On Sept. 14, 2020, in a 2-1 ruling, the 9th U.S. Circuit Court of Appeals reversed and vacated a U.S. District Court’s preliminary injunction in 2018 that barred the Department of Homeland Security from implementing or enforcing its determinations to terminate Temporary Protected Status for Sudan, Nicaragua, Haiti and El Salvador while the case continued its way through the legal system.
The 9th Circuit’s ruling determined that the Trump administration’s decision to phase out TPS was not reviewable under the Administrative Procedures Act and that the plaintiffs failed to show a likelihood of success, or even serious questions, on the merits of their Equal Protection claim—in essence, paving the pathway for termination of TPS for those countries while a lawsuit on the merits of the termination proceeds.
ABC has continued to urge Congress to take legislative action to ensure that TPS holders can continue to work legally in this country. ABC and other construction industry leaders have expressed concerns about ending TPS designations in a 2017 letter and a 2018 letter to congressional leaders.
As a member of the Essential Worker Immigration Coalition, ABC supports the advancement of business-centric, balanced immigration reform to meet the needs of the American workforce and job creation. EWIC issued a statement on the Sept. 14 ruling that reiterated the coalition’s support for a legislative solution that provides a more permanent lawful status for immigrant workers, as many of those in TPS and DACA are contributing to our national economy, our communities and our industries.
Under the Immigration Act of 1990, the secretary of Homeland Security has authority to extend TPS protections to eligible foreign-born individuals if there is a crisis in their home country that prevents them from returning home, such as an armed conflict or environmental disaster. Designations are made for periods of six to 18 months and can be extended by the secretary after a review of the country’s conditions.
When a country is designated for TPS, foreign nationals from those countries who are in the United States when the designation is granted must apply and pay significant fees in order to be eligible to receive a temporary stay of deportation and temporary work authorization while their home country maintains its TPS designation. According to the Congressional Research Service, the United States currently provides TPS to approximately 411,000 foreign nationals from 10 countries: El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, South Sudan, Sudan, Syria and Yemen.
From September 2017 through May 2018, DHS announced the termination of TPS designations for Sudan, Nicaragua, Haiti and El Salvador. However, in a federal challenge, Ramos v. Nielsen, plaintiffs argued that the agency’s decisions violated the Administrative Procedures Act and their constitutional right to equal protection; a U.S. District Court enjoined DHS from implementing or enforcing the termination plans pending a final resolution of the case on the merits. As part of that injunction, TPS designations for these countries and thereby protections for beneficiaries were automatically extended through Jan. 2, 2020. To ensure its continued compliance with the preliminary injunction, DHS issued a subsequent notice automatically extending the TPS designations for Sudan, Nicaragua, Haiti and El Salvador through Jan. 4, 2021.
The Ruling’s Impact on the Construction Industry
The four countries subject to the 9th Circuit’s decision make up a supermajority of the TPS population in the United States—386,871—and their labor force participation rate tends to range from 81%—88%. According to a report in the Journal on Migration and Human Security, the construction industry employs 51,700 TPS beneficiaries from El Salvador, Honduras and Haiti—the largest percentage of any industry.
While the loss of so many construction workers would be harmful for the industry, it is important to note that TPS beneficiaries from the four countries will not see an immediate impact to their status or work authorization. Not including the additional time for the plaintiff-appellees to seek additional court review, TPS benefits will remain in place for at least 120 days following notice from the U.S. Citizenship and Immigration Services that the transition period has begun. Due to a bilateral agreement signed between the United States and El Salvador, TPS benefits for Salvadorans will remain in place for 365 days. Meanwhile, TPS benefits for Haiti will remain in place until further notice, pursuant to a preliminary injunction issued in a separate case, Saget v. Trump.
Ahilan Arulanantham at the American Civil Liberties Union of San Diego, who argued the case in court, said the ACLU plans to ask a full panel of 9th Circuit judges to review the case, which would likely result in further extension of TPS benefits for these four countries. The case is also likely to be eventually sent to the U.S. Supreme Court, which could further delay the outcome. This also means that any final determination on the status of TPS will be overseen by whichever party wins the November presidential election—Former Vice President Joe Biden has said that he intends to retain the program if he is elected president in November.