Ramos v. Wolf

Decision Date14 September 2020
Docket NumberNo. 18-16981,18-16981
Citation975 F.3d 872
Parties Crista RAMOS; Cristina Morales; Benjamin Zepeda; Orlando Zepeda; Juan Eduardo Ayala Flores; Elsy Yolanda Flores De Ayala; Maria Jose Ayala Flores; Hnaida Cenemat; Wilna Destin; Rilya Salary; Sherika Blanc; Imara Ampie; Mazin Ahmed; Hiwaida Elarabi, Plaintiffs-Appellees, v. Chad F. WOLF, Acting Secretary of Homeland Security; Kenneth T. Cuccinelli, Senior Official Performing the Duties of the Deputy Secretary of Homeland Security; U.S. Department of Homeland Security; United States of America, Defendants-Appellants.
CourtU.S. Court of Appeals — Ninth Circuit

CALLAHAN, Circuit Judge:

The Temporary Protected Status (TPS) program is a congressionally created humanitarian program administered by the Department of Homeland Security (DHS) that provides temporary relief to nationals of designated foreign countries that have been stricken by a natural disaster, armed conflict, or other "extraordinary and temporary conditions in the foreign state." 8 U.S.C. § 1254a(b). In 2017 and 2018, Secretaries of DHS under the Trump Administration terminated the TPS designations of four countries: Sudan, Nicaragua, Haiti, and El Salvador. Plaintiffs, who are TPS beneficiaries from these countries and their children, challenged the TPS termination decisions as unlawful under, inter alia , the Administrative Procedure Act (APA), 5 U.S.C. §§ 551 et seq. , and the Equal Protection Clause (EPC) of the Fifth Amendment.

The district court entered a preliminary injunction barring the implementation of the termination decisions. On appeal, the Government argues that the district court abused its discretion in issuing the injunction because Plaintiffs have not shown a likelihood of success on either of their claims. We agree. Based on our reading of the TPS statute, we hold that Plaintiffs’ APA claim is foreclosed from judicial review. We also conclude that Plaintiffs are unable to show a likelihood of success, or even serious questions going to the merits of their EPC claim. Accordingly, we reverse and vacate the preliminary injunction.

I.
A.

With the passage of the Immigration Act of 1990, Congress created the TPS program. Pub. L. No. 101-649, 104 Stat. 4978. TPS provides temporary relief to aliens who cannot safely return in the short term to their home nation as a result of a natural disaster, armed conflict, or other "extraordinary and temporary conditions in the foreign state." 8 U.S.C. § 1254a(b). The impetus for the establishment of the TPS program stemmed from concerns with the "extended voluntary departure" (EVD) process, which was the primary mechanism by which the federal government allowed groups of nationals to remain in the United States for humanitarian reasons prior to TPS. See Lynda J. Oswald, Note, Voluntary Departure: Limiting the Attorney General's Discretion in Immigration Matters , 85 Mich. L. Rev. 152, 157–60 (1986). Because administrations granted EVD on an ad hoc basis without "any specific criterion or criteria," the practice led to arbitrary results and drew widespread criticism. Id. at 178 n.153 (quoting Letter from Attorney General W.F. Smith to Representative L.J. Smith (July 19, 1983)). Beginning in 1980, Congress introduced a series of bills to address its concerns with EVD and to provide a "more formal and orderly mechanism" for group-based grants of humanitarian protection. H.R. Rep. No. 100-627, at 4 (1988). These efforts eventually culminated in the 1990 enactment of the TPS statute, now codified in section 244 of the Immigration and Nationality Act, or 8 U.S.C. § 1254a.

The TPS statute authorizes the Secretary of Homeland Security1 to designate foreign countries for TPS "after consultation with appropriate agencies of the Government" and "only if" the Secretary finds one or more of the following criteria met:

(A) ... that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;
(B) ... that—
(i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected,
(ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and
(iii) the foreign state officially has requested designation under this subparagraph; or
(C) ... that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety[.]

