On Monday, the Ninth Circuit Court of Appeals handed the Trump administration a victory, ruling 2-1 that a preliminary injunction barring implementation of decisions to terminate Temporary Protected Status (TPS) designations of Sudan, Nicaragua, Haiti, and El Salvador would be vacated.
Ed Whelan noted at National Review, “It might seem surprising that there would be any controversy over DHS’s authority to terminate a temporary designation years later. But after ordering DHS to provide the administrative record for its termination decisions, federal district judge Edward Chen granted plaintiffs (TPS beneficiaries from these countries and their children) injunctive relief based on their claims under the Administrative Procedure Act and the Equal Protection Clause.”
Circuit Judge Consuelo M. Callahan explained, “The Temporary Protected Status (TPS) program is a congressionally created humanitarian program administered by the Department of Homeland Security (DHS) that provides temporary relief to nationals of designated foreign countries that have been stricken by a natural disaster, armed conflict, or other “extraordinary and temporary conditions in the foreign state.” In 2017 and 2018, Secretaries of DHS under the Trump Administration terminated the TPS designations of four countries: Sudan, Nicaragua, Haiti, and El Salvador. Plaintiffs, who are TPS beneficiaries from these countries and their children, challenged the TPS termination decisions as unlawful …
The court wrote: “The district court entered a preliminary injunction barring the implementation of the termination decisions. On appeal, the Government argues that the district court abused its discretion in issuing the injunction because Plaintiffs have not shown a likelihood of success on either of their claims. We agree.”
The court noted, “Sudan was originally designated for TPS in 1997 because of an ongoing civil war that prevented the safe return of Sudan nationals … From that time until 2017, the country was periodically extended or redesignated for TPS fifteen times by prior administrations, based on factors such as forced relocation, human rights abuses, famine, and denial of access to humanitarian agencies.”
The court added that Acting Secretary Duke terminated the TPS designation of Sudan, concluding that the conflict in Sudan was now “limited to Darfur and the Two Areas (South Kordofan and Blue Nile states)” and that “‘food security’ had improved ‘across much of Sudan’ because of above-average harvests.”
Nicaragua was initially designated for TPS in 1999 because of Hurricane Mitch. In December 2017, the Acting Secretary “determined that conditions for Nicaragua’s 1999 designation for TPS on the basis of environmental disaster is no longer met.”
El Salvador was designated for TPS in 2001 because of the effects of three earthquakes that caused the displacement of 17% of the population; in January 2018, Secretary Nielsen terminated El Salvador’s TPS designation, writing that the “conditions supporting El Salvador’s 2001 designation for TPS on the basis of environmental disaster due to the damage caused by the 2001 earthquakes are no longer met.”
Haiti was originally designated for TPS in 2010 after a 7.0-magnitude earthquake; in January 2018, Acting Secretary Duke “determined . . . that the conditions for Haiti’s designation for TPS–on the basis of ‘extraordinary and temporary conditions’ relating to the 2010 earthquake that prevented Haitian nationals from returning safely–are no longer met,” noting that Haiti had closed 98% of the displaced-person sites.
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