The three-judge panel of the 9th U.S. Circuit Court of Appeals denied the Department of Homeland Security's request for an emergency stay as they appeal. The court wrote that the government has “not demonstrated that they will suffer irreparable harm absent a stay.”
U.S. District Judge Edward Chen in March found that Homeland Security Secretary Kristi Noem had unlawfully reversed protections granted by the Biden administration that allow an estimated 350,000 Venezuelans to live and work in the U.S. Those temporary protections were set to expire earlier this month.
Noem also had announced the end of Temporary Protected Status for an estimated 250,000 Venezuelans in September and for 500,000 Haitians whose TPS protections are set to expire in August.
DOJ attorneys for the government contend that Congress gave the secretary clear and broad authority over the TPS program and that the decisions are not subject to judicial review.
"This appeal involves an extraordinary intrusion by a district court into the Secretary’s administration of the TPS statute," they wrote.
Congress created TPS, as the law is known, in 1990 to prevent deportations to countries suffering from natural disasters or civil strife. The program grants people authorization to live and work in the U.S. in increments of up to 18 months if the Homeland Security secretary deems conditions in their home countries are unsafe for return.
In blocking the administration, Chen said that hundreds of thousands of people and their families and livelihoods were at risk of severe disruption, as well as the health of communities across the country and the billions of dollars in economic activity generated by Venezuelan workers.
He said the government failed to identify any “real countervailing harm in continuing TPS for Venezuelan beneficiaries” and that plaintiffs will likely succeed in showing that Noem's actions “are unauthorized by law, arbitrary and capricious, and motivated by unconstitutional animus.”
Chen found the government’s arguments unpersuasive and said that numerous derogatory and false comments by Noem — and by Trump — labeling Venezuelans as criminals show that racial animus was a motivator in ending protections.
“Acting on the basis of a negative group stereotype and generalizing such stereotype to the entire group is the classic example of racism,” Chen wrote.