8 U.S.C. § 1254a(b).

TPS designations last for an initial period of 6 to 18 months, effective upon notice in the Federal Register. Id. § 1254a(b)(2). At least 60 days before the end of a designation period, the Secretary, "after consultation with appropriate agencies of the Government, shall review the conditions in the foreign state ... and shall determine whether the conditions for such designation under [the statute] continue to be met." Id. § 1254a(b)(3)(A). If the Secretary determines that a country "no longer continues to meet the conditions for designation," she "shall terminate the designation." Id. § 1254a(b)(3)(B). If, during this periodic review, the Secretary does not make such a determination, "the period of designation of the foreign state is extended" for 6, 12, or 18 months. Id. § 1254a(b)(3)(C).

The TPS statute also provides that "[t]here is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection." Id. § 1254a(b)(5)(A).

B.

Since the inception of the TPS program, the federal government has designated a total of 21 countries and the Province of Kosovo for TPS. Prior to 2017, the government terminated twelve of those designations, including three terminations in 2016.

In 2017 and 2018, DHS announced the termination of TPS designations for four countries: Sudan, Nicaragua, El Salvador, and Haiti. During this same period, DHS also extended the TPS designations of four other countries: Somalia, South Sudan, Syria, and Yemen.2 The TPS terminations for Sudan, Nicaragua, El Salvador, and Haiti form the basis of Plaintiffs’ claims.

1. Sudan

Sudan was originally designated for TPS in 1997 because of an ongoing civil war that prevented the safe return of Sudan nationals. Designation of Sudan Under Temporary Protected Status , 62 Fed. Reg. 59737-01, 59737 (Nov. 4. 1997). From that time until 2017, the country was periodically extended or redesignated for TPS fifteen times by prior administrations, based on factors such as forced relocation, human rights abuses, famine, and denial of access to humanitarian agencies.3

In October 2017, Acting Secretary Duke terminated the TPS designation of Sudan, effective November 2, 2018. Termination of the Designation of Sudan for TPS , 82 Fed. Reg. 47,228 -02, 47,228 (Oct. 11, 2017). The termination notice concluded that the conflict in Sudan was now "limited to Darfur and the Two Areas (South Kordofan and Blue Nile states)." Id. It explained that "in Darfur, toward the end of 2016 and through the first half of 2017, parties to the conflict renewed a series of time-limited unilateral cessation of hostilities declarations, resulting in a reduction in violence and violent rhetoric from the parties to the conflict," and "[t]he remaining conflict [was] limited and [did] not prevent the return of nationals of Sudan to all regions of Sudan without posing a serious threat to their personal safety." Id.

The notice further observed that "food security" had improved "across much of Sudan" because of above-average harvests, and even in conflict-affected areas where food remained scarce, there had been "some improvement in access for humanitarian actors to provide much-needed humanitarian aid." Id. at 47,230. Although Sudan's human rights record "remain[ed] extremely poor in general," the notice concluded that, in light of all the above factors, the ongoing conflict and extraordinary and temporary conditions that justified Sudan's most recent TPS redesignation had "sufficiently improved such that they no longer prevent nationals of Sudan from returning in safety to all regions" of the country. Id.

2. Nicaragua

Nicaragua was initially designated for TPS in 1999 as a result of conditions caused by Hurricane Mitch. Designation of Nicaragua Under Temporary Protected Status , 64 Fed. Reg. 526-01, 526 (Jan. 5, 1999). Nicaragua's designation was then extended thirteen times by prior administrations.4 Some of the reasons cited for the extensions included "recent droughts as well as flooding from Hurricane Michelle in 2002" and subsequent natural disasters and storms.5

In December 2017, the Acting Secretary terminated Nicaragua's TPS designation, effective January 5, 2019. Based on DHS's review of "conditions in Nicaragua," the Secretary "determined that conditions for Nicaragua's 1999 designation for TPS on the basis of environmental disaster is no longer met." Termination of the Designation of Nicaragua for TPS , 82 Fed. Reg. 59,636 -01, 59,637 (Dec. 15, 2017). The termination notice stated that, by 2017, "[r]ecovery efforts relating to Hurricane Mitch ha[d] largely been completed" and the "social and economic conditions affected by Hurricane Mitch ha[d] stabilized." Id. It also noted that Nicaragua had "received a significant amount of international aid to assist in its Hurricane Mitch-related recovery efforts," "many reconstruction projects ha[d] now been completed[,]" "[a]ccess to drinking water and sanitation ha[d] improved[,]" 90% of the country had electricity in 2017 (compared to 50% in 2007), and per capita GDP was higher than it had been...

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