Court Rules Against Noem: Venezuelan Protections to Remain in Place

A federal appeals court delivered a significant ruling on Wednesday, declaring that the Trump administration’s decision to terminate legal protections for hundreds of thousands of Venezuelans living in the United States was illegal. These protections had allowed Venezuelans to live and work in the country lawfully.

The 9th U.S. Circuit Court of Appeals, in a decision by a three-judge panel, supported a previous ruling by a lower court. It determined that Homeland Security Secretary Kristi Noem had overstepped her authority by ending the temporary protected status (TPS) for Venezuelans.

Despite this ruling, there will be no immediate changes. The U.S. Supreme Court had previously allowed Noem’s decision to proceed while awaiting a final ruling, which means the termination remains temporarily in effect.

Attempts to reach the Department of Homeland Security for comments late Wednesday night were unsuccessful, as they did not respond immediately to inquiries.

Additionally, the 9th Circuit panel reinforced the lower court’s conclusion that Noem similarly exceeded her authority regarding the early termination of TPS for hundreds of thousands of Haitians.

A separate legal battle is unfolding in Washington, where a federal judge is set to decide soon on a request to delay the end of TPS for Haitians while another lawsuit is underway. The TPS designation for Haiti is currently set to expire on February 3.

Ninth Circuit Judges Kim Wardlaw, Salvador Mendoza, Jr. and Anthony Johnstone said in Wednesday’s ruling that the TPS legislation passed by Congress did not give the secretary the power to vacate an existing TPS designation. All three judges were nominated by Democratic presidents.

“The statute contains numerous procedural safeguards that ensure individuals with TPS enjoy predictability and stability during periods of extraordinary and temporary conditions in their home country,” Wardlaw, who was nominated by President Bill Clinton, wrote for the panel.

Wardlaw said Noem’s “unlawful actions have had real and significant consequences” for Venezuelans and Haitians in the United States who rely on TPS.

“The record is replete with examples of hard-working, contributing members of society — who are mothers, fathers, wives, husbands, and partners of U.S. citizens, pay taxes, and have no criminal records — who have been deported or detained after losing their TPS,” she wrote.

Temporary Protected Status, or TPS, authorized by Congress as part of the Immigration Act of 1990, allows the Homeland Security secretary to grant legal immigration status to people fleeing countries experiencing civil strife, environmental disaster or other “extraordinary and temporary conditions” that prevent a safe return to that home country.

Designations are granted for terms of six, 12 or 18 months, and extensions can be granted so long as conditions remain dire. The status prevents holders from being deported and allows them to work, but it does not give them a path to citizenship.

In ending the protections, Noem said that conditions in both Haiti and Venezuela had improved and that it was not in the national interest to allow immigrants from the two countries to stay on for what is a temporary program.

Millions of Venezuelans have fled political unrest, mass unemployment and hunger. The country is mired in a prolonged crisis brought on by years of hyperinflation, political corruption, economic mismanagement and an ineffectual government.

Haiti was first designated for TPS in 2010 after a catastrophic magnitude 7.0 earthquake killed and wounded hundreds of thousands of people, and left more than 1 million homeless. Haitians face widespread hunger and gang violence.

Mendoza wrote separately that there was “ample evidence of racial and national origin animus” that reinforced the lower court’s conclusion that Noem’s decisions were “preordained and her reasoning pretextual.”

“It is clear that the Secretary’s vacatur actions were not actually grounded in substantive policy considerations or genuine differences with respect to the prior administration’s TPS procedures, but were instead rooted in a stereotype-based diagnosis of immigrants from Venezuela and Haiti as dangerous criminals or mentally unwell,” he wrote.

Attorneys for the government have argued the secretary has clear and broad authority to make determinations related to the TPS program and those decisions are not subject to judicial review. They have also denied that her actions were motived by racial animus.