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No. 18-16981
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CRISTA RAMOS, et al.,
Plaintiffs-Appellees,
v.
KIRSTJEN NIELSEN, in her official capacity as
Secretary of Homeland Security, et al.,
Defendants-Appellants.
On Appeal from the United States District Court
for the Northern District of California
BRIEF FOR APPELLANTS
JOSEPH H. HUNT
Assistant Attorney General
ALEX G. TSE
Acting United States Attorney
MARK B. STERN
GERARD SINZDAK
Attorneys, Appellate Staff
Civil Division, Room 7242
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0718

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TABLE OF CONTENTS
Page
INTRODUCTION .................................................................................................................. 1
STATEMENT OF JURISDICTION ................................................................................... 3
STATEMENT OF THE ISSUES.......................................................................................... 4
PERTINENT STATUTES AND REGULATIONS ........................................................ 4
STATEMENT OF THE CASE ............................................................................................. 4
A.

Statutory Background ........................................................................................ 4

B.

Factual Background ........................................................................................... 7

C.

1.

Sudan ........................................................................................................ 8

2.

Nicaragua ................................................................................................. 9

3.

Haiti ........................................................................................................ 10

4.

El Salvador ............................................................................................ 12

District Court Proceedings ............................................................................. 13

SUMMARY OF ARGUMENT ............................................................................................ 17
STANDARD OF REVIEW ................................................................................................. 20
ARGUMENT .......................................................................................................................... 21
I.

PLAINTIFFS’ APA CLAIM CANNOT SUPPORT
A PRELIMINARY INJENCTION ............................................................. 21
A.

The TPS Statute’s Preclusion Provision Bars
Plaintiffs’ APA Claim .......................................................................... 21

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B.
II.

III.

Plaintiffs’ APA Claim Would Fail On The Merits
Even If It Were Not Barred ............................................................... 30

PLAINTIFFS’ EQUAL PROTECTION CLAIM
CANNOT SUPPORT A PRELIMINARY INJUNCTION ................... 39
A.

The Plaintiffs Are Unlikely To Succeed On Their
Equal Protection Claim Under Arlington Heights ............................. 40

B.

The Secretaries’ Decisions Are Constitutional
Under Trump v. Hawaii ......................................................................... 49

THIS COURT SHOULD NOT CONSTRUE THE
PRELIMINARY INJUNCTION AS APPLYING
NATIONWIDE .............................................................................................. 55

CONCLUSION ...................................................................................................................... 58
STATEMENT OF RELATED CASES
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ADDENDUM

ii

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TABLE OF AUTHORITIES
Cases:

Page(s)

Alliance for the Wild Rockies v. Pena,
865 F.3d 1211 (9th Cir. 2017) ...........................................................................................38
American Soc. of Cataract & Refractive Surgery v. Thompson,
279 F.3d 447 (7th Cir. 2002) ..............................................................................................25
Amgen, Inc. v. Smith,
357 F.3d 103 (D.C. Cir. 2004) .................................................................................... 21, 26
Califano v. Yamasaki,
442 U.S. 682 (1979) .............................................................................................................56
California Trout v. FERC,
572 F.3d 1003 (9th Cir. 2009) ............................................................................................24
Citizens to Pres. Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971) .............................................................................................................43
City of Chicago v. Sessions,
888 F.3d 272 (7th Cir. 2018) ..............................................................................................57
City of Rialto v. West Coast Loading Corp.,
581 F.3d 865 (9th Cir. 2009) ..............................................................................................27
Federal Trade Comm’n v. Enforma Nat. Prods., Inc.,
362 F.3d 1204 (9th Cir. 2004) ............................................................................................20
Fiallo v. Bell,
430 U.S. 787 (1977) ......................................................................................... 49, 50, 51, 52
Florida Power & Light Co. v. Lorion,
470 U.S. 729 (1985) ...................................................................................................... 38, 43
Galvan v. Press,
347 U.S. 522 (1954) .............................................................................................................49

iii

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Gebhardt v. Nielsen,
879 F.3d 980 (9th Cir. 2018) ....................................................................................... 26, 28
Gill v. Whitford,
138 S. Ct. 1916 (2018) .........................................................................................................56
Harisiades v. Shaughnessy,
342 U.S. 5809 (1952 ............................................................................................................50
Holder v. Humanitarian Law Project,
561 U.S. 1 (2010) .................................................................................................................29
HP Inc. v. MPHJ Tech. Invs. LLC,
817 F.3d 1339 (Fed. Cir. 2016) ..........................................................................................25
Immigrant Assistance Project of AFL-CIO v. INS,
306 F.3d 842 (9th Cir. 2002) ..............................................................................................28
J.E.F.M. v. Lynch,
837 F.3d 1026 (9th Cir. 2016) ............................................................................................29
Kleindienst v. Mandel,
408 U.S. 753 (1972) ...................................................................................................... 50, 51
Kohli v. Gonzales,
473 F.3d 1061 (9th Cir. 2007) ............................................................................................42
Los Angeles Haven Hospice, Inc. v. Sebelius,
638 F.3d 644 (9th Cir. 2011) ....................................................................................... 56, 57
Martinez v. Napolitano,
704 F.3d 620 (9th Cir. 2012) ..............................................................................................23
Mathews v. Diaz,
426 U.S. 67 (1976) ........................................................................................................ 49, 50
McNary v. Haitian Refugee Ctr., Inc.,
498 U.S. 479 (1991) ................................................................................................ 26, 27, 29
Morales de Soto v. Lynch,
824 F.3d 822 (9th Cir. 2016) ..............................................................................................25
iv

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Nixon v. Fitzgerald,
457 U.S. 731 (1982) .............................................................................................................43
Painter v. Shalala,
97 F.3d 1351 (10th Cir. 1996) ............................................................................................25
Proyecto San Pablo v. INS,
189 F.3d 1130 (9th Cir. 1999) ............................................................................................28
Rajah v. Mukasey,
544 F.3d 427 (2d Cir. 2008) ...............................................................................................51
Regents of the Univ. of Cal. v. DHS, No. 18-15068,
2018 WL 5833232 (9th Cir. Nov. 8, 2018) .................................................. 48, 53, 54, 57
Reno v. American-Arab Anti-Discrimination Comm.,
525 U.S. 471 (1999) .............................................................................................................30
Reno v. Catholic Soc. Servs., Inc.,
509 U.S. 43 (1993) .................................................................................................. 26, 28, 29
Ruiz-Diaz v. United States,
703 F.3d 483 (9th Cir. 2012) ..............................................................................................51
SEC v. Chenery,
332 U.S. 194 (1947) .............................................................................................................24
Sierra Club v. Costle,
657 F.2d 298 (D.C. Cir. 1981) ...........................................................................................44
Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala,
80 F.3d 379 (9th Cir. 1996) ................................................................................................27
St. Marks Place Hous. Co. v. HUD,
610 F.3d 75 (D.C. Cir. 2010) .............................................................................................47
Staub v. Proctor Hosp.,
562 U.S. 411 (2011) .............................................................................................................43

v

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Town of Chester v. Laroe Estates, Inc.,
137 S. Ct. 1645 (2017) .........................................................................................................56
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ...................................................................................................passim
United States R.R. Ret. Bd. v. Fritz,
449 U.S. 166 (1980) .............................................................................................................54
United States v. AMC Entm’t, Inc.,
549 F.3d 760 (9th Cir. 2008) ..............................................................................................56
United States v. Nixon,
418 U.S. 683 (1974) .............................................................................................................43
Village of Arlington Heights v. Metropolitan Hous. Dev. Corp.,
429 U.S. 252 (1977) ................................................................................... 14, 15, 17, 19, 40
Washington v. Trump,
858 F.3d 1168 (9th Cir. 2017) ............................................................................................45
Webster v. Doe,
486 U.S. 592 (1988) .............................................................................................................45
Winter v. Natural Res. Def. Council,
555 U.S. 7 (2008) .................................................................................................................39
Wisconsin v. City of New York,
517 U.S. 1 (1996) .................................................................................................................47
U.S. Constitution:
Art. II, § 1, cl. 8 ........................................................................................................................45
Statutes:
Immigration Act of 1990,
Pub. L. No. 101-649, 104 Stat. 4978................................................................................... 4
5 U.S.C. § 701(a)(1) .................................................................................................................21
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6 U.S.C. § 557 ............................................................................................................................. 5
8 U.S.C. § 1103........................................................................................................................... 5
8 U.S.C. § 1182(f) ....................................................................................................................54
8 U.S.C. § 1254a .......................................................................................................................54
8 U.S.C. § 1254a(a) .................................................................................................................... 6
8 U.S.C. § 1254a(b) ..................................................................................................... 1, 5, 6, 52
8 U.S.C. § 1254a(b)(1) ................................................................................................ 31, 32, 54
8 U.S.C. § 1254a(b)(1)(B)(i) ....................................................................................................32
8 U.S.C. § 1254a(b)(1)(C) .......................................................................................................32
8 U.S.C. § 1254a(b)(2) ............................................................................................................... 6
8 U.S.C. § 1254a(b)(3)(A) .................................................................................................. 6, 33
8 U.S.C. § 1254a(b)(3)(B) ......................................................................................................... 6
8 U.S.C. § 1254a(b)(3)(C) ......................................................................................................... 6
8 U.S.C. § 1254a(b)(5)(A) .................................................................................................passim
8 U.S.C. § 1254a(c) .................................................................................................................... 6
28 U.S.C. § 1292(a)(1) ............................................................................................................... 4
28 U.S.C. § 1331 ........................................................................................................................ 3
Other Authorities:
Extension and Redesignation of Somalia for TPS,
77 Fed. Reg. 25,723 (May 1, 2012)....................................................................................36
Extension of Designation & Redesignation of Liberia Under TPS Program,
62 Fed. Reg. 16,608 (Apr. 7, 1997) ..................................................................................... 6
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Extension of Designation of Somalia for TPS,
83 Fed. Reg. 43,695 (Aug. 27, 2018) ............................................................................ 7, 31
Extension of South Sudan for TPS,
82 Fed. Reg. 44,205 (Sept. 21, 2017) .................................................................................. 7
Extension of the Designation of El Salvador for TPS,
81 Fed. Reg. 44,645 (July 8, 2016) ....................................................................................34
Extension of the Designation of Haiti for TPS,
79 Fed. Reg. 11,808 (Mar. 3, 2014) ............................................................................ 10, 11
Extension of the Designation of Haiti for TPS,
80 Fed. Reg. 51,582 (Aug. 25, 2015) .......................................................................... 10, 11
Extension of the Designation of Haiti for TPS,
82 Fed. Reg. 23,830 (May 24, 2017) .......................................................................... 11, 35
Extension of the Designation of Nicaragua for TPS,
75 Fed. Reg. 24,737 (May 5, 2010)....................................................................................34
Extension of the Designation of Nicaragua under TPS Program,
68 Fed. Reg. 23,748 (May 5, 2003)....................................................................................36
Extension of the Designation of Sudan for TPS,
79 Fed. Reg. 52,027 (Sept. 2, 2014) ..................................................................................34
Extension of the Designation of Syria for TPS,
83 Fed. Reg. 9329 (Mar. 5, 2018) ........................................................................................ 7
Extension of the Designation of Yemen for TPS,
83 Fed. Reg. 40,307 (Aug. 14, 2018) ............................................................................ 7, 32
Sierra Leone Termination for TPS,
81 Fed. Reg. 66,054 (Sept. 26, 2016) .................................................................................. 7
Termination of Designation of Angola Under TPS Program,
68 Fed. Reg. 3896 (Jan. 27, 2003) .....................................................................................36

viii

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Termination of Designation of Kuwait Under TPS Program,
57 Fed. Reg. 2931 (Jan. 24, 1992) .....................................................................................36
Termination of Designation of Rwanda Under TPS,
62 Fed. Reg. 33,442 (June 19, 1997) .................................................................................35
Termination of Guinea’s Designation for TPS,
81 Fed. Reg. 66,064 (Sept. 26, 2016) ................................................................................ 35
Termination of the Designation of Burundi for TPS,
72 Fed. Reg. 61,172 (Oct. 29, 2007) .................................................................................35
Termination of the Designation of El Salvador for TPS,
83 Fed. Reg. 2654 (Jan. 18, 2018) .............................................................................. 12, 31
Termination of the Designation of Haiti for TPS,
83 Fed. Reg. 2648 (Jan. 18, 2018) ........................................................................ 11, 12, 31
Termination of the Designation of Nicaragua for TPS,
82 Fed. Reg. 59,636 (Dec. 15, 2017) ............................................................................ 9, 31
Termination of the Designation of Sudan for TPS,
82 Fed. Reg. 47,228 (Oct. 11, 2017) ............................................................................ 8, 31
Termination of the Province of Kosovo Under TPS Program,
65 Fed. Reg. 33,356 (May 23, 2000) .................................................................................36

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INTRODUCTION
In 1990, Congress created the Temporary Protected Status (TPS) program to
provide on a discretionary basis temporary relief to aliens who cannot safely return in
the short-term to their home nation as a result of a natural disaster, armed conflict, or
other “extraordinary and temporary conditions in the foreign state.” 8 U.S.C.
§ 1254a(b). The Secretary of Homeland Security may designate a country for TPS
status only if the Secretary determines that certain statutory criteria justifying the
designation are met. When a country is designated, eligible aliens from that country
who are present in the United States on the effective date of the designation and
register with the federal government are temporarily protected from removal and
receive authorization to work in the United States. Consistent with the temporary
nature of the relief, Congress dictated that the Secretary must regularly review a
country’s TPS designation, and must terminate that designation if she determines that
the conditions giving rise to the designation are no longer met.
This case involves decisions by former Acting Secretary Elaine Duke and
current Secretary Kirstjen Nielsen to terminate the TPS designations of four
countries—Sudan, Nicaragua, Haiti, and El Salvador. Sudan was first designated for
TPS status in 1997 because of an ongoing armed conflict; Nicaragua was designated in
1999 in response to Hurricane Mitch; El Salvador was designated in 2001 as a result
of conditions caused by an earthquake; and Haiti was designated in 2010, also in
response to damage caused by an earthquake. In each case, Acting Secretary Duke or

