Inside the fights to maintain TPS status for thousands after the Supreme Court sided with Trump
By Devan Cole, CNN
(CNN) — Dahlia Doe is holding on to hope.
A month after the Supreme Court curtailed lower courts’ ability to block the Trump administration from revoking temporary deportation protections, fresh efforts to halt the government’s plans for the Syrian national and thousands of others fleeing war and natural disasters are heating up around the country.
“I feel so much stress and uncertainty,” Doe, who arrived in the US in 2015 as the civil war in Syria intensified, told CNN. “There’s nothing for us to do but to continue fighting and not give up.”
Doe, a pseudonym, is one of several Syrians who sued to keep the government from revoking the humanitarian program, known as Temporary Protected Status for nearly 4,000 others from the country.
The high court’s conservative supermajority said in late June that judges do not have the power to review challenges to the Homeland Security secretary’s decision to end TPS for a slew of countries based on claims the administration didn’t follow proper legal procedure.
But the justices left the door open for TPS beneficiaries to bring constitutional challenges to the administration’s actions. In recent days, legal advocates representing Doe and migrants from a handful of countries have either repackaged their earlier procedural arguments into new constitutional claims or signaled plans to do so soon.
For several of those countries, attorneys defending the TPS designations are also now pushing novel, non-constitutional arguments about whether the department has the authority in the first place to terminate the protections.
Time is of the essence, said Shane Kadidal, an attorney with the Center for Constitutional Rights who is challenging the revocation of TPS for migrants from Yemen. He pointed to an effort underway by the Justice Department to get judges who previously ruled against the administration to quickly lift those orders so officials can begin deporting scores of migrants from Haiti, Syria, South Sudan, Ethiopia, Burma, Somalia and Yemen who have been living legally in the United States.
“Everyone’s trying to do procedural wrangling to keep the initial orders that prevented the termination in place for long enough to argue these new claims,” Kadidal said. “The Supreme Court decision has triggered an even bigger frenzy of litigation.”
“If the overarching theme of the second Trump administration is chaos,” Kadidal added, “this is going to bring even more chaos.”
Thus far, three federal courts have ruled against the administration.
On Friday, Boston-based Judge Brian Murphy said he will keep the TPS designation for migrants who fled Ethiopia while he weighs new claims from them. A day earlier, Judge Patti Saris, who also sits in Boston, said she will keep the TPS designation for South Sudan in place for now. Earlier, Judge Matthew Kennelly in Chicago said officials are barred from ending the humanitarian protections for Burma through at least August 7.
CNN has reached out to the Justice Department for comment.
The administration has claimed that the Supreme Court decision fully blessed its actions revoking the TPS designations, with the White House saying in a statement last month that the justices’ “decisive” ruling gave it “full authority to terminate” the protections.
New constitutional arguments
The high court’s decision, authored by Justice Samuel Alito, said courts are barred from weighing claims that then-Secretary Kristi Noem violated the law by allegedly not adequately consulting with other agencies before she decided that a slew of countries no longer needed to be designated for the humanitarian relief.
Attorneys representing migrants who fled South Sudan, Burma, Ethiopia and Yemen then quickly asked judges to issue new rulings blocking the policy changes based on an argument that the government’s actions would unconstitutionally deprive the migrants of their liberty and property interests.
Nearly 10,000 people from those four countries combined benefit from TPS, according to the most recent data.
The constitutional claims are being made under the 5th Amendment’s Due Process Clause, which says the government cannot deprive a person of their “life, liberty or property” without first following protocols and procedures laid out in federal law.
In all of the cases over the administration’s termination of TPS, the challengers have said that Noem’s actions around the program were not based on reasoned decision-making and flouted the law’s mandate that she seek input from other parts of the government before removing deportation protections for migrants from a particular country – an accusation the government has repeatedly denied.
Work authorization permits and removal protections, lawyers for immigrants from Burma told Kennelly this week, “are liberty and property interests that trigger procedural safeguards under the Constitution.”
