“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.
Trump Ninth Circuit judge Ryan Nelson cast the deciding vote to reverse a district court and uphold a Trump Administration plan to expel more than 300,000 immigrants from four countries and end the temporary protected status they have had for as long as two decades. The September 2020 case is Ramos v. Wolf.
In 1990, Congress created the Temporary Protected Status (TPS) program, under which the Department of Homeland Security (DHS) can grant such status and prevent the deportation of undocumented immigrants from countries that have suffered a natural disaster, armed conflict, or other conditions that prevent immigrants from “returning to the state in safety.” Such designations last for up to 18 months initially and can be and have been renewed. As of the end of 2016, there were nine such designations in effect, made and continued under both Democratic and Republican Administrations, some of which had lasted for decades.
In 2017 and 2018, the Trump DHS announced the termination of TPS with respect to four countries: Sudan, Nicaragua, El Salvador, and Haiti. Nicaragua and Sudan had been so designated beginning in the late 1990s, El Salvador in 2001, and Haiti in 2010. The DHS action affects “probably more” than “300,000 immigrants and their families,” many of whom “have lived in this country for years, if not decades.” More than “200,000 U.S. citizen children will face the prospect of leaving the only home they have ever known or growing up without one or both of their parents.”
A group of such immigrants and their families, including children who are US citizens, challenged the DHS order in a federal court in San Francisco. The court granted a preliminary injunction against the implementation of the order, deciding that the “balanced of hardships” weighed in their favor and they had raised “serious questions on the merits” as to the legality of the order. DHS appealed.
In a 2-1 decision in which Trump judge Nelson was the deciding vote, the Ninth Circuit reversed the district court order and allowed implementation of the plan to end TPS status for the countries. The majority claimed that the contention that the order violated the Administrative Procedure Act (APA) and was arbitrary and capricious had no merit, because the majority claimed that under the law, a court cannot review a DHS decision on TPS, which “begins and ends with the Secretary.” The majority also maintained that there was a “glaring lack of evidence” to support the contention that DHS’ decision was influenced by Trump’s “animus against non-white, non-European immigrants,” although the majority stated that they “do not condone” Trump’s remarks on that subject, such as his public complaint about the US allowing “all these people from sh****** countries,” including Haiti and El Salvador, to “come here.” Nelson wrote an additional opinion in which he acknowledged the broad impact of the DHS actions, but claimed that “the law” required the result reached by the majority.
Judge Morgan Christen strongly dissented. She explained that the APA claim was proper, and likely to succeed, because it contended that DHS had violated the APA by interpreting the TPS law in a way that “starkly differs” from past administrations by claiming that it could not consider intervening events that occurred in the TPS countries after they received that status. The lawsuit is therefore permissible, she went on, because it challenges “the process used to make TPS termination decisions” and not the merits of the decisions themselves. The record contains “compelling evidence,” Judge Christen continued, that the decisions resulted from DHS’ “abrupt” and likely incorrect new interpretation of the statute. Judge Christen did not reach the constitutional claim that DHS acted because of Trump’s racial animus, but she did note that there was significant evidence that Trump’s bias affected the decisions, and stated that “we cannot sweep aside the words” that Trump used and their troubling meaning. Christen concluded that the plaintiffs “undoubtedly demonstrated a likelihood of success,” that the “irreparable harm” from not granting an injunction “could hardly be more compelling,” and that the district court clearly did not abuse its discretion in granting a preliminary injunction.
The precise effect of the majority’s decision remains unclear at the moment. A court order in New York forbidding the deportation of Haitians remains in place, and because of extensions granted during the lawsuit, TPS status for the countries cannot be terminated until March of 2021, by which time we may have a new president. If Trump is still president next year, however, Trump judge Nelson’s deciding vote could cause drastic harm to more than 300,000 immigrants and over 200,000 children and other family members.