Josh Gerstein, Politico, September 14, 2020
A federal appeals court has effectively greenlighted the Trump administration’s plan to expel more than 300,000 undocumented immigrants from El Salvador, Nicaragua and Sudan from the U.S. by ending the “temporary protected status” they have enjoyed for as long as two decades.
A 9th U.S. Circuit Court of Appeals panel ruled 2-1 Monday that a federal judge in San Francisco erred in 2018 when he blocked the administration’s move to terminate the deportation protections granted to nationals of four countries because of natural disasters, wars or other upheavals in their homelands.
While the 9th Circuit’s decision also lifted that injunction with respect to unlawful immigrants from Haiti, a New York federal judge’s injunction preventing Haitians from being deported remains in place.
The appeals court panel also rejected arguments that the moves to end TPS for the four countries at issue was driven by President Donald Trump’s alleged racial and anti-immigrant bias demonstrated through a series of inflammatory public comments, including in a January 2018 discussion at which he referred to “shithole countries.”
“Plaintiffs fail to present even ‘serious questions’ on the merits of their claim that the Secretaries’ TPS terminations were improperly influenced by the President’s ‘animus against non-white, non-European immigrants,’” wrote Callahan, an appointee of President George W. Bush. She added that the suit suffered from “a glaring lack of evidence tying the President’s alleged discriminatory intent to the specific TPS terminations.”
Callahan said it was not improper for White House officials to emphatically urge officials at DHS to terminate the TPS programs. “The mere fact that the White House exerted pressure on the Secretaries’ TPS decisions does not in itself support the conclusion that the President’s alleged racial animus was a motivating factor in the TPS decisions,” she wrote.
The court’s majority did, in passing, deliver what read like a rebuke to Trump, saying the judges “do not condone the offensive and disparaging nature of the President’s remarks.”
The plaintiffs in the case, who are U.S.-citizen children of those covered by TPS, decried the ruling.
A spokesperson for the Justice Department said officials are “pleased” with the 9th Circuit ruling. “For approximately two years, the district court’s injunction prevented the Department of Homeland Security from taking action that Congress has vested solely within the discretion of the Secretary of Homeland Security — action that is statutorily precluded from judicial review. We applaud the Ninth Circuit’s recognition of the plain language of the Immigration and Nationality Act and its rejection of the baseless accusations of animus behind the actions taken by the Department of Homeland Security,” the spokesperson said.