Hundreds of thousands of migrants are banking on the Supreme Court to overturn Kristi Noem's sweeping termination of temporary protected status for asylum seekers. The justices agreed to hear two of the cases Wednesday, marking a pivotal moment for roughly 1.3 million people in the U.S. living under TPS designations.
Last year, while serving as Homeland Security Secretary, Noem terminated TPS for 11 of the 15 nationalities eligible for the protection. The challenges now before the court focus on Syria and Haiti, with migrant advocates arguing the government skipped mandatory legal steps to reach those decisions.
The core dispute hinges on a technical but consequential question: whether courts can review TPS terminations at all. Federal law explicitly states that such decisions cannot be challenged in court. The government is leaning heavily on that language, arguing that courts have no authority to examine the decision-making process or the factual basis behind it.
But the migrants are reframing the fight as one about procedure, not substance. They contend that even if courts lack power to overturn policy choices, they can require the government to follow its own rules and actually conduct a country conditions review before pulling the plug on protections.
Ahilan Arulanantham, an attorney representing Syrian TPS holders, said on a recent call that the government's position amounts to blanket immunity. "If the government is correct, then they can terminate TPS without conducting any country conditions review at all," he said. That stakes-raising argument could reshape how the administration handles the nine remaining nationalities facing potential termination later in Trump's term.
Court filings reveal Noem's agency conducted limited vetting before acting. According to documents filed by TPS holders, "the sole correspondence from the State Department to DHS in the record is a two-sentence email concerning the TPS designations of four countries. The email never references country conditions." One anonymous former immigration official told the New York Times magazine that the process was hollow: "Countries I'd written up as unsafe a few months earlier were supposed to be safe now. It was a complete farce."
Noem's department countered that she was restoring integrity to the program by ensuring TPS remained truly temporary. "Congress forbade federal courts to second-guess TPS determinations, no matter whether courts would cavil with the final outcome, the Secretary's decisional process, the substantive reasoning, or something else," the government wrote in its filings.
The Haitian TPS challenge introduces another dimension. Holders of that status can argue their termination was racially motivated and predetermined by the Trump administration dating back to the campaign trail. A bipartisan House bill to reinstate Haitian protections passed, but the Senate has not moved it forward.
Even a Supreme Court victory for migrants may prove hollow. If the justices rule the terminations illegal, the new DHS Secretary Markwayne Mullin could simply conduct a more thorough review and reach the same conclusion, allowing the government to try again with a thicker paper trail.
Author James Rodriguez: "The government's 'trust us' argument might work, but asking the Court to block even a cursory glance at country conditions sets a dangerous precedent for executive power over vulnerable populations."
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