Judges can’t review refugee decision, circuit rules

The fate of hundreds of thousands of refugees from El Salvador and several other countries who have been in the United States for more than two decades under a temporary program will likely be determined by the outcome of the November election.

A sharply divided 9th U.S. Circuit Court of Appeals ruled Monday that courts have no authority to review the President Donald Trump's decision to end temporary protected status for refugees from four countries and vacated a preliminary injunction blocking their removal starting next year.

Ahilan T. Arulanantham, senior counsel of the American Civil Liberties Union's Southern California chapter who argued for the refugees, said he planned to seek en banc review of the panel decision from the 9th Circuit and then the U.S. Supreme Court if that fails.

But the attorney and his clients are placing most of their hopes on the November election, when they hope Democratic candidate Joe Biden will defeat the president. The Biden campaign has said the candidate, if elected, will not require those under the temporary program or the Deferred Enforced Departure program from being returned to countries that are unsafe.

Those individuals "who have been in the country for an extended period of time and built lives in the U.S. will also be offered a path to citizenship through legislative immigration reform," the Biden campaign wrote in a statement.

The largest contingent of people affected by the order came from El Salvador following a series of earthquakes in 2001 that displaced 30% of the population. More than 250,000 came to the U.S. under the temporary program and have remained ever since. Another 50,000 came from Nicaragua, Sudan and Haiti, along with an estimated 200,000 American citizens born in this country, according to the opinion.

9th Circuit Judge Consuelo M. Callahan, an appointee of President George W. Bush, vacated a preliminary injunction blocking the termination of temporary status which had been issued by U.S. District Judge Edward M. Chen of San Francisco -- an appointee of President Barack Obama.

Chen concluded the Trump administration's decision to end the temporary status for the refugees violated the Administrative Procedure Act and the equal protection clause under the Fifth Amendment.

Callahan, however, agreed with U.S. Department of Justice attorney Gerard Sinzdak, who maintained the courts have no role to play in extending or concluding temporary protected status.

"In other words, the statute not only sets forth very few legal parameters on what the secretary must consider in designating, extending, or terminating TPS for a foreign country, but also expressly bars judicial review over these determinations," Callahan wrote. Ramos et al. v. Wolf et al., 2020 DJDAR 10062 (9th Cir., filed Oct. 12, 2018).

Callahan rejected Chen's conclusion that the Trump administration's decisions were driven by discriminatory intent. The district judge ruled Trump "expressed racial animus against 'nonwhite, non-European' immigrants, and that the White House influenced the TPS termination decisions," according to the opinion.

Chen "cites no evidence linking the president's animus to the TPS terminations," Callahan wrote.

9th Circuit Judge Morgan B. Christen, an appointee of President Barack Obama, said the majority ignores testimony before Congress by former Secretary of Homeland Security Kirstjen M. Nielsen, who said she was changing how she interpreted the 1990 law not to consider intervening conditions in the country, a break from the practice of all previous administrations.

"The majority fails to acknowledge Supreme Court precedent requiring that an agency cannot depart from its prior policy or practice without acknowledgment or explanation, particularly where a prior agency policy has created serious reliance interests," Christen wrote.

The deciding vote was cast by Judge Ryan D. Nelson, a Trump appointee who sided with the government.

Alexa M. Vance, a DOJ spokeswoman, hailed the ruling. "For approximately two years, the district court's injunction prevented the Department of Homeland Security from taking action that Congress has vested solely within the discretion of the secretary of homeland security -- action that is statutorily precluded from judicial review," she said in a statement.

Refugees from Haiti are currently protected by a New York district judge's order, Arulanantham said.

Under the 9th Circuit panel ruling, the government can begin removing refugees from Sudan, Haiti and Nicaragua in early March, and those from El Salvador in November 2021 -- depending on Arulanantham's appeals and the outcome of the presidential election.