 based on a series of earthquakes and was extended 11 times by the Bush and Obama administrations. DHS announced in January 2018 that its designation would be terminated as of Sept. 9, 2019.

BAL Analysis: The injunction does not change anything immediately, as orders to terminate the programs were not to take effect until different dates in 2019, or November 2, 2018 in the case of Sudan. Given the imminent termination date of the Sudan TPS program, individuals whose Sudan TPS is set to expire next month may be eligible to renew their status and employment authorization beyond the expiration date in coming weeks. DHS has 15 days to implement procedures to ensure that TPS for all four countries remains in effect during the pendency of the lawsuit. The administration will likely appeal this decision.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@balglobal.com.

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