In yet another case where we've seen a fair amount of whipsawing between/among the courts, the 9th Circuit has now handed the Trump administration a loss on the issue of Temporary Protected Status for Venezuelan nationals. In a 52-page decision handed down Friday, the appellate court affirmed the district court ruling, which enjoined the administration from terminating the TPS program.
As background, since 2021, more than 600,000 Venezuelans were granted TPS by the Biden administration, including pursuant to an announcement by former Department of Homeland Security Secretary Alejandro Mayorkas on January 17, 2025 (just three days before Biden left office), which extended Venezuelan TPS through October 2, 2026. In February, current DHS Secretary Kristi Noem vacated the Mayorkas extension and subsequently terminated the prior (2023) Designation of Venezuela for Temporary Protected Status.
Plaintiffs (seven individuals from Venezuela who are TPS holders, plus the National TPS Alliance) filed suit in the Northern District of California, and on March 31, 2025, Judge Edward Chen granted their motion to postpone the actions announced by Noem from taking effect pending litigation of the case on the merits. The Trump administration appealed that ruling to the 9th Circuit, and then, after the 9th Circuit declined to stay the lower court decision pending the appeal, filed an application for stay with the Supreme Court.
On May 19, in an 8-1 decision (with only Justice Ketanji Brown Jackson dissenting), SCOTUS granted the application for stay, allowing the administration's vacatur and termination notices to take effect while the appeal was pending.
Breaking: SCOTUS Rules Trump Can Revoke Protected Status for Hundreds of Thousands of Venezuelans
Well, now the appeal has been ruled upon. In its decision, affirming the district court, the three-judge panel, consisting of Judges Kim McLane Wardlaw (a Clinton appointee), Salvador Mendoza Jr. (an Obama appointee), and Anthony D. Johnstone (a Biden appointee), concluded:
We have jurisdiction to consider this appeal from the district court’s postponement order under APA section 705. Neither the TPS statute nor 8 U.S.C. § 1252(f)(1) precludes our power to review the merits of Plaintiffs’ claim that the Secretary exceeded her statutory authority when she purported to vacate TPS status for Venezuelans. And we hold that Plaintiffs are likely to succeed on the merits of that claim. Moreover, the district court did not abuse its discretion by determining that Plaintiffs face irreparable harm based on the vacatur of the extension of Venezuelan TPS, and that the balance of equities and the public interest favors Plaintiffs. Finally, anything short of a nationwide postponement is incongruent with the TPS statute, and it would not provide Plaintiffs with the complete relief they seek. The district court did not abuse its discretion by postponing the Vacatur and Termination Notices.
The TPS statute is designed to constrain the Executive, creating predictable periods of safety and legal status for TPS beneficiaries. Sudden reversals of prior decisions contravene the statute’s plain language and purpose. Here, hundreds of thousands of people have been stripped of status and plunged into uncertainty. The stability of TPS has been replaced by fears of family separation, detention, and deportation. Congress did not contemplate this, and the ongoing irreparable harm to Plaintiffs warrants a remedy pending a final adjudication on the merits.
We can expect the administration to appeal this ruling to the Supreme Court. One would think, given the stay originally granted, that a reversal of the 9th Circuit's ruling might be in the offing, but there are no guarantees. Either way, we'll continue to monitor and provide any updates as warranted.
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