9th Circuit Again Blocks Deportation of 600,000+ Venezuelans Whose "Temporary Protected Status" Was Ended By DHS Sec. Noem

Supreme Court granted a stay of lower court injunction after 9th Circuit refused first time -- now the 9th Circuit declines to grant a stay again.

When a Court includes language at the outset of its Order like what appears in the screenshot above, it is not hard to figure out how this story ends. Last week a panel of the Ninth Circuit Court of Appeal denied the application for a stay of the lower court’s order in National TPS Alliance v. Noem.

I wrote about this case in this earlier article. I think it is helpful to recap the procedural history of this case to understand just how much the Appeals Court is working “hand in glove” with the District Court in trying to forestall the Administration’s efforts to deport 600,000+ Venezuelans who were not vetted when they illegally entered in the United States.

The full history leading up to Sec. Noem’s decision that is at issue is recounted in my earlier article. Shortly before the end of the Biden Administration, DHS Sec. Mayorkas issued two orders regarding the TPS status given to Venezuelans illegally in the United States. The effect of the two orders was to extend the TPS status of both groups — supposedly limited by statute to 18 month increments — so that their TPS status would continue until October 2026. That would be 21 months into the Trump Administration. Nice trick.

After she was confirmed, DHS Sec. Noem vacated both orders entered by Mayorkas — which were both set to take effect in the future — resetting the end of TPS status of the two groups involved back to the April 2025 and Sept. 2025 dates that applied prior to Mayorkas’ actions.

Here is the timeline of events leading up to the Ninth Circuit’s refusal to grant a stay even after the Supreme Court previously granted a stay — which, under the legal standard, meant the Supreme Court concluded the Government was likely to succeed on the merits, and would be irreparably harmed if a stay was not granted.

April 4: A district judge in San Francisco issued a preliminary order delaying the effect of Sec. Noem’s order on the grounds that she likely lacked authority under the statute to issue the order, and even if she had the authority her decision was “arbitrary and capricious” and therefore in violation of the APA.

April 18: The Ninth Circuit denied the Government’s application to stay the district court order pending appeal.

May 19: The Supreme Court granted a stay — meaning Sec. Noem’s cancellation was back in effect. The Supreme Court offered no explanation for its decision. Only Justice Jackson indicated that she would have denied the Stay — suggesting an 8-1 lineup in favor of the Stay.

August 29: Ninth Circuit upheld the district court order in the appeal, but the Supreme Court’s stay remained in place.

Sept. 5: District Judge granted summary judgment in favor of Venezuelans, finding Sec. Noem’s actions beyond her authority, and even if within her authority her decision was arbitrary and capricious.

This is a final order in the case — not a preliminary order. The earlier Supreme Court stay was specific that it applied to the district court’s March 31, 2025 preliminary order.

The district court denied a motion to stay the effect of its final order, and last week the Ninth Circuit also denied an application to stay the lower court order. So, once again, the district court and the Ninth Circuit have combined to extend the TPS for Venezuelans until October 2026 unless the Supreme Court intervenes with regard to this final order as it did on the preliminary order.

The Solicitor General did file an Application for Stay of the District Court’s judgment with the Supreme Court on September 19. Justice Kagan set the response from National TPS Alliance for September 29.

But what about that Supreme Court’s stay of the earlier preliminary order? Here is how the Ninth Circuit addressed that minor inconvenience:

First, the Supreme Court’s stay order was textually limited to “[t]he March 31, 2025 order entered by the” district court, and the appeal of that order to our court. As the district court recognized, that order “did not bar [the district court] from adjudicating the case on the merits and entering a final judgment issuing relief under… the APA.”

All of that is true. The Order issued by the district court on September 5 is a new Order, different in content, reasoning, and effect than the March 31 order.

But the more difficult question is what significance should the Ninth Circuit attribute to the Supreme Court’s earlier decision by a seemingly 8-1 outcome.

