Immigrants With Temporary Legal Status Could Score Slim Win At Supreme Court

The Supreme Court may block the Trump administration's efforts to strip temporary legal status from more than a million immigrants.

After about two hours of oral arguments Wednesday, it appeared possible that advocates for Haitian and Syrian immigrants with Temporary Protected Status might persuade a narrow majority of the high court that the Trump administration failed to take some required legal steps before terminating their deportation protections.

Chief Justice John Roberts and Justice Amy Coney Barrett seemed like possible conservative votes to join the court’s liberal wing and rule that former Homeland Security Secretary Kristi Noem failed to adequately consult with the State Department before concluding that it was safe for so-called TPS holders to return to their home countries.

TPS allows immigrants whose home countries are ravaged by war, widespread unrest or natural disaster to live and work in the U.S. legally.

Officially, the cases that went before the justices Wednesday concern only Haiti and Syria, but the administration has followed a similar process in each of the 11 other countries it has sought to terminate from the program over the past year or so. The rulings in the Haiti and Syria cases, anticipated by the end of June, are expected to have a broad impact in litigation over TPS for immigrants from other countries.

Many or all of DHS’ consultations appear to have taken place solely through terse email exchanges. Before revoking TPS status for about 350,000 Haitians last year, a DHS official emailed a State Department colleague who replied just 53 minutes later: “State believes that there would be no foreign policy concerns with respect to a change in the TPS status of Haiti.”

Lower-court judges have ruled that was too meager to satisfy the law’s requirements to consult on the prevailing conditions in the countries the immigrants would have to return to. But the Trump administration contends that a provision in the TPS law bars any lawsuit challenging how Noem arrived at her decision and is clearly intended to prevent judges second-guessing the secretary about such matters.

“It’s almost like these district courts are appointing themselves junior varsity secretaries of State,” Solicitor General John Sauer told the justices.

However, lawyers for the immigrants said Congress was only trying to rule out second-guessing of the secretary’s ultimate conclusion and was not giving executive branch officials license to ignore the law’s explicit requirements regarding consultation, timing and other procedures.

Immigrant advocates appeared to be hoping for the same sort of victory they scored in 2019 when Roberts joined the liberal justices to block President Donald Trump’s administration from adding a citizenship question to the decennial census and in 2020 when Roberts again joined the liberal justices to stymie Trump’s effort to end the Obama-era program protecting so-called Dreamers from deportation.

In those cases, both decided 5-4, Roberts seized on a flawed process to invalidate the administration’s moves, while not questioning the administration’s essential power to act.

But that sort of result in the TPS cases would raise the question of how much practical benefit TPS holders would gain from a ruling that Noem didn’t jump through the proper hoops.

“Is this going to get you very much, I mean, if it's just kind of a box-checking exercise?” Barrett asked.

One of the immigrant advocates, Ahilan Arulanantham, said there would be a benefit to forcing the consultation the law requires.

“Congress and us, too, and the millions of people who live with TPS holders have some faith in government, and they believe that if there is consultation, the decisions will be better,” he said. “I'd … say turn the square corner and make them do it.”

In practical terms, such a result might give TPS recipients some additional time in the U.S and aid efforts many are making to gain legal status in other ways.

The high court also found itself again debating the legal relevance of sweeping statements Trump has made about immigrants, such as his unsubstantiated claim during the 2024 campaign that Haitians in Ohio were eating dogs and cats.

While curse words are rarely uttered in the Supreme Court chamber, another immigrant advocate invoked one of the vulgarities Trump has used to describe immigrants.

“The President has disparaged Haitian TPS holders specifically as undesirables from a shithole country,” the lawyer, Geoffrey Pipoly, noted. Earlier in the arguments, Justice Sonia Sotomayor sanitized the same Trump comment, noting that Trump referred to Haiti as a “filthy, dirty, and disgusting s—hole country."

Pipoly said the comment suggests not only a racial basis for the administration’s action, but that Noem was simply following orders from the president, who has signaled that he wants to end all TPS findings.

Trump administration officials have noted that some of the “temporary” designations have been in place for more than two decades after being repeatedly renewed under both Democratic and Republican presidents.