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Secretary Nielsen, after consulting with other government agencies, determined that
the conditions that gave rise to the years-old TPS designations no longer persisted.
The Secretaries supplied the bases for their determinations in Federal Register notices
that explain why the Secretaries no longer believed that temporary relief was
warranted.
Plaintiffs, who are TPS beneficiaries and the children of TPS beneficiaries,
brought suit challenging the terminations and asserting claims under the
Administrative Procedure Act (APA) and the equal protection component of the
Fifth Amendment. The district court entered a preliminary injunction barring the
implementation of the termination decisions after concluding that plaintiffs were
likely to succeed on the merits of their APA claim and had raised serious questions
with respect to their equal protection claim.
The district court’s conclusions are fatally flawed, and, accordingly, the
injunction should be set aside. The TPS statute expressly bars judicial review of TPS
termination decisions. Plaintiffs’ claims—which challenge the manner in which the
Secretaries arrived at their termination decisions and seek to set those decisions
aside—fit squarely within the statute’s bar on judicial review.
Even if plaintiffs’ claims were not barred, they are without merit. Plaintiffs’
APA claim rests on the false premise that Secretaries Duke and Nielsen departed from
past agency practice in making the termination decisions at issue in this case. But, as a
review of the record and past termination and extension decisions reveals, Secretaries
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Duke and Nielsen considered the same types of materials as past Secretaries and
applied the legal standard previous Secretaries have used in deciding whether to
extend or terminate a TPS designation.
Plaintiffs’ equal protection claim is likewise unavailing. Neither plaintiffs nor
the district court identified any evidence indicating that either Secretary was motivated
by discriminatory animus. To the contrary, the record demonstrates that the
Secretaries carefully considered the relevant factors, consulted with the necessary
agencies, and offered explanations for their actions that are supported by the record.
Moreover, the Secretaries’ decision to extend the TPS designations of several
countries with similar ethnic demographics demonstrates that their decisions were the
product of reasoned analysis and not discriminatory animus. Plaintiffs’ alleged
evidence of animus consists in large measure of an uncharitable and erroneous
interpretation of the Administration’s immigration policy and remarks attributed to
the President. That the President has advanced an immigration policy that places
America’s interests foremost and emphasizes a “merit-based” system for entry of
aliens in no way supports the conclusion that the decisions the Secretaries made in
this case were motivated by racial animus towards the aliens who had benefited from
TPS.
STATEMENT OF JURISDICTION
Plaintiffs invoked the jurisdiction of the district court pursuant to 28 U.S.C.
§ 1331, raising claims under the APA and the Constitution. Excerpts of Record (ER)
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1022. The district court entered a preliminary injunction on October 3, 2018. ER.143. The government filed a timely notice of appeal on October 11, 2018. ER.101-02.
This Court has jurisdiction under 28 U.S.C. § 1292(a)(1).
STATEMENT OF THE ISSUES
1. Whether the district court erred in concluding that plaintiffs were likely to
succeed on their APA claim challenging the Secretaries’ termination decisions.
2. Whether the court erred in concluding that plaintiffs’ equal protection claim
raised serious legal questions.
3. Whether the court’s preliminary injunction should be interpreted as applying
only to plaintiffs.
PERTINENT STATUTES AND REGULATIONS
The TPS statute is reproduced in the addendum to this brief.
STATEMENT OF THE CASE
A.

Statutory Background

The Immigration Act of 1990 established a program for providing temporary
shelter in the United States on a discretionary basis for aliens from countries
experiencing armed conflict, natural disaster, or other “extraordinary and temporary
conditions” that prevent the aliens’ safe return. Pub. L. No. 101-649, 104 Stat. 4978.

4

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The program authorizes the Secretary of Homeland Security,1 “after consultation with
appropriate agencies of the Government,” to designate countries for “Temporary
[P]rotected [S]tatus,” if she finds:
(A) … that there is an ongoing armed conflict within the state and, due
to such conflict, requiring the return of aliens who are nationals of that
state to that state (or to the part of the state) would pose a serious threat
to their personal safety;
(B) … that—
(i) there has been an earthquake, flood, drought, epidemic, or
other environmental disaster in the state resulting in a substantial,
but temporary, disruption of living conditions in the area affected,
(ii) the foreign state is unable, temporarily, to handle adequately
the return to the state of aliens who are nationals of the state, and
(iii) the foreign state officially has requested designation under this
subparagraph; or
(C) … that there exist extraordinary and temporary conditions in the
foreign state that prevent aliens who are nationals of the state from
returning to the state in safety[.]
8 U.S.C. § 1254a(b).
When the Secretary designates a country for TPS, eligible aliens from that
country who are physically present in the United States on the effective date of the
designation (and continuously thereafter) may not be removed from the United States

The statute originally vested the Attorney General with the power to make
TPS designation, extension and termination decisions. Congress transferred these
powers to the Secretary of Homeland Security. See 8 U.S.C. § 1103; 6 U.S.C. § 557.
5
1

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and are authorized to work here for the duration of the country’s TPS designation.
8 U.S.C. § 1254a(a), (c).
Initial designations may not exceed eighteen months. 8 U.S.C. § 1254a(b)(2).
The Secretary must consult with appropriate agencies and review each designation
sixty days before the designation period ends to determine whether the conditions for
the country’s designation continue to be met. Id. § 1254a(b)(3)(A). If the Secretary
finds that the foreign state “no longer continues to meet the conditions for
designation,” she “shall terminate the designation” by publishing notice in the Federal
Register of the determination and the basis for the termination. Id. § 1254a(b)(3)(B).
If the Secretary “does not determine” that the foreign state “no longer meets the
conditions for designation,” then “the period of designation of the foreign state is
extended for an additional period of 6 months (or, in the discretion of the [Secretary],
a period of 12 or 18 months).” Id. § 1254a(b)(3)(C). In addition to terminating or
extending a TPS designation, the Secretary may also redesignate a country for TPS,
the functional equivalent of a new designation. See Extension of Designation &
Redesignation of Liberia Under TPS Program, 62 Fed. Reg. 16,608, 16,609 (Apr. 7, 1997)
(discussing redesignation authority contemplated by 8 U.S.C. § 1254a(b)).
The statute makes the Secretary’s TPS decisions unreviewable. Section
1254a(b)(5)(A) states: “There is no judicial review of any determination of the
[Secretary] with respect to the designation, or termination or extension of a
designation, of a foreign state under this subsection.”
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B.

Factual Background

Since the inception of the program, the government has designated a total of
twenty-one countries and the Province of Kosovo for TPS. The government
terminated twelve of those designations prior to 2017, including three terminations in
2016. See, e.g., Sierra Leone Termination, 81 Fed. Reg. 66,054 (Sept. 26, 2016).
In 2017 and 2018, Acting Secretary Duke and Secretary Nielsen extended the
TPS designations of four countries: Somalia, South Sudan, Syria, and Yemen. In each
case, the Secretary determined that the conditions that prompted the country’s TPS
designation persisted and prevented the safe return of the country’s nationals,
warranting an 18-month extension. See Extension of South Sudan for TPS, 82 Fed. Reg.
44,205 (Sept. 21, 2017); Extension of the Designation of Syria for TPS, 83 Fed. Reg. 9329
(Mar. 5, 2018); Extension of the Designation of Yemen for TPS, 83 Fed. Reg. 40,307 (Aug.
14, 2018); Extension of Designation of Somalia for TPS, 83 Fed. Reg. 43,695 (Aug. 27,
2018).
But not all of the countries with current TPS designations merited extensions.
After consulting with other government agencies, Secretaries Duke and Nielsen
determined that conditions in Sudan, Nicaragua, Haiti, and El Salvador no longer met

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the statutory requirements for TPS designations. As required by the statute, they
terminated those designations. 2
1. Sudan
In October 2017, Acting Secretary Duke terminated the TPS designation of
Sudan, which had initially been designated in 1997 because of an ongoing civil war.
Termination of the Designation of Sudan for TPS, 82 Fed. Reg. 47,228 (Oct. 11, 2017)
(Sudan Termination). By October 2017, Acting Secretary Duke concluded, the conflict
in Sudan was “limited to Darfur and the Two Areas (South Kordofan and Blue Nile
states).” Id. at 47,230. Moreover, she explained, “in Darfur, toward the end of 2016
and through the first half of 2017, parties to the conflict renewed a series of timelimited unilateral cessation of hostilities declarations, resulting in a reduction in
violence and violent rhetoric from the parties to the conflict.” Id. Consequently, she
found that “[t]he remaining conflict [was] limited and [did] not prevent the return of
nationals of Sudan to all regions of Sudan without posing a serious threat to their
personal safety.” Id.

On October 3, 2018, the district court entered a preliminary injunction
prohibiting the government from implementing the TPS termination decisions.
Subsequently, the court, pursuant to the parties’ request, entered an order staying
further proceedings pending appellate review of the preliminary injunction. Dkt. 138.
Under that order, the government stipulated that the TPS designations for Sudan,
Nicaragua, Haiti, and El Salvador will remain in effect on a nationwide basis until the
later of a) 120 days following the issuance of any mandate to the district court
reversing the injunction or b) the Secretary’s previously announced termination date.
Id. at 3-4.
8
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The Acting Secretary further determined that “food security” had improved
“across much of Sudan” because of above-average harvests. Id. Even in conflictaffected areas where food remained scarce, there had been “some improvement in
access for humanitarian actors to provide much-needed humanitarian aid.” Id. The
Acting Secretary noted that Sudan’s human rights record “remain[ed] extremely poor
in general.” Id. But after taking into account the “geographically limited scope of the
conflict, the renewed series of unilateral cessation of hostilities declarations and
concomitant reduction in violence and violent rhetoric from the parties to the
conflict, and improvements in access for humanitarian actors to provide aid,” she
concluded that the ongoing conflict and extraordinary and temporary conditions that
justified Sudan’s most recent TPS re-designation had “sufficiently improved such that
they no longer prevent nationals of Sudan from returning in safety to all regions” of
the country. Id. Sudan’s designation was scheduled to end on November 2, 2018. Id.
2. Nicaragua
In December 2017, the Acting Secretary terminated the TPS designation of
Nicaragua, which had initially been designated in 1999 as a result of conditions caused
by Hurricane Mitch. Termination of the Designation of Nicaragua for TPS, 82 Fed. Reg.
59,636 (Dec. 15, 2017) (Nicaragua Termination). The Acting Secretary noted that, by
2017, “[r]ecovery efforts relating to Hurricane Mitch ha[d] largely been completed”
and the “social and economic conditions affected by Hurricane Mitch ha[d]
stabilized.” Id. at 59,637. She emphasized that Nicaragua had “received a significant
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amount of international aid to assist in its Hurricane Mitch-related recovery efforts,
and many reconstruction projects ha[d] now been completed.” Id. As a result,
“[a]ccess to drinking water and sanitation ha[d] improved.” Id. She also noted other
significant infrastructure improvements. For example, whereas 50% of the country
had electricity in 2007, that figure had risen to 90% in 2017. Id. The Acting Secretary
further stressed that per-capita GDP was higher than it had been prior to the
hurricane, and Nicaragua’s gross domestic product grew by an average of 5% per year
since 2010, reaching an all-time high in 2016. Id. She also found it significant that
conditions had improved to the point where the country attracted tourism and foreign
investment. Id. In light of the above, the Acting Secretary concluded that it was “no
longer the case that Nicaragua is unable, temporarily, to handle adequately the return
of nationals of Nicaragua.” Id. The Secretary announced that Nicaragua’s designation
will end on January 5, 2019.
3. Haiti
In January 2018, Acting Secretary Duke terminated the TPS designation for
Haiti, which had initially been designated in 2010 after a 7.0-magnitude earthquake.
Termination of the Designation of Haiti for TPS, 83 Fed. Reg. 2648 (Jan. 18, 2018) (Haiti
Termination). Secretary Jeh Johnson had previously extended Haiti’s designation in
March 2014 and August 2015. Extension of the Designation of Haiti, 79 Fed. Reg. 11,808
(Mar. 3, 2014); Extension of the Designation of Haiti, 80 Fed. Reg. 51,582 (Aug. 25, 2015).
In doing so, however, the Secretary noted the Haitian government’s “considerable
10

