The Trump Administration has removed the Temporary Protected Status designation from several countries, including Honduras, Nicaragua, and Haiti. I have discussed possible avenues for relief in a prior post. In this post, I will discuss possible challenges under the Immigration and Naturalization Act (INA) to the Administration’s decisions to revoke such designations.
Temporary Protected Status (TPS) allows the government of the United States to designate nationals of certain countries, already in the country, as protected from removal. The law allows these national to apply for Employment Authorizations, as long as such designation remains.
The Immigration and Naturalization Act allows the Attorney General, in consultation with other departments, may designate a country for TPS if:
The INA also delineates the procedures that should be taken to terminate a designation of certain countries. The Attorney General may remove such designation if the abovementioned conditions no longer exist. The Attorney General shall publish such termination at least 60 days for the termination to be effective.
Practitioners, advocacy groups, and nationals of these countries agree that little has changed since these countries were designated, necessitating the removal of such designation. In Haiti’s case, for example, the World Bank reports that the country remains vulnerable to natural disasters leaving more than 90 percent of its population in peril. The report mentioned that, although the country has made some strides, it is still unlikely to be able to absorb the influx of nationals into its territory. As to Nicaragua, the decision to remove the designation was allegedly based on an assessment that the conditions for such designation no longer exist. There was no further discussion of the facts behind such decision.
Unfortunately, the INA removes the private right to sue to review such decisions. Section 244 of the INA clearly says that such review is not allowed in federal court.
Unfortunately, the remaining options under the INA and the Administrative Procedures Act (APA) are very limited. I compare this to the notion of consular non-reviewability. This notion bars any party from suing a consular officer in federal court regarding a denial of an immigrant or non-immigrant visas at the consulate level. However, like anything in the law, there are exceptions. For example, a United States citizen may sue a consular officer if he violates the Constitution in making his decision to deny a visa. For example, an officer may not deny a visa because of the applicant’s ethnicity for example. The Supreme Court allowed challenges to the doctrine when a constitutional right of a United States citizen is implicated. So, even if a challenge under the INA and APA might be precluded, a constitutional challenge might be successful.
I think a challenge based on the violation of a liberty interest of a United States citizen may be successful. I have met many Haitians who have lived here in the United States for a long time, and have parented United States citizen children. Such liberty interest might be implicated in an Equal Protection or Due Process challenge to such decisions. It is important to underscore that such challenges are extremely difficult, and have not been tested in court to this date.
As I mentioned in the previous post, I believe that every national of these countries currently in the United States should consult with an immigration attorney as soon as possible. Call us today at 1(888)963-7326 (DREAM) to discuss your options.
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