Noem ending protected status for Venezuelans in U.S. was illegal, federal appeals court rules

A federal appeals court ruled late Wednesday that the Trump administration acted illegally when it ended legal protections that gave hundreds of thousands of people from Venezuela permission 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 ruling that found Homeland Security Secretary Kristi Noem exceeded her authority when she ended temporary protected status for Venezuelans.

The decision, however, will not have any immediate practical effect after the U.S. Supreme Court in October allowed Noem’s decision to take effect pending a final decision by the justices.

An email late Wednesday night to the Department of Homeland Security was not immediately returned.

The 9th Circuit panel also upheld the lower court’s finding that Noem exceeded her authority when she decided to end TPS early for hundreds of thousands of people from Haiti.

A federal judge in Washington is expected to rule any day now on a request to pause the termination of TPS for Haiti while a separate lawsuit challenging it proceeds. The country’s TPS designation is scheduled to end on February 3.

Ninth Circuit Judges Kim Wardlaw, Salvador Mendoza, Jr. and Anthony Johnstone said in Wednesday’s ruling that the TPS legislation passed by Congress did not give the secretary the power to vacate an existing TPS designation. All three judges were nominated by Democratic presidents.

“The statute contains numerous procedural safeguards that ensure individuals with TPS enjoy predictability and stability during periods of extraordinary and temporary conditions in their home country,” Wardlaw, who was nominated by President Bill Clinton, wrote for the panel.

Wardlaw 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 replete with examples of hard-working, contributing members of society – who are mothers, fathers, wives, husbands, and partners of U.S. citizens, pay taxes, and have no criminal records – who have been 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 Homeland Security secretary to grant legal immigration status to people fleeing countries experiencing civil strife, environmental disaster or other “extraordinary and temporary conditions” that prevent a safe return to that home country.

Designations are granted for terms of six, 12 or 18 months, and extensions can be granted so long as conditions remain dire. The status prevents holders from being deported and allows them to work but does not give them a path to citizenship.

In ending the protections, Noem said conditions in both Haiti and Venezuela had improved and that it was not in the national interest to let immigrants from the two countries stay on for what is a temporary program.

Millions of Venezuelans have fled political unrest, mass unemployment and hunger. The country is mired in a prolonged crisis brought on by years of hyperinflation, political corruption, economic mismanagement and an ineffectual government.

Haiti was first designated for TPS in 2010 after a catastrophic magnitude 7.0 earthquake killed and wounded hundreds of thousands of people and left more than 1 million homeless. Haitians face widespread hunger and gang violence.

Mendoza wrote separately that there was “ample evidence of racial and national origin animus” that reinforced the lower court’s conclusion that Noem’s decisions were “preordained and her reasoning pretextual.”

“It is clear that the Secretary’s vacatur actions were not actually grounded in substantive policy considerations or genuine differences with respect to the prior administration’s TPS procedures, but were instead rooted in a stereotype-based diagnosis of immigrants from Venezuela and Haiti as dangerous criminals or mentally unwell,” he wrote.

Attorneys for the government have argued the secretary has clear and broad authority to make determinations related to the TPS program and those decisions are not subject to judicial review. They have also denied that her actions were motived by racial animus.