United States: Ninth Circuit Denies Stay of District Court Order, Effectively Reinstating 2023 Venezuela TPS Designation For Now
September 18, 2025
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At a glance
- The Ninth Circuit Court of Appeals has denied the U.S. government’s request to stay a district court decision that reinstated the 2023 Temporary Protected Status (TPS) designation for Venezuela.
- This means that, for now, the Department of Homeland Security is required to recognize validity of the 2023 TPS Venezuela designation through October 2, 2026.
- The Department of Homeland Security is expected to seek emergency review of the Ninth Circuit decision by the U.S. Supreme Court.
The issue
The Ninth Circuit Court of Appeals has denied a request from the Department of Homeland Security (DHS) to stay a district court decision that effectively reinstates the 2023 Venezuela Temporary Protected Status (TPS) designation through October 2, 2026. DHS is expected to continue seeking a stay or reversal of the district court decision in both the Ninth Circuit and the U.S. Supreme Court.
However, in the meantime, in compliance with a September 12 court order from the district court, U.S. Citizenship and Immigration Services (USCIS) has updated its website to reflect an October 2, 2026 expiration date for the 2023 Venezuela TPS designation (including those who were initially designated under the 2021 Venezuela TPS designation but re-registered under a January 17, 2025 notice that opened registration to both), and an employment authorization document (EAD) auto-extension date of April 2, 2026.
The appeals case is National TPS Alliance et al. v Noem, Case 25-5724 (9th Cir.).
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 and specified April 7, 2025 as the date that 2023 Venezuela TPS benefits would expire. The Secretary’s vacatur and termination decisions have been the subject of a great deal of litigation.
The 2023 Venezuela TPS designation had been deemed terminated as of early April, but on September 5, in National TPS Alliance et al. v. Noem et al. (N.D. Cal., No. 3:25-cv-01766), the federal district court granted summary judgment in favor of TPS plaintiffs, finding that DHS’s vacatur and termination of the 2023 TPS designation were unlawful under the Administrative Procedure Act (APA). The court’s summary judgment order set aside these government actions under the APA. DHS filed an appeal of the September 5 district court order with the Ninth Circuit Court of Appeals and requested a stay of the order with respect to the 2023 Venezuela designation. The Ninth Circuit has now denied this request and will continue to hear the appeal on the merits.
What’s next
DHS is expected to continue to seek a reversal of the lower court decision including from the U.S. Supreme Court. In the meantime, however, DHS appears to have reinstated the 2023 Venezuela designation on its website. Further guidance from the agency is expected on how affected beneficiaries may document their reinstated status and work authorization.
As a reminder, DHS announced that it would not extend the 2021 Venezuela TPS designation scheduled to expire on September 10, but will grant a transition period through November 7, 2025 for these beneficiaries.
Fragomen is monitoring developments in TPS litigation and will issue updates accordingly.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
