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July 9, 2020 — In recent months, the checks and balances provided by the judicial system have provided a critical tool to uphold the rule of law, and derail some of the most damaging immigration measures implemented as part of the white supremacist agenda of the Trump administration. Going to the courts has allowed human rights advocates to challenge the actions of the executive branch when they lack legal justification, cast aside established procedures, or that are the product of an anti-immigrant agenda that fails to consider the impact of the policies on migrants and their families.
The case of Ramos v. Nielsen is one important example of this approach, and it is a good illustration of both the creativity of civil society rights defenders and immigrant communities, as well as the fragility of litigation as a counter-measure to the concerted anti-immigrant agenda emanating from the White House. Right now, more than 300,000 people protected under Temporary Protected Status (TPS) and their families anxiously await a ruling from the Ninth Circuit Court of Appeals.
The Ramos lawsuit was filed in 2018 by the American Civil Liberties Union (ACLU) on behalf of TPS holders from El Salvador, Haiti, Nicaragua, and Sudan and their children. The lawsuit questions the reasons put forth by the Trump administration to end temporary protections, given conditions in the countries of origin that were documented by a diverse set of US Government and independent reports. The federal judge deciding the case issued an injunction ordering that TPS programs remain in effect during the litigation process, in order to avoid irreparable harm to TPS holders and their families (who could otherwise have been subject to deportation while the litigation moved forward). The government filed an appeal against this precautionary measure before the Ninth Circuit Court of Appeals. That is the ruling that is expected very soon. However, this would not necessarily be the final decision in this case. Depending on the outcome, the plaintiffs or the government could request that the decision be reviewed again by a larger panel of judges, a process called “en banc review”, or they could request that theo Supreme Court take up the case. Litigation is always a long-term effort and if it were not for precautionary measures, such as the one issued in this case, justice could come too late to the people with TPS.
Within months of the first lawsuit, another was filed with similar arguments regarding the termination of TPS for Nepal and Honduras. The case is known as Bhattarai v. Nielsen. In March 2019, the plaintiffs and the Trump administration presented an agreement to the judge requesting the suspension of the litigation of this second case until the Ramos case is resolved. Another case brought on behalf of Haitian, Salvadoran and Honduran TPS holders, Centro Presente v. Trump is also on hold, pending the Ramos decision. According to what the Court of Appeals decides in the Ramos case, the Bhattarai or Centro Presente cases could continue to be litigated or not, as well as other pending cases such as NAACP v. DHS, Casa de Maryland v. Trump, y Moreno v. Nielsen. Haitian people, for instance, will continue with a valid TPS, until the Saget v. Trump case is decided.
Even if the decision of the Ninth Circuit Federal Court ends up being the final decision (and depending on what it orders), there will be a transition period of at least 120 days before the government takes any action against the people covered by TPS. In the case of El Salvador, it was announced that the transition period will be 365 days, as part of agreements reached between the two governments.
The outcome of court battles to keep TPS in place is of vital concern to the hundreds and thousands of people who depend on that protection, but even if the ruling that is expected in the coming days produces the best possible outcome, it will offer a temporary respite. Congress must move a legislative fix to move people with precarious temporary protections such as TPS and DACA to permanent protection and allow them to apply to become lawful permanent residents. Such action is long overdue for people who have already contributed so much to this country, and are firmly embedded as valued members of thousands of local communities.
