Author: Rose H. Robbins

Opinion in Ramos v. Wolf, Case No. 18-16981

Summary of Opinion, Ramos v. Wolf, Case No. 18-16981

Date: September 14, 2020

Immigration /Preliminary Injunction

“The panel vacated a preliminary injunction barring implementation of decisions to terminate Temporary Protected Status (TPS) designations of Sudan, Nicaragua, Haiti, and El Salvador, and remanded, holding that: (1) judicial review of Plaintiffs’ claim under the Administrative Procedure Act (APA) is barred by 8 U.S.C. § 1254a(b)(5)(A); and (2) Plaintiffs failed to show a likelihood of success, or even serious questions, on the merits of their Equal Protection claim.

The TPS program is a congressionally created humanitarian program administered by the Department of Homeland Security (DHS) that provides temporary relief to nationals of designated foreign countries that have been stricken by a natural disaster, armed conflict, or other “extraordinary and temporary conditions in the foreign state.” 8 U.S.C. § 1254a(b). In 2017 and 2018, Secretaries of DHS under the Trump Administration terminated the TPS designations of the four countries.

Plaintiffs, who are TPS beneficiaries from these countries and their children, challenged the terminations on two grounds. First, Plaintiffs alleged that DHS justified the terminations with a novel interpretation of the TPS statute that rejected, without explanation, a decades-old agency policy and practice of considering “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.” Second, Plaintiffs alleged that DHS’s new rule was motivated in significant part by racial and national-origin animus against “non-white and non-European immigrants,” which was “evidenced by numerous statements made by President Donald J. Trump and other officials.” The district court entered a preliminary injunction barring implementation of the termination decisions, concluding that the balance of hardships weighed in Plaintiffs’ favor and that, under the applicable “sliding scale” preliminary injunction standard, Plaintiffs had established serious questions on the merits of both their claims.

First, the panel held that the district court abused its discretion in issuing the preliminary injunction when it deemed Plaintiffs’ APA claim reviewable. The panel concluded that Plaintiffs’ claim was unreviewable in light of 8 U.S.C. § 1254a(b)(5)(A), which states: “There is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” Considering the issue in light of relevant precedent, the panel concluded that § 1254a(b)(5)(A) precludes review of non-constitutional claims that fundamentally attack the Secretary’s specific TPS determinations, as well as the substance of her discretionary analysis in reaching those determinations, but does not bar review of a challenge to an agency “pattern or practice” that is collateral to, and distinct from, the specific TPS decisions and their underlying rationale.

Applying these principles, the panel concluded that the APA claim was not reviewable, explaining that the claim does not challenge any agency procedure or regulation, but rather essentially raises a substantive challenge to the Secretary’s underlying analysis. Moreover, the panel noted that consideration of “intervening events” in a TPS determination is a task squarely within the agency’s “special expertise” and “institutional competence,” and that Plaintiffs appeared to seek direct relief from the challenged decisions, rather than collateral relief.

Second, the panel held that the district court abused its discretion in concluding that Plaintiffs presented at least serious questions on the merits of their Equal Protection claim. The panel rejected the Government’s argument that the court should apply the deferential rational basis review standard applied in Trump v. Hawaii, 138 S. Ct. 2392 (2018), as opposed to the standard articulated in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977). The panel explained that the level of deference that courts owe to the President in his executive decision to exclude foreign nationals who have not yet entered the United States may be greater than the deference to an agency in its administration of a humanitarian relief program established by Congress for foreign nationals who have lawfully resided in the country for some time.

Applying Arlington Heights, under which Plaintiffs needed to show that racial discrimination was at least a motivating factor for the challenged TPS terminations, the panel concluded that Plaintiffs failed to present even serious questions on the merits of their animus claim. The panel explained that, while the district court’s findings that President Trump expressed racial animus against “non-white, non-European” immigrants, and that the White House influenced the TPS termination decisions, were supported by record evidence, the district court cited no evidence linking the President’s animus to the TPS terminations—such as evidence that the President personally sought to influence the TPS terminations, or that any administration officials involved in the TPS decision-making process were themselves motivated by animus.

Concurring, Judge R. Nelson addressed two issues implicating separation-of-powers concerns. First, Judge Nelson wrote that the district court erred by not waiting until after the government produced the administrative record to order extra-record discovery. He wrote that errors like this are an affront to the limited waiver of sovereign immunity under the APA, disrespect the integrity of the administrative process, and improperly subvert the executive branch to the judiciary. Second, Judge Nelson addressed the increasing frequency of universal injunctions, observing that such an injunction issued recently by a district court in New York on Haiti’s TPS designation effectively nullified part of the panel’s decision. He wrote that universal injunctions: (1) result in an imbalance of power between the judicial and the other branches of government because such injunctions disregard the usual constraints on judicial powers by binding parties not before the court; and (2) lead to a lack of percolation of issues among the circuits that has serious consequences for judicial decisionmaking and breeds the more serious problem of “forum-shopping.” Judge Nelson wrote that courts must carefully assess not only limits on injunctive relief, but also those under Rule 23, before granting universal relief.

Dissenting, Judge Christen wrote that she would affirm the district court’s order. She wrote that the majority erred by concluding that the panel lacked jurisdiction to review Plaintiff’s APA claim. In her view, Plaintiffs’ claim is a classic and reviewable collateral challenge because the complaint plainly alleged that the Secretary violated the APA by interpreting the TPS statute in a way that starkly differs from previous administrations and by denying that there had been any resulting change to the agency’s practice of considering intervening events. Judge Christen also wrote that Plaintiffs demonstrated a likelihood of success on the merits of their claim, observing that the district court identified an unambiguous and abrupt change in DHS’s practice, and that the record includes compelling evidence that the process DHS used resulted from the Secretaries’ new interpretation of the TPS statute. Judge Christen also wrote that she agreed with the majority’s decision not to reach the issue of whether the district court prematurely ordered discovery.

With respect to the Equal Protection claim, Judge Christen wrote that the doctrine of constitutional avoidance counsels that the panel should not reach the claim at this stage because the preliminary injunction is easily supported by Plaintiffs’ demonstration that they will likely succeed on their APA claim alone.”   …… click here to read Opinion in  Ramos v. Wolf, Case No. 18-16981

 

The Law Offices of Rose H. Robbins represents immigration clients all over the United States and all over the world.  Please call us at: (954) 946-8130 to schedule your telephone consultation.  At the option of the attorney, your scheduled telephone consultation may be FREE.

You may also fill out the “Contact an Immigration Lawyer” form below for instant delivery to our confidential email system.  The Law Office of Rose H. Robbins will contact you within twenty-four (24) business hours of receipt of this form to discuss your questions. I understand that by submitting this form that the Law Office of Rose H. Robbins does not represent me and are are not my attorney and there is no attorney-client relationship by submitting my question or requesting that the Law Office of Rose H. Robbins contact me. I understand that the ONLY way that the Law Office of Rose H. Robbins will represent me is by entering into a written fee agreement/retainer agreement and that this form is not a fee agreement/retainer agreement.

We look forward to hearing from you!