Supreme Court’s TPS Case Could Affect Hundreds of Thousands

The U.S. Supreme Court will clarify whether the Trump administration lawfully terminated temporary protected status (TPS) for individuals in the U.S. from Haiti and Syria and whether lower courts lawfully blocked the termination of TPS. 

The U.S. government from time to time issues TPS to protect nationals of countries experiencing natural disasters or violence, including war, by allowing them to stay and work in the U.S., said Mira Mdivani, an attorney with Mdivani Corporate Immigration Law in Overland Park, Kan.

“If the Supreme Court rules in favor of the government, hundreds of thousands of workers could lose their TPS and ability to work in the United States,” said Daniel Pierce, an attorney with Fragomen in Washington, D.C. 

“Haitian nationals represent the largest TPS group the government has sought to end, with more than 300,000 recipients. A decision for the government could also allow it to end other large TPS grants later this year,” including El Salvador, which has more than 100,000 people on TPS, he said. 

However, if the Supreme Court rules for the plaintiffs challenging the government’s action, litigation likely will continue, Pierce added. “The court may find that the government did not take the required steps or make necessary findings to justify ending TPS,” he said. “The government would likely take steps to reissue decisions in compliance with any Supreme Court opinion, but additional court challenges would almost certainly follow.”

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Government’s Oral Argument

During the April 29 oral argument in the two consolidated cases on TPS before the court, Solicitor General John Sauer at the U.S. Department of Justice in Washington, D.C., said that Congress provided “no judicial review of any determination of the Secretary [of Homeland Security] with respect to the designation or termination or extension of a designation of a foreign state for temporary protected status.” 

He said that the plaintiffs’ attempts to carve out exceptions to this bar on judicial review would undermine the bar. “Virtually any substantive challenge could be recast as a procedural claim, as their own claims demonstrate,” he said.

Sauer added that their claims challenge foreign-policy judgments.

Justice Sonia Sotomayor said that the president had made disparaging remarks about Haiti.

“All those statements in context refer to problems like crime, poverty, welfare dependence, drugs, [and] drug importation,” Sauer responded. 

With Haiti, there is a “notion that there’s ongoing chain migration,” Sauer later said. “The concern is we actually [are] creating, contributing to the problem, creating a self-fulfilling prophecy by ensuring that there’s an indefinite expectation of all those people [on TPS],” Sauer argued, saying there was a “talent drain” out of Haiti. The response to this is a foreign policy decision naturally left to the “political branches,” he added.

“Keep in mind this is temporary protected status,” Sauer noted. However, initial designations of TPS go back to 1991 in the case of Somalia and 1998 for Honduras and Nicaragua following Hurricane Mitch. 

“Judicial review is having this effect of really defeating the fundamental purpose of the statute, which is inherently temporary,” Sauer said.

As for Syria, continuing TPS “sends a message of doubt about that country” even though President Donald Trump has taken away sanctions of the fledgling government there, Sauer said. “It’s almost like these district courts are appointing themselves junior varsity secretaries of state, saying ‘I second-guess that.’ ”  

Argument for the Plaintiffs

Arguing for the plaintiffs, Ahilan Arulanantham, a professor at UCLA School of Law in Los Angeles, said, “The secretary can terminate TPS, but he must turn square corners, follow the rules Congress set. In contrast, as we’ve heard today, the government reads this statute like a blank check.”

“If it’s just kind of a box-checking exercise, I mean, why would Congress permit review of the procedural aspect when, really, what everybody cares about more is the substance?” Justice Amy Coney Barrett asked.

Arulanantham responded that if there is consultation with the State Department, the decisions will be better. 

“And that’s really not unusual, right?” Justice Ketanji Brown Jackson asked.

“Absolutely,” Arulanantham said.

One point Sauer made was that “if we accept your arguments, it will create a hole in the judicial review bar that you could drive a convoy of trucks through,” said Justice Samuel Alito Jr. “[I]f we depart from the ordinary meaning of the review bar then it is always going to be possible to … raise procedural objections to what’s been done.”

Justice Elena Kagan said Arulanantham’s argument that the national interest claim is reviewable is more difficult than the procedural argument. 

Justice Brett Kavanaugh asked how many Syrians have returned to Syria since the end of the Assad regime and whether that’s relevant.

“[I]t is of no relevance because even if the secretary is right and the State Department is wrong, it doesn’t change the fact that they didn’t talk to each other, and the national interest is not a criteria and those are claims that are clearly reviewable under the statute,” Arulanantham said.

Employers’ Interest

Employers would welcome clarity on the federal government’s termination authority for TPS and judiciary’s role in reviewing that authority. 

Currently, employers must track TPS notices stating that TPS employees are not authorized on one hand and on the other, court decisions finding that TPS workers remain authorized, Mdivani said.

If the court upholds TPS termination authority, HR and executives must design an immigration compliance program that is agile and lets them build contingency workplace plans, said Kripa Upadhyay, an attorney with Buchalter in Seattle.

“Some TPS holders may have alternative options available, but these are highly case-specific and likely very limited,” said Yova Borovska, an attorney with Buchanan in Tampa, Fla.

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If the court rules that suspensions must follow specific legal procedures, it could provide greater stability and predictability for employers relying on TPS workers, she added.