SAN FRANCISCO (CN) - The Trump administration told a federal judge Tuesday that Department of Homeland Security Secretary Kristi Noem had unfettered discretion to terminate temporary protected status for people from Nepal, Nicaragua and Honduras - and that her decision is unreviewable by the courts.
"This case begins and ends with the jurisdictional analysis. The government asserts the TPS statute specifically preludes judicial review with respect to termination or extension," attorney William Weiland, representing the government, said.
The TPS program protects individuals from certain countries due to violence or economic duress. While those with TPS status can't be deported and can work legally in the U.S., they do not have a path to U.S. citizenship.
The National TPS Alliance and individual TPS holders from Nepal, Nicaragua and Honduras sued after Noem ordered the termination of protected status for the three countries, claiming Noem's actions in terminating protections for the three countries violated the Administrative Procedure Act and were motivated by racial animus.
On July 31, U.S. District Judge Trina L. Thompson postponed the termination of the TPS program for Nepal, Nicaragua and Honduras until Nov. 18. However, a federal appeals court stayed that ruling, greenlighting the Trump administration to go ahead with its termination of TPS status for the three countries while litigation plays out.
In a hearing considering the government's motion to dismiss and plaintiff's motion for summary judgment, the Joe Biden appointee said the unfettered, unreviewable power the secretary purportedly has would be "almost more than the president," adding the claim "gave me pause when we had it on the first go-round."
Thompson asked the government if the congressional statute creating the TPS program explicitly states that the decisions regarding a country's designation of protective status are solely at the discretion of the secretary and the executive. Weiland answered no.
Thompson probed further, asking the government if it believed there were any circumstances, such as a procedural error, that would allow the court to examine the issue.
"This statute itself says there is no judicial review of any determination of a Secretary of Homeland Security with respect to termination of a foreign state, it's very clear and stark language," Weiland responded.
In contrast, plaintiffs' attorney Jessica Bansal of the National Day Laborer Organizing Network argued the case should not be dismissed because Noem did not follow the required steps, including consulting with other federal agencies or considering country conditions, when she made her decision to terminate TPS for Nicaragua, Honduras and Nepal.
Bansal added that Noem deviated from past practices by refusing to consider country conditions unless they were directly related to the original country designation.
As for the motion for summary judgment, Bansal argued the government made a political predetermination to end TPS before reviewing any country conditions, citing public statements during Trump's campaign promising to revoke TPS and social media posts from Noem earlier this year, inferring that migrants from Honduras are criminals.
"You cannot receive TPS if you have been convicted of a single felony, two misdemeanors or are a threat to the country. This population is already vetted and is far from a threat to this country," Bansal said.
ACLU of Northern California attorney Emilou MacLean, also representing the plaintiffs, added there was evidence of the government "seeking out irrelevant discriminatory information" to "spread lies about TPS," specifically calling out a DOJ press release after Thompson's July 31 order that called TPS holders "criminal" and "unvetted" aliens.
In rebuttal, the government said the plaintiff's claims of predetermination were a "bridge too far," explaining that there was nothing inappropriate about the secretary "considering prior inputs" or her staff "working the process."
"In reality, this is how government works," Weiland said.
Thompson asked Weiland if he could categorically state there was nothing in writing that says TPS would be repealed or revoked by the administration.
"I can't say it's my client's position that that's the case," he responded, adding: "There is nothing inappropriate about staff recognizing this administration is coming in with a different policy view. Working with an understanding of what their boss is thinking is completely appropriate."
Weiland also claimed Noem did not deviate from past practices, saying that "nothing requires the secretary to do anything other than what the statute specifically says, which is to review the basis of designation."
Thompson tentatively denied the government's motion to dismiss but said she would take the plaintiffs' request for summary judgment under submission, noting that there were "guideposts on where the court is leaning."
Bansal told Courthouse News after the hearing that she was "optimistic the plaintiffs will prevail" and "the record shows undisputedly that this decision didn't follow the procedures required in the TPS statute."
Courthouse News also spoke with plaintiff Jhony Silva, a TPS holder from Honduras who previously worked as a certified nursing assistant at Stanford Hospital before his work authorization was revoked.
Silva described "getting the shakes" listening to the government defend its terminations of TPS.
"I just don't think it's fair that they classify immigrants like me and other people as terrorists and invaders," he said, adding, "TPS is the only way I was able to have work authorization, my driver's license. It's how I've been able to pay taxes since I was 17. I've never missed anything. I don't have any federal crimes, no crimes at all. I've never been arrested or nothing."
A representative for the Department of Justice declined to comment.
On Sept. 22, Thompson granted class certification, approving three separate classes that include individuals from Honduras, Nepal and Nicaragua.
Source: Courthouse News Service
