Federal Appellate Court Upholds End Of Temporary Protected Status For El Salvador, Nicaragua, Sudan

Jackson Lewis P.C.

The Trump Administration’s effort to end Temporary Protected Status (TPS) for approximately 250,000 people from El Salvador, Nicaragua, and Sudan has been upheld in a split ruling from U.S. Court of Appeals for the Ninth Circuit in Crista Ramos, et al. v. Wolf, et al. TPS for Honduras and Nepal likely will be affected by this ruling as well, adding approximately 57,000 and 9,000 beneficiaries, respectively.

While the Ninth Circuit also upheld termination of TPS for individuals from Haiti, a separate injunction currently preventing the termination of TPS for Haiti remains in place and is not affected by the Ninth Circuit Order.

These work-authorized beneficiaries, many of whom have been in the U.S. for more than two decades, are thoroughly entrenched in their communities, have homes, jobs, and as many as 200,000 U.S.-born children.

As part of an anti-immigration platform, the Trump Administration has been working to terminate TPS for many countries since 2017. In 2018, California Federal Judge Edward M. Chen issued a nationwide preliminary injunction. He explained that the equities definitively favored the plaintiffs, many of whom have U.S. citizen children who know no other home than the one they have here. The plaintiffs were facing a “Hobson’s choice” of leaving the country without their children or leaving with their children and depriving them of their lives in the U.S. The Judge also found the U.S., rather than suffering harm from the continuation of TPS, might suffer economic harm due to the TPS terminations. Such prospective harms could include: $132 billion loss in GDP and $5.2 billion loss in Social Security and Medicare contributions – this was before the current economic crisis brought on by COVID-19. The Judge also found that terminating TPS could lead to $733 million in turnover costs in industries that employ TPS beneficiaries: “construction, hospitality, food service, landscaping, home health care, child care and retail . . . .”

On the basis of Judge Chen’s injunction, the Department of Homeland Security (DHS) has been extending TPS or TPS employment authorization while the case has made its way through the appeals process. On November 4, 2019, DHS again extended TPS-related forms and documents until January 2, 2020. The agency announced that if the government prevailed in its challenge to the injunction, there would be a wind down period of at least 120 days to allow for an “orderly transition.”

The purpose of the wind down period was to give the beneficiaries some time to prepare to leave the country or seek some other status in the United States. For many, this will include not only making wrenching choices about their children, but also selling homes during a pandemic or facing possible deportation. While it is possible for some TPS beneficiaries to change status, adjust status to permanent resident, or apply for asylum, the options are limited.

Plaintiffs likely will appeal the ruling and seek to maintain the status quo until all appeals are finalized. Numerous employers will be affected by this ruling, as TPS beneficiaries provide valuable labor in job sectors where workers are scarce, such as the construction, landscaping, and food services industries.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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