The Trump administration turned to the Supreme Court for the second time Friday as it seeks to forge ahead with its efforts to strip protections from deportation for Venezuelans in the U.S.
The Friday filing asks the high court to block an appeals court decision that found Homeland Security Secretary Kristi Noem lacked the authority to vacate the protections for some 600,000 Venezuelans.
A three-judge panel for the Ninth Circuit Court of Appeals in August reinstated Temporary Protected Status (TPS) for Venezuelans in the U.S., which was lifted by the Supreme Court despite a lower court ruling determining the Trump administration unlawfully axed the protection.
Former Homeland Security Secretary Alejandro Mayorkas redesignated TPS for Venezuela shortly before leaving office, pointing to the “complex, serious and multidimensional humanitarian crisis” in the country.
At issue in the case is whether Noem can simply “vacate” a prior secretary’s determination.
TPS is both given and terminated in a process that requires formal notice in the Federal Register, including an analysis of conditions on the ground in the country in question.
A San Francisco-based judge and the Ninth Circuit both found Noem lacked the authority to simply rescind the protections offered under Mayorkas.
“We hold that Plaintiffs are likely to succeed on their claim that the vacatur of a prior extension of TPS is not permitted by the governing statutory framework. In enacting the TPS statute, Congress designed a system of temporary status that was predictable, dependable, and insulated from electoral politics,” the panel wrote.
“A reading of the statute that allows for vacatur would render these terms—and Congress’s design—meaningless,” the court said, adding that TPS holders “have demonstrated that they face irreparable harm to their lives, families, and livelihood” if their protections are stripped.
In its filing before the Supreme Court, the Trump administration argued they would face greater harm by not being able to begin deporting Venezuelans .
“So long as the district court’s order is in effect, the Secretary must permit over 300,000 Venezuelan nationals to remain in the country, notwithstanding her reasoned determination that doing so even temporarily is ‘contrary to the national interest,’” the government wrote.
The Supreme Court in May paused the ruling from a lower court judge, siding with the Trump administration in allowing them to resume deportations while returning the case to the circuit court.
But additional court review blocked the vacatur from taking effect.
California-based U.S. District Judge Edward Chen determined in April the government did not follow proper procedure for stripping TPS, and that the administration was “motivated at least in part by animus.”
“As discussed in other parts of this order, the Secretary’s rationale is entirely lacking in evidentiary support. For example, there is no evidence that Venezuelan TPS holders are members of the [Tren de Aragua] gang, have connections to the gang, and/or commit crimes,” Chen wrote, noting that “Venezuelan TPS holders have lower rates of criminality than the general population and have higher education rates than the broader U.S. population.”
