A federal appeals court panel ruled on Monday that the Trump administration can end humanitarian protections for some 300,000 immigrants living in the United States, clearing the way for their potential deportation starting next year.
The 9th Circuit Appeals Court's decision affects citizens from El Salvador, Haiti, Nicaragua and Sudan, many of whom have lived in the U.S. for decades, have U.S.-born children and have been considered essential workers during the coronavirus pandemic.
At issue is the termination of temporary protected status, a form of humanitarian relief created by Congress and administered by the Department of Homeland Security.
TPS provides a work permit and stay of deportation to foreign nationals living in the U.S. whose countries of origin are facing natural disaster, armed conflict or other "extraordinary and temporary conditions" that make it unsafe for them to return.
The Trump administration terminated TPS designations of El Salvador, Haiti, Nicaragua and Sudan in 2017 and 2018. (It later ended TPS for Honduras and Nepal, and a separate case brought last year by citizens of those countries is ongoing.)
Several TPS beneficiaries from the four countries and their children filed a lawsuit challenging the terminations, both for procedural reasons and on the grounds that the rule was motivated by animus toward "non-white, non-European immigrants" that they said was evidenced by comments made by President Trump and other administration officials.
A district court previously issued a preliminary injunction. Monday's decision by a three-judge panel of the appeals court lifts the injunction, meaning immigrants from the affected countries could be subject to removal starting in January.
Plaintiffs and their lawyers said on Monday that they are preparing to appeal the decision in the entire 9th Circuit.
Defining "temporary"
The National TPS Alliance, a grassroots advocacy group, said the ruling clears the way for the administration to "de-document and tear apart" some 400,000 families.
The group explains that TPS provides protection for short periods of up to 18 months, but the federal government has continuously extended it for the countries mentioned in the lawsuit "based on repeated findings that it remains unsafe to return."
As a result, it said, most TPS holders have been living in the U.S. for more than a decade, contributing to their communities and raising their families.
Many of the more than 200,000 U.S.-citizen children of TPS holders have never been to the country their parents are from and would have to choose between their families and their homes.
"This government has failed me and the other 250,000 US citizen children of TPS holders," said Crista Ramos, lead plaintiff in the case.
The role of race
Two out of the three panel judges ruled that the plaintiffs failed to prove that racial animus was a factor when the administration canceled TPS.
According to a summary of the decision issued by the court:
The [judges] explained that, while the district court's findings that President Trump expressed racial animus against "nonwhite, non-European" immigrants, and that the White House influenced the TPS termination decisions, were supported by record evidence, the district court cited no evidence linking the President's animus to the TPS terminations—such as evidence that the President personally sought to influence the TPS terminations, or that any administration officials involved in the TPS decision-making process were themselves motivated by animus.
Beth Werlin, the executive director of the American Immigration Council, expressed disappointment with the court's refusal to acknowledge a connection between Trump's remarks and the administration's decision to end TPS.
"The racial animus that led to these decisions is real and cannot be ignored," Werlin said.
Impact on families and communities
Immigration advocacy groups are slamming the court's ruling, noting it will impact hundreds of thousands of TPS holders as well as their families and communities.
In a statement, Werlin said the decision will "plunge their lives into further turmoil at a time when we all need greater certainty."
As the global pandemic stretches on, immigrants with protected status make up a large portion of the country's front-line workers. More than 130,000 TPS recipients are essential workers, according to the Center for American Progress.
"TPS recipients have deep economic and social roots in communities across the nation," said Ali Noorani, president and CEO of the National Immigration Forum. "And, as the U.S. responds to the COVID-19 pandemic, TPS recipients are standing shoulder to shoulder with Americans and doing essential work."
Local 32BJ of the Service Employees International Union, the largest property services union in the country, noted that thousands of such immigrants own homes and businesses, and clean and protect major properties as longstanding union members.
"It is deeply disturbing, and frankly enraging, that the Ninth Circuit is allowing the Trump administration to end Temporary Protected Status for El Salvador, Haiti, Nicaragua and Sudan, opening the prospect of deportation for hundreds of thousands of people who have made the United States their legal home for decades," said 32BJ President Kyle Bragg.
Support for ending temporary status
The Federation for American Immigration Reform, which advocates for lower levels of immigration, welcomed the ruling as "a victory for the American people and an unmistakable rebuke to activist judges who seek to make immigration policy from the bench."
"This ruling represents a win for the idea that the American people should be able to provide needed and appropriate temporary humanitarian relief, with the full expectation that their generosity will not be taken advantage of when the emergency is over," FAIR President Dan Stein said in a statement.
El Salvador extension
TPS holders from El Salvador, one of the affected countries, already have a slightly longer window to stay in the U.S.
The Trump administration announced last fall it would extend the validity of work permits for El Salvadorans with TPS through Jan. 4, 2021. It is also giving El Savadorans with protected status one extra year after the conclusion of TPS-related lawsuits to repatriate.
El Salvador has the highest number of TPS recipients in the U.S., while their home country has the world's highest murder rate per capita, according to the National Immigration Forum. The group says Monday's ruling will impact an estimated 300,000 Salvadorans, more than half of whom have lived in the U.S. for at least 20 years.
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