On September 14, 2020 in Ramos et al. v. Wolf et al., a split panel of the U.S. Court of Appeals for the Ninth Circuit vacated a preliminary injunction issued in the Northern District of California, barring implementation of DHS’s decisions to terminate the Temporary Protected Status (TPS) designations of Sudan, Nicaragua, Haiti, and El Salvador. Practitioners should know, however, that a preliminary injunction issued in the Eastern District of New York is still in effect, enjoining the termination of TPS for Haiti. See Saget v. Trump, No. 18-cv-01599 (E.D.N.Y. Apr. 11, 2019). The Saget matter is currently on appeal in the U.S. Court of Appeals for the Second Circuit, and Ira Kurzban and KKTP serve as lead counsel for the Saget plaintiffs.
In Ramos, the Ninth Circuit majority (Judge Callahan and Judge R. Nelson) held that the TPS statute precludes federal courts from reviewing non-constitutional claims, including those brought under the Administrative Procedures Act (APA), that “fundamentally attack [DHS’s] specific TPS determinations,” including decisions to terminate TPS. Although the TPS statute (and Supreme Court precedent) does not preclude APA challenges in instances where DHS implements a “pattern or practice that is collateral to, and distinct from, the specific TPS decisions and their underlying rationale,” the Plaintiffs in Ramos did not bring such claims, and so, the Ramosmajority found the APA claims precluded by the TPS statute.
The Ramos majority also held that the plaintiffs had not shown a likelihood of success on their constitutional challenges to DHS’s termination of TPS, primarily because the record did not show “even serious questions, on the merits of their Equal Protection claim.”
In dissent, Judge Christen noted that “[t]he consequences of the majority’s decision are monumental, but the majority’s reasoning is deeply flawed.” Judge Christen based her dissent on many documents obtained during discovery, including a commentary by (then-nominee) USCIS Director Lee Francis Cissna on a memorandum recommending termination of TPS for Sudan, in which Mr. Cissna wrote:
This memo reads like one person who strongly supports extending TPS for Sudan wrote everything up to the recommendation section, and then someone who opposes extension snuck up behind the first guy, clubbed him over the head, pushed his senseless body out of the way, and finished the memo.
Judge Christen would not reach the Equal Protection claims at this stage because a preliminary injunction was warranted based on the APA alone. Judge Christen would hold that the TPS statute does not preclude review of the plaintiffs’ APA claims, particularly in light of “the strong presumption favoring judicial review of agency action.” Judge Christen reads the TPS status as “mirror[ing] the review bars at issue in McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991) [a case argued by Ira Kurzban, KKTP founder], and Reno v. Catholic Social Services, 509 U.S. 43 (1993),” and following the logic of those cases, “the TPS statute bars direct review of the Secretary’s TPS determinations, but not the policies or practices used to make them.” Because the Ramos plaintiffs challenged changes in policies and practices used by DHS to terminate TPS–most notably, DHS’s policy decision “of not considering intervening events”–and because those issues are “collateral” to the substantive decisions to terminate TPS, Judge Christen would find DHS’s decisions reviewable under the APA, and would uphold the lower court’s preliminary injunction.