Protections for Venezuelans again argued before Ninth Circuit

PASADENA, Calif. (CN) — Attorneys argued Wednesday before a Ninth Circuit panel over executive power and timelines in a case involving the revocation of temporary protected status for Venezuelans living in the United States.

It was the second time the issue has appeared before the federal appeals court in a case that’s wound crookedly along a legal path that’s included the U.S. Supreme Court.

At issue is a decision by U.S. Homeland Security Secretary Kristi Noem that stripped some 600,000 Venezuelan nationals of their temporary protected status, called TPS. A lower court in September ruled that they would have returned to a country with dangerous conditions — a country that the State Department advises against visiting, and whose president, Nicolás Maduro, the U.S. recently captured.

Senior U.S. District Judge Edward Chen, a Barack Obama appointee, called Noem’s decision unprecedented and illegal.

Noem appealed the decision, setting the stage for Wednesday’s arguments before a three-judge panel.

One point of contention was whether Noem engaged in consultation before making her decision.

Attorney Ahilan Arulanantham — representing the National TPS Alliance, which seeks to protect the TPS program — indicated that consultation was essential and Noem failed to have it. No evidence of contact exists between the State Department and her office until a day before the Venezuelans’ status was terminated.

“We have prima facia evidence that there’s no consultation,” Arulanantham said.

He also questioned whether Noem has the ability to remove a TPS status that’s already been granted. Arulanantham argued that power isn’t stated in the law.

Additionally, Noem has animus — hostility — when making the decision, Arulanantham said.

U.S. Circuit Judge Salvador Mendoza Jr., a Joe Biden appointee, questioned the Justice Department’s attorney on that issue. He pointed to statements made by President Donald Trump and Noem about Venezuela, asking if they showed animus.

Attorney Sarah Welch, with the U.S. Justice Department, said she relied on Trump v. Hawaii, a 2018 U.S. Supreme Court case. Mendoza indicated that case meant a court couldn’t consider a presidential candidate’s statements before taking office, adding he was unsure that was a correct interpretation.

Contrary to Arulanantham’s arguments, Welch said periodic reviews of TPS programs are required. If the homeland security secretary determines criteria for that program has ceased, they must end it.

“Congress also limited judicial review in the TPS statute,” she said, adding the judicial branch isn’t suited to second guess the nation’s executive branch in these issues.

However, a lower court opted to second guess Noem, leading to the case’s winding legal road.

That path started under Biden, who extended the TPS program for Venezuelans whose status was nearing expiration. Noem revoked that status upon taking office, as well as the status for Haitian immigrants. The question of the Haitians’ status didn’t appear Wednesday before the appeals panel.

The lower court in March postponed the effective date of removing the TPS status from Venezuelans. The U.S. Supreme Court paused that decision until the appeal could reach the Ninth Circuit, which upheld the lower court’s ruling.

In September, the lower court entered final judgment in the case, setting aside Noem’s termination of the TPS status. Noem then asked the high court for a stay of that judgment, but only for the Venezuelan nationals.

The Supreme Court again granted a stay on the case, sending it once again to the Ninth Circuit.

Welch pointed to the high court’s involvement, saying the appeals panel should consider it intervened twice.

Arulanantham argued the stays issued by the Supreme Court weren’t precedent.

The appeals panel was rounded out by U.S. Circuit Judges Kim McLane Wardlaw, a Bill Clinton appointee, and Anthony Johnstone, appointed by Biden.

The panel made no decision in the case Wednesday.