Will U.S. Keep Humanitarian Protections for Many Immigrants? Federal Judges to Decide

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Plaintiffs Wilma Destin, a TPS holder from Haiti, and daughter Hneida Cenemat, 15, speak before a court hearing in San Francisco on September 26, 2018. (Farida Jhabvala Romero/KQED)

A three-judge appeals panel is weighing a lower federal court's order that preserves — for now — temporary protections allowing hundreds of thousands of immigrants to live and work in the U.S.

During a hearing Wednesday in Pasadena, the 9th U.S. Circuit Court of Appeals panel seemed skeptical of U.S. District Judge Edward Chen's order last fall that blocked the Trump administration from ending Temporary Protected Status for more than 400,000 immigrants nationwide, including 75,000 in California.

The Department of Homeland Security announced last year that it was ending TPS for nationals of El Salvador, Haiti, Nicaragua and Sudan. In the spring, it added two more countries to the list: Honduras and Nepal. Judge Chen issued an injunction last October that has kept the protections in place while the courts consider the issue.

Congress created the TPS program in 1990 to provide humanitarian relief to immigrants already in the U.S. who could not return safely to home countries struck by wars or natural disasters, such as earthquakes. The secretary of the Department of Homeland Security must periodically review a country’s TPS designation to decide whether to extend the status.

The Trump administration defends getting rid of the protections, saying they’re no longer warranted for most TPS holders because the original conditions that led to the designations no longer exist.

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But plaintiffs say the DHS broke practice with previous administrations that had extended TPS, and its terminations of the program were unlawful and motivated by President Trump’s hostility against non-white immigrants.

During the hearing, ACLU attorney Ahilan Arulanantham cited a vulgar slur by Trump disparaging African nations as “shithole countries” as part of the evidence of the racial animus that allegedly influenced TPS terminations.

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But Judge Ryan Nelson questioned whether such statements were enough to support the plaintiff’s arguments.

“There's this assumption that the president has animus,” said Nelson, a Trump appointee. “But if you go read the president's statements, none of them except for one have anything to do with the TPS statute that we're reviewing.”

U.S. Department of Justice attorney Gerard Sinzdak argued the government had the authority to issue the program terminations, despite any statements by Trump — before or after he took the oath of office.

“It’s inappropriate to draw the kind of inferences that plaintiffs are asking you to draw here… and then draw the inference that the (DHS) secretary was motivated by those views,” he said. “There is no cause for that.”

If the 9th circuit ends the lower court’s temporary injunction, plaintiffs would likely appeal to the U.S. Supreme Court. Once a final ruling is made, TPS holders from the six affected countries could ultimately face deportation after a four-month grace period, said Sinzdak.

It’s unclear when the appeals panel will rule.