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progress in improving security and quality of life of its citizens.” 79 Fed. Reg. at
11,809; 80 Fed. Reg. at 51,584.
Secretary John Kelly had likewise extended Haiti’s designation in May 2017 for
six months. Extension of the Designation of Haiti for TPS, 82 Fed. Reg. 23,830 (May 24,
2017). Like Secretary Johnson, Secretary Kelly noted that “Haiti has made significant
progress in addressing issues specific to the earthquake,” that 96% of people living in
displaced-person camps had left those camps, and that security had improved enough
for the United Nations to announce its intention to withdraw its peacekeeping
mission in the following months. Id.
In terminating Haiti’s TPS status eight months later, Acting Secretary Duke
determined that the country had made sufficient progress recovering from the 2010
earthquake that the conditions giving rise to its TPS designation were no longer met.
Haiti Termination, 83 Fed. Reg. at 2650. The Acting Secretary noted that Haiti had
closed 98% of the displaced-person sites and that only approximately 38,000 of the
estimated two million Haitians who lost their homes in the earthquake were still living
in camps as of June 2017. Id. Haiti’s recovery was further evidenced by the fact that
the United Nations had withdrawn its peacekeeping mission in October 2017. Id.
The Acting Secretary also noted that Haiti had completed a presidential election in
February 2017, its Supreme Court was again operational, and the country was in the
process of rebuilding government infrastructure destroyed by the earthquake. Id.
Indeed, Haiti had experienced continuing growth of its GDP since the earthquake
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and, although Haiti had grappled with a cholera epidemic that began after the
earthquake, cholera was at its lowest level since the earthquake occurred. Id. Haiti’s
designation is scheduled to end on July 22, 2019.
4. El Salvador
In January 2018, Secretary Nielsen terminated the TPS designation of El
Salvador, which had originally been designated in 2001 because of the effects of three
earthquakes. Termination of the Designation of El Salvador for TPS, 83 Fed. Reg. 2654 (Jan.
18, 2018) (El Salvador Termination). Secretary Nielsen found that the “conditions
supporting El Salvador’s 2001 designation for TPS on the basis of environmental
disaster due to the damage caused by the 2001 earthquakes are no longer met.” Id. at
2655-56. The Secretary highlighted that recovery efforts relating to the 2001
earthquakes “ha[d] largely been completed”; that “social and economic conditions
affected by the earthquakes have stabilized”; that El Salvador had received millions of
dollars in international aid, enabling it to complete many reconstruction projects; and
that “schools and hospitals have been reconstructed and repaired, homes have been
rebuilt, and money has been provided for water and sanitation and to repair damaged
roads and other infrastructure.” Id. The Secretary also emphasized that El Salvador’s
economy was steadily improving, with GDP reaching an all-time high in 2016 and
more growth expected through 2020. Id. The Secretary also noted that had El
Salvador accepted almost 40,000 of its nationals who had been removed from the
United States in 2016 and 2017. Id. And while the Secretary acknowledged that
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“[g]overnment assistance and resources for returnees [was] reportedly limited,” she
concluded that “the Salvadoran Government, U.S. Government, and international
organizations are working cooperatively … to lay the groundwork for an eventual
return of many Salvadorans from the United States.” Id. El Salvador’s designation is
scheduled to end on September 9, 2019. Id.
C. District Court Proceedings
1. Plaintiffs in this case are nine individual TPS beneficiaries and five U.S.
citizen children of beneficiaries. In March 2018, plaintiffs filed this putative class
action challenging the Secretaries’ decisions terminating the TPS status of Sudan,
Nicaragua, Haiti and El Salvador. As relevant here, the complaint alleges that the
termination decisions were unlawful because (1) the Secretary’s actions violated the
APA by departing from prior practice without an adequate explanation; and (2) the
decisions were motivated by discriminatory animus in violation of equal-protection
principles. ER.1049-52.
The government moved to dismiss, urging that plaintiffs’ suit was precluded by
the statute’s bar on judicial review and that in any event the claims failed as a matter
of law.
2. The district court denied the government’s motion. ER.44-100. The court
held that the statutory bar on judicial review of TPS decisions, 8 U.S.C.
§ 1254a(b)(5)(A), did not apply. The court acknowledged that the statute precludes
review of “any determination … with respect to the designation, or termination or
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extension of a designation, of a foreign state under this subsection.” ER.59 (quoting
8 U.S.C. § 1254a(b)(5)(A)). But it concluded that plaintiffs’ APA claim challenged
“DHS’s change in interpretation of the TPS statute (a general procedural issue), not
an individual determination,” and that “[t]he Department’s general interpretation of
the TPS statute is a question distinct from the Department’s designation or
termination of a particular country’s TPS status.” ER.61.
With respect to whether § 1254a(b)(5)(A) barred plaintiffs’ constitutional
claims, the court observed that, “where Congress intends to preclude judicial review
of constitutional claims its intent to do so must be clear,” and concluded that the
statute did not satisfy that standard. ER.63.
The court then held that plaintiffs plausibly alleged that Secretaries Duke and
Nielsen violated the APA by taking a different approach to TPS determinations than
past Administrations without acknowledging or explaining the change. ER.77. The
court determined that plaintiffs’ plausibly alleged that “‘[u]nder prior administrations,
DHS or its predecessors considered intervening natural disasters, conflicts, and other
serious social and economic problems as relevant factors when deciding whether to
continue or instead terminate a TPS designation,’” whereas “‘DHS has now taken the
position that such factors cannot be considered.’” ER.69 (quoting Compl. ¶ 75).
With respect to plaintiffs’ equal protection challenge, the court stated that
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977),
provided the relevant standard of review. Under that standard, “government action
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may violate equal protection if a discriminatory purpose was one motivating factor.”
ER.87. The court declined to apply the standard set out in Trump v. Hawaii, 138 S. Ct.
2392, 2419 (2018), in which the Supreme Court held that courts are to apply the
“deferential” rational-basis-review standard when reviewing constitutional challenges
to discretionary agency decisions in “admission and immigration cases.” The district
court cited three reasons for refusing to apply the rational-basis standard: (1) DHS did
not cite national security or foreign policy as a reason for its termination decision; (2)
persons affected by the TPS determinations are already in the United States and have
greater rights than persons outside the United States; and (3) the Presidential
proclamation at issue in Hawaii was issued pursuant to a broad grant of authority.
ER.94-96. Applying the Arlington Heights standard, the district court concluded that
plaintiffs had plausibly alleged that animus on the part of the President was a
motivating factor in the TPS decisions. ER.97-99.
3. After denying defendants’ motion to dismiss, the district court ordered the
Secretary to produce an administrative record for the four termination decisions. See
Dkt. 34, at 4-5. The court further concluded that “[d]eliberative material that was
relied upon directly or indirectly [by the Secretaries] is presumptively part of the
administrative record.” Id. at 5. The court also permitted plaintiffs to take extrarecord discovery on the questions whether the Secretaries had taken a new approach
to TPS determinations and whether their termination decisions were motivated by
animus. Id.
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In subsequent rulings, the district court held that the deliberative process
privilege was largely unavailable in this case. See, e.g., Dkt. Nos. 63, 67, 79.
Accordingly, the government produced thousands of documents, including a
significant number of drafts, e-mails, and other deliberative materials.
4. On October 3, 2018, the district court granted plaintiffs’ motion for a
preliminary injunction. ER.1-43. The court first concluded that the likelihood of
irreparable injury, the balance of hardships, and the public interest favored plaintiffs.
ER.8-14.
On the merits, the court held that plaintiffs had demonstrated a substantial
likelihood of success on their APA claim because a “wealth of record evidence”
supported plaintiffs’ assertion that DHS had made an unexplained change in its
approach to evaluating TPS designations. ER.19. The court stated that “DHS made a
deliberate choice to base the TPS decision solely on whether the originating
conditions or conditions directly related thereto persisted, regardless of other current
conditions no matter how bad, and that this was a clear departure from prior
administration practice” that the Secretaries failed to explain. ER.26.
With respect to the equal protection claim, the court held that plaintiffs “have
provided sufficient evidence to raise serious questions as to whether a discriminatory
purpose was a motivating factor in the decisions to terminate the TPS designations.”
ER.27. Although the court found no evidence that either Acting Secretary Duke or
Secretary Nielsen harbored discriminatory animus, the court reasoned that a
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discriminatory motive could be imputed to the Secretaries because there was evidence
“suggesting that the White House was putting pressure on DHS to end TPS,” ER.2829; that the pressure “did, in fact, have influence on the TPS decisions,” ER.29; and
that “President Trump harbors an animus against non-white, non-European aliens,”
ER.30. The court also stated that there was “circumstantial evidence of race being a
motivating factor.” ER.31.
The court reiterated its prior holding that Arlington Heights, not Trump v. Hawaii,
provides the governing standard of review, but also held, in the alternative, that
“[e]ven if Trump v. Hawaii did provide the governing legal standard for the Equal
Protection claim here, the Court nevertheless finds that there are serious questions” as
to whether the terminations met the Hawaii standard. ER.41-42.
SUMMARY OF ARGUMENT
1. Plaintiffs’ APA claim is precluded by § 1254a(b)(5)(A)’s bar on judicial
review of the Secretary’s TPS determinations and is without merit in any event.
Section 1254a(b)(5)(A) provides that there is “no judicial review of any determination
of the [Secretary] with respect to the designation, or termination or extension of a
[TPS] designation.” Through their APA claim, plaintiffs seek a declaration and
injunction setting aside the four TPS termination decisions at issue. Plaintiffs’ APA
claim thus clearly challenges “determination[s] of the [Secretary] with respect to the
… termination” of a TPS designation and is barred by § 1254a(b)(5)(A).

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The district court concluded that plaintiffs could circumvent § 1254a’s
unambiguous bar on review on the theory that they are not challenging the
determinations themselves, but rather a purported unexplained change in the
Secretary’s approach to TPS determinations under which Secretaries Duke and
Nielsen declined to place weight on intervening events that were not related to or did
not affect a country’s recovery from the event that gave rise to the country’s TPS
designation.
The distinction drawn by the district court is without basis and does not permit
plaintiffs’ claims to go forward. The criteria and evidence a Secretary deems
important in arriving at a particular TPS determination and the weight the Secretary
accords to those criteria cannot be separated from the decision itself. And judicial
review of a Secretary’s reasons for reaching a particular TPS determination is precisely
what § 1254a(b)(5)(A) bars. Indeed, plaintiffs’ suit runs counter to the fundamental
purposes of the judicial-review bar: to avoid judicial second-guessing of sensitive
judgments about foreign policy and conditions that a TPS designation requires and
that the Executive Branch is uniquely suited to handle, and to preclude the inevitable
and protracted litigation that TPS determinations (which Congress expressly designed
to be temporary) would otherwise engender.
Even if it were not barred, plaintiffs’ APA claim would fail on the merits. The
TPS statute confers significant discretion on the Secretary in determining whether
such a designation should be granted and when to end such a designation. The legal
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standard Secretaries Duke and Nielsen applied in arriving at the TPS termination
decisions follows from a natural reading of the TPS statute and neither that approach
nor the decision-making process differed materially from those used by past
Secretaries.
2. Plaintiffs are likewise unable to demonstrate that they are likely to succeed
on the merits of their equal protection claim, or that such a claim raises serious
questions. That is the case even assuming the claim is reviewable and should be
analyzed under the standard provided by Arlington Heights v. Metropolitan Housing
Development Corp., 429 U.S. 252 (1977). And it is even more clearly the case under
Trump v. Hawaii, 138 S. Ct. 2392 (2018), which furnishes the relevant standard where,
as here, a court is reviewing TPS determinations that involve immigration-related
policy decisions that “implicate relations with foreign powers” and involve countrywide “classifications defined in the light of changing political and economic
circumstances,” id. at 2418-19.
After obtaining extensive discovery, plaintiffs have identified no evidence
indicating that either Acting Secretary Duke or Secretary Nielsen harbored
discriminatory animus against “non-white, non-European” immigrants. On the
contrary, the record reflects that the Secretaries carefully considered the TPS
termination decisions after consulting with relevant government stakeholders and fully
explained their decisions to terminate TPS for the four countries at issue. That the
Secretaries extended the TPS designations for South Sudan, Syria, Yemen, and
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Somalia—four non-European countries with significant non-white populations—
further undermines any suggestion that the Secretaries’ decisions were motivated by
discriminatory animus.
Without evidence of animus on the part of the decision-makers, the district
court characterized alleged statements made by the President as reflecting
impermissible animus and then imputed that alleged animus to the Secretaries. That
conclusion is flawed at every level. The various statements, objectively construed,
reflect an emphasis on an immigration policy that focuses on America’s economic and
security interests, not racial or ethnic animus. This is even clearer once this Court
reviews the remarks—as it must, but the court below did not—in light of the
presumption of regularity afforded to the President. The district court laid great stress
on the fact that Acting Secretary Duke believed the termination decisions were
consistent with the President’s “America First” immigration policy. But an
immigration policy that seeks to further American strategic and foreign policy
interests and emphasizes a “merit-based” approach to immigration cannot be the
basis of an equal protection claim, no matter how much a court may disagree with
that policy.
STANDARD OF REVIEW
“[T]he legal premises underlying a preliminary injunction” are reviewed de
novo. Federal Trade Comm’n v. Enforma Nat. Prods., Inc., 362 F.3d 1204, 1211 (9th Cir.

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2004). Otherwise, the district court’s entry of the preliminary injunction is reviewed
for abuse of discretion. Id.
ARGUMENT
I.

PLAINTIFFS’ APA CLAIM CANNOT SUPPORT A
PRELIMINARY INJUNCTION
A.

