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A Federal Appeals Court Has Allowed The Trump Administration To End A Program That Lets 300,000 Immigrants Live In The US

The ruling is expected to affect over 200,000 US-born children in addition to the immigrants who have benefited from the program.

Last updated on September 14, 2020, at 5:38 p.m. ET

Posted on September 14, 2020, at 2:09 p.m. ET

Children hold a Haiti flag and a sign that says "Open your heart, defend TPS"
Laura Bonilla Cal / Getty Images

A federal appeals court on Monday allowed the Trump administration to terminate a program that lets at least 300,000 immigrants live and work in the US.

In a 2–1 decision, the 9th Circuit Court of Appeals vacated a preliminary injunction issued by US District Judge Edward Chen in 2018 that prevented the administration from ending temporary protected status (TPS) for immigrants from Haiti, El Salvador, Nicaragua, and Sudan. The panel remanded to the district court for further proceedings.

"The district court abused its discretion in issuing the preliminary injunction," the 9th Circuit said.

In 2017 and 2018, the Trump administration announced it was terminating the TPS designation for these four countries.

In addition to the 300,000 immigrants who have benefited from TPS, the ruling is also expected to affect over 200,000 US-born children, according to court documents. Without TPS, these recipients could be deported if they don't find another way to legalize their status in the US.

The 9th Circuit said the lower court erred in issuing the injunction because the decision by the homeland security secretary to terminate TPS is not reviewable by the courts.

The panel also said plaintiffs failed to show a likelihood of success in their argument that the government's decision to end TPS for the countries was fueled by President Donald Trump's apparent hostility toward nonwhite, non-European immigrants, citing his statements about Mexicans, Haitians, and Nigerians, among other examples.

"Plaintiffs fail in their burden of showing a likelihood of success, or even serious questions, on the merits of their claim that racial animus toward 'non-white, non-European' populations was a motivating factor in the TPS terminations," the ruling stated.

The panel pointed to the administration's decision around the same time to extend TPS for Somalia, South Sudan, Syria, and Yemen, countries with “non-European” and predominantly “nonwhite” populations.

Sarah Pierce, a policy analyst at the Migration Policy Institute, a think tank based in Washington, DC, said Monday's ruling also has implications for the 65,000-plus Honduran and Nepalese TPS holders who were subject to a separate lawsuit, in which the administration agreed to follow the same schedule for terminating as those covered in this case.

Monday's ruling doesn't mean TPS for these countries will immediately end should the Trump administration proceed with the terminations. In a 2019 statement, DHS said that if it prevails in its challenge to the preliminary injunction, the termination for Honduras, Nepal, Nicaragua, and Sudan would take effect no earlier than 120 days from an appeals court mandate. The termination of TPS for El Salvador would take effect no earlier than 365 days from a ruling.

The Trump administration also said if it wins in its challenge to the preliminary injunction in this case and another parallel case for more Haitians with TPS, the termination would take effect no earlier than 120 days from the issuance of the last decision from the appeals courts. The other case is still pending in the Second Circuit Court of Appeals.

The lawsuit was filed in 2018 by the National Day Laborer Organizing Network, the American Civil Liberties Union Foundation of Southern California, and the law firm Sidley Austin LLP, on behalf of nine TPS recipients and five US-born children.

Ahilan Arulanantham, senior counsel of the ACLU Foundation of Southern California, said in a statement it will seek further review of the court's decision.

“The president’s vile statements about TPS holders made perfectly clear that his administration acted out of racial animus," Arulanantham said. "The Constitution does not permit policy to be driven by racism."

Immigrants with TPS are allowed to live and work in the US if it is determined that they are unable to safely return to their home country because of an environmental disaster, armed conflict, or other extraordinary conditions.

The administration announced it was ending TPS for some countries because the conditions there had improved to the point that people no longer needed protection.

In a statement, the Justice Department said it was pleased with the Ninth Circuit's ruling vacating the injunction. For about two years, the injunction prevented the government from taking action on terminating TPS, which the DOJ said is "vested solely within the discretion" of the Secretary of DHS.

"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," a spokesperson for the DOJ said.

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