Page 4
Ninth Circuit:
No Error in Delaying Trump’s Move to Deport Venezuelans
Opinion Says Law Does Not Allow Executive to Vacate Predecessor’s Extension of Temporary Protection Status
By a MetNews Staff Writer
The Ninth U.S. Court of Appeals held Friday that a District Court judge did not err in granting preliminary relief postponing the enforcement of an action by Secretary of Homeland Security Kristi Noem, which purported to vacate the extension of a temporary designation, granted by the former administration three days before Inauguration Day, shielding certain Venezuelan immigrants from deportation.
Declaring that the plaintiffs were likely to succeed on the merits of their claim that Noem’s action was not authorized by the statute governing the so-called “Temporary Protected Status” program, the court said the law allows the Executive Branch to issue, terminate, and extend the relief offered by the provision but does not permit vacatur.
At issue is 8 U.S.C. §1254a, which provides that the secretary, under certain circumstances, “may grant the alien temporary protected status…and shall not remove the alien…during the period in which such status is in effect” and “shall authorize the alien to engage in employment” in the U.S.
Qualifying circumstances are found where the secretary finds that “there exist extraordinary and temporary conditions in the foreign state that prevent aliens…from returning to the state in safety, unless…permitting the aliens to remain temporarily…is contrary to the national interest of the United States.”
Extensions are permitted under the scheme for up to 18 months if the unsafe country conditions continue, and the secretary may end the designation if circumstances change; however, “[s]uch termination…shall not be effective earlier than 60 days after the date the notice is published or, if later, the expiration of the most recent previous extension.”
Judicial Authority
Noem argues that the court lacked authority to review her action, citing Subd. (a)(5)(A), which provides:
“There is no judicial review of any determination of the [Secretary of the Department of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”
Rejecting that assertion, Circuit Judge Kim McLane Wardlaw, who authored Friday’s opinion, said:
“The extent of statutory authority granted to the Secretary is a first order question that is not a ‘determination…with respect to the designation, or termination or extension’ of a country for TPS. Nothing here indicates that Congress’s language restricting review of the Secretary’s ‘determination[s]’ of whether to grant TPS in a particular situation also extends to her conclusion as to the extent of her power under the TPS statute.”
The dispute erupted after then-Secretary of Homeland Security Alejandro Mayorkas announced, on Jan. 17, an extension of the TPS status for Venezuelan immigrants through October 2026.
On March 9, 2021, Mayorkas had earlier designated refugees escaping the country for an 18-month period of TPS, expiring on Sept. 9, 2022, making approximately 323,000 Venezuelan nationals eligible to apply.
In 2023, he announced an extension of the 2021 determination and, at the same time, redesignated the country for the program, a move that resulted in a two-track system with different expiration dates. Mayorkas’ January order allowed parties on both paths to seek an 18-month extension through Oct. 2, 2026.
Noem’s Action
Noem issued a notice on Feb. 3 that announced:
“Former Secretary Mayorkas extended the 2023 designation…for 18 months, allowed a consolidation of filing processes such that all eligible Venezuela TPS beneficiaries (whether under the 2021 or 2023 designations) may obtain TPS through the same extension date of October 2, 2026, and extended certain Employment Authorization Documents (EADs). All of this also had the effect of extending the 2021 designation. This notice vacates Mayorkas’ notice immediately.”
Two days later, she announced the termination of the 2023 TPS designation, effective as of April 7.
After a member-led organization, the National TPS Alliance, and seven individual plaintiffs filed a complaint against Noem, asking the court to postpone and invalidate the vacatur and termination notices, Senior District Court Judge Edward M. Chen of the Northern District of California granted a motion for preliminary relief, postponing the vacatur and termination notices.
In May, the U.S. Supreme Court granted the government’s application to stay the order “pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought.” Wardlaw pointed out that “[t]he postponement of agency action under the APA is governed by the preliminary injunction factors, which include the plaintiffs’ likelihood of succeeding on the merits of their claim, any irreparable harm flowing from the denial of relief, as well as consideration of the balance of equities and the public interest.
As to the plaintiffs’ likelihood of success on the claim that Noem’s actions exceeded her statutory authority, the government asserted that, because the statute grants the secretary the authority to designate TPS, the administration must also have the inherent authority to vacate it.
Rejecting this contention, Wardlaw acknowledged that “[w]here Congress does not explicitly address the subject, agencies have some authority to reconsider prior decisions” but said that they “lack the authority to undo their actions where, as here, Congress has spoken and said otherwise.”
Looking to the statutory language, she opined:
“It expressly provides that the termination of a TPS designation can be no earlier than the expiration of the most recent extension. The statute does not permit the Secretary to terminate a designation ‘midstream,’ but that is exactly what the Secretary purports to do here. And while the statute expressly sets forth in detail procedures for ‘designation,’ ‘extension,’ and ‘termination,’ it nowhere mentions a process for ‘vacatur,’ which, in this case, has the practical effect of a ‘termination’ of a TPS designation.”
Statutory Procedures
Saying that “if the Secretary wished to end TPS status for Venezuelans, she is statutorily required to follow the procedures for termination that Congress enacted,” the jurist concluded that the plaintiffs were likely to succeed on the merits of their claim. She cited 5 U.S.C. §706(2)(C), which permits courts to “hold unlawful and set aside agency action” found “in excess of statutory…authority.”
The government argued that restricting the secretary’s TPS authority will lead “to absurd and extreme results—no Secretary would be empowered to vacate a designation or extension of a designation no matter how grave the threat to national security, U.S. foreign policy, or border security interests.” Wardlaw responded:
“[T]his argument ignores that TPS is, by its nature, temporary. And Congress expressly contemplated such situations: the statute renders individuals convicted of certain crimes ineligible for TPS and provides for the withdrawal of status of others.”
She continued:
“The[] Congressional limitations on the Secretary’s authority are further supported by the reliance issues at play here….Congress’s time limitations are meaningful to the regulated parties here—people who use this guaranteed time with ‘enough stability to work’ and ‘a decent standard of living’ to obtain employment, seek educational opportunities, and find long-term housing. This was Congress’s design when it enacted TPS….”
Wardlaw added:
“We need not proceed to Plaintiffs’ additional claims. Our holding that the Secretary lacks vacatur authority under he statute moots Plaintiffs’ [other] claims….If the vacatur is postponed, and the prior extension is restored, the termination cannot go into effect.”
Finding that the other factors also weigh in favor of the postponement order, she wrote that “TPS holders’ potential deportation to Venezuela poses…risks of harm” as “Venezuela is rated by the U.S. State Department as a ‘Level 4: Do Not Travel’ country because of the ‘high risk of wrongful detentions, terrorism, kidnapping,….”
Noem asserted that the public interest considerations favor the government, citing overrun hospitals and national security concerns relating to the Venezuelan gang Tren de Aragua. Unpersuaded, the judge said:
“[H]undreds of thousands of people have been stripped of status and plunged into uncertainty. The stability of TPS has been replaced by fears of family separation, detention, and deportation. Congress did not contemplate this, and the ongoing irreparable harm to Plaintiffs warrants a remedy pending a final adjudication on the merits.”
Circuit Judge Salvador Mendoza Jr. and Senior Circuit Judge Anthony D. Johnstone joined in Friday’s opinion. All three judges are appointees of Democratic presidents.
The case is National TPS Alliance v. Noem, 25-2120.
Copyright 2025, Metropolitan News Company