Temporary Protected Status to Continue for Sudan, Nicaragua, Haiti, and El Salvador, Temporarily: Federal Judge Blocks Trump Administration TPS Terminations

On October 3, 2018, a federal judge in California gave hope to citizens of four countries: Sudan, Nicaragua, Haiti, and El Salvador. In Ramos v. Nielsen, Federal District Court Judge Edward Chen said that the Trump Administration could not terminate temporary protected status while the lawsuit goes forward, affecting over 300,000 people.

History of the Lawsuit

In November 2017, the Trump Administration announced it planned to terminate Temporary Protected Status (TPS) for a variety of countries. A group of plaintiffs representing those protected by TPS sued the administration to block termination. Terminations of TPS status were due to go into effect on November 2, 2018, but now, because of this lawsuit and Judge Chen’s temporary decision, the scheduled terminations are on hold pending the outcome of the litigation.

Judge Chen ruled that plaintiffs are likely to succeed on the merits of their claim that the U.S. Department of Homeland Security (DHS) changed the standard for determining how TPS decisions are made, without notice or explanation, in violation of the Administrative Procedures Act; and also that plaintiffs have demonstrated serious questions that the Trump Administration terminated TPS for these four countries based on a discriminatory purpose. Judge Chen found “evidence that President Trump harbors an animus against non-white, non-European aliens which influenced his [] decision to end the TPS designation[s].” The Trump Administration’s previously announced terminations of TPS would have affected over 400,000 people. The full decision is available here.

Knowing that the road to permanent protection is still long, advocates nonetheless celebrated this victory. “The Court upheld the sanctity of families and the welfare of hundreds of thousands of U.S. citizen children,” said Alycia Degen, partner with Sidley Austin LLP, and member of the legal team representing TPS plaintiffs. Another member of the legal team, Ahilan Arulanantham, senior counsel at the ACLU Foundation of Southern California, released the statement: “This ruling is a victory against the unlawful – not to mention cruel – dismantling of a program that protected hundreds of thousands of U.S.-citizen children from an impossible choice of leaving their parents or their country.”

What Happens Now?

If TPS holders from these countries properly applied to renew their TPS during the last registration period for their country, they have valid TPS and will continue to have it through the dates listed below. On October 31, 2018, DHS announced how it will extend each of the four countries’ TPS pursuant to the judge’s order.

• Sudan and Nicaragua:
• DHS is automatically extending through April 2, 2019, the validity of TPS-related Employment Authorization Documents (EADs), Forms I–797, Notice of Action (Approval Notice), and Forms I–94 (Arrival/Departure Record). This means that individuals with valid TPS from Nicaragua and Sudan will continue to have TPS until April 2, 2019.
• Should the court’s order remain in effect in March 2019, DHS will issue a new notice approximately 30 days before April 2, 2019, that will automatically extend the appropriate TPS-related documentation for beneficiaries of TPS from Nicaragua and Sudan for an additional nine months from April 2, 2019, through Jan. 2, 2020.
• Haiti:
• Haitian TPS will be extended through July 22, 2019 (EADs, Approval Notices and I-94 will be automatically extended).
• Should the court’s order remain in effect in March 2019, DHS will issue a new notice approximately 30 days before April 2, 2019, that will automatically extend the appropriate TPS-related documentation for beneficiaries of TPS Haiti for an additional nine months from April 2, 2019, through Jan. 2, 2020.
• El Salvador:
• El Salvador’s previously announced termination date of Sept. 9, 2019, remains the same.

Should the court’s order continue to remain in effect in March 2019, DHS will issue a new notice approximately 30 days before April 2, 2019, that will automatically extend appropriate TPS-related documentation for beneficiaries from TPS El Salvador through Jan. 2, 2020. (Please note that individuals may lose their TPS if they obtained TPS by fraud or become ineligible, for example, by being convicted of certain crimes; that is separate from this lawsuit).

What is Temporary Protected Status? 

TPS is a type of temporary protection given to individuals who are already present in the U.S. and who are from countries experiencing issues that make it unsafe for them to return.  TPS permits individuals to remain in the U.S. temporarily, work in the U.S., and sometimes, to travel abroad during their TPS status. Individuals without nationality who last habitually resided in the designated country may also apply.  Issues that may cause DHS to designate a country as TPS eligible include:

• Ongoing armed conflict (e.g. civil war);
• An environmental disaster (e.g. earthquake, flood, or hurricane) or epidemic (e.g. Ebola); or
• Other extraordinary and temporary conditions.

If DHS finds that one of these conditions applies, it may designate the country for TPS so that its nationals within the U.S. can apply for it. If approved, those individuals will not be deported and can apply for work authorization for the duration of their TPS approval.  See our blog for more basic information on TPS. You can check the DHS website for the status of other countries’ TPS designations.

What Can I Do?

If you or a loved one have TPS, or have questions and would like more detail, please contact our office. Many individuals who have TPS may be eligible for another kind of immigration benefit and should consult with an immigration attorney. Additionally, individuals who have TPS may have a prior order of removal or may have been in proceedings in immigration court when their TPS was granted, and as a result, had their court case administratively closed. If the DHS wins this lawsuit and successfully terminates TPS, those individuals will now be at risk of having their prior removal (deportation) order reinstated (i.e. removed from the U.S.) or have their cases put back on an active docket in immigration court. You can read our blog about prior orders of removal or contact one of our attorneys.