'None have committed a crime,' federal judge says in hearing over Temporary Protected Status for immigrants from three countries

SAN FRANCISCO (CN) — A federal judge must decide whether to postpone the termination of tens of thousands of immigrants’ Temporary Protected Status, pending litigation challenging Secretary of Homeland Security Kristi Noem’s recent orders ending the program for people from Nepal, Nicaragua and Honduras.

National TPS Alliance, an immigrant advocacy group, and individual Temporary Protected Status holders from the three countries sued the Trump administration on July 7, claiming that Noem’s actions were unlawful and motivated by racial animus.

In a hearing Tuesday on the plaintiffs’ motion to postpone the federal actions, U.S. District Judge Trina L. Thompson, a Joe Biden appointee, acknowledged the importance of the case and noted that individuals with Temporary Protected Status are not criminals and that they came to the U.S. for a better life.

“None have committed a crime," Thompson said. “These are individuals who have traveled in the wake of disasters to the open arms of the United States.”

“Some individuals have been here their entire lifetimes, they have worked, contributed to their communities, they pay taxes, and pay to stay with no tangible pathway to citizenship," she added.

Temporary Protected Status protects from deportation nationals from certain countries due to violence or economic duress. While individuals with TPS status can’t be deported and can work legally in the U.S., they do not have a path to U.S. citizenship.

Nicaragua and Honduras were originally designated for TPS in 1999 in response to the destruction caused by Hurricane Mitch, while Nepal was added to the program in 2015 after an earthquake.

After Noem’s June and July orders regarding the status for those three countries, however, TPS is set to expire on Aug. 5 for Nepal, and on Sept. 6 for Nicaragua and Honduras. The orders affect more than 60,000 individuals currently in the U.S.

Ahilan T. Arulanantham, an attorney for the plaintiffs, asked Thompson to grant the motion to postpone to allow time for the court to determine whether Noem’s orders terminating TPS were unlawful.

“We want to ask for summary judgment, but we cannot do that because next week is when TPS expires,” Arulanantham said.

Arulanantham argued the Trump administration would be minimally harmed by a postponement, even if the order was eventually found lawful. In contrast, if Temporary Protected Status is allowed to expire for Nicaragua, Honduras and Nepal, the damage would be devastating to the plaintiffs, even if the judge eventually ruled in their favor.

Speaking to the impact of a postponement on the federal government, Arulanantham said: “What is the harm to them? The harm is that people who have lived here for 26 years have lived here for four more months? But if you flip it, if you rule in favor of them today and then decide we were correct later, how much of the harm could you fix? People could be deported … lose their jobs. The damage is irreparable.”

The plaintiffs argue that Noem’s termination of Temporary Protected Status was a “preordained, political decision” and not based on an “objective review of country conditions,” which is a violation of the Administrative Procedure Act.

Jessica Bansal, another attorney for the plaintiffs, claimed that Noem’s decision to terminate TPS was pre-determined.

She noted that on the first day of the second Trump administration, the president, who had promised to revoke TPS during his campaign, signed an executive order entitled “Protecting the American People Against Invasion,” which among other things, asked that asked the Secretary of Homeland Security to ensure that Temporary Protected Status designations are limited in scope and “made for only so long as may be necessary to fulfill the textual requirements of that statute.”

“Noem, clear from her public statements, understood this as a directive,” Bansal said. “One week later, she announces the first TPS cancellation of this administration.”

Bansal also argued that Noem distorted the country conditions review process by focusing only on improvements in countries and omitting conditions that had previously been considered, such as food insecurity in Venezuela or crime rates in Honduras.

“We conclude that defendants are not basing their decisions on country conditions; they made a decision, are looking for country conditions that fit it, ignoring the ones that don’t,” she said.

The plaintiffs also claim that Noem broke past practices by giving TPS holders only 60 days’ notice of the loss of their status, when they are usually given at least a six-month transition period. While agencies are allowed to change their policies, Bensal said, under the change-in-position doctrine they have to acknowledge the change and provide a reasonable explanation.

Bansal said Noem failed to acknowledge the change and only cited the executive order labeling immigration as an “invasion,” suggesting that she believes TPS holders are “illegal aliens.”

The judge questioned the plaintiffs about how they interpret the word “invasion.” Arulanantham said that the world refers to a “racist race replacement ideology” that the U.S. “will be taken over by non-white immigrants.”

“No other way to understand it,” he said. “Why would that be the people who lived here for 26 and 10 years?”

The defense’s primary argument was that the Department of Homeland Security’s review of Temporary Protected Status designations is judicially unreviewable.

“The motion begins and ends with the judicial review bar,” attorney William Weiland, representing the government, said.

Weiland added that it’s the defense’s position that Congress intended to preclude the Secretary of Homeland Security’s determinations from any judicial review.

When questioned about the pretextual nature of TPS terminations, Weiland said that “taking a hard look at immigration policies” was “part and parcel with the new administration coming into the office.”

“The Secretary of Homeland Security has never hidden the fact that this is a policy reviewing immigration policies in the U.S.,” he said.

Attorneys for the parties did not immediately respond to requests for comment after the hearing Tuesday. A ruling on the motion to postpone is expected by Thursday.

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