Legal Sidebari

Ninth Circuit Decision Allows Termination of
Temporary Protected Status for Sudan,
Nicaragua, and El Salvador to Go Forward
Updated January 12, 2021
Certain non-U.S. nationals (aliens) who otherwise might be subject to removal from the United States
may stay and work here when the Department of Homeland Security (DHS) designates their countries for
Temporary Protected Status (TPS) because of unstable or dangerous conditions in those countries. In
2017 and 2018, DHS announced the termination of TPS designations for Sudan, Nicaragua, Haiti, El
Salvador, Nepal, and Honduras. The agency’s decisions affect more than 400,000 TPS beneficiaries from
those six countries who may no longer be authorized to remain in the United States upon the effective
termination date of the countries’ TPS designations. Several lawsuits have challenged DHS’s decisions on
various constitutional and statutory grounds. Recently, in Ramos v. Wolf, the U.S. Court of Appeals for the
Ninth Circuit reversed a lower court’s preliminary injunction enjoining DHS from ending the TPS
designations for four of those countries—Sudan, Nicaragua, Haiti, and El Salvador. A separate challenge
to the termination of the TPS designations for Honduras and Nepal remains pending in federal district
court. The Ninth Circuit decision does not affect a separate injunction by a court outside the Ninth Circuit
barring the termination of the TPS designation for Haiti. This Legal Sidebar examines the Ninth Circuit’s
decision and the implications that decision may have for TPS recipients.
Background
Under § 244 of the Immigration and Nationality Act (INA), DHS in consultation with the State
Department may designate a country for TPS if (1) there is an armed conflict that prevents the safe return
of nationals from that country; (2) there has been an environmental disaster in the country that
substantially disrupts living conditions in the area affected; or (3) there are “extraordinary and temporary
conditions” in the foreign country that prevent alien nationals from safely returning. An alien from a
country designated for TPS may be permitted to remain and work in the United States for the period in
which the TPS designation is in effect, even if the alien had not originally entered the United States
lawfully. The initial period of TPS designation may last between 6 and 18 months, and the designation
may be extended thereafter. But if the DHS Secretary concludes that the designated country “no longer
continues to meet the conditions for [TPS] designation,” the agency “shall terminate” the TPS
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designation. INA § 244(b)(5) provides that “[t]here is no judicial review of any determination of the
[DHS Secretary] with respect to the designation, or termination or extension of a designation, of a foreign
state. . . .” Upon termination of their respective country’s TPS designation, TPS beneficiaries are to revert
to the same immigration status they had before TPS (unless that status has since expired or been
terminated) or to any lawful immigration status they obtained while registered for TPS relief (as long as
the lawful status remains valid on the date a TPS designation terminates).
From September 2017 through May 2018, DHS successively announced the termination of TPS
designations for Sudan, Nicaragua, Haiti, El Salvador, Nepal, and Honduras. In its Federal Register
notices, the agency declared that the conditions which originally warranted TPS designations for these
countries no longer existed or had substantially improved. The agency, however, granted 12- or 18-month
wind-down periods for each country before the terminations would become effective.
Preliminary Injunction in Ramos v. Wolf and Related Litigation
In Ramos v. Wolf, nine TPS beneficiaries and their five U.S. citizen children filed a lawsuit in the U.S.
District Court for the Northern District of California, challenging DHS’s decisions to end TPS
designations for Sudan, Nicaragua, Haiti, and El Salvador. The plaintiffs argued that, in terminating the
TPS designations, DHS only considered whether the original country conditions warranting those
designations had continued, without examining more recent events in those countries. The plaintiffs
argued that DHS’s actions violated the Administrative Procedure Act (APA) because they “represented a
sudden and unexplained departure from decades of decision-making practices and ordinary procedures.”
The plaintiffs also argued that DHS’s decision to terminate TPS violated their constitutional right to equal
protection because it was “motivated in significant part by racial and national-origin animus.”
In October 2018, the district court issued a preliminary injunction barring DHS from terminating the TPS
designations for Sudan, Nicaragua, Haiti, and El Salvador pending the outcome of the litigation.
Previously, the court had rejected the government’s contention that INA § 244(b)(5) barred judicial
review of DHS’s TPS terminations, reasoning that the statute did not bar review of the “general policies
or practices” employed in deciding whether to end a TPS designation, and that the jurisdictional provision
did not foreclose constitutional challenges. In its October 2018 order, the court determined that, given
DHS’s failure to explain its “change in practice” of only considering the original country conditions when
making a TPS determination, plaintiffs had shown serious questions or a likelihood of success on the
merits of their APA claim. The court also ruled that the plaintiffs raised serious questions on their equal
protection claim based on evidence that race may have been a “motivating factor” in the TPS designation
decisions. The court cited statements reportedly made by President Trump that “expressed animus against
non-white, non-European immigrants,” and other evidence suggesting that the DHS Secretary may have
been “influenced” by President Trump and administration officials.
While the Ramos lawsuit was pending, a group of plaintiffs in Bhattarai v. Wolf challenged DHS’s
termination of TPS designations for Honduras and Nepal in the U.S. District Court for the Northern
District of California. In March 2019, following the Ramos injunction, the court in Bhattarai stayed the
proceedings pending adjudication of the government’s appeal in Ramos. Further, the government agreed
not to terminate the TPS designations for Nepal and Honduras pending resolution of that appeal.

