Ninth Circuit Considers Extending TPS for yet More Countries

FAIR shows courts lack jurisdiction to hear challenges

WASHINGTON—The Federation for American Immigration Reform (FAIR) has filed a brief in the Ninth Circuit Court of Appeals opposing an effort by anti-borders activists to preserve the Biden Administration’s extension of Temporary Protected Status (TPS) for citizens of Honduras, Nicaragua, and Nepal. Under the TPS statute, the Secretary of Homeland Security may determine whether persons from a given country, because of disastrous conditions in their homeland, may live in the United States for a set period of time, and may renew this status for further such periods if conditions warrant.

Just before leaving office, Biden’s Secretary of Homeland Security, Alejandro Mayorkas, extended TPS for Hondurans, Nicaraguans, and Nepalese for additional periods. President Trump’s Secretary of Homeland Security, Kristi Noem, following an executive order by the President, reached contrary determinations, and rescinded those extensions. Relying on the Administrative Procedure Act, plaintiffs claim that Noem acted unlawfully in doing so, arguing that the statute bars a secretary from reconsidering prior actions. The district court hearing the case adopted plaintiffs’ view, and postponed Noem’s actions.

In its brief on appeal of this order, FAIR shows that, according to longstanding Supreme Court precedent, the President, as Commander-in-Chief, has inherent authority to protect the nation by excluding aliens. That means Secretary Noem’s actions pursuant to Trump’s order were presidential actions. Presidential actions are immune from review under the Administrative Procedure Act. FAIR also shows that the TPS statute expressly strips courts of jurisdiction to hear this case, by barring judicial review of “any determination … with respect to [a] designation” of TPS. Noem’s determinations were certainly “with respect to” such a designation.

“The President is not a federal agency, and is not subject to the Administrative Procedure Act,” said Christopher J. Hajec, deputy general counsel of FAIR. “And it was the President who acted here, through his executive order. We hope the court does not ignore this vital constitutional power, sees that it lacks jurisdiction over this case on multiple grounds, and reverses the lower court.”

The case is National TPS Alliance v. Noem, No. 25-4901 (Ninth Circuit).