Federal Court Rejects DHS’s Decision to Revoke TPS for Venezuelans

The U.S. District Court for the Northern District of California blocked the U.S. Department of Homeland Security (DHS) from revoking Temporary Protected Status (TPS) for nearly 350,000 Venezuelan nationals under a 2023 designation. The designation was set to expire on April 7. The decision, which impacts both DHS’s vacatur of the Biden administration’s premature extension of Venezuela’s designation and the agency’s formal termination of that same designation restarts judicial “lawfare” against the Trump administration’s nationwide immigration policies.

The revocation was challenged in the San Franscico federal court by seven Venezuelan TPS holders and the National TPS Alliance (NTPSA), an organization “representing TPS holders nationwide”. The court sided with these plaintiffs, concluding that the DHS’s actions to vacate the extension were “arbitrary and capricious” and unauthorized by law. The court, not persuaded by Secretary of Homeland Security Kristi Noem’s national interest analysis, concluded that the secretary’s termination of Venezuela’s designation was ultimately “motivated by unconstitutional animus”.

Background on TPS

Section 244 of the Immigration and Nationality Act (INA) only allows the secretary of Homeland Security to designate a country for TPS if they determine that the country is experiencing (1) an ongoing armed conflict within the country such that requiring the return of nationals to that country would pose a serious threat to their personal safety; (2) a natural or environmental disaster resulting in a substantial, but temporary, disruption of living conditions such that the foreign state is temporarily unable to adequately handle the return of their nationals; or (3) “extraordinary and temporary” conditions in the foreign state that prevent nationals of the state from returning safely (unless the secretary determines that permitting such aliens to remain temporarily in the United States is contrary to the national interest of the United States).

Congress designed TPS to be a temporary form of protection from removal, not a long-term immigration status. Section 244(b)(2) only permits the secretary to designate a country for six- to 18-month periods, and section 244(b)(3) requires the secretary to periodically review whether conditions in designated countries continue to warrant TPS designations. Moreover, this section requires that the DHS secretary “shall terminate” a designation that “no longer continues to meet the conditions for the designation”, and only requires DHS to provide 60 days notice of the termination.

Moreover, Congress deliberately designed TPS to be controlled entirely by the executive branch — in part to allow an administration to designate, extend, and terminate a designation quickly. Notably, section 244(b)(5)(A) prohibits courts from reviewing “any” TPS determination “with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection”.

This issue was addressed in an earlier case in the Ninth Circuit, Ramos v. Nielsen. When that case made it up to the court of appeals, that higher court held that “§ 1254a(b)(5)(A) precludes review of non-constitutional claims that fundamentally attack the Secretary’s specific TPS determinations, as well as the substance of her discretionary analysis in reaching those determinations, but does not bar review of a challenge to an agency ‘pattern or practice’ that is collateral to, and distinct from, the specific TPS decisions and their underlying rationale”.

The court of appeals decision was ultimately vacated so that plaintiffs in Ramos could pursue en banc review. But the en banc hearing ultimately did not take place because the government, having then transitioned to the Biden administration, mooted the plaintiffs claims by redesignating the countries whose TPS designations had been terminated.

Why Did the District Court Rule Against DHS if the Law Bars Judicial Review of TPS Decisions?

The district court concluded that section 244(b)(5)(A) did not apply to Secretary Noem’s decision to vacate Secretary Mayorkas’ extension of the TPS designation. The court reasoned that, “A decision to vacate [a matter not expressly authorized by the TPS statute] is, literally and textually, not a ‘designation, or termination or extension of a designation, of a foreign state under this subsection’,” despite the vacatur itself being an exercise of discretion regarding an extension decision. With the extension in place, Venezuela’s TPS designation is valid until October 2026.

The district court also maintained that the statutory prohibition judicial review does not apply to constitutional challenges, including the plaintiffs’ Equal Protection claim. The court was not persuaded by the government’s claims that there were sufficient national interest or foreign affairs bases for Venezuela’s TPS termination, saying instead that Noem’s national interest analysis was based on “unconstitutional animus”.

The district court (concerningly, in my opinion) considered the historical background of TPS designations under the first Trump administration (considering its termination of TPS for “non-white, non-European TPS holders from Sudan, Haiti, Nicaragua, El Salvador, Honduras and Nepal”) when concluding that discriminatory purposes — ignoring the court of appeals rejection of this analysis in its now-vacated (but still legally persuasive) Ramos v. Wolf decision.

Additionally, the district court looked at “a number of discriminatory statements” made by Secretary Noem, beginning as early as February 2024, and President Trump to fuel its assessment. Employing its own analysis, the district stated that that Noem’s rationale was “entirely lacking in evidentiary support”. Secretary Noem justified the termination of the 2023 designation on the following grounds: “(1) members of the Venezuelan [Tren de Aragua] gang have crossed into the United States; (2) the resources of local communities have not been adequate to ‘meet the demands’ of the Venezuelan TPS holders, and their presence has cost local communities billions of dollars; (3) a TPS designation has a potential ‘magnet effect’ — i.e., it is a ‘pull factor[] driving Venezuelan nationals to the United States’; and (4) an extension of the TPS designation is contrary to the Trump administration’s policy of ‘America first’ as it ‘facilitate[s] or encourage[s] illegal and destabilizing migration.’”

Surely, Congress intended to prevent litigation of these kinds of considerations in the judiciary with its enactment of section 244(b)(5)(A) of the INA? Nevertheless, the district court premised its Equal Protection decision in part on its own opinion of whether Noem’s “national interest” analysis was legitimate.

What Does This Decision Mean for the Future of Venezuela’s TPS Designation?

This decision only impacts the 2023 TPS designation for Venezuela that is set to expire this month — covering 350,000 Venezuelan nationals. Unless an appeals court intervenes, the designation will be valid until October 2026.

Another designation for Venezuela, which was initiated in 2021, is active and set to expire in September 2025. This designation covers the remainder of the Venezuelan TPS population, approximately 250,000 people. DHS has not yet acted to revoke this designation, but the agency is likely to face an uphill battle in this circuit to make that move without a significant change in the domestic legal landscape or conditions in Venezuela.

Judicial interferences, like we have seen repeatedly out of the Northern District of California, may also discourage future administrations from granting TPS to new countries whose conditions may warrant designation. Without additional involvement from Congress or the U.S. Supreme Court to address the scope of judicial intervention in nationwide immigration policy, TPS will continue to be anything but temporary for the majority of the program’s beneficiaries.