9th Circuit reinstates deportation of 300,000
A federal appeals court on Monday reinstated the Trump administration’s order to deport more than 300,000 undocumented immigrants whose home countries were hit by disasters, rejecting a judge’s decision that the order was an arbitrary change of policy and may have been motivated by racism.
In revoking Temporary Protected Status for people who fled El Salvador, Nicaragua, Haiti and Sudan, President Trump’s Department of Homeland Security may have reversed the policies and legal interpretations of its predecessors, but cannot be challenged in court, the Ninth U.S. Circuit Court of Appeals in San Francisco said in a 2-1 ruling.
“The decision to designate any foreign country for TPS begins and ends with the secretary” of Homeland Security, Judge Consuelo Callahan said in the majority opinion. She said the secretary’s authority to consider conditions in a foreign country and decide whether they justify continued U.S. shelter “is not only broad, but unreviewable.”
And although President Trump’s description of Haiti and African nations as “s—hole countries” was “offensive and disparaging,” Callahan said, there is no evidence that it contributed to his administration’s revocation of protected status.
In dissent, Judge Morgan Christen said federal law does not allow the government to drastically change its legal interpretations and policies without explanation when the result is harm to people who have reasonably relied on the prior policies.
“The lives of 300,000 noncitizens and 200,000 U.S. citizen children will be forever changed by these TPS terminations,” Christen said.
In a separate opinion, Judge Ryan Nelson said the number would actually be lower because a federal judge in New York, in another case, has barred the deportation of the 46,000 Haitians with Temporary Protected Status, a decision the Trump administration is appealing. Nelson agreed with Callahan that the administration’s change of policy was immune from judicial review but said the New York order, still in effect, shows why individual federal judges generally should not be allowed to issue nationwide injunctions against federal government policies.
Nelson was appointed by President Trump, Callahan by President
George W. Bush, and Christen by President Barack Obama.
The American Civil Liberties Union, which sued on behalf of nine immigrants with protected status and five U.s.-born children of immigrants in the program, said it would appeal the ruling.
“The president’s vile statements about TPS holders made perfectly clear that his administration acted out of racial animus,” said ACLU attorney Ahilan Arulanantham. “The Constitution does not permit policy to be driven by racism.”
In a statement, the Justice Department said, “We applaud the Ninth Circuit’s recognition of the plain language of the Immigration and Nationality Act and its rejection of the baseless accusations of animus behind the actions taken by the Department of Homeland Security.”
Status, established by a 1990 federal law, allows undocumented immigrants with no serious criminal records to live and work in the United States if a natural disaster or war in their homeland has made it unsafe to return. The status is typically renewed every 18 months.
Immigrants from 10 nations currently hold the status. They include 263,000 Salvadorans, who were allowed to remain in the United States after a 2001 earthquake; 5,300 Nicaraguans, after a hurricane in 1998; 46,000 Haitians, following a 2010 quake; and 1,000 Sudanese because of an ongoing civil war.
Past administrations have extended the protections because of new or continuing hardships in a migrant’s homeland; for example, continued hurricane damage and an outbreak of cholera in Haiti, and violence and natural disasters in Nicaragua and El Salvador.
But in 2017, Trump’s then-secretary of Homeland Security, Elaine Duke, said the hardships caused by the original disasters in the four countries no longer existed, and the law did not allow the United States to extend protected status based on current conditions abroad.
In an October 2018 injunction against the deportations, U.S. District Judge Edward Chen of San Francisco said federal law requires the government to offer a rational explanation for new legal interpretations and other policy changes that cause hardship to individuals.
Chen also noted that Trump’s “s—hole countries” slur came during a White House meeting on Temporary Protected Status, a week before Homeland Security announced the termination of TPS for Haitians. The judge cited other racial denigrations by Trump and also noted Duke’s 2018 statement that the ending of protected status was “a result of an America first view” — an indication, the judge said, that she was carrying out the president’s agenda.
But the appeals court majority said there was no evidence that Trump “personally sought to influence the TPS terminations.”
Noting that the administration had extended protected status for other nations with non-white populations, Callahan said the policy shift could be attributed to the administration’s “emphasis on a ‘merit-based entry’ system, its focus on America’s economic and national security interests, and its view on the limitations of TPS and the program’s seeming overextension by prior administrations.”