United States: Ninth Circuit Affirms District Court Order in Favor of 2023 Venezuela TPS Beneficiaries, But Designation Remains Expired For Now

The issue

Today, the Ninth Circuit of Appeals affirmed a March 31 district court order that had postponed the Department of Homeland Security’s vacatur and termination actions against the 2023 Venezuela TPS designation. However, the Ninth Circuit decision does not have the effect of reinstating the TPS designation because a May U.S. Supreme Court emergency order has stayed the original district court order for the duration of the full appeals process challenging the order, including further appeals to the Supreme Court.

The March 31 district court order remains stayed – and the 2023 Venezuela TPS designation remains expired – unless and until the disposition of any further appeal to the U.S. Supreme Court.  The government is expected to appeal the Ninth Circuit decision in a timely manner. The Ninth Circuit case is National TPS Alliance v. Noem, 9th Cir., Case No. 25-2120.

Background

On January 17, 2025, then-DHS Secretary Mayorkas extended Temporary Protected Status (TPS) for Venezuela for 18 months, from April 3, 2025 to October 2, 2026. Secretary Mayorkas’s extension applied to two prior designations of TPS for Venezuela – one issued in 2021 and a second issued in 2023.

On January 28, new DHS Secretary Noem announced that she was vacating Secretary Mayorkas’s extension. The vacatur meant that TPS for Venezuela would revert to its prior expiration dates of April 2, 2025 (for the 2023 designation) and September 10, 2025 (for the 2021 designation), while Secretary Noem decided whether to extend protections in her own right. Shortly thereafter, the Secretary made the decision not to further extend the 2023 designation. She specified April 7, 2025 as the date that TPS benefits granted under the 2023 designation would expire. As to the 2021 designation, the Secretary announced that she would decide by July 2025 whether to extend benefits or allow them to lapse. (As of August 29, no decision has been communicated to the public regarding the 2021 designation.)

Secretary Noem’s TPS vacatur and termination were challenged in several lawsuits, including the instant case, National TPS Alliance v. Noem, Case No. 3:25-cv-01766 (N.D. Ca., filed Feb. 19, 2025). On March 31, the National TPS Alliance court granted plaintiffs’ motion to stay the vacatur of the prior extension and the termination of the 2023 designation. The government appealed the decision to the Ninth Circuit Court of Appeals and sought an emergency stay of the district court order from the U.S. Supreme Court nearly simultaneously. The Supreme Court ruled first in May by granting the emergency stay and permitting DHS to move forward with the designation termination until all appeals challenging the district court order have reached the Court (while permitting a limited number of TPS-related documentation to remain valid). The Ninth Circuit has ruled on the government appeal today, and having ruled in favor of plaintiffs by affirming the March 31 district court decision, the government is expected to appeal the Ninth Circuit decision to the Supreme Court.

2021 Venezuela TPS designation remains valid for now

TPS remains valid for current beneficiaries of the 2021 Venezuela TPS designation through at least September 10, 2025. If DHS decides to terminate the designation, the termination cannot take effect earlier than 60 days after the termination notice is published (and not earlier than September 10).

What’s next 

The government is expected to appeal the Ninth Circuit decision to the U.S. Supreme Court. In the meantime, the 2023 Venezuela TPS designation remains expired as of early April. The designation would only be reinstated in the event that the U.S. Supreme Court either affirms the Ninth Circuit decision or declines to consider the government's appeal.

This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.