Hundreds of thousands of immigrants who have been legally living and working in the United States on a temporary basis — some for decades — could find themselves in deportation proceedings as early as March, if a decision Monday by the Ninth U.S. Circuit Court of Appeals in California stands.
The court ruled 2-1 in favor of the U.S. Department of Homeland Security and overturned a lower district court’s temporary injunction barring President Donald Trump from terminating Temporary Protected Status, or TPS. It effectively brings the president a step closer to ending the immigration benefit and forcing an estimated 400,000 TPS beneficiaries to return to their respective countries.
TPS holders, immigration attorneys, advocates and Democrats quickly condemned the ruling, which immediately raised concerns about several other TPS-related lawsuits making their way through U.S. federal courts.
Under the California court’s decision, TPS holders from Haiti, Nicaragua and Sudan could find themselves in deportation proceedings in six months, followed by nationals of El Salvador in early November 2021. The plaintiffs in the case, Ramos v. Nielsen, hail from the four countries and, with the help of the American Civil Liberties Union Foundation of Southern California, filed suit against the administration two years ago.
The lawsuit focused on Trump’s decision to strip their countries of TPS, a designation that protects immigrants from deportation if their nation of origin has been hit with a natural disaster or civil war. The program was created by Congress in 1990.
Among the plaintiffs’ arguments, which the court rejected in its appellate decision: The White House pressured DHS and State Department officials to end the program, and the president’s animus toward immigrants of color was a motivating factor in his decision to strip them of the benefit.
“The mere fact that the White House exerted pressure on the Secretaries’ TPS decisions does not in itself support the conclusion that the President’s alleged racial animus was a motivating factor in the TPS decisions,” the majority of judges wrote.
The decision comes just 50 days before the U.S. presidential election and as immigration continues to be a flash point. While Democratic nominee Joe Biden has promised to roll back Trump’s sweeping immigration changes — more than 400 executive actions — Trump has promised to tighten them.
Maureen Porras, a Nicaraguan-born immigration attorney running as a Democrat for the state House in a district that includes the heavily Nicaraguan city of Sweetwater, said Monday’s ruling could sway voters on the fence in the presidential election. Nicaraguans are among a key group of swing Hispanic voters in the November election who are being wooed in Florida by both the Trump and Biden campaigns.
“We have a president that talks about helping immigrants fleeing communist and socialist countries, yet we haven’t been able to give Venezuelans TPS and they are doing everything they can to end TPS for those who already have it, even though the country conditions haven’t changed in the country where those people are from,” said Porras, whose family fled the Sandinistas in Nicaragua. “I think it’s going to hurt the administration.”
The Catholic Legal Immigration Network said in a release that the decision could potentially unleash the next major family separation crisis unless Congress takes immediate action. More than 270,000 U.S. citizens have parents with TPS.
Marleine Bastien, a Haitian activist whose Family Action Network Movement is a plaintiff in a TPS lawsuit filed in New York on behalf of Haitian beneficiaries, said she was disappointed to see the court siding with “the Trump administration’s racist and unlawful decision to terminate TPS.”
Noting that an estimated 130,000 TPS holders have been classified by DHS as essential workers in a recent study, Bastien said, the Ninth Circuit’s decision “highlights the urgency for the Senate to act now by passing the Dream and Promise Act HR6 and for voters to register to vote en masse on Nov. 3 like their lives depended on it.”
That sentiment was also expressed during a press call with journalists on Monday following the decision.
Ahilan T. Arulanantham, senior counsel for the ACLU of Southern California, said it will seek a review of the decision by the full ninth circuit, and it is also prepared to take the case to the U.S. Supreme Court if necessary.
But the matter isn’t just one for the courts to decide, Arulanantham said, noting that many of those affected by the ruling have been living in the U.S. for decades and have U.S.-born children.
“Both a friendlier administration and Congress have the power to fix this problem. It’s not just, and most importantly, a judicial problem,” Arulanantham said. “All three branches of government bear responsibility for what’s happening here and any of the three individually can fix the problem.”
Jose Palma, a TPS recipient from El Salvador and a member of the executive committee for the National TPS Alliance, said while the group is disappointed with the decision, it will not affect the alliance’s fight. On Sept. 21, TPS recipients will launch the second “TPS Journey for Justice” in Los Angeles, traveling across the U.S. to push their message. The group advocates on behalf of permanent residency for all TPS holders, including those from Honduras and Nepal.
“We are not going to be hiding, we will fight,” Palma said.”We know that it’s a bad decision today but we also know that immigrants have been facing this reality since we decided to come to the U.S. and we know that we have been doing everything we can and we will continue. We hope that people will understand that this time around we need to change the administration.”
There are several other TPS-related lawsuits in U.S. federal courts, including an appeal by the Trump administration after U.S. District Judge William F. Kuntz of the Eastern District of New York blocked it from ending TPS for as many as 40,000 Haitians.
In a 71-page brief filed last September on behalf of DHS, Justice Department lawyers argued that Kuntz erred when he issued a nationwide temporary injunction that prevented Homeland Security from taking steps to force Haitian TPS holders to return to Haiti.
On Monday, immigration advocates and lawyers, who have used some of the same legal arguments ACLU lawyers used in federal court in California, including citing disparaging racially discriminatory comments made by Trump, were scrambling to figure out the impact on the remaining cases.
Immigrants with TPS expressed disappointment as they told stories of having to go to work despite the COVID-19 pandemic, and getting infected.
“I was very hopeful that the judges would rule in our favor. We knew from the very beginning this was going to be a hard fight and a long fight. But I am so in shock,” said Sajjan, a Nepalese TPS holder and an essential worker who lives in California. “I knew from the very beginning the Trump administration was racist and against us but I hoped that other people in this country would support us,” added Sajjan, who did not give his full name.
Like Sajjan, who has lived in the United States for decades, Lili Montalván said she’s lived in the United States for 25 years, 20 of those as a TPS beneficiary.
“We are part of this nation, we are part of the economy,” said Montalván, a Fort Lauderdale mother of an 18-year-old and 6-year-old, who cleans homes for a living and works as an organizer. “It’s a bad decision.”