In a split decision, the Ninth Circuit Court of Appeals ruled that the Trump administration’s termination of Temporary Protected Status (TPS) for four countries can proceed. The fate of nearly 250,000 people from El Salvador, Haiti, Nicaragua, and Sudan—and their families—is at stake.

The case, Ramos v. Nielsen, was filed in federal district court after the Secretary of Homeland Security agreed to terminate the TPS designations in late 2017 and early 2018. The plaintiffs in the case argued that the Trump administration changed the way it evaluated whether to extend or terminate TPS—yet the public was not given any notice of the change.

That change allowed the administration to take an unreasonably narrow approach to how it assessed a TPS-designated country’s conditions. Now, the government no longer reviews how current conditions impact whether a country is, in fact, a safe place to which a person can return. It only looks at whether the problems in a country at the time TPS was designated still exist.

The plaintiffs also presented evidence that the terminations were motivated by racial animus, including President Trump’s reference to “shithole countries.”

What does the TPS ruling say?

Although the district court had granted a preliminary injunction, the Ninth Circuit overturned that decision on September 14, 2020.  The court ruled that the decision to designate, extend, or terminate TPS is not subject to judicial review.

The judges made clear that they did not see the evidence of racism or hostility by the administration toward nationals of certain foreign countries as sufficiently connected to the decision to terminate these TPS designations.

TPS terminations for two other countries, Honduras and Nepal, were made at a later time and challenged in a separate lawsuit, Bhattarai v. Nielsen. That case remains pending but the decision in Ramos could open the door to terminations for those countries.

What does the ruling mean for TPS holders?

Due to the pending litigation and the preliminary injunction, the terminations have been on hold since they were announced nearly three years ago. TPS holders remained protected from deportation and could renew their work permits—the two main benefits of this status.

The Ninth Circuit ruling does not take effect immediately. New deadlines for the termination of TPS vary by country. For nationals of Haiti, Nicaragua, and Sudan, the soonest TPS could end is March 5, 2021; for nationals of El Salvador, the earliest is November 5, 2021. A separate lawsuit in New York challenging the Haiti designation alone, Saget v. Trump, has also blocked Haiti’s TPS designation and could afford those TPS holders more time.

Ahilan Arulanantham of the ACLU of San Diego, who argued the case in court, noted that they plan to ask a full panel of Ninth Circuit judges to review the case, as opposed to the three-judge panel who issued this ruling. This appeal could result in further extension of these deadlines.

What is the future for TPS holders?

The path forward for TPS holders could be impacted by all three branches of government.  An uncertain appeals process leaves the timing and outcome of judicial decision-making up in the air. The outcome of the November presidential election would impact whether TPS—or a similar form of relief known as Deferred Enforced Departure—is provided or ended permanently.

But neither the judicial or executive branch can offer what TPS holders and their families need most: a permanent solution.

The vast majority of TPS holders have lived in the United States for 20 years and have built their lives here. Approximately 275,000 U.S. citizen children have a parent with TPS. And TPS holders are integral to our communities. 130,000 TPS holders are essential workers helping us all endure and recover from the COVID-19 pandemic.

It will take congressional action to ensure that TPS holders and families don’t face the impossible pain of separation. The House passed H.R. 6, the American Dream and Promise Act of 2019, but it stalled in the Senate. Now is the time for Congress to find the political will and compassion to support—and not separate—these families once and for all.