DHS Uses an Overruled Court Order as Pretext to Extend TPS Benefits

By Elizabeth Jacobs on November 18, 2022

The U.S. Department of Homeland Security (“DHS”) announced on November 14, 2022 it will automatically extend Temporary Protected Status (“TPS”) documentation validity for most TPS beneficiaries from El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan until June 30, 2024. DHS extended TPS benefits for these classes to comply with a court order that was overruled two years ago by the federal Ninth Circuit Court of Appeals, but never officially rescinded by the lower court.

Under section 244 of the Immigration and Nationality Act (INA), the Secretary of Homeland Security may grant TPS and employment authorization to nationals of designated countries. In order for a country to receive a TPS designation, the Secretary must determine that a country is experiencing:

  1. An ongoing armed conflict within the country such that requiring the return of nationals to that country would pose a serious threat to their personal safety;
  2. A natural or environment disaster resulting in a substantial, but temporary, disruption of living conditions such that the foreign state is temporarily unable to adequately handle the return of their nationals; or
  3. “Extraordinary and temporary” conditions in the foreign state that prevent nationals of the state from returning safely (unless the secretary determines that permitting such aliens to remain temporarily in the United States is contrary to the national interest of the United States).

As long as TPS is in effect, those aliens who have been granted status may not be removed, except under very limited circumstances, and are authorized to work. An alien does not need to be in the United States legally to be eligible.

Federal law limits TPS periods to no longer than 18 months, and requires the Secretary of Homeland Security to extend or terminate a country’s designation based on whether the conditions in the country continue to meet the statutory threshold for TPS.

In 2018, the Trump administration announced its plans to terminate the TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, after it determined that the conditions in these countries no longer justified their TPS designations. To many immigration experts, these wind-downs were long-overdue, as most of these designations were premised on years-old or decades-old storms or emergencies. For example, Honduras and Nicaragua were originally designated for TPS in 1998 (24 years ago) because of damage caused by Hurricane Mitch. El Salvador was designated for TPS in 2001 (21 years ago) because of damage caused by an earthquake.

Again, Congress created TPS to be a temporary form of relief (“temporary” is even spelled out in its name) which should be terminated when conditions in designated countries improve. TPS was never meant to provide a long-term or permanent immigration status for aliens living in the United States illegally. Numerous administrations, however, have caved to political pressure to extend TPS for nationals of these countries despite the statute’s clear directives.

The Lawsuits. The Trump administration’s decisions were quickly challenged and enjoined by the U.S. District Court for the Northern District of California; first in Ramos, et al. v. Nielsen, et al., No. 18-cv-01554 (N.D. Cal. Oct. 3, 2018) and then in Bhattarai, et al. v. Nielsen, et al., No. 19-cv-00731 (N.D. Cal. March 12, 2019). As my colleague, Andrew Arthur, wrote in 2018 and the U.S. Court of Appeals for the Ninth Circuit ruled in 2020, the biggest issue with these court orders is that section 244 of the Immigration and Nationality Act (“INA”) provides the DHS Secretary with significant discretion over TPS, so much so that it expressly precludes judicial review of TPS decisions. Section 244(b)(5) reads, “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.” The statute could not have been written more clearly.

As a result, the Ninth Circuit Court of Appeals vacated the district court’s injunction in the Ramos lawsuit, which should in turn nullify the order in Bhattarai. According to DHS, however, the Court of Appeals never expressly directed the lower court to rescind its court orders despite the vacatur. Accordingly, DHS believes that the agency is still obligated to comply with their terms.

(It is important to note that the Biden administration has since re-designated Haiti and Sudan for TPS since the issuance of the court orders in Ramos and Bhattarai. Whether these new designations are supported by current country conditions is another discussion, but DHS’s extension notice from November 2022 does not affect beneficiaries who have since obtained TPS on the basis of these re-designations.)

Regardless of any updates in the Ninth Circuit, the status quo is unlikely to change for TPS beneficiaries for the remainder of the current administration. Fully understanding that DHS has the lawful discretion to terminate the TPS designations, DHS nevertheless assured beneficiaries that even if the court orders are properly rescinded, it has no intention of ending TPS for these countries. In its more recent Federal Register notice, DHS plainly wrote that the agency, “will not terminate TPS for any of the affected countries pending final disposition of the Ramos appeal, including through any additional appellate channels in which relief may be sought, or by other orders of the court.” Tellingly, DHS did not condition its plans on any future evaluations of country conditions.

TPS coverage for this group was previously set to expire on December 31, 2022. According to a 2021 USCIS report to Congress, there are nearly 400,000 TPS beneficiaries in the United States from the countries given an extension. This includes over 240,000 people from El Salvador, over 75,000 people from Honduras and over 50,000 people from Haiti.