Cristina Morales (left) walks in Richmond, California with her children Diego and Crista, who are U.S. citizens, on July 7, 2020. Morales is one of more than 400,000 immigrants who would lose their permits to live and work in the U.S. after an appeals court ruling this week. (Beth LaBerge/KQED)
More than 400,000 immigrants, most of whom have long lived in the United States, could lose humanitarian protections and be deported as early as next year after an appeals court ruled Monday in favor of the Trump administration.
In a 2-1 ruling, a panel of judges at the 9th U.S. Circuit Court of Appeals in Pasadena dissolved a lower court’s order that had blocked immigration officials from ending a program called Temporary Protected Status for nationals of six countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan.
Plaintiff Cristina Morales, a TPS holder originally from El Salvador, has lived most of her life in the U.S. Both of her children were born in this country, including 16-year-old Crista Ramos, the lead plaintiff in the case, Ramos v. Wolf.
Morales, a teaching assistant from the Bay Area city of San Pablo, said she received the news that the court had sided with the Trump administration via text, while reading a book to a class of second graders over Zoom.
“I had to swallow my feelings and go on with the lesson,” said Morales, 39. “I feel angry, I feel frustrated. ... The fear of being separated from my family is so real, it’s so painful.”
An estimated 270,000 American children have parents with TPS, which allows people to legally live and work in the U.S. but does not offer a path to citizenship.
The earliest that immigration officials could rescind work permits for nationals of El Salvador is Nov. 5, 2021, said ACLU attorney Ahilan Arulanantham. Immigrants from the other impacted countries would see their protections expire as soon as March 5, he added.
U.S. Has Offered Relief for Three Decades
Congress created TPS in 1990 to provide humanitarian relief to noncitizens residing in the U.S. who couldn’t return safely to home countries that were ravaged by war or natural disasters.
The secretary of the Department of Homeland Security designates the countries that are eligible for the protections, and can extend them after periodic review every six to 18 months.
Immigrants from El Salvador, a country with one of the world’s highest murder rates, have been eligible for the relief for nearly 20 years.
Starting in 2017, the Trump administration announced a series of TPS terminations, arguing the protections were no longer needed because the original earthquakes and other conditions that led to the designations had been resolved.
Trump officials have extended the relief for those from Somalia, South Sudan, Syria and Yemen, who represent about 2% of current TPS holders.
Appeals Court Sides With Trump Administration
A group of impacted TPS holders and their U.S. citizen children sued in 2018 to keep their families together in this country.
The plaintiffs argued in court that Trump officials had made an unexplained change to their approach for determining whether people with TPS could safely return to their home countries, in violation of federal rule-making laws. They also claimed the decisions to end the relief were motivated by Trump’s racism against non-white immigrants.
On Monday, Circuit Judges Consuelo Callahan and Ryan Nelson disagreed with those arguments. They noted that past administrations designated and subsequently ended the relief for nationals of 12 countries, including Bosnia-Herzegovina, Kuwait and Rwanda.
Callahan, an appointee of President George W. Bush, and Nelson, an appointee of President Trump, found the court didn’t have the authority to review the Department of Homeland Security conclusions on TPS, and that the plaintiffs lacked evidence linking Trump’s alleged discriminatory intent to the specific terminations.
“While the record contains substantial evidence that White House officials sought to influence the Secretaries’ TPS decisions, and that the Secretaries sought and acted to conform their TPS decisions to the President’s immigration policy, we find these facts neither unusual nor improper,” wrote Callahan in the majority’s opinion.
In a 40-page dissent, Judge Morgan Christen wrote that the court could decide on the issue and that plaintiffs had shown that DHS officials interpreted the TPS statute in a way that starkly differed from previous administrations.
“The consequences of the majority’s decision are monumental, but the majority’s reasoning is deeply flawed,” wrote Christen, an Obama appointee.
In a call with reporters, the ACLU’s Arulanantham, the top counsel for TPS holders in the case, said they would seek a review from a larger panel at the 9th Circuit and could also ask the U.S. Supreme Court to intervene.
A spokesperson with DHS said the agency is “very pleased” with the court’s ruling.
“The circumstances that led to the temporary designation in each of the countries in question ... fundamentally changed, and DHS withdrew their TPS designations,” said the spokesperson. “These changes have been a landmark of DHS during the Trump administration.”
The appeals court decision officially covers TPS holders from El Salvador, Haiti, Nicaragua and Sudan. But immigrants from Honduras and Nepal, who sued separately, are also included, after a legal agreement with government officials, said Arulanantham.
Wilna Destin, a plaintiff from Haiti who lives in Florida, said the court’s order came as a shock. She and her husband recently recovered from COVID-19, and now they are getting ready for several approaching hurricanes, she said.
“We have coronavirus, we have hurricanes. Now for me this is another disaster for the TPS [community],” said Destin, the mother of two U.S. citizen children, one of whom is also a plaintiff. “It’s not fair for us and it’s very sad.”
Destin and other TPS holders vowed to continue to pressure Congress and an upcoming administration to keep the protections in place.
“We are not going to stop, we are going to keep fighting until we get what we deserve for our families, for our children,” Destin said.
Last year, the House of Representatives passed the American Dream and Promise Act, introduced by Congresswoman Lucille Roybal-Allard, D-California, which would offer a path to U.S. citizenship to beneficiaries of TPS and Deferred Action for Childhood Arrivals, or DACA. The U.S. Senate has not taken up the bill.
A bus with 20 TPS holders will travel to 54 cities, en route to Washington, D.C., stopping in San Francisco later this month, to call on Congress to save the protections, according to the NorCal TPS Coalition.