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Additionally, in Saget v. Trump, a group of plaintiffs filed a lawsuit in the U.S. District Court for the
Eastern District of New York challenging DHS’s termination of Haiti’s TPS designation. In April 2019,
the court issued a preliminary injunction enjoining DHS from terminating Haiti’s TPS designation,
largely on the same grounds that the Ramos court relied on in issuing an injunction.
The Ninth Circuit’s Decision in Ramos v. Wolf
The government appealed the preliminary injunction in Ramos v. Wolf to the Ninth Circuit. On September
14, 2020, the Ninth Circuit, in a split decision, reversed and vacated the injunction. In the majority
opinion authored by Judge Callahan, the court held that INA § 244(b)(5) barred judicial review of the
plaintiffs’ APA challenge to DHS’s decision to terminate the TPS designations for Sudan, Nicaragua,
Haiti, and El Salvador. Recognizing the DHS Secretary’s “broad and unique” discretion over TPS
designations, the court read § 244(b)(5) as barring review of the Secretary’s “country-specific TPS
determinations,” but not “general collateral challenges to unconstitutional practices and policies used by
the agency” in reaching those determinations. According to the court, the Secretary’s unreviewable TPS
determinations include the substantive “considerations and reasoning” underlying those determinations,
such as an assessment of country conditions. The court construed the plaintiffs’ arguments about DHS’s
failure to consider intervening events in a country when making TPS determinations as “essentially an
attack on the substantive considerations underlying the Secretary’s specific TPS determinations, over
which the statute prohibits judicial review.”
The court rejected the plaintiffs’ claim that INA § 244(b)(5) did not bar judicial review because they
challenged DHS’s new “agency practice” of ignoring intervening events rather than the TPS
determination itself. The court reasoned that the plaintiffs’ claim “depends on a review and comparison of
the substantive merits of the Secretary’s specific TPS terminations, which is generally barred by [§
244(b)(5)].” Thus, the plaintiffs did not seek to challenge an agency policy that was “collateral to, and
distinct from” the DHS Secretary’s TPS determinations. Because the plaintiffs’ claim “fundamentally
attacks the Secretary’s specific TPS determinations,” there was no jurisdiction to review those decisions.
The Ninth Circuit, however, addressed the plaintiffs’ equal protection claim, reasoning that INA §
244(b)(5) did not foreclose “colorable constitutional claims.” First, the court rejected the government’s
argument that the equal protection claim should be analyzed under the deferential “rational basis”
standard employed by the Supreme Court in Trump v. Hawaii. There, the Supreme Court upheld a
Presidential Proclamation barring the entry of certain nationals of mainly Muslim-majority countries,
concluding that it was rationally related to legitimate national security concerns. The Ninth Circuit
concluded that a less deferential standard applied here because, unlike the aliens in Trump v. Hawaii, TPS
recipients have entered the United States and oftentimes remained in the country for many years, and the
Executive’s administration of the TPS program raised less national security implications than the
proclamation at issue in Hawaii. The court thus applied the standard adopted by the Supreme Court in
Village of Arlington Heights v. Metropolitan Housing Development Corp., which looks to whether a
discriminatory purpose was “a motivating factor” behind a challenged decision.
The Ninth Circuit held that the plaintiffs failed to present serious questions on the merits of their claim
that the TPS terminations were influenced by the President’s “animus against non-white, non-European
immigrants.” The court determined there was a “glaring lack of evidence” linking the President’s alleged
discriminatory intent to the specific TPS terminations. For example, the court noted, although the
President had made “offensive and disparaging” statements about immigrants, there was no evidence that
these statements “played any role in the TPS decision-making process.” Additionally, in the court’s view,
the fact that White House officials had sought to influence the TPS determinations did not in itself show
that the President’s alleged racial animus was a motivating factor, given the expectation that executive
officials “conform their decisions to the administration’s policies.” Finally, the court held, the fact that the
TPS terminations affected non-European countries with mainly “non-white” populations did not establish

