The Supreme Court decided this week to hear arguments in the government’s requests for stays of two district court orders, one blocking DHS from ending Temporary Protected Status (TPS) for nationals of Syria and the other blocking a similar effort to end TPS for Haiti. Both requests are being “treated as petitions for a writ of certiorari before judgment”, that is, Supreme Court consideration before the circuit courts weigh in, so the Court appears to be ready to make a point — and it likely won’t favor the plaintiffs in those cases, or the district court judges who are going to pretty questionable extremes to bottle up the administration’s immigration policies.
Temporary Protected Status
Beginning under President Eisenhower in 1960, various administrations attempted to use an ad hoc designation, “Extended Voluntary Departure” (EVD), to allow nationals of certain countries to remain here out of concern they could not be safely repatriated due to wars or other disasters back home.
By 1989, Cuba and 15 other countries had been designated for EVD status, and Congress decided to take back its prerogatives over immigration policy by regularizing and codifying the practice in statute.
Consequently, section 302 of the Immigration Act of 1990 (IMMACT 90) amended the Immigration and Nationality Act (INA) by adding a new section 244, “Temporary Protected Status”.
As USCIS explains, pursuant to that provision:
The Secretary of Homeland Security may designate a foreign country for TPS due to conditions in the country that temporarily prevent the country's nationals from returning safely, or in certain circumstances, where the country is unable to handle the return of its nationals adequately. USCIS may grant TPS to eligible nationals of certain countries (or parts of countries), who are already in the United States. Eligible individuals without nationality who last resided in the designated country may also be granted TPS.
A country may be designated for TPS due to “ongoing armed conflict”, “environmental disaster”, or some similar “extraordinary and temporary condition”, and while such a designation is in effect, an alien granted TPS status cannot be removed and may be granted work and travel authorization.
Not all nationals of designated countries are eligible for that protection, however.
Aliens convicted in the United States of two misdemeanors or a felony aren’t eligible, and neither are those who are subject to any of the bars to asylum in section 208(b)(2)(A) of the INA, which include persecutors, security risks, those firmly resettled elsewhere, and aliens who committed “serious nonpolitical crimes” abroad.
All of this sounds reasonable and humanitarian until you consider that the “temporary” in TPS is, in too many cases, a misnomer.
For example, El Salvador was first designated for TPS in March 2001 due to a series of earthquakes there that year, and it has been redesignated ever since. Somalia was designated nearly a decade earlier.
Trump II Terminations of TPS for Syria and Haiti
The Trump II administration has been attempting to roll back many of those hoary designations but has been repeatedly stymied by the courts and, consequently, sought relief from the justices.
In its October 2025 order in Noem v. National TPS Alliance (NTPSA), the Supreme Court stayed an order from the U.S. District Court for the Northern District of California (N.D. Cal.) that set aside and vacated the DHS secretary’s termination of a TPS designation for that country, pending DOJ’s appeal to the Ninth Circuit.
That was the second time the Supreme Court issued a stay in NTPSA, the first coming in May.
On September 22, the DHS secretary announced she would be terminating the TPS designation for Syria, which had been in effect since March 2012, on November 21.
Just less than a month later, seven Syrian nationals with TPS or pending TPS applications filed a complaint in Doe v. Noem with the U.S. District Court for the Southern District of New York (S.D. N.Y.) asking for declaratory and injunctive relief to block that termination.
On November 19, Judge Katherine Pok Failla issued a preliminary injunction, postponing the termination of TPS for Syria.
On February 17, the U.S. Court of Appeals for the Second Circuit denied DOJ’s request for a stay of that order.
On November 28, the DHS secretary announced she would be terminating the TPS designation for Haiti, effective February 3. That designation had been in place either since January 2010 or August 2023 (when then-DHS Secretary Alejandro Mayorkas newly designated Haiti for TPS), depending on how you read the complicated legal history.
On December 5, five Haitian TPS holders filed an amended complaint with the U.S. District Court for the District of Columbia (D. D.C.) in Miot v. Noem, asking the D. D.C. to (among other things) postpone and set aside that termination.
