Potential Deportations Hang in the Balance as Supreme Court Considers TPS Cases
The upcoming Supreme Court deliberations could pave the way for mass deportations of individuals who have lawfully resided in the United States, some for over a decade. If President Trump’s administration prevails in two critical cases, the ramifications for those protected under Temporary Protected Status (TPS) could be profound.
TPS was established in 1990, allowing individuals to reside and work in the U.S. if they are unable to return to their home countries due to natural disasters, armed conflict, or other extraordinary circumstances. This program was designed to provide temporary refuge for those fleeing dire situations, with every president since its inception, except Trump, maintaining support for it.
Currently, TPS is granted to individuals from several nations, including Haiti, which has been reeling since a catastrophic earthquake in 2010 claimed over 300,000 lives. Continuous violence from gangs and widespread health crises have left the country in turmoil. In Syria, around 7,000 individuals are protected under TPS amid ongoing civil war and aerial bombardments.
Mechanics of Temporary Protected Status
President Trump has been vocal about his views on immigrants from certain nations. In past remarks, he has expressed a preference for immigrants from countries he deems more desirable. The TPS program is distinctive; it applies solely to individuals who legally reside in the United States at the time a country is designated for TPS. Applicants must go through rigorous vetting processes, which include background checks, biometric screenings, and adherence to strict eligibility criteria.
As explained by attorney Ahilan Arulanantham, who represents Syrian TPS beneficiaries in the upcoming case, individuals with TPS must renew their status every 18 months, undergoing the vetting process repeatedly. Those with criminal misdemeanors can lose their protected status, further emphasizing the program’s stringent standards.
Judicial Review at Issue in Pending Cases
The Trump administration contends that the TPS Act of 1990 means judicial review of TPS decisions is off-limits. According to the government’s brief, the law encompasses all aspects and explicitly prohibits court oversight. This interpretation is backed by twenty-one Republican attorneys general, including Kansas Attorney General Kris Kobach, who argues that TPS was never meant to act as a permanent solution.
Kobach asserts, “Parental protected status was never intended to be a de facto amnesty.” However, legal representatives for the affected Haitian and Syrian nationals argue that the judicial review clause of the law applies only to certain sections and that the administration has not abided by the necessary procedures as outlined in the TPS program and the Administrative Procedure Act (APA).
The APA, enacted 80 years ago, provides a framework for federal agencies to draft and implement regulations while ensuring transparency and accountability, which include avenues for judicial review to prevent arbitrary decision-making.
Critiques of Department of Homeland Security Findings
In terminating TPS for Haiti, former Homeland Security Secretary Kristi Noem cited reasons including the assertion that conditions in Haiti had improved to the point where safe repatriation was feasible. Noem also claimed that maintaining TPS protections would not align with national interests. A similar rationale was given regarding Syrian nationals, referring to difficulties in vetting and specific criminal investigations, despite none of the individuals currently under scrutiny holding TPS.
The government maintains that the Supreme Court has historically respected the executive branch’s authority concerning immigration-related issues due to their implications for national security and public safety. Nevertheless, lawyers for TPS holders plan to challenge this perspective, arguing that the reported findings are merely pretextual and lacked the extensive consultation mandated by laws with the State Department.
Claims of Racial Discrimination Surface
In a unique challenge, Haitian plaintiffs allege that the Trump administration’s stance on TPS is racially discriminatory. They reference inflammatory statements made by the president, including claims about Haitians engaging in unsavory behavior, asserting that such rhetoric reflects a broader pattern of discrimination. However, the Supreme Court has previously dismissed considerations of political language in similar contexts, viewing them as outside the court’s purview.
While lower courts have favored both Haitian and Syrian TPS recipients in preliminary rulings, the Supreme Court has often been reluctant to counter the executive’s immigration policies, particularly given its conservative majority’s previous inclinations. The upcoming decisions could fundamentally alter the landscape for thousands relying on the protections TPS affords.