The TPS Statute’s Preclusion Provision Bars Plaintiffs’ APA Claim

The TPS statute unambiguously provides that “[t]here is no judicial review of
any determination of the [Secretary] with respect to the designation, or termination or
extension of a designation, of a foreign state” for TPS. 8 U.S.C. § 1254a(b)(5)(A).
The statute thus makes clear that TPS designation, extension, and termination
determinations, such as the four termination determinations plaintiffs challenge, are
committed to the unreviewable authority of the Secretary of Homeland Security.
Accordingly, an APA challenge seeking to set aside any such determination is
precluded. See 5 U.S.C. § 701(a)(1); Amgen, Inc. v. Smith, 357 F.3d 103, 113 (D.C. Cir.
2004) (“If a no-review provision shields particular types of administrative action, a
court may not inquire whether a challenged agency decision is arbitrary, capricious, or
procedurally defective.”).
The district court mistakenly concluded that plaintiffs could evade the statutory
bar by characterizing their suit as a “collateral” challenge to a supposed unexplained
change in the Secretary’s general practice of making TPS determinations, rather than a
challenge to the specific determinations themselves. ER.60-61. In its order denying
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the government’s motion to dismiss, the district court described the alleged change in
practice as a change from a previous policy under which Secretaries “considered
intervening natural disasters, conflicts, and other serious and social economic
problems as relevant factors when deciding whether to continue or instead terminate
a TPS designation,” to one in which such intervening factors were not considered.
ER.69. In its order granting plaintiffs’ motion for a preliminary injunction, however,
the court defined the alleged change in policy more narrowly. See ER.16. There, it
described the alleged new policy not as a failure to consider intervening events
altogether, but rather as a failure to consider “intervening conditions not directly
related to the originating condition.” Id. Moreover, in concluding that plaintiffs were
likely to succeed on the merits of their APA claim, the court did not conclude that
plaintiffs were likely to show that the alleged new policy was impermissible, but rather
that the Secretaries had failed to adequately explain the change in policy. ER.17.
Contrary to the district court’s conclusion, plaintiffs’ APA claim involves a
direct challenge to the Secretary’s country-specific determinations themselves and is
therefore barred by the express language of § 1254a(b)(5)(A). Nothing in that
categorical preclusion (or common sense) suggests that Congress intended to permit
an alien to obtain review of a Secretary’s application of the statute in making her
determination, including the manner in which a Secretary weighs conditions in a
foreign country or what factors a given Secretary finds most significant. That is
precisely what the statute bars. The criteria and evidence a Secretary deems important
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in arriving at a particular TPS determination and the weight the Secretary accords to
those criteria cannot be separated from the determination itself. Similarly, a claim that
the Secretary failed to adequately explain why she did not offer a detailed discussion
of a particular substantive factor that was discussed at greater length by a previous
Secretary is simply a challenge to the Secretary’s determination. Reviewing a
determination by contrasting it with earlier determinations is quite plainly review of
the determination at issue. It is precisely such second-guessing of the Secretary’s
assessments of conditions in foreign countries, her predictive judgments, and the
adequacy of her basis for making a particular TPS determination that § 1254a(b)(5)(A)
prohibits.
The relief plaintiffs seek also clearly demonstrates that they are challenging the
determinations themselves. See Martinez v. Napolitano, 704 F.3d 620, 622 (9th Cir.
2012). Plaintiffs do not seek an injunction invalidating a collateral agency policy or
practice. Rather, plaintiffs seek an order barring implementation of the termination
decisions themselves. ER.1054 (asking the Court to “[d]eclare th[e] Defendants’
termination of the TPS designations for El Salvador, Nicaragua, Haiti, and Sudan …
unlawful under the [APA]” and to “[v]acate Defendants’ unlawful termination of the
TPS designations”).
Moreover, plaintiffs’ contention that an agency’s approach to making a decision
committed to its judgment and discretion required more explanation because it
assertedly is inconsistent with the approach taken in past cases is a classic arbitrary23

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and-capricious challenge to the decision itself, as is clear from California Trout v.
FERC, 572 F.3d 1003 (9th Cir. 2009), relied on by the district court. In California
Trout, this Court reviewed an agency decision to determine whether it constituted an
unexplained change of policy (and concluded that it did not). The district court
quoted this Court’s statement that “while an agency may announce new principles in
an adjudicatory proceeding, it may not depart, sub silentio, from its usual rules of
decision to reach a different, unexplained result in a single case,” and that “if [an
agency] announces and follows—by rule or by settled course of adjudication—a general
policy by which its exercise of discretion will be governed, an irrational departure
from that policy (as opposed to an avowed alteration of it) could constitute action that
must be overturned as ‘arbitrary, capricious, [or] an abuse of discretion’ within the
meaning of the Administrative Procedure Act.” ER.16 (quoting California Trout, 572
F.3d at 1023). But nothing in California Trout—which did not involve a bar on judicial
review—remotely suggests that a plaintiff can circumvent such a bar by characterizing
his or her challenge to the determination Congress insulated from judicial review as a
challenge to a purportedly “collateral” policy that supposedly influenced that decision.
This Court’s discussion only underscores the long-established principle that an agency
may announce a new practice or policy either by “general rule or by individual, ad hoc
litigation[.]” SEC v. Chenery, 332 U.S. 194, 203 (1947). Congress enacted
§ 1254a(b)(5)(A) against the background of such approaches to judicial review where

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judicial review is allowed, further confirming that the express bar to judicial review
precludes such claims.
That plaintiffs’ argument, regardless of its rubric, is fundamentally a challenge
to the determinations themselves, is further confirmed by decisions of other courts of
appeals addressing judicial review restrictions. See, e.g., American Soc. of Cataract &
Refractive Surgery v. Thompson, 279 F.3d 447, 452 (7th Cir. 2002) (provision of the
Medicare Act that provided there “shall be no … judicial review” of “the [Secretary of
HHS’s] determination of relative values” foreclosed review of “a systemic challenge to
the Secretary’s interpretation of Congress’s” instructions as to how the Secretary
should determine those values); HP Inc. v. MPHJ Tech. Invs. LLC, 817 F.3d 1339, 1347
(Fed. Cir. 2016) (statute barring judicial review of an agency’s decision barred “review
of the [agency’s] reasons” for that decision); Painter v. Shalala, 97 F.3d 1351, 1356
(10th Cir. 1996) (statutory provision providing that there will be no judicial review of
the determination of conversion factors “clearly indicate[d] Congress’ intent to
preclude administrative and judicial review of the manner in which the conversion
factor is calculated by the Secretary”). And, as this Court has explained, when a
decision is committed to an agency’s unreviewable discretion, “changes in
departmental policies surrounding the factors to be considered or emphasized when
exercising that discretion” are irrelevant to a court’s review. Morales de Soto v. Lynch,
824 F.3d 822, 827-28 (9th Cir. 2016). Because the underlying decision is not
reviewable, a court has no authority to review the bases for that decision or whether
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that decision was arrived at in a “procedurally defective” manner. See Amgen, 357 F.3d
at 113; see also id. at 114 (Where “judicial review [of a decision] is precluded[,] … it
does not matter how the Secretary made the decision.”).
This Court’s decision in Gebhardt v. Nielsen, 879 F.3d 980, 987 (9th Cir. 2018),
exemplifies these principles and further demonstrates that the statute bars plaintiffs’
APA claim. Gebhardt involved INA provisions which barred review of any “decision
or action” relating to “no risk” determinations made by the Secretary of Homeland
Security. Id. at 984. Plaintiff, who was the subject of an adverse “no risk”
determination, asserted that the judicial-review bar did not apply to his statutory
claims challenging the “standard” the Secretary applied in making “no risk”
determinations and the process through which the Secretary adopted that standard.
Id. at 987.
This Court rejected that argument. Gebhardt, 879 F.3d at 987. In so doing, it
stressed that “[t]he standards by which the Secretary reaches a decision within his or
her ‘sole and unreviewable discretion’—and the methods by which the Secretary
adopts those standards—are just as unreviewable as the Secretary’s ultimate decisions
themselves.” Id. Like the plaintiffs in Gebhardt, plaintiffs here challenge the standard
the Secretaries used in making their TPS determinations and the manner in which they
adopted that standard. As in Gebhardt, such a challenge is barred.
Neither McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991), nor Reno v.
Catholic Social Services, Inc., 509 U.S. 43 (1993) (CSS), supports the district court’s
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decision. See ER.59-62. McNary addressed whether a statutory provision which
channeled judicial review of determinations concerning special agricultural worker
(SAW) status to removal proceedings barred the district court from considering
plaintiffs’ challenge to an alleged “pattern or practice of procedural due process
violations by the Immigration and Naturalization Service (INS) in its administration
of the SAW program.” 498 U.S. at 483. The Supreme Court held that district court
jurisdiction could lie over such an action because the channeling provision applied to
review of individual denials rather than “collateral challenges to unconstitutional
practice and policies.” Id. at 492. The Court observed that plaintiffs did “not seek a
substantive declaration that they [were] entitled to SAW status;” even if they prevailed
on the merits, they would “only be entitled to have their case files reopened and their
applications reconsidered in light of … newly prescribed INS procedures.” Id. at 495.
Unlike the collateral challenge in McNary, plaintiffs here seek (and only seek)
declaratory and injunctive relief setting the termination decision aside, and thus their
claim is squarely covered by the review bar. See City of Rialto v. West Coast Loading
Corp., 581 F.3d 865, 877 (9th Cir. 2009) (concluding that McNary-type rationale was
inapplicable to a “pattern and practice” claim that sought “the very same [relief] that
successful direct review … would produce: invalidation of the” underlying
unreviewable agency decision); Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala, 80 F.3d 379,
386 (9th Cir. 1996) (rejecting reliance on McNary where “a procedure is challenged

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only in order to reverse the individual [unreviewable] decision”); see also Gebhardt, 879
F.3d at 987.
CSS addressed the question whether a district court had jurisdiction to review
regulations issued by INS. The Court rejected the contention that a provision
withholding “judicial review” of “determination[s] respecting an application for
adjustment of status” “precludes district court jurisdiction over an action challenging
the legality of a regulation without referring to or relying on the denial of any
individual application.” 509 U.S. at 56.
Plaintiffs here are not challenging a DHS regulation; they seek declaratory and
injunctive relief that would set aside specific determinations. Their contentions rely
on an analysis of the factors that Secretaries Duke and Nielsen relied on in making the
four TPS termination determinations at issue, and thus “refer to [and] rely on,” 509
U.S. at 56, the specific determinations.3

Immigrant Assistance Project of AFL-CIO v. INS, 306 F.3d 842 (9th Cir. 2002),
and Proyecto San Pablo v. INS, 189 F.3d 1130 (9th Cir. 1999), cited by the district court
(ER.61 n.14), are likewise inapposite because both involved collateral challenges to an
agency’s procedures, not to the agency’s decision itself. See Immigrant Assistance Project,
306 F.3d at 864 (emphasizing that the plaintiffs “do not challenge INS’s
interpretations of IRCA’s substantive eligibility requirements,” but rather “the procedure
by which they have to prove that they are eligible for adjustment of status”); Proyecto
San Pablo, 189 F.3d at 1138 (plaintiffs’ claimed injury was their “inability to get access
to their prior deportation records in a timely fashion”). Plaintiffs’ challenge to the
manner in which the Secretaries weighed various factors in arriving at the termination
decisions bears no resemblance to the collateral challenges at issue in Immigrant
Assistance Project and Proyecto San Pablo.
28
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Moreover, the Supreme Court’s conclusion that review was not precluded in
McNary and CSS turned on the specific preclusion provisions at issue. See J.E.F.M. v.
Lynch, 837 F.3d 1026, 1036 (9th Cir. 2016). Neither case establishes a rule that applies
to other preclusions of review—especially ones directed at shielding sensitive
judgments like those that must be made under TPS.
Allowing plaintiffs to circumvent § 1254a’s bar on judicial review through a
thinly veiled challenge to the determinations themselves and the reasoning underlying
those determinations would run counter to the very purpose of the bar. In enacting
the TPS statute, Congress recognized that TPS designations will involve sensitive and
uncertain foreign-policy judgments (about, for example, the nature of foreign
hostilities, an assessment of on-the-ground conditions abroad and a foreign
government’s response, and the ability of foreign nations to accept the return of their
nationals) made at a country-wide level of generality. It is well-established that such
considered judgments, “implicat[ing] sensitive and weighty interests of national
security and foreign affairs” and based on an “evaluation of the [ever-changing] facts,”
are within the province of the Executive Branch, not the courts. Holder v.
Humanitarian Law Project, 561 U.S. 1, 33–34 (2010). Congress thus deliberately
shielded such judgments, as reflected in the TPS determinations, from judicial secondguessing.
Moreover, Congress was aware that TPS designations would affect thousands
of individuals, many of whom could be expected to desire that TPS designations be
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extended indefinitely. It thus would not have been difficult for Congress to predict
that litigation over the termination of TPS designations, under the APA or otherwise,
could mire TPS-related decisions (which Congress expressly intended to be
temporary) in litigation for years and undermine the discretionary nature of the
designations. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 490
(1999) (noting that delay “is often the principal object of resistance to a deportation
proceeding”). Congress may also have concluded that Secretaries would be less likely
to designate countries initially if doing so would inevitably lead to protracted and
burdensome litigation, with corresponding lengthy extensions. Congress precluded
judicial review of TPS determinations to avoid these consequences. Plaintiffs’ suit is
precisely the kind of action Congress sought to prevent.
B.