On February 2, Judge Ana Reyes issued a stay of the TPS termination for Haiti, in an order that began with a 1783 quote from then-Gen. George Washington (“America is open to receive not only the Opulent & respected Stranger, but the oppressed & persecuted of all Nations & Religions”) before segueing into the following tweet from DHS Secretary Kristi Noem:
I just met with the President.
I am recommending a full travel ban on every damn country that's been flooding our nation with killers, leeches, and entitlement junkies.
Our forefathers built this nation on blood, sweat, and the unyielding love of freedom—not for foreign…— Secretary Kristi Noem (@Sec_Noem) December 1, 2025
You’ll note that tweet had nothing to do with TPS or Haiti, but that didn’t stop Judge Reyes from opining:
Plaintiffs are five Haitian TPS holders. They are not, it emerges, “killers, leeches, or entitlement junkies.” They are instead: Fritz Emmanuel Lesly Miot, a neuroscientist researching Alzheimer’s disease; Rudolph Civil, a software engineer at a national bank; Marlene Gail Noble, a laboratory assistant in a toxicology department; Marica Merline Laguerre, a college economics major; and Vilbrun Dorsainvil, a full-time registered nurse. [Internal citations omitted.]
The government sought a stay of that order from the U.S. Circuit Court for the District of Columbia (D.C. Circuit), which a split three-judge panel of that court denied on March 6.
INA Section 244(b)(5)(A) and “An Improper Intrusion by a Federal Court”
In his dissent from that March 6 order, D.C. Circuit Judge Justin Walker noted: “The Government is irreparably harmed by ‘an improper intrusion by a federal court into the workings of a coordinate branch of the Government.’ ... The Government’s harm would be lightened, perhaps significantly, if the Government were unlikely to prevail on the merits.”
Specifically, Judge Walker cited section 244(b)(5)(A) of the INA, which states: “There is no judicial review of any determination of the [secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”
As the foregoing (and other similar decisions in other cases involving TPS terminations) reveal, however, that express congressional denial of judicial jurisdiction over TPS decisions hasn’t stopped judges in the N.D. Cal., the S.D. N.Y., or in the Second and D.C. Circuits from concluding that Congress didn’t mean what it said in section 244(b)(5)(A) of the INA, or that what Congress did say could be distinguished from the cases at hand.
“Certiorari Before Judgment”
In any event, DOJ filed requests for stays of the district court orders in Doe and in Miot from the Supreme Court, but the justices declined to issue stays.
Rather, in a brief docket entry consolidating those cases and setting them for oral arguments in April, the Court announced that the government’s applications for stays are being deferred and are also being “treated as petitions for a writ of certiorari before judgment”, that is, before the courts of appeal consider the issues in those cases.
A March 9 letter from John Sauer, solicitor general of the United States (DOJ’s main Supreme Court lawyer), requested certiorari before judgment because the denials of the stays from the Second and D.C. Circuits “departs from the stays ordered” by the justices and the Ninth Circuit in “extraordinarily similar cases”, but as the Legal Information Institute explains:
A petition for a writ of certiorari to review a case pending in a United States court of appeals, before judgment is entered in that court, will be granted only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court. [Emphasis added.]
Perhaps I am missing something, but it appears that in setting Doe and Miot for oral arguments and treating the government’s requests for stays therein as requests to review those cases before the respective circuit courts get the chance, the justices are sending a message to the inferior courts.
Not to cast aspersions, and recognizing every individual case is different and rises and falls on its own merit, but there do seem to be a large number district court decisions issued in the past year-plus that have stymied Trump II immigration policies on some questionable grounds.
That’s curious given that in section 244(b)(5)(A) of the INA, and throughout the judicial review provisions in section 242 of the INA, Congress took great pains to exclude trial-level district court judges of nearly all jurisdiction over all immigration decisions.
In the TPS context in particular, that jurisdiction-stripping makes sense: If the DHS secretary knew she couldn’t end a “temporary” protection that provides aliens of certain countries with work authorization and reprieves from deportation without a prolonged legal battle, she’d be less likely to make such a designation to begin with.
Not to overread the Supreme Court’s decision to set two lower-court decisions blocking Trump II DHS terminations of “temporary” protected status for a hearing next month, but the justices may be preparing to send a message to the inferior courts to stay in their statutorily designated lanes in immigration matters.