The case involves a challenge by the National TPS Alliance and individual beneficiaries against Secretary of Homeland Security Kristi Noem's actions regarding Temporary Protected Status for Haiti and Venezuela. Following the 2025 election, Secretary Noem issued notices to vacate a prior extension of TPS for Venezuela and to terminate the TPS designation for Venezuela, while also shortening the extension period for Haiti. Plaintiffs sued, arguing that the Secretary lacked the statutory authority to vacate prior designations and that her actions violated the Administrative Procedure Act and the Equal Protection Clause. A district court granted summary judgment in favor of the plaintiffs, setting aside the Secretary's actions. The Ninth Circuit panel affirmed, holding that the statutory bar on judicial review did not apply to challenges regarding the scope of the Secretary's authority. The government sought a stay pending appeal, which the Supreme Court granted twice, but the Ninth Circuit ultimately denied the petition for rehearing en banc.
The panel's reasoning centered on the interpretation of the judicial review bar in the Temporary Protected Status statute, 8 U.S.C. § 1254a(b)(5)(A). The court rejected the argument that this provision precludes all review of the Secretary's determinations. Instead, the court distinguished between challenges to the Secretary's specific determinations regarding country conditions—which are unreviewable—and challenges to the 'scope and extent of statutory authority' granted to the Secretary. The court reasoned that Congress did not expressly grant the Secretary the power to 'vacate' a prior lawful designation or extension. Because the Secretary's actions were predicated on a power not found in the statute, the court held these were ultra vires acts subject to judicial review under the Administrative Procedure Act. The court relied on the strong presumption of judicial review and Supreme Court precedents like McNary v. Haitian Refugee Center to support this reading. The court further addressed the Supreme Court's stay orders, noting that such orders do not conclusively determine the merits or jurisdiction, and that the panel's interpretation aligns with the holdings of other federal courts. The concurrence emphasized that the Secretary's actions were pretextual and driven by animus, reinforcing the conclusion that the agency failed to provide a reasoned explanation for its actions.
The denial of rehearing en banc leaves the Ninth Circuit's panel decision in place, which sets aside the Secretary's vacatur and termination of TPS for Haiti and Venezuela. This means the prior designations and extensions remain legally effective unless and until the Supreme Court resolves the underlying merits or Congress acts. However, the Supreme Court's previous stay orders indicate that the government may still seek to enforce the termination pending final resolution. The decision clarifies that challenges to the scope of the Secretary's authority under the TPS statute are reviewable, but it leaves open the question of whether the Secretary possesses any inherent or implied power to vacate prior designations. The ruling also highlights the ongoing tension between the judiciary's role in reviewing agency actions and Congress's intent to limit judicial review in immigration matters.
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