“The secretary flouted those safeguards when issuing the termination,” the attorneys wrote in court papers.
Who has the authority?
Advocates are also asking judges to scrutinize whether Noem exceeded her authority in revoking the designations.
They’re arguing that when DHS was set up in the wake of the September 11, 2001, terrorist attacks and certain functions were moved over to it from other agencies, including a bevy of immigration-related responsibilities, the power to revoke TPS designations was not among them.
That authority, the argument goes, still lies with the attorney general, who was named as the initial final decision-maker for the program when it was established in the 1990s.
The type of claim the argument is being made under is known as “ultra vires,” and the high court similarly did not formally say litigants were barred from bringing it in cases over TPS.
Congress “unambiguously assigned the authority to terminate TPS designations to the attorney general. And Congress never transferred that authority to the DHS secretary or any other official,” lawyers representing TPS holders from Ethiopia told a judge in Boston last week. Over 4,000 people from the East African nation are living in the US because of the program.
The Trump administration has pushed back on these assertions, with DOJ attorneys in a case involving Yemen pointing to a line in the Supreme Court’s opinion that said, “responsibility for TPS decisions rests with the secretary of Homeland Security.”
They told a judge in New York City on Wednesday that the line confirms Noem was acting within her authority when she decided to yank away the TPS designation for the country, which dates back to 2015, when armed conflict there made it unsafe for nationals living in the US to return. Nearly 1,400 Yeminis have TPS status.
Moreover, if the challengers’ theory was correct, DOJ argued, “it would mean that Yemen was never properly designated for TPS in the first place and there is no designation to terminate.”
Seeking more information
One additional wrinkle in the ongoing litigation is an effort by Haitian TPS holders to peek under the government’s hood to look for evidence showing that protections for that country were revoked on a discriminatory basis.
A federal judge had pointed to President Donald Trump’s long history of publicly denigrating Haiti and its people when she concluded earlier this year that the decision to revoke the humanitarian program for the island country was motivated at least in part by racial animus. Some 330,000 Haitians are living in the US thanks to the program.
While Alito and his conservative colleagues dismissed the judge’s decision last month, saying the public comments alone did not appear to be enough to support the lower-court ruling, the justices did not stop the Haitians from attempting to obtain more evidence through the discovery process that could support their case.
“Nothing in the decision suggests that the plaintiffs here cannot try to marshal the additional evidence necessary to prove their equal protection claim,” lawyers for the migrants told US District Judge Ana Reyes, of the federal court in Washington, DC, earlier this month.
They cited a recent decision from the Chicago judge overseeing the Myanmar case that said discovery would not be futile because it’s “possible that evidence of internal decisionmaking may reveal a discriminatory motive not clearly reflected in public statements.”
Aaron Reichlin-Melnick, a senior fellow at the American Immigration Council, noted that the case landed before the Supreme Court on a preliminary record and that Reyes “is not strictly bound to reach the same conclusion (the justices did) on a fuller record.”
“It’s possible that the plaintiffs may be able to supplement the record with additional evidence of racial animus, such that it could overcome the Supreme Court’s finding,” he added.
Ticking time bombs
As the litigation plays out, courts have been faced with tough questions about what happens to the TPS holders in the meantime.
Just after the high court handed down its ruling on June 25, DOJ attorneys mounted an aggressive procedural fight in lower courts in a bid to quickly undo rulings that prevented the administration from effectuating decisions to revoke the TPS designations.
They said the Supreme Court’s opinion meant that any further legal proceedings would happen in vain – even as it became clear that Trump’s opponents want to try again to prevent the protections from being rescinded.
“The government is taking an overly broad view of what the decision means,” said Lupe Aguirre, who represents Doe and the other Syrian TPS holders in one of the cases that went up to the high court. “There are new arguments and new claims that might preserve these really critical protections for folks.”
As Murphy, Saris and Kennelly agreed to keep the protections in place for now for migrants from South Sudan and Burma, they gave little indication of how they may ultimately rule on the new claims, simply saying they wanted to “preserve the status quo” while the litigation continues.
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