Plaintiffs’ APA Claim Would Fail On The Merits Even If It
Were Not Barred

Assuming that judicial review were available, plaintiffs’ arbitrary-and-capricious
APA claim would fail on the merits. Plaintiffs’ claim rests on the premise that
Secretaries Duke and Nielsen, in arriving at the four TPS termination decisions,
deviated from past practice by failing to weigh adequately the impact of events that
occurred after the initial TPS designation. That is not the case. Secretaries Duke and
Nielsen applied a process and legal standard that is materially similar to those used by
past Secretaries when evaluating TPS termination decisions. That they reached
different conclusions than recent Secretaries regarding whether conditions in the four
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countries at issue here justified an extension of the countries’ TPS status merely
reflects a difference in the Secretaries’ assessment of evolving country conditions.
Plaintiffs’ suggestion that Secretaries Duke and Nielsen ignored intervening
events altogether is belied by even a cursory inspection of the Federal Register notices
announcing the terminations. See supra pp. 8-13. In each case, the Secretary analyzed
current conditions in the four countries to determine whether the conditions that gave
rise to the initial TPS designation persisted. See Sudan Termination, 82 Fed. Reg. at
47,230; Nicaragua Termination, 82 Fed. Reg at 59,637; Haiti Termination, 83 Fed. Reg. at
2650; El Salvador Termination, 83 Fed. Reg. at 2655-56. The Secretary’s analysis of a
country’s current conditions (including, for example, its current infrastructure, GDP,
food security, housing stock, and government services) necessarily involved
consideration of whether intervening events hampered the country’s recovery from
the events that resulted in the initial TPS designation. That the statute required the
Secretaries to consider whether aliens can safely return to their countries, 8 U.S.C.
§ 1254a(b)(1), likewise demonstrates that the Secretaries necessarily considered
current country conditions and intervening events. The Secretaries’ consideration of
intervening events is also evident in their contemporaneous decisions to extend TPS
for other countries. See, e.g., Somalia Extension, 83 Fed. Reg. at 43,696 (concluding that
the conditions that gave rise to Somalia’s 2012 TPS re-designation persisted in part
because of “new conflict patterns, drought, and flooding” that occurred following the

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re-designation); Yemen Extension, 83 Fed. Reg. at 40,309 (discussing ongoing cholera
epidemic).
Perhaps recognizing that the Secretaries did, in fact, consider intervening
circumstances in making the four termination determinations, the district court in its
preliminary injunction order identified the Secretaries’ alleged change in policy not as
a refusal to consider intervening events altogether, but rather as “eliminating
consideration of intervening conditions not directly related to the originating
condition.” ER.16. The district court erred in concluding that Secretaries Duke and
Nielsen’s focus on whether the conditions that gave rise to a country’s TPS
designation persist constituted a break from past practice.
The approach Secretaries Duke and Nielsen used in evaluating whether to
extend or terminate the four TPS designations at issue follows from a natural reading
of the statute. The statute ties a country’s initial TPS designation to specific events or
conditions—i.e., an “ongoing armed conflict,” “an earthquake, flood, drought,
epidemic, … other environmental disaster,” or other “extraordinary and temporary
conditions.” 8 U.S.C. § 1254a(b)(1). The statute emphasizes that the conditions that
give rise to the TPS designation must be “temporary” and “extraordinary.” See id.
§ 1254a(b)(1)(B)(i) (permitting the Secretary to designate a country for TPS if it finds,
among other things, that an environmental disaster causes a “substantial, but
temporary, disruption of living conditions”); id. § 1254a(b)(1)(C) (the Secretary may
designate a country for TPS if she finds that “there exist extraordinary and temporary
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conditions in the foreign state that prevent aliens who are nationals of the state from
returning to the state in safety”). Thus, when the statute mandates that the Secretary
periodically evaluate whether “the conditions for [a country’s TPS] designation …
continue to be met,” id. § 1254a(b)(3)(A), it follows that the Secretary is to evaluate
whether the “extraordinary and temporary” conditions caused by the event that gave
rise to the TPS designation continue to exist. Nothing in the statute suggests that a
Secretary’s periodic evaluation of a TPS designation must incorporate entirely
unrelated intervening events, some of which may have occurred years later.
That the statute contemplates the Secretary will focus her decision to terminate
or extend an existing TPS designation on the originating event is underscored by
DHS’s longstanding interpretation of the TPS statute as providing that the Secretary,
when reviewing a country’s TPS status, may redesignate a country for TPS, as
opposed to extending the country’s existing TPS designation. See supra p. 6. DHS’s
longstanding recognition of a distinction between redesignations and extensions of
previous designations demonstrates that the agency understands the statute to
differentiate between whether new country conditions justify a TPS designation
independently (thus warranting a redesignation) and whether conditions resulting
from the events that gave rise to the initial designation continue to exist (thus
warranting an extension of the initial designation).
Given that the standard applied by Secretaries Duke and Nielsen follows from
the TPS statute, it is unsurprising that, as the district court’s own analysis makes clear,
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prior determinations generally considered intervening conditions only to the extent
that they could be linked to or impeded recovery from the event underlying the initial
designation or re-designation. See ER.60 (stating that, in prior extension notices, DHS
considered “whether intervening events had frustrated or impeded recovery efforts
from the originating conditions in Sudan, Haiti, Nicaragua, and El Salvador”); see also, e.g.,
Extension of the Designation of El Salvador, 81 Fed. Reg. 44,645 (July 8, 2016) (“Recovery
from the [2001] earthquakes has been slow and encumbered by subsequent natural
disasters and environmental challenges, including hurricanes and tropical storms,
heavy rains and flooding, volcanic and seismic activity, an ongoing coffee rust
epidemic, and a prolonged regional drought that is impacting food security.”);
Extension of the Designation of Haiti, 80 Fed. Reg. 51,582 (Aug. 25, 2015) (“Haiti’s ability
to recover [from the 2010 earthquake] has been further constrained by political
instability.”); Extension of the Designation of Sudan, 79 Fed. Reg. 52,027 (Sept. 2, 2014)
(“[T]he Secretary has determined that an 18-month extension is warranted because the
armed conflict [in Sudan] is ongoing and the extraordinary and temporary conditions
that prompted the May 2013 extension and redesignation continue to exist.”);
Extension of the Designation of Nicaragua, 75 Fed. Reg. 24,737 (May 5, 2010) (extending
Nicaragua’s TPS designation “because there continues to be a substantial, but
temporary, disruption of living conditions in Nicaragua resulting from Hurricane
Mitch”).

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Indeed, the district court identified only a single instance in which the Secretary
purportedly addressed an intervening event without identifying a causal relationship
between that event and the original TPS designation. ER.73 n.22 (citing Haiti
Extension, 82 Fed. Reg. 23,830 (May 24, 2017)). And even in that case, the Secretary
made clear that he was extending Haiti’s TPS designation only because the conditions
“supporting its [initial] designation for TPS persist[ed].” 82 Fed. Reg. at 23,831.
A review of termination decisions made by prior Secretaries likewise indicates
that they focused their analyses on whether the event and conditions that led to the
original designation persisted—precisely the standard Secretaries Duke and Nielsen
used here. See Termination of Guinea’s Designation, 81 Fed. Reg. 66,064 (Sept. 26, 2016)
(noting that “[w]hile the impacts of the [Ebola] epidemic pose a lasting challenge to
Guinea’s economy and the capacity of its health system to provide treatment for
preventable or treatable conditions,” “the extraordinary and temporary conditions
that prompted Guinea’s TPS designation have substantially resolved and no longer
prevent nationals of Guinea from returning to Guinea in safety”); Termination of the
Designation of Burundi, 72 Fed. Reg. 61,172 (Oct. 29, 2007) (“[C]onditions that
warranted the initial designation of TPS [for Burundi] in 1997 and the re-designation
in 1999 no longer continue to be met.”); Termination of Designation of Rwanda, 62 Fed.
Reg. 33,442 (June 19, 1997) (“The ability of so many to return in relative safety
demonstrates the end of the extraordinary circumstances that existed in 1994,” when
Rwanda was designated for TPS.); Termination of Designation of Kuwait Under TPS
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Program, 57 Fed. Reg. 2931 (Jan. 24, 1992) (“[T]he extraordinary and temporary
conditions found to exist in Kuwait on March 27, 1991 are not presently in
existence.”); see also, e.g., Extension of the Designation of Nicaragua, 68 Fed. Reg. 23,748
(May 5, 2003) (“Each decision to extend the TPS designation was made on the
determination that the conditions that warranted the TPS designation initially
continued to exist.”); Extension and Redesignation of Somalia, 77 Fed. Reg. 25,723 (May 1,
2012) (“The Secretary has determined that an 18-month extension is warranted
because the armed conflict is ongoing, and the extraordinary and temporary
conditions that prompted [Somalia’s] 2001 redesignation persist.”).
TPS designations have also been terminated in the past despite significant
ongoing problems in the relevant countries. See, e.g., Termination of Designation of Angola
Under TPS Program, 68 Fed. Reg. 3896 (Jan. 27, 2003) (terminating Angola’s TPS
designation despite the remaining “challenge of assisting an estimated 4 million
displaced Angolan nationals,” ongoing “concern that Angola lacks housing, medical
services, water systems, and other basic services destroyed by a 27-year-long war”);
Termination of the Province of Kosovo, 65 Fed. Reg. 33,356 (May 23, 2000) (terminating
Kosovo’s designation because, “[a]lthough conditions remain difficult with bursts of
ethnically-motivated violence, the situation in Kosovo cannot now be classified as
ongoing internal conflict”).
In short, Acting Secretary Duke and Secretary Nielsen’s focus on whether the
conditions that gave rise to the original TPS designation persisted and their
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consideration of intervening events only to the extent those events bear some relation
to the originating conditions is consistent with the statute and the approach in prior
determinations. Plaintiffs’ claim that the Secretaries acted arbitrarily and capriciously
in departing from past practice sub silentio is without merit.
That Secretaries Duke and Nielsen did not depart from past practice is
underscored by their decision-making process more generally. Like prior Secretaries,
Secretaries Duke and Nielsen received input from both within and outside of the
agency in reaching their respective determinations, including (a) a country conditions
report from the USCIS Refugee, Asylum, and International Operations (“RAIO”)
Directorate; (b) a recommendation from the Secretary of State; (c) a country condition
report from the State Department; and (d) a “Decision Memorandum” providing
USCIS’s recommendation. See, e.g., ER.148-308. Moreover, those inputs included
analyses of the countries’ current conditions and intervening events, with the RAIO
reports being particularly exhaustive. See, e.g., ER.961-72; ER.645-61; ER.362-79; and
ER.227-44.
As evidence that the Secretary previously considered intervening events
unrelated to the event giving rise to the TPS designation, the district court cited a
declaration submitted by a former USCIS director, who opined that USCIS, in
recommending whether to continue a TPS designation, had the discretion to consider
the impact of intervening factors “regardless of whether those intervening factors had
any connection to the event that formed the basis for the original designation or to
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the country’s recovery from that originating event.” ER.20. The district court erred
in relying on such evidence outside the administrative record, which is irrelevant to
judicial review of the determinations, and in allowing discovery. See Florida Power &
Light Co. v. Lorion, 470 U.S. 729, 743 (1985) (“The focal point for judicial review [of
agency action] should be the administrative record already in existence, not some new
record made initially in the reviewing court.”). Indeed, judicial review of the question
whether the Secretaries departed from past practice can be made entirely by reviewing
past, public TPS termination decisions. But even assuming that extra-record evidence
could properly be considered, that testimony finds no support in prior TPS
determinations, which, as noted, routinely cite intervening events only where those
events related to the conditions that gave rise to the TPS designation.4
In sum, because § 1254a(b)(5)(A) precludes review of plaintiffs’ APA claim and
because that claim fails in any event, plaintiffs cannot establish that they are “likely to
succeed on the merits” of that claim or even that the claim raises “serious questions
going to the merits,” Alliance for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir.

Because prior determinations considered intervening events only to the extent
they related to the originating condition, the district court’s “wealth of record
evidence” indicating that the determinations here likewise follows that practice,
ER.19-25, is of no moment, even if it could be properly considered. Moreover, the
district court’s reliance on Acting Secretary Duke’s description of her decision to
extend Honduras’s TPS status for only an additional six months as a “strong break
with past practice” was likewise misplaced. ER.22. As is clear from context, the “past
practice” Acting Secretary Duke was referring to was the “routine[]” extension of TPS
for Nicaragua. ER.632.
4

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2017). The district court abused its discretion in entering a preliminary injunction on
that ground.5
II.

PLAINTIFFS’ EQUAL PROTECTION CLAIM CANNOT
SUPPORT A PRELIMINARY INJUNCTION
After considering the current conditions in Sudan, Nicaragua, Haiti, and El

Salvador, Secretaries Duke and Nielsen determined that those countries no longer met
the qualifications for TPS because the “temporary” conditions that gave rise to their
TPS designations were no longer present. Congress clearly precluded review of those
determinations, see 8 U.S.C. § 1254a(b)(5)(A), and the district court wrongly concluded
that this clear bar on judicial review could be circumvented by a constitutional
challenge that—in any event—is flatly at odds with the reasoning of the challenged
determinations, which show no sign of being infected by discriminatory animus.6 The
district court likewise erred in concluding that, even if the constitutional claim were
reviewable, plaintiffs could rely on extra-record evidence and discovery to establish
that claim, because the APA and its record-review limits also govern such challenges
to agency action. See 5 U.S.C. § 706(2)(B) (providing cause of action to “set aside

The district court applied this Court’s standard under which a plaintiff seeking
a preliminary injunction need only show “that there are serious questions going to the
merits—a lesser showing than likelihood of success on the merits”—if the “balance
of hardships tips sharply in the plaintiffs’ favor[.]” Alliance for the Wild Rockies, 865 F.3d
at 1217. Although binding on the panel, the government respectfully submits that the
standard is inconsistent with the Supreme Court’s decision in Winter v. Natural
Resources Defense Council, 555 U.S. 7, 20 (2008).
6
Section 1254a(b)(5)(A) provides a far clearer bar on review than the statutory
provision at issue in Webster v. Doe, 486 U.S. 592, 603-04 (1988).
39
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agency action” “contrary to constitutional right”); FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 516 (2009).
In any event, plaintiffs’ equal protection claim would not raise “serious legal
questions” even if it were reviewable. That is the case, even assuming that the district
court correctly held that plaintiffs’ equal protection claim should be reviewed under
the standard set forth in Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252 (1977), which requires plaintiffs to establish that “a discriminatory
purpose has been a motivating factor in the [government’s] decision,” id. at 265-266.
But to be clear, to the extent review is permitted in the face of the express statutory
bar, the appropriate standard is that set forth in Trump v. Hawaii, 138 S. Ct. 2392
(2018), which held that constitutional challenges to Executive Branch immigration
policies are to be judged under a rational-basis standard and affirmed so long as they
are “plausibly related” to the objective of the policy. Id. at 2420. Ultimately, though,
because plaintiffs cannot establish that animus towards “non-white, non-Europeans”
was a motivating factor in the Secretaries’ decisions, their equal protection claim fails
under any standard.
A.

