United States: Ninth Circuit Vacates Order on TPS Termination for Several Countries, Agrees to Full Panel Rehearing
February 14, 2023
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At a glance
- The Ninth Circuit Court of Appeals has vacated an earlier decision that would have permitted DHS to terminate Temporary Protected Status (TPS) designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua and Sudan, and has agreed to an en banc rehearing of the case.
- There is no immediate impact on TPS beneficiaries of the affected countries. In November 2022, DHS extended the TPS designations for the above countries through June 30, 2024.
- Haiti and Sudan also continue to benefit from subsequent, separate TPS designations, unlike the other countries. The new Haiti designation extends through August 3, 2024. The new Sudan designation extends through October 19, 2023.
The issue
On February 10, the Ninth Circuit Court of Appeals agreed to an en banc rehearing of a lawsuit challenging the termination of TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan. In doing so, the Ninth Circuit vacated the court’s September 2020 ruling on the matter – a split decision that would have permitted TPS terminations to move forward, had an implementation directive been issued by the court. As a result of the February 10 decision, the September 2020 ruling is reversed and a lower court injunction blocking termination of the affected TPS designations remains in effect. The case is Ramos v. Wolf, case number 18-16981.
In the meantime, as required by the terms of the pending litigation, TPS designations for El Salvador, Haiti, Honduras, Nepal, Nicaragua, and Sudan remain extended through June 30, 2024. Haiti and Sudan have also received separate, subsequent TPS designations based on current country conditions, as detailed below. There is no immediate impact of the February 10 decision on TPS designations for any of the affected countries or for TPS beneficiaries.
Background
On September 14, 2020, the Ninth Circuit Court of Appeals in Ramos v. Wolf ruled that the Department of Homeland Security may proceed with its long-planned termination of TPS designations for El Salvador, Haiti, Nicaragua and Sudan, vacating a lower court decision that had blocked the terminations while litigation continues. That decision also affected the TPS designations for Nepal and Honduras, as required by court order in a separate California district court case.
The Ninth Circuit never issued a directive to implement its September 2020 order. As such, DHS was compelled to continue to extend TPS status and work documentation for the affected countries pursuant to the lower court injunction, and most recently extended TPS for the affected countries through June 30, 2024. The February 10 decision vacates the September 2020 order, leaving the lower court injunction blocking termination intact for now.
The TPS designation for Haiti, though included in the Ramos case, is also protected from termination under a separate injunction issued by a New York federal district court. The Biden Administration has also issued separate, subsequent TPS designations for Haiti and for Sudan, as detailed below.
Separate TPS designation for Haiti
In the summer of 2021, DHS issued a new, separate designation for Haiti TPS based on current conditions in the country; the designation is now extended through August 3, 2024. This new designation is distinct from the 2010 Haiti TPS designation that is the subject of the Ramos litigation. DHS strongly encourages eligible applicants to register under the new designation – including those currently holding Haiti TPS under the 2010 designation – as it could protect them from adverse court decisions in continued litigation related to the 2010 designation.
Separate TPS designation for Sudan
Also separately, DHS issued a new designation for Sudan TPS, effective from April 19, 2022 through October 19, 2023, based on current conditions in the country. As with Haiti, this new designation is distinct from the prior TPS designation that is the subject of the Ramos litigation. DHS strongly encourages eligible applicants to register under the new designation – including those currently holding Sudan TPS under the prior designation – as it could protect them from adverse court decisions in continued litigation related to the prior designation.
Future of TPS for the affected countries
The Ninth Circuit has agreed to a full panel rehearing of the Ramos case, which would revisit DHS’s termination of TPS designations for the affected countries. Advocacy groups are encouraging the Biden Administration to reconsider its TPS policy for these countries rather than engage in further litigation on the matter. In the meantime, eligible TPS beneficiaries and applicants for the affected countries may continue to benefit from TPS protection and related employment authorization through the designated periods.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
