Class 19: Temporary Protected Status
The TPS statute delegates to the President the power to designate countries overwhelmed by natural disaster or civil strife.121 Noncitizens from a designated country who are also eligible under the terms of the designation are then permitted to remain in the United States, even if they otherwise have no legal permission to be in the country. Presidents have used their TPS authority on dozens of occasions: President Clinton used the power to protect Rwandans in the wake of the genocide in their country, for example, and President Obama protected citizens of Nepal and Haiti following devastating earthquakes in their home countries.
As the statute’s title drives home, Congress strove to make protection truly “temporary.” Yet presidents have frequently wielded their power to grant extensions and redesignations in order to continue TPS protection for extremely long periods. As a result, some individuals from Honduras, Nicaragua, El Salvador, and Sudan have been living in the United States on TPS for nearly two decades.
The Trump administration moved in recent years to end TPS status for recipients from each of those countries, in addition to Haiti and Nepal. These rescission decisions sparked litigation that we will talk about in this class. Joining us is lead counsel in the litigation, Ahilan Arulanantham of the ACLU of Southern California.
Reading:
INA § 244(a)(1), 244(b)
Ramos v. Wolf (9th Cir. Sept. 14, 2020) (read the facts, pp. 11-31, the equal protection analysis, pp. 45-53, and the dissenting opinion’s equal protection analysis, pp. 104-07)
Ramos v. Neilsen, Appellees’ Answering Brief (read the equal protection argument, pp. 48-61)
As you read, consider the following questions from Ahilan:
In Ramos, is the majority right that Trump v Hawaii does not supply the governing standard of review? After all, aren’t TPS decisions quintessentially foreign policy judgments?
What evidence would suffice to establish the discrimination claim under the majority’s view?
The TPS statute gives authority for termination decisions to the DHS secretary, not the president. What role should that play in the discrimination analysis?
Most of the purportedly racist statements President Trump made were not about TPS. Should that matter to the analysis? Why or why not? If it does not matter, then can virtually all of the Trump administration’s immigration policy be challenged on the same basis?
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