The Plaintiffs Are Unlikely To Succeed On Their Equal
Protection Claim Under Arlington Heights

Secretaries Duke and Nielsen provided reasoned explanations for their
decisions to terminate the temporary protected status of four countries, and, as
discussed above, those decisions would properly be sustained under normal principles
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of APA review, if Congress had not explicitly precluded such review. Still less do the
decisions permit any inference of impermissible discriminatory intent. Despite having
extraordinarily obtained hundreds of privileged documents reflecting internal
government deliberations, plaintiffs have not demonstrated that either Acting
Secretary Duke or Secretary Nielsen harbored animus in making the termination
decisions at issue.
The record demonstrates that the Secretaries carefully considered the
conditions of each country and based their termination decisions on an independent
determination, amply supported by the record, that conditions in Sudan, Nicaragua,
Haiti, and El Salvador had improved enough that the initial TPS designation was no
longer sustainable. See supra pp. 8-13, 37, 52-53. The record makes clear that the
Secretaries received input from a number of sources, both within and outside DHS.
See id. The record further shows that Acting Secretary Duke “was a very active
consumer of information about TPS,” ER.109, and that she “was struggling with” the
decision “in a good sense of the word … as an intelligent, hard-working government
employee would struggle with a very consequential decision.” ER.136. And the
Federal Register notices set forth the Secretaries’ reasoning for their decisions.
Moreover, as the White House Chief of Staff explained in a contemporaneous,
internal communication, “the decision on TPS was entirely [the Secretary’s]” to make.
ER.144.

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The plaintiffs’ allegations of discriminatory animus are especially implausible
because Secretaries Duke and Nielsen extended TPS designations for South Sudan,
Syria, Yemen, and Somalia. See supra p. 7. That the Secretaries extended the TPS
designations of several “non-white, non-European” countries underscores that their
TPS decisions were driven by a reasoned analysis of the existing conditions in each
country, not racial or ethnic animus.
The district court acknowledged that plaintiffs have failed to produce any
evidence of animus on the part of Secretaries Duke and Nielsen. ER.27. But the
court declared that plaintiffs presented a “serious question” on the merits because
“President Trump has expressed animus against non-white, non-European
immigrants” and his alleged animus could be imputed to the Secretaries. Id. That
conclusion is flawed in every respect.
The asserted animus in the President’s purported statements cannot be a basis
for questioning the good faith of Secretaries Duke and Nielsen, who are “entitled to a
presumption that they act properly and according to law.” Kohli v. Gonzales, 473 F.3d
1061, 1068 (9th Cir. 2007). The district court was quite wrong to assume that it could
import from the employment discrimination context the so-called “cat’s paw” theory
of animus and apply it to statutory determinations made by Cabinet Secretaries in the
foreign-policy and national-security context. See ER.86-87. This Court should not
blithely extend the doctrine to an exercise of statutory authority by a Cabinet Secretary
acting under an oath to uphold the Constitution. As the Supreme Court explained in
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Staub v. Proctor Hospital, 562 U.S. 411 (2011), “general principles of … agency law”
“suggest[] that the malicious mental state of one agent cannot generally be combined
with the harmful action of another agent to hold the principal liable for a tort that
requires both.” Id. at 418. Although the Court was nevertheless willing to hold an
employer liable by deeming a biased supervisor responsible for the adverse action of
an unbiased supervisor if the former’s own discriminatory acts were the intended and
proximate cause of the latter’s adverse action, id. at 418-20, extending that sort of
imputation to the government regulatory context would severely undermine the ability
of government officials to make decisions exclusively within their purview.
Rather than “judicial review of agency action” focusing on “the administrative
record already in existence,” Florida Power & Light, 470 at 743, absent a “strong
showing of bad faith or improper behavior” to overcome the presumption of
regularity, Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971), the “cat’s
paw” approach would invite judicial second-guessing of an agency official’s actions
based on mere allegations of discriminatory motive on the part of a different
government official who played some role in the decision-making process. That
would invite impermissible intrusion on privileged Executive Branch deliberations, see
United States v. Nixon, 418 U.S. 683, 708 (1974), and potential litigant-driven discovery
that would disrupt the President’s execution of the laws, see Nixon v. Fitzgerald, 457
U.S. 731, 749–50 (1982).

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Here, in particular, Secretaries Duke and Nielsen have given eminently rational
reasons that are supported by the record for terminating TPS for the four countries in
question, and no one has accused them of acting with a discriminatory intent. It
would severely intrude on agency decision-making to allow plaintiffs to attack the
Secretaries’ decisions based on the President’s alleged bias, or to require the
Secretaries to show that such bias was not a proximate cause of their decisions.
The district court sought to bridge the gap from alleged presidential statements
to impermissible discrimination by the Secretaries on the ground that “the White
House was putting pressure on DHS to end TPS” and that “the White House did, in
fact, have influence on the TPS decisions.” ER.28-29. The court’s analysis
necessarily assumes that the various White House officials at issue who
communicated with the Secretaries (or their staff) about TPS were motivated by
discriminatory animus. There is no basis for that extraordinary assumption. It is
neither unusual nor improper for White House officials to convey their views on a
significant policy decision with the relevant agency decision-maker, particularly where,
as here, that decision has significant foreign-policy implications. “Our form of
government simply could not function effectively or rationally if key executive
policymakers were isolated from each other and from the Chief Executive.” Sierra
Club v. Costle, 657 F.2d 298, 406 (D.C. Cir. 1981).
In all events, the district court gravely erred in inferring impermissible motives
from Acting Secretary Duke’s statements that her termination decisions were
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“consistent with the President’s position on immigration” and were “the result of an
America first view of the TPS decision.” ER.29-30. Nothing in the record supports
the court’s extraordinary interpretation of the Secretary’s references to the President’s
position on immigration and the widely and publicly used “America First” slogan as
“code word[s] for removal of immigrants who are non-white and/or non-European.”
ER.36. As reflected in the America First slogan, the Administration’s position on
immigration is one that emphasizes a “merit-based entry” system and focuses on
America’s interests foremost. See https://www.whitehouse.gov/issues/immigration/.
That Acting Secretary Duke mentioned that her determinations were generally
consistent with these broad principles does not remotely suggest that she was
motivated by discriminatory animus.
Because neither the district court nor plaintiffs have identified specific evidence
linking the President’s alleged animus to the Secretaries’ termination decisions, this
Court need not consider plaintiffs’ evidence of that animus, which consists of
purported statements made by the President. ER.30-31. Indeed, it would be plainly
inappropriate to rely on campaign statements by then-candidate Trump to impugn the
legitimate foreign-policy-related judgments of unbiased Cabinet Secretaries. See
Washington v. Trump, 858 F.3d 1168, 1173 & n.4 (9th Cir. 2017) (Kozinski, J.,
dissenting from denial of rehearing en banc). Some of those statements were made
more than a year before the President took the prescribed oath to “preserve, protect
and defend the Constitution,” U.S. Const. art. II, § 1, cl. 8. But even taking the
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purported statements on their own terms, such statements are entirely inadequate to
show that the decisions to terminate TPS for the four countries in question were
motivated by racial or ethnic animus.
The offered statements, construed from an objective legal perspective, reflect
the current Administration’s focus on America’s economic and security interests, not
unconstitutional bias. Any statement about “shithole countries,” ER.30, for example,
should be understood as a denigrating reference to the conditions in certain
developing nations. Similarly, the proffered comments about Haitians and Nigerians
likewise can be readily construed as a reflection on the problems that plague those
two countries, rather than a commentary on the race or ethnicity of the countries’
inhabitants. And the President’s statements about MS-13 and unlawful immigrants in
general should be understood as demonstrating concern about the security risks
attendant to lax enforcement of the immigration laws. Indeed, this objective
interpretation of the alleged statements is compelled by the presumption of regularity
to which the President is especially entitled as the head of a coordinate branch of
government.
The district court’s reliance on purported circumstantial evidence of racial and
ethnic animus in the Secretaries’ termination decisions likewise misses the mark. For
example, the court pointed out that the TPS terminations “bear[] more heavily on
non-white, non-European individuals.” ER.31. But that fact is of little relevance
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white and non-European. Plaintiffs thus can identify no comparative group of
predominantly white, European countries that has been treated differently, and it is
implausible that the race of the citizens of the foreign country was a significant factor
in the Secretaries’ determinations that the “temporary” conditions that gave rise to the
TPS designations between ten and twenty years ago had ended. There is no reason to
think the Secretaries would have treated differently an impoverished European
country that received a TPS designation following a now decades-old environmental
disaster, even if other adverse events unrelated to the disaster and not independently
supporting a TPS designation occurred in the interim.
The district court also cited evidence that political appointees in DHS
overruled recommendations from career employees at the agency. ER.32-36. But
that commonplace feature of agency decision-making is far from evidence of
discriminatory animus. See Wisconsin v. City of New York, 517 U.S. 1, 23 (1996) (“[T]he
mere fact that the Secretary’s decision overruled the views of some of his
subordinates is by itself of no moment in any judicial review of his decision.”); St.
Marks Place Hous. Co. v. HUD, 610 F.3d 75, 83 (D.C. Cir. 2010) (The “[S]ecretary, like
all agency heads, usually makes decisions after consulting subordinates, and those
subordinates often have different views.”). It is evidence only of disagreements about
policy—here, how to weigh the different factors that go into deciding whether to
extend or terminate TPS designations.

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This case is both procedurally and factually distinguishable from this Court’s
recent decision in Regents of the University of California v. DHS, No. 18-15068, 2018 WL
5833232, at *30 (Nov. 8, 2018), in which it held that the plaintiffs had plausibly
alleged an equal protection claim challenging the termination of the Deferred Action
for Childhood Arrivals (DACA) program. Because the Court was evaluating whether
the district court had erred in denying the government’s motion to dismiss the equal
protection claim in Regents, it was required to “take all the complaints’ allegations as
true” and to “construe them in the light most favorable to the plaintiffs.” Id. at *30.
In this case, by contrast, plaintiffs sought a preliminary injunction on the basis of their
equal protection claim, and thus bore the burden of affirmatively establishing that
they were likely to succeed on the merits of that claim, or at least raise serious
questions with respect to the claim. For the reasons explained above, plaintiffs fall
short of doing so.
Moreover, the facts of this case differ markedly from those alleged in Regents.
The Secretaries’ termination decisions did not stem from what the Regents plaintiffs
alleged was an “unusual” decision-making process purportedly done at “lightning
speed” and based on a “contrived excuse.” Regents, 2018 WL 5833232, at *30. The
Secretaries’ termination decisions were made after a months-long process that
included consultations with the Secretary of State and other agencies and was not
materially different from the process used by previous Secretaries. The Secretaries
applied the same legal standard that has been employed in the past when terminating
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TPS designations, and their determinations were supported by the record. The
Secretaries’ TPS termination decisions are thus akin to the Presidential proclamation
that the Supreme Court upheld in Hawaii, 138 S. Ct. at 2422. Like the proclamation,
the termination decisions were the product of a “review process undertaken by
multiple Cabinet officials and their agencies” and have “a legitimate grounding” in the
record. Id. at 2421.
B.

The Secretaries’ Decisions Are Constitutional Under

Trump v. Hawaii

1. Although plaintiffs’ equal protection claim fails under any standard, the
district court erred at the threshold in failing to limit its review to whether a rational
basis existed for the termination decisions. The Supreme Court “ha[s] long
recognized the power to expel or exclude aliens as a fundamental sovereign attribute
exercised by the Government’s political departments largely immune from judicial
control.” Fiallo v. Bell, 430 U.S. 787, 792 (1977). Because decisions in these matters
implicate “relations with foreign powers” and involve “classifications … defined in
the light of changing political and economic circumstances,” such judgments “are
frequently of a character more appropriate to either the Legislature or the Executive.”
Mathews v. Diaz, 426 U.S. 67, 81 (1976); see also Galvan v. Press, 347 U.S. 522, 531 (1954)
(“Policies pertaining to the entry of aliens and their right to remain here are peculiarly
concerned with the political conduct of government.”).

