Appeals court sides with Trump over drawdown of immigrant protections
by Rafael Bernal
A panel of judges of the 9th U.S. Circuit Court of Appeals in a ruling Monday uphold the Trump administration's drawdown of temporary protected status (TPS) designations for a handful of countries, which allow more than 400,000 foreign nationals to live and work in the United States.
The panel lifted an injunction in a case filed by citizens of El Salvador, Nicaragua, Haiti and Sudan and their U.S. citizen children against the Trump administration's management of TPS.
The resolution could also affect TPS holders from Honduras and Nepal, who sued in a separate case that's tied to the main case.
The 2-1 decision showed a stark divide between the two conservative judges on the panel, Trump appointee Ryan Nelson and George W. Bush appointee Consuelo Callahan, and Obama appointee Morgan Christen.
The majority ruled the Trump administration was not subject to the Administrative Procedures Act (APA) in making TPS country designations, and denied that Trump's alleged racial animus played a part in TPS decisions
"While we do not condone the offensive and disparaging nature of the President’s remarks, we find it instructive that these statements occurred primarily in contexts removed from and unrelated to TPS policy or decisions," wrote Callahan in the majority opinion.
In her dissent, Christen agreed with plaintiffs both that administrative procedure was violated in changing TPS policy, and that Trump's personal racial animus played a part in the decisions, as illustrated by his cataloguing of Haiti as a "shithole country."
"Remarkably, the government urges us to interpret the many denigrating comments in the record as descriptions of inferior living conditions in foreign countries, rather than evidence of racial animus. But we cannot sweep aside the words that were actually used, and it would be worse for us to deny their meaning. Some of the statements expressly referred to people, not to places," wrote Christen.
"The President’s statements require no deciphering," she added.
Under Trump, the Department of Homeland Security has acted to eliminate TPS designations, which allow citizens of certain countries to live and work in the United States.
The program was renewed by Democratic and Republican administrations for more than two decades, essentially without changes.
The original lawsuit alleged that the Trump administration violated the APA and acted based on racial animus in eliminating TPS designations for those countries.
In October 2018, a district court granted the plaintiffs a preliminary injunction, which the 9th Circuit lifted Monday.
Because of extensions granted by the Trump administration during the court proceedings, the earliest TPS beneficiaries from Nicaragua, Haiti and Sudan could lose their permission to reside in the country is March 2021, and Salvadoran TPS will be in place until at least November 2021.
But the plaintiffs are expected to ask for an "en banc" session, meaning they will ask the entire 9th Circuit to weigh in on the matter, before potentially taking it to the Supreme Court, which would likely delay any effects on plaintiffs.
TPS holders are in the country legally, but have few legal avenues to transition to permanent status while participating in the program.
Activists have long decried what they view as attacks on TPS holders by the Trump administration, in part because the withdrawal of TPS benefits could force U.S. citizen minors to separate from their parents and remain in the United States, or move to their parents' countries of origin.
Crista Ramos, one of the lead plaintiffs in the case, known as Ramos v. Nielsen, said the Trump administration "failed me and the other 250,000 US citizen children of TPS holders."
"If this decision stands, it means Trump’s termination of TPS will move ahead and TPS holders will only have until January 2021 to legally live and work in this country. We need our senators to act now and pass the Dream & Promise Act to grant TPS holders a permanent residency before another wave of family separations occurs. Despite the court’s decision, our fight must continue,” said Ramos in a statement.
The fight over TPS comes down to an interpretation made by Trump administration officials, who argued the key element of the program is its temporary nature.
Under a succession of secretaries, John Kelly, Elaine Duke, Kirstjen Nielsen, Kevin McAleenan and Chad Wolf, the Trump administration has broken with precedent, granting short renewals of TPS country designations.
Under past presidents, 18-month renewals had been granted on an almost routine basis.
Duke, who was acting secretary after Kelly was named White House chief of staff, wrote Kelly in 2017 that the short renewals "will send a clear signal that TPS in general is coming to a close."
The injunction that was lifted Monday had prevented the Trump administration from effectively closing down the program, and ultimately the administration moved all final TPS decisions until after November's election.
A Department of Justice spokesperson said the department is "pleased" with the Ninth Circuit decision.
"For approximately two years, the district court’s injunction prevented the Department of Homeland Security from taking action that Congress has vested solely within the discretion of the Secretary of Homeland Security — action that is statutorily precluded from judicial review," wrote the spokesperson in a statement.
"We applaud the Ninth Circuit’s recognition of the plain language of the Immigration and Nationality Act and its rejection of the baseless accusations of animus behind the actions taken by the Department of Homeland Security," added the spokesperson.
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