Legal Sidebari

Termination of Temporary Protected Status
for Certain Countries: Recent Litigation
Developments
Updated December 9, 2022
Certain aliens (as defined in the Immigration and Nationality Act (INA)) 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, as of this
writing, roughly 292,000 TPS beneficiaries from those six countries who potentially could lose
authorization to remain in the United States upon the effective termination date of the countries’ TPS
designations. Several lawsuits challenged DHS’s decisions on certain constitutional and statutory
grounds. In Ramos v. Wolf, the U.S. Court of Appeals for the Ninth Circuit in 2020 reversed a lower
court’s preliminary injunction barring DHS from ending the TPS designations for four of those
countries—Sudan, Nicaragua, Haiti, and El Salvador—but that decision is not final. A separate court
challenge to the termination of the TPS designations for Honduras and Nepal remains stayed pending the
outcome in Ramos. In the meantime, DHS newly designated Haiti and Sudan for TPS in 2021 and 2022,
thereby allowing nationals of those countries to apply for TPS benefits based on the newer designations.
This Legal Sidebar examines the litigation concerning the TPS designation terminations and the
implications it may have for TPS recipients.
Background
Under INA § 244(b), 8 U.S.C. § 1254a, DHS, in consultation with other federal agencies, may designate a
country (or any part of 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
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thereafter. 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 designation. INA § 244(b)(5), 8
U.S.C. § 1254a(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), 8 U.S.C.
§ 1254a(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), 8 U.S.C. § 1254a(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), 8 U.S.C. § 1254a(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 court determined that 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,” the
court held that there was no jurisdiction to review those decisions.
The Ninth Circuit, however, addressed the plaintiffs’ equal protection claim, reasoning that INA
§ 244(b)(5), 8 U.S.C. § 1254a(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 explained that, 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

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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
racial animus either, because virtually all countries designated for TPS have that characteristic, and so any
TPS termination would disproportionately impact such countries. The court thus vacated the district
court’s injunction and remanded the case to the lower court for further proceedings, and those
proceedings remain ongoing.
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.
New TPS Designations for Haiti and Sudan
On August 3, 2021, less than a year after the Ramos ruling, DHS newly designated Haiti for TPS. That
designation enabled Haitian nationals, including those who received TPS under the previous 2011
designation, as well as those who entered the United States more recently, to pursue TPS benefits under
the 2021 designation. Given this development, on October 15, 2021, the parties in the Saget case (which
involved a challenge to the termination of Haiti’s original TPS designation) agreed to dismiss that case.
More recently, on December 5, 2022, DHS extended and redesignated Haiti for TPS, allowing Haitian
nationals residing in the United States as of November 6, 2022, to pursue TPS relief based on this new
designation.
Additionally, on April 19, 2022, DHS newly designated Sudan for TPS. That designation allows Sudanese
nationals, including those with TPS relief under the prior 2013 designation, as well as those who came to
the United States more recently, to pursue TPS benefits under the 2022 designation. The newer TPS
designations for Haiti and Sudan are currently set to last until August 3, 2024, and October 19, 2023,
respectively.
Implications for TPS Recipients
The Ninth Circuit’s decision in Ramos would allow DHS to proceed with terminating the TPS
designations for El Salvador and Nicaragua, and the previous 2011 and 2013 TPS designations for Haiti
and Sudan. Those TPS recipients 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. Given the Ninth Circuit’s ruling, TPS recipients from
Nepal and Honduras could also become subject to removal. All told, the Ramos decision potentially
renders about 292,000 TPS recipients removable upon the effective termination date of their countries’
TPS designations.
Nonetheless, TPS recipients from El Salvador, Nicaragua, Nepal, Honduras, and Haiti and Sudan (under
those countries’ 2011 and 2013 designations) will not immediately lose their authorization to remain in
the United States. The Ramos plaintiffs previously filed a petition for panel rehearing and rehearing en

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banc in that case, and the Ninth Circuit has not yet issued its mandate directing the federal district court to
enforce its decision. Following filing of the rehearing petition, the Ninth Circuit stayed the proceedings
pending settlement discussions between the parties in light of the Biden Administration’s decision to
review the TPS designation terminations. Those settlement efforts have reportedly ended without
agreement, and, in the meantime, the Ninth Circuit has not yet ruled on the rehearing petition.
Consequently, the lower court’s injunction remains in effect because the mandate has yet to be issued.
DHS’s U.S. Citizenship and Immigration Services (USCIS) has thus extended TPS-related documentation
(e.g., work authorization) for TPS recipients from El Salvador, Nicaragua, Honduras, and Nepal, and for
TPS recipients from Haiti and Sudan (under those countries’ 2011 and 2013 designations) until June 30,
2024. Further, as discussed, nationals of Haiti and Sudan with TPS under those countries’ previous
designations may pursue TPS benefits under the newer designations, thereby ensuring that they maintain
TPS benefits in the event the Ramos ruling becomes final.
USCIS has announced that if the government ultimately prevails in the Ramos litigation (i.e., when the
Ninth Circuit issues its mandate), the TPS terminations for El Salvador, Honduras, Nepal, and Nicaragua
would take effect no earlier than 365 days from issuance of the mandate. As noted, the Ninth Circuit has
not yet issued its mandate, which would occur seven days after the court’s entry of an order denying the
plaintiffs’ petition for rehearing, as the court has not yet ruled on the rehearing petition. Should the Ninth
Circuit deny rehearing and issue its mandate (which would trigger the 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.
While any TPS-related litigation continues, Congress may consider legislative options for TPS recipients.
For example, the American Dream and Promise Act of 2021 (H.R. 6), which passed the House in 2021,
would allow certain nationals of countries designated for TPS to pursue adjustment of status to lawful
permanent resident (LPR). Another bill introduced in the 117th Congress that would impact TPS recipients
is an appropriations bill that passed the House in 2021 (H.R. 4502), which would allow TPS recipients to
obtain federal financial aid for higher education. Other legislation introduced in the 117th Congress would
add new countries or regions to those designated for TPS (e.g., Hong Kong, Lebanon, and Ukraine), or,
similar to H.R. 6, would allow TPS recipients who have lived in the United States for several years to
adjust to LPR status. Conversely, some bills introduced in the 117th Congress would limit TPS by making
those who are members of criminal gangs or lack lawful immigration status ineligible for TPS, terminate
an individual’s TPS if that person fails to appear for a removal proceeding, or transfer authority from
DHS to Congress to designate countries for TPS.



Author Information

Hillel R. Smith

Legislative Attorney

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LSB10541 · VERSION 3 · UPDATED

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