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The Supreme Court has accordingly made clear that decisions by the political
branches about which classes of aliens to exclude or expel will generally be upheld
against constitutional challenges so long they satisfy deferential rational-basis review.
Hawaii, 138 S. Ct. at 2420; see also Kleindienst v. Mandel, 408 U.S. 753, 769-70 (1972)
(judicial review of “[p]olicies pertaining to the entry of aliens and their right to remain
here” is limited to whether the Executive gave a “facially legitimate and bona fide”
reason for its action); Mathews, 426 U.S. at 82 (a “narrow standard of review” applies
to “decisions made by Congress or the President in the area of immigration and
naturalization”); Harisiades v. Shaughnessy, 342 U.S. 580, 588–89 (1952).
The Supreme Court’s decision in Fiallo illustrates that constitutional claims,
including equal protection claims, challenging broad executive and legislative action in
the immigration context are reviewed for rationality. There, the Court considered a
challenge to a statutory preferential immigration status given to mothers of illegitimate
children but not fathers. 430 U.S. at 788–89. The Court acknowledged that the law
treated fathers and mothers differently, and thus discriminated on the basis of gender.
Id. at 798–99. But it refused to apply “a more exacting standard” than rational-basis
review. Id. at 795, 799. As the Court explained, more searching review was
inconsistent with the well-established principle recognizing that “the power to expel
or exclude aliens as a fundamental sovereign attribute exercised by the Government’s
political departments largely immune from judicial control.” Id. at 792 (collecting
cases).
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Although cases such as Hawaii, Mandel, and Fiallo involved policies directed at
aliens seeking to enter the country, as opposed to aliens already within the United
States, those decisions support applying rational-basis review in the specific context of
the TPS program. The Supreme Court made clear in Hawaii that the rational-basis
standard applies “across different contexts and constitutional claims.” 138 S. Ct. at
2419. In support of that proposition, the Court cited Rajah v. Mukasey, 544 F.3d 427,
438 (2d Cir. 2008), a case which, like this one, involved an equal protection challenge
to an Executive Branch action brought by aliens within the United States. Hawaii, 138
S. Ct. at 2419; see also Ruiz-Diaz v. United States, 703 F.3d 483, 487 (9th Cir. 2012)
(stating that this Court applies “rational basis rather than heightened scrutiny [in
immigration classification cases] because we defer to the political branches in the
immigration field” and applying rational-basis review to religious discrimination claim
brought by aliens who were in the country lawfully).7
TPS termination decisions involve unique country-specific determinations that
both “implicate relations with foreign powers” and “involve classifications defined in

The district court distinguished Rajah on the grounds that (1) the aliens in
Rajah were “undisputedly … deportable,” and (2) the aliens’ equal protection claim
was “really one for selective prosecution/enforcement.” ER.41. But the Second
Circuit’s application of rational-basis review in Rajah did not turn on either of those
facts. Rather, the court relied on the general principle that “[d]istinctions on the basis
of nationality may be drawn in the immigration field by the Congress or the Executive
… and must be upheld so long as they are not wholly irrational.” Rajah, 544 F.3d at
438; see also id. (stating that “[t]he most exacting level of scrutiny that we will impose
on immigration legislation is rational basis review”).
51
7

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the light of changing political and economic circumstances,” Hawaii, 138 S. Ct. at
2418, precisely the situation in which the Supreme Court has repeatedly applied
rational-basis review. See id.; Fiallo, 430 U.S. at 799. The TPS statute requires the
Secretary to determine whether a foreign state is able “to handle adequately the
return” of its nationals from the United States and whether conditions in the country
prevent the country’s nationals “from returning to the state in safety.” 8 U.S.C.
§ 1254a(b). Such determinations are fraught with potential implications for our
relations with the relevant country.
The record in this case reflects the foreign-policy and national-security
considerations inherent in any TPS termination decision. For example, the record
shows that, before arriving at their termination decisions, the Secretaries consulted
with the State Department, whose recommendation emphasized “the significant
humanitarian, foreign policy, and political interests at play” in the TPS decision. See
ER.189. The State Department noted in particular that “[t]ermination of TPS will …
likely generate a backlash from the governments themselves,” who may view the
termination as “undermin[ing]” cooperative arrangements between the country and
the United States. Id. The State Department also cautioned that the governments
“may take retaliatory actions counter to our long-standing national security and
economic interests.” Id. The record also includes correspondence from foreign
government officials and diplomats, who urged the Secretaries to extend the TPS
designations. See, e.g., ER.211-12 (letter from El Salvador’s Minister of Foreign
52

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Affairs); ER.315-17 (letter from Haiti’s ambassador to the United States). The
Secretaries also consulted military leaders, see ER.312-314, ER.148. Even the district
court recognized that “terminating TPS status may have adverse ramifications
internationally,” ER.11, and that the Secretary “did appear to consider foreign policy”
for at least some of the designations. ER.38 n.15.
In light of the unique foreign-policy and national-security considerations that
arise during a Secretary’s assessment of a TPS designation, the district court’s
conclusion that the rational-basis-review standard was inapplicable because neither
foreign-policy nor national-security considerations played a role in the Secretaries’
TPS termination decisions, and, “unlike the aliens in Trump v. Hawaii, the [TPS
beneficiaries] are already in the United States,” ER.38; see also Regents, 2018 WL
5833232, at *32, was erroneous.
Equally erroneous was the district court’s assertion that the Hawaii standard
was inapplicable because, unlike Congress’s broad delegation of authority in Hawaii,
“Congress has not given the Secretary carte blanche to terminate TPS for any reason
whatsoever.” ER.38. The scope of the President’s statutory authority played no role
in the Supreme Court’s conclusion that rational-basis review applied to the Hawaii
plaintiffs’ Establishment Clause claim. See Hawaii, 138 S. Ct. at 2418-20. Nor did the
statute at issue in Hawaii provide the President with unlimited authority to suspend
the entry of aliens “for any reason whatsoever,” as the district court suggested. It
permitted the President to suspend entry only upon a finding that entry “would be
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detrimental to the interests of the United States.” Id. at 2408 (quoting 8 U.S.C.
§ 1182(f)). So too, the Secretary may act only after making a finding about the
interests specified by Congress. See id. § 1254a(b)(1). And the fact that Congress
expressly barred judicial review of the Secretary’s TPS determinations, 8 U.S.C.
§ 1254a(b)(5)(A), underscores the wide discretion the Secretary is afforded in making
TPS decisions and further demonstrates the applicability of deferential review.
This Court also suggested in Regents that the application of Hawaii’s rationalbasis standard may depend on “the nature of the constitutional claim raised.” Regents,
2018 WL 5833232, at *31. There is, however, no reason why the protections afforded
citizens under the Establishment Clause (the constitutional provision at issue in
Hawaii) are in any way less weighty than those offered by the equal protection
component of the Due Process Clause.
2. Secretaries Duke and Nielsen’s termination decisions easily pass rationalbasis review. In enacting the TPS program, Congress created a special immigration
classification to provide “temporary” relief to aliens who cannot safely return to their
home countries because of extraordinary but temporary conditions in those countries.
See 8 U.S.C. § 1254a. Secretary Duke and Nielsen’s termination decisions plainly are
“plausibly related” to the objectives of the TPS program. Hawaii, 138 S. Ct. at 2420;
see also United States R.R. Ret. Bd. v. Fritz, 449 U.S. 166, 179 (1980). After consulting
with other appropriate governmental agencies, the Secretaries determined in each case
that the extraordinary and temporary conditions that gave rise to each country’s TPS
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designation no longer existed. That is fully consistent with Congress’s goal of
providing interim relief to aliens until the conditions necessitating that relief come to
an end and with the temporary nature of the relief authorized.
Moreover, the Secretaries set forth their reasons for concluding that conditions
in the countries had improved to such an extent that TPS designations were no longer
warranted. See supra pp. 8-13. The Secretaries’ explanations included an analysis of
such factors as the country’s current economic condition, its ability to provide basic
services to its citizens, its political climate, and its recovery efforts since the events
giving rise to its TPS designation. In short, the termination decisions reflect the
results of a careful analysis undertaken by a Cabinet official in consultation with other
Cabinet officials and their agencies, the upshot of which was that the conditions
giving rise to the country’s TPS designation no longer persisted. There is no serious
question that the termination decisions can “reasonably be understood to result from
a justification independent of unconstitutional grounds,” ER.42.
III.

THIS COURT SHOULD NOT CONSTRUE THE
PRELIMINARY INJUNCTION AS APPLYING NATIONWIDE
The preliminary injunction enjoins the Secretary from enforcing the decisions

to terminate TPS for Sudan, Nicaragua, Haiti, and El Salvador. ER.42. Though the
government construes the order as applying nationwide, the order does not expressly
state whether the injunction so applies; nor did the district court make findings to
justify application of the injunction beyond the plaintiffs. If this Court affirms the
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injunction, it should hold that the injunction goes no further than redressing any
cognizable injuries to plaintiffs.
Under Article III, a plaintiff must “demonstrate standing … for each form of
relief that is sought.” Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017).
The Supreme Court recently applied this principle to hold that a set of voters had not
demonstrated standing to challenge alleged statewide partisan gerrymandering beyond
the legislative districts in which they resided, reasoning that a “plaintiff ’s remedy must
be limited to the inadequacy that produced [his] injury in fact” and that “[t]he Court’s
constitutionally prescribed role is to vindicate the individual rights of the people
appearing before it.” Gill v. Whitford, 138 S. Ct. 1916, 1930, 1933 (2018). Equitable
principles likewise require that “injunctive relief should be no more burdensome to
the defendant than necessary to provide complete relief to the plaintiffs.” Califano v.
Yamasaki, 442 U.S. 682, 702 (1979).
Nationwide injunctions “take a toll on the federal court system—preventing
legal questions from percolating through the federal courts, encouraging forum
shopping, and making every case a national emergency for the courts and for the
Executive Branch.” Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring). This Court
has articulated similar concerns. See Los Angeles Haven Hospice, Inc. v. Sebelius, 638 F.3d
644, 664 (9th Cir. 2011); United States v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th Cir.
2008). That nationwide injunctions are a recent invention, “not emerg[ing] until a
century and a half after the founding,” underscores their inconsistency with
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“longstanding limits on equitable relief and the power of Article III courts.” Hawaii,
138 S. Ct. at 2425 (Thomas, J., concurring).
Nationwide injunctions also create an inequitable “one-way-ratchet” under
which any prevailing party obtains relief on behalf of all others, but a victory by the
government does not preclude other potential plaintiffs from “run[ning] off to the 93
other districts for more bites at the apple.” City of Chicago v. Sessions, 888 F.3d 272, 298
(7th Cir. 2018) (Manion, J., concurring in the judgment and dissenting in part).
Indeed, this Court has explained that nationwide injunctions are especially
inappropriate “where there is no class certification.” Los Angeles Haven Hospice, 638
F.3d at 664.
This Court’s decision in Regents, which affirmed the district court’s issuance of a
nationwide injunction, does not support a nationwide injunction here. This Court
concluded that a nationwide injunction was justified in Regents because it was
necessary “to provide complete relief to the plaintiffs, including the entity plaintiffs,”
and to “promote[] uniformity in immigration enforcement.” 2018 WL 5833232, at
*24-25. Neither factor is present here. An injunction barring the government from
enforcing the TPS termination decisions against the individual plaintiffs and their
relatives would provide plaintiffs with complete relief. Moreover, the TPS program
already treats nationals of the same foreign state non-uniformly. TPS protections are
available only to aliens who are present in the United States on the effective date of a

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TPS designation. Individuals who arrive one month later, are fleeing the same
conditions, and are required to return to the same home nation receive no protection.
CONCLUSION
For the foregoing reasons, the preliminary injunction should be vacated.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
ALEX G. TSE
Acting United States Attorney
MARK B. STERN
s/ Gerard Sinzdak
GERARD SINZDAK
Attorneys, Appellate Staff
Civil Division, Room 7242
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0718
gerard.j.sinzdak@usdoj.gov
November 2018

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STATEMENT OF RELATED CASES
Pursuant to Ninth Circuit Rule 28-2.6, appellants state that they are unaware of
any related case pending in this Court.
s/ Gerard Sinzdak
Gerard Sinzdak

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CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limit of Federal Rule of Appellate
Procedure 32(a)(7)(B) because it contains 13,998 words. This brief also complies with
the typeface and type-style requirements of Federal Rule of Appellate Procedure
32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14point font, a proportionally spaced typeface.

s/ Gerard Sinzdak
Gerard Sinzdak

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CERTIFICATE OF SERVICE
I hereby certify that on November 29, 2018, I electronically filed the foregoing
brief with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system. Participants in the case are registered
CM/ECF users, and service will be accomplished by the appellate CM/ECF system.

s/ Gerard Sinzdak
Gerard Sinzdak

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ADDENDUM

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TABLE OF CONTENTS
8 U.S.C. § 1254a ......................................................................................................................A1

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8 U.S.C. § 1254a
§ 1254a. Temporary Protected Status
(a) Granting of status
(1) In general
In the case of an alien who is a national of a foreign state designated under
subsection (b) (or in the case of an alien having no nationality, is a person who
last habitually resided in such designated state) and who meets the requirements
of subsection (c), the Attorney General, in accordance with this section-(A) may grant the alien temporary protected status in the United States and
shall not remove the alien from the United States during the period in which
such status is in effect, and
(B) shall authorize the alien to engage in employment in the United States and
provide the alien with an “employment authorized” endorsement or other
appropriate work permit.
(2) Duration of work authorization
Work authorization provided under this section shall be effective throughout the
period the alien is in temporary protected status under this section.
(3) Notice
(A) Upon the granting of temporary protected status under this section, the
Attorney General shall provide the alien with information concerning such status
under this section.
(B) If, at the time of initiation of a removal proceeding against an alien, the
foreign state (of which the alien is a national) is designated under subsection (b),
the Attorney General shall promptly notify the alien of the temporary protected
status that may be available under this section.
(C) If, at the time of designation of a foreign state under subsection (b), an alien
(who is a national of such state) is in a removal proceeding under this subchapter,
the Attorney General shall promptly notify the alien of the temporary protected
status that may be available under this section.
(D) Notices under this paragraph shall be provided in a form and language that
the alien can understand.
(4) Temporary treatment for eligible aliens