[T]he unreasoned stay order in this case provides no analysis to inform our view of the equities in this posture and on this record. We can only guess as to the Court’s rationale when it provides none. Perhaps the Court found that the record was not developed sufficiently as to the issue of irreparable harm to the plaintiffs. Perhaps it was concerned about our jurisdiction. Therefore, without more, we cannot say that the Court’s May 19, 2025 order “squarely control[s]” our decision on a later, distinct emergency stay motion, presented in a different procedural posture and on a different record.

There is merit to this argument in some respect — the Supreme Court did not give any reason for its decision to grant the stay.

But, as hinted at by the language above, the Ninth Circuit knows that there are some crumbs to follow — it is a near certainty that the Supreme Court was persuaded by one of the two grounds raised by the DOJ in its application, i.e., that the lower courts lacked jurisdiction to entertain the challenge to Sec. Noem’s decision, or that Sec. Noem’s decision was within the scope of her authority and was not arbitrary and capricious. It would be extraordinary if the Supreme Court Justices were in agreement on the stay for reasons separate from those raised by the Government.

Of the two arguments advanced by DOJ in its earlier application which likely was the reason for the Supreme Court’s decision, I’m going to address only the question of whether Noem had authority under the statute at issue ot “vacate” the orders entered by Mayorkas. The reason I’m doing so it to provide a nice juxtaposition to the decision in the case involving fired Federal Reserve Governor Lisa Cook on how to interpret statutory language.

Recall that the Cook case involves a dispute over what Congress meant by the phrase “for cause.” The judge in that case decided that because Congress had used the language “for inefficiency, neglect of dury, or malfeasance in office” in related statutes on the question of removing federal officials from their positions, Congress must have meant that same phrase while using “for cause” as an generic reference and definition of “cause” — even though those works appear nowhere in the statute authorizing the termination of a Federal Reserve Board Governor. I wrote more about the Cook case in this earlier article.

In the National TPS Alliance case, a question arose before the District Court — and later addressed by the Ninth Circuit — about what Congress intended in a statute that limited the ability of courts to involve themselves in immigration matters. The Government cited this statute for the proposition that the District Judge was acting beyond this jurisdiction in evaluating the legality of Sec. Noem’s decision to vacate the orders issued by Sec. Mayorkas three days before the end of the Biden Administration.

Here is the text of the statute in question — 8 U.S.C. Sec. 1254a(b)(5)(A):

(5)Review

(A)Designations: There is no judicial review of any determination of the [DHS Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.

The Ninth Circuit had rejected this argument by the Government in its Order affirming the District Court’s preliminary injunction on August 29. It began its analysis with the following observation:

Courts strongly presume that Congress intends judicial review of administrative actions…. This presumption can only be overcome by “clear and convincing evidence of a contrary legislative intent.”

“There shall be no judicial review…” is how the statute in question begins. But that wasn’t good enough for the Ninth Circuit judges — one Clinton and two Obama appointees.

They rationalized that the APA challenge to Sec. Noem’s announcment “vacating” the extensions ordered by Mayorkas was a challenge not to her merits of decision, but rather a challenge alleging that her decision was beyond her authority. That question, the Court said, was not covered by the jurisdiction-stripping language because it was not a “designation,” “termination,” nor an “extension” of TPS status. Those are the only acts by a DHS Secretary that are covered by the jurisdiction-stripping statute — the statute did not apply to “vacating” the “extension” granted by Mayorkas.

Returning to the Fed Governor’s case — Lisa Cook — the District Court there, affirmed by the D.C. Circuit, held that “for cause” language in the statute had a meaning that Congress had not expressly provided, and the meaning not provided by Congress dramatically narrowed the prerogatives of the President in removing a Federal Reserve Board Governor.

In the TPS case, both the District Court and the Appeals Court unanimously agree that a statute beginning with “There shall be no judicial review…” of the exercise of discretionary authority of the DHS Secretary regarding TPS did not preclude review of an order “vacating” a TPS designation because that was not a “designation, extension, and termination” — the only language used by Congress. In that way, the authority of the Executive branch was constrained and subject to judicial hindrance.

Notice a theme?

As noted, the Solicitor General has filed for a stay with the Supreme Court.