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racial animus either, because virtually all countries designated for TPS have that characteristic, and so any
TPS termination would disproportionately impact such countries.
In addition to joining the panel opinion, Judge Nelson wrote a concurring opinion arguing that the lower
court also erred by requiring the government to present evidence outside the administrative record, and
that the court should have limited the scope of the injunction to cover only individuals who were a party
to the case, rather than issuing a “universal” injunction that applied nationwide. In a dissenting opinion,
Judge Christen argued that INA § 244(b)(5) did not bar judicial review of the plaintiffs’ challenge to the
DHS Secretary’s “changed practice” of ignoring intervening country conditions when making a TPS
determination, reasoning that plaintiffs sought to challenge the “the process used to make TPS termination
decisions, not the decisions themselves.” Judge Christen thus argued that plaintiffs were likely to succeed
on their APA claim to warrant an injunction, and declined to consider their equal protection claim.
Implications for TPS Recipients
The Ninth Circuit’s decision in Ramos would allow DHS to proceed with terminating the TPS
designations for El Salvador, Nicaragua, and Sudan. But the separate court injunction in Saget v. Trump
outside the Ninth Circuit continues to bar the agency from terminating Haiti’s TPS designation. Thus,
despite the Ramos ruling, Haitian TPS recipients retain their TPS relief status and are not subject to
removal. (The government’s appeal of the Saget injunction is pending before the Second Circuit.)
The Ramos decision, however, could have significant consequences for TPS recipients from El Salvador,
Nicaragua, and Sudan. Given the Ninth Circuit’s ruling, TPS recipients from those countries may become
subject to removal once their TPS expires (unless they acquired some other lawful immigration status that
remains valid). Additionally, the Ramos ruling could impact TPS recipients from Nepal and Honduras,
whose countries’ TPS termination decisions were separately challenged in Bhattarai v. Wolf. In that case,
the court had stayed the proceedings pending adjudication of the government’s appeal in Ramos. Because
of the Ninth Circuit’s ruling, TPS recipients from Nepal and Honduras could now become subject to
removal. All told, the Ramos decision potentially renders about 347,000 TPS recipients removable upon
the effective termination date of their countries’ TPS designations.
Yet TPS recipients from El Salvador, Nicaragua, Sudan, Nepal, and Honduras will not immediately lose
their authorization to remain in the United States. The Ninth Circuit in Ramos has not yet issued its
mandate directing the federal district court to enforce its decision, and consequently, the lower court’s
injunction still remains in effect. DHS’s U.S. Citizenship and Immigration Services (USCIS) has thus
extended TPS and TPS-related documentation (e.g., work authorization) for TPS recipients from El
Salvador, Nicaragua, Sudan, Nepal, and Honduras until October 4, 2021. USCIS has also extended TPS
and TPS-related documentation for Haitian TPS recipients until that date given the ongoing injunction in
Ramos and the separate injunction in Saget.
USCIS announced, however, that if the government ultimately prevails in the Ramos litigation (i.e., when
the Ninth Circuit issues its mandate), the TPS terminations for Honduras, Nepal, Nicaragua, and Sudan
would take effect no earlier than 120 days from issuance of the mandate; and for El Salvador, no earlier
than 365 days after the mandate. As noted, the Ninth Circuit has not yet issued its mandate, which would
otherwise have occurred seven days after the time for filing a petition for rehearing expired, on November
5, 2020. But the plaintiffs in Ramos had moved for an extension of time to file a petition for rehearing,
and the court has not yet ruled on that motion. Should the Ninth Circuit deny rehearing and issue its
mandate (which would trigger the 120-day or 365-day period), the plaintiffs could petition for review
before the Supreme Court, and request a stay of the Ninth Circuit’s ruling pending disposition of that
petition. The plaintiffs could also file in the Ninth Circuit a motion to stay the mandate pending the
Supreme Court’s consideration of their petition.

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While any TPS-related litigation continues, Congress may consider legislative options for TPS recipients.
For example, the American Dream and Promise Act of 2019 (H.R. 6), which passed the House in 2019,
would have allowed certain nationals of countries designated for TPS to pursue adjustment of status to
lawful permanent resident (LPR). A number of other bills introduced in the 116th Congress would have
impacted TPS recipients, including by extending TPS country designations, adding new countries to those
designated for TPS (e.g., Venezuela), prohibiting federal funds from being used to remove TPS recipients,
and allowing TPS recipients who have lived in the United States for several years to adjust to LPR status.


Author Information

Hillel R. Smith

Legislative Attorney




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