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(A) In the case of an alien who can establish a prima facie case of eligibility for
benefits under paragraph (1), but for the fact that the period of registration under
subsection (c)(1)(A)(iv) has not begun, until the alien has had a reasonable
opportunity to register during the first 30 days of such period, the Attorney
General shall provide for the benefits of paragraph (1).
(B) In the case of an alien who establishes a prima facie case of eligibility for
benefits under paragraph (1), until a final determination with respect to the alien's
eligibility for such benefits under paragraph (1) has been made, the alien shall be
provided such benefits.
(5) Clarification
Nothing in this section shall be construed as authorizing the Attorney General to
deny temporary protected status to an alien based on the alien's immigration
status or to require any alien, as a condition of being granted such status, either to
relinquish nonimmigrant or other status the alien may have or to execute any
waiver of other rights under this chapter. The granting of temporary protected
status under this section shall not be considered to be inconsistent with the
granting of nonimmigrant status under this chapter.
(b) Designations
(1) In general
The Attorney General, after consultation with appropriate agencies of the
Government, may designate any foreign state (or any part of such foreign state)
under this subsection only if-(A) the Attorney General finds that there is an ongoing armed conflict within
the state and, due to such conflict, requiring the return of aliens who are
nationals of that state to that state (or to the part of the state) would pose a
serious threat to their personal safety;
(B) the Attorney General finds that-(i) there has been an earthquake, flood, drought, epidemic, or other
environmental disaster in the state resulting in a substantial, but
temporary, disruption of living conditions in the area affected,
(ii) the foreign state is unable, temporarily, to handle adequately the
return to the state of aliens who are nationals of the state, and
(iii) the foreign state officially has requested designation under this
subparagraph; or

A2

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(C) the Attorney General finds that there exist extraordinary and temporary
conditions in the foreign state that prevent aliens who are nationals of the state
from returning to the state in safety, unless the Attorney General finds that
permitting the aliens to remain temporarily in the United States is contrary to
the national interest of the United States.
A designation of a foreign state (or part of such foreign state) under this
paragraph shall not become effective unless notice of the designation (including
a statement of the findings under this paragraph and the effective date of the
designation) is published in the Federal Register. In such notice, the Attorney
General shall also state an estimate of the number of nationals of the foreign
state designated who are (or within the effective period of the designation are
likely to become) eligible for temporary protected status under this section and
their immigration status in the United States.
(2) Effective period of designation for foreign states
The designation of a foreign state (or part of such foreign state) under paragraph
(1) shall-(A) take effect upon the date of publication of the designation under such
paragraph, or such later date as the Attorney General may specify in the notice
published under such paragraph, and
(B) shall remain in effect until the effective date of the termination of the
designation under paragraph (3)(B).
For purposes of this section, the initial period of designation of a foreign state
(or part thereof) under paragraph (1) is the period, specified by the Attorney
General, of not less than 6 months and not more than 18 months.
(3) Periodic review, terminations, and extensions of designations
(A) Periodic review
At least 60 days before end of the initial period of designation, and any
extended period of designation, of a foreign state (or part thereof) under this
section the Attorney General, after consultation with appropriate agencies of
the Government, shall review the conditions in the foreign state (or part of
such foreign state) for which a designation is in effect under this subsection
and shall determine whether the conditions for such designation under this
subsection continue to be met. The Attorney General shall provide on a timely
basis for the publication of notice of each such determination (including the
basis for the determination, and, in the case of an affirmative determination,
the period of extension of designation under subparagraph (C)) in the Federal
Register.
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(B) Termination of designation
If the Attorney General determines under subparagraph (A) that a foreign state
(or part of such foreign state) no longer continues to meet the conditions for
designation under paragraph (1), the Attorney General shall terminate the
designation by publishing notice in the Federal Register of the determination
under this subparagraph (including the basis for the determination). Such
termination is effective in accordance with subsection (d)(3), but shall not be
effective earlier than 60 days after the date the notice is published or, if later,
the expiration of the most recent previous extension under subparagraph (C).
(C) Extension of designation
If the Attorney General does not determine under subparagraph (A) that a
foreign state (or part of such foreign state) no longer meets the conditions for
designation under paragraph (1), the period of designation of the foreign state
is extended for an additional period of 6 months (or, in the discretion of the
Attorney General, a period of 12 or 18 months).
(4) Information concerning protected status at time of designations
At the time of a designation of a foreign state under this subsection, the Attorney
General shall make available information respecting the temporary protected
status made available to aliens who are nationals of such designated foreign state.
(5) Review
(A) Designations
There is no judicial review of any determination of the Attorney General with
respect to the designation, or termination or extension of a designation, of a
foreign state under this subsection.
(B) Application to individuals
The Attorney General shall establish an administrative procedure for the review
of the denial of benefits to aliens under this subsection. Such procedure shall
not prevent an alien from asserting protection under this section in removal
proceedings if the alien demonstrates that the alien is a national of a state
designated under paragraph (1).
(c) Aliens eligible for temporary protected status
(1) In general
(A) Nationals of designated foreign states

A4

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Subject to paragraph (3), an alien, who is a national of a state designated under
subsection (b)(1) (or in the case of an alien having no nationality, is a person
who last habitually resided in such designated state), meets the requirements of
this paragraph only if-(i) the alien has been continuously physically present in the United States
since the effective date of the most recent designation of that state;
(ii) the alien has continuously resided in the United States since such date as
the Attorney General may designate;
(iii) the alien is admissible as an immigrant, except as otherwise provided
under paragraph (2)(A), and is not ineligible for temporary protected status
under paragraph (2)(B); and
(iv) to the extent and in a manner which the Attorney General establishes, the
alien registers for the temporary protected status under this section during a
registration period of not less than 180 days.
(B) Registration fee
The Attorney General may require payment of a reasonable fee as a condition
of registering an alien under subparagraph (A)(iv) (including providing an alien
with an “employment authorized” endorsement or other appropriate work
permit under this section). The amount of any such fee shall not exceed $50. In
the case of aliens registered pursuant to a designation under this section made
after July 17, 1991, the Attorney General may impose a separate, additional fee
for providing an alien with documentation of work authorization.
Notwithstanding section 3302 of Title 31, all fees collected under this
subparagraph shall be credited to the appropriation to be used in carrying out
this section.
(2) Eligibility standards
(A) Waiver of certain grounds for inadmissibility
In the determination of an alien’s admissibility for purposes of subparagraph
(A)(iii) of paragraph (1)-(i) the provisions of paragraphs (5) and (7)(A) of section 1182(a) of this
title shall not apply;
(ii) except as provided in clause (iii), the Attorney General may waive any
other provision of section 1182(a) of this title in the case of individual
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aliens for humanitarian purposes, to assure family unity, or when it is
otherwise in the public interest; but
(iii) the Attorney General may not waive-(I) paragraphs (2)(A) and (2)(B) (relating to criminals) of such section,
(II) paragraph (2)(C) of such section (relating to drug offenses), except
for so much of such paragraph as relates to a single offense of simple
possession of 30 grams or less of marijuana, or
(III) paragraphs (3)(A), (3)(B), (3)(C), and (3)(E) of such section
(relating to national security and participation in the Nazi persecutions
or those who have engaged in genocide).
(B) Aliens ineligible
An alien shall not be eligible for temporary protected status under this section
if the Attorney General finds that-(i) the alien has been convicted of any felony or 2 or more misdemeanors
committed in the United States, or
(ii) the alien is described in section 1158(b)(2)(A) of this title.
(3) Withdrawal of temporary protected status
The Attorney General shall withdraw temporary protected status granted to an
alien under this section if-(A) the Attorney General finds that the alien was not in fact eligible for such
status under this section,
(B) except as provided in paragraph (4) and permitted in subsection (f)(3), the
alien has not remained continuously physically present in the United States
from the date the alien first was granted temporary protected status under this
section, or
(C) the alien fails, without good cause, to register with the Attorney General
annually, at the end of each 12-month period after the granting of such status,
in a form and manner specified by the Attorney General.
(4) Treatment of brief, casual, and innocent departures and certain other
absences
(A) For purposes of paragraphs (1)(A)(i) and (3)(B), an alien shall not be
considered to have failed to maintain continuous physical presence in the
United States by virtue of brief, casual, and innocent absences from the United
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States, without regard to whether such absences were authorized by the
Attorney General.
(B) For purposes of paragraph (1)(A)(ii), an alien shall not be considered to
have failed to maintain continuous residence in the United States by reason of a
brief, casual, and innocent absence described in subparagraph (A) or due
merely to a brief temporary trip abroad required by emergency or extenuating
circumstances outside the control of the alien.
(5) Construction
Nothing in this section shall be construed as authorizing an alien to apply for
admission to, or to be admitted to, the United States in order to apply for
temporary protected status under this section.
(6) Confidentiality of information
The Attorney General shall establish procedures to protect the confidentiality of
information provided by aliens under this section.
(d) Documentation
(1) Initial issuance
Upon the granting of temporary protected status to an alien under this section,
the Attorney General shall provide for the issuance of such temporary
documentation and authorization as may be necessary to carry out the purposes
of this section.
(2) Period of validity
Subject to paragraph (3), such documentation shall be valid during the initial
period of designation of the foreign state (or part thereof) involved and any
extension of such period. The Attorney General may stagger the periods of
validity of the documentation and authorization in order to provide for an orderly
renewal of such documentation and authorization and for an orderly transition
(under paragraph (3)) upon the termination of a designation of a foreign state (or
any part of such foreign state).
(3) Effective date of terminations
If the Attorney General terminates the designation of a foreign state (or part of
such foreign state) under subsection (b)(3)(B), such termination shall only apply to
documentation and authorization issued or renewed after the effective date of the
publication of notice of the determination under that subsection (or, at the
Attorney General's option, after such period after the effective date of the
A7

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determination as the Attorney General determines to be appropriate in order to
provide for an orderly transition).
(4) Detention of alien
An alien provided temporary protected status under this section shall not be
detained by the Attorney General on the basis of the alien's immigration status in
the United States.
(e) Relation of period of temporary protected status to cancellation of removal
With respect to an alien granted temporary protected status under this section, the
period of such status shall not be counted as a period of physical presence in the
United States for purposes of section 1229b(a) of this title, unless the Attorney
General determines that extreme hardship exists. Such period shall not cause a break
in the continuity of residence of the period before and after such period for purposes
of such section.
(f) Benefits and status during period of temporary protected status
During a period in which an alien is granted temporary protected status under this
section-(1) the alien shall not be considered to be permanently residing in the United
States under color of law;
(2) the alien may be deemed ineligible for public assistance by a State (as defined
in section 1101(a)(36) of this title) or any political subdivision thereof which
furnishes such assistance;
(3) the alien may travel abroad with the prior consent of the Attorney General;
and
(4) for purposes of adjustment of status under section 1255 of this title and
change of status under section 1258 of this title, the alien shall be considered as
being in, and maintaining, lawful status as a nonimmigrant.
(g) Exclusive remedy
Except as otherwise specifically provided, this section shall constitute the exclusive
authority of the Attorney General under law to permit aliens who are or may become
otherwise deportable or have been paroled into the United States to remain in the
United States temporarily because of their particular nationality or region of foreign
state of nationality.
(h) Limitation on consideration in Senate of legislation adjusting status

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(1) In general
Except as provided in paragraph (2), it shall not be in order in the Senate to
consider any bill, resolution, or amendment that-(A) provides for adjustment to lawful temporary or permanent resident alien
status for any alien receiving temporary protected status under this section, or
(B) has the effect of amending this subsection or limiting the application of
this subsection.
(2) Supermajority required
Paragraph (1) may be waived or suspended in the Senate only by the affirmative
vote of three-fifths of the Members duly chosen and sworn. An affirmative vote
of three-fifths of the Members of the Senate duly chosen and sworn shall be
required in the Senate to sustain an appeal of the ruling of the Chair on a point of
order raised under paragraph (1).
(3) Rules
Paragraphs (1) and (2) are enacted-(A) as an exercise of the rulemaking power of the Senate and as such they are
deemed a part of the rules of the Senate, but applicable only with respect to the
matters described in paragraph (1) and supersede other rules of the Senate only
to the extent that such paragraphs are inconsistent therewith; and
(B) with full recognition of the constitutional right of the Senate to change
such rules at any time, in the same manner as in the case of any other rule of
the Senate.
(i) Annual report and review
(1) Annual report
Not later than March 1 of each year (beginning with 1992), the Attorney General,
after consultation with the appropriate agencies of the Government, shall submit
a report to the Committees on the Judiciary of the House of Representatives and
of the Senate on the operation of this section during the previous year. Each
report shall include-(A) a listing of the foreign states or parts thereof designated under this section,
(B) the number of nationals of each such state who have been granted
temporary protected status under this section and their immigration status
before being granted such status, and
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(C) an explanation of the reasons why foreign states or parts thereof were
designated under subsection (b)(1) and, with respect to foreign states or parts
thereof previously designated, why the designation was terminated or extended
under subsection (b)(3).
(2) Committee report
No later than 180 days after the date of receipt of such a report, the Committee
on the Judiciary of each House of Congress shall report to its respective House
such oversight findings and legislation as it deems appropriate.

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