Labor & Employment Law Daily Wrap Up, IMMIGRATION—9th Cir.: Plaintiffs are likely to succeed on claim that vacatur of prior extension of TPS is not permitted, (Sep 2, 2025)

By Kathleen Kapusta, J.D.

“Congress has provided mechanisms for designating, extending, and terminating TPS, and the agency is not free to disregard them by relying on a vague invocation of ‘inherent authority.’”

The National TPS Alliance and seven individual TPS holders are likely to succeed on their claim that DHS Secretary Noem’s purported vacatur of a prior extension of Venezuelan TPS is not permitted by the governing statutory framework, the Ninth Circuit ruled. Affirming a district court order postponing the vacatur and termination of Venezuelan TPS, the appeals court also found the plaintiffs showed they face irreparable harm to their lives, families, and livelihood, that the balance of equities favors a grant of preliminary relief, and that postponement on a nationwide basis is the only remedy that provides complete relief to the parties and complies with the TPS statute (National TPS Alliance v. Noem, No. 25-2120 (9th Cir. Aug. 29, 2025)).

In 1990, President H.W. Bush signed the Immigration Act into law, amending the INA to create the Temporary Protected Status (TPS) program, which provides for the temporary protection of certain nationals of foreign countries. The law provides specific procedural steps and contains explicit time limitations. Prior to the law’s enactment, presidential administrations exercised discretion to grant protections from deportations to certain groups of noncitizens on an ad hoc basis.

In January 2021, then President Donald Trump designated Venezuela for Deferred Enforced Departure (DED) because they were experiencing the “worst humanitarian crisis in the Western Hemisphere in recent memory.” DHS Secretary Alejandro Mayorkas later designated Venezuela for an 18-month period of TPS and extended the designation through a series of actions during President Biden’s administration. Since 2021, over 600,000 Venezuelan citizens living in the United States have received immigration status under the TPS program, which provides eligible Venezuelans with, among other things, work authorization.

Vacatur. In February 2025, newly confirmed DHS Secretary Noem issued a notice purporting to vacate Mayorkas’ prior extension of Venezuelan TPS. She then moved to terminate TPS status, arguing that it was contrary to the national interest to extend Venezuelan TPS.

Prior court proceedings. The plaintiffs then sued to restore the January 2025 extension of Venezuelan TPS. They claimed that the DHS Secretary lacks vacatur authority under the TPS statute and that Secretary Noem’s actions violated the Administrative Procedure Act (APA) and the Equal Protection Clause of the U.S. Constitution. The district court granted preliminary relief, postponing the effective dates of Noem’s vacatur and termination notices under APA section 705.

Jurisdiction. Appealing, the government first argued that the court lacked judicial power to review the plaintiffs’ APA claim challenging the DHS Secretary’s statutory authority to vacate a prior extension of TPS. While the government relied on the TPS statute, which provides that there “is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection,” the court noted the strong presumption that Congress intends judicial review of administrative action in the absence of a contrary legislative intent.

And here, the court found no indication that Congress’s language restricting review of the Secretary’s determination of whether to grant TPS in a particular situation also extends to her conclusion as to the extent of her power under the TPS statute. Indeed, said the court, “the plain text of the statute, its legislative history, and the strong presumption that the scope of agency authority is reviewable all confirm that we are empowered to answer the question of whether the Secretary has the statutory authority to vacate a prior extension of TPS.”

Nor was the court persuaded by the government’s contention that it lacked jurisdiction to provide injunctive relief under the Immigration and Naturalization Act. The statute’s bar on injunctive relief for claims, said the court, does not affect challenges to actions that fall outside of a statutory grant of authority.

APA claim. Turning to the plaintiffs’ claim the Secretary’s vacatur was not authorized by the TPS statute because the statute authorizes only the designation, extension, or termination of TPS, and not the vacatur of an extension, the court found they were likely to succeed on the merits. The statute specifically addresses the time frame within which a TPS designation may be terminated and does not permit the Secretary to terminate a designation “midstream,” observed the court, noting that this is exactly what the Secretary purported to do here. Moreover, while the statute details procedures for designation, extension, and termination, it does not mention a process for vacatur, which, in this case, said the court, had the practical effect of a termination of a TPS designation. Thus, the court stated, “if the Secretary wished to end TPS status for Venezuelans, she is statutorily required to follow the procedures for termination that Congress enacted.”

While the government pointed to Secretary Mayorkas’s 2023 reconsideration and rescission of the termination of Salvadoran TPS to argue that this substantiates the existence of vacatur authority, the court noted that the prior administration’s 2018 termination of Salvadoran TPS had been enjoined for five years and had never gone into effect and Mayorkas rescinded the termination and extended Salvadoran TPS. “A prior violation of statutory authority does not excuse subsequent violations, nor does it affect the Congressionally-enacted scope of agency authority,” the court explained.

Reliance. The court also noted that Congressional limitations on the Secretary’s authority are further supported by reliance issues at play here. “Congress’s time limitations,” the court observed, “are meaningful to the regulated parties here—people who use this guaranteed time with ‘enough stability to work’ and ‘a decent standard of living’ to obtain employment, seek educational opportunities, and find long-term housing.” Accordingly, the court found the plaintiffs made out a strong case on the merits on their APA claim challenging the Secretary’s putative vacatur authority.

Irreparable harm. As to the irreparable harm factor, the court noted that for many Venezuelan TPS holders, the termination of their status exposes them to the risk of deportation and wrongful removal is a relevant factor in the irreparable harm analysis. Further, TPS holders also face a substantial likelihood of family separation.

In addition, for those that might be deported, Venezuela is rated by the U.S. State Department as a “Level 4: Do Not Travel” country because of the “high risk of wrongful detentions, terrorism, kidnapping, the arbitrary enforcement of local laws, crime, civil unrest, [and] poor health infrastructure.” As to those who might remain in the United States, without legal status they will lose their jobs, educational opportunities, and driver’s licenses. Thus, the court found the plaintiffs made a sufficient showing of irreparable harm.

Balance of equities/public interest. Regarding the balance of equities and the public interest, while both sides argued that the public is injured by the improper application of the laws, because the plaintiffs showed a likelihood of success on the merits, the court found this portion of the analysis favored them. In addition, the court found no clear error in the district court’s factual findings, including that stripping work authorization from Venezuelans in the United States negatively affects the economy and public safety because, among other reasons, they “work in frontline jobs” and “make significant economic contributions to their communities” and to the overall U.S. economy.

Moreover, observed the court, “the Government has never, in the thirty-five-year history of TPS, sought to vacate a prior extension of TPS. The Government’s assertion that such a vacatur is necessary now is undermined by the fact that it has never attempted to take such an action before.”

Scope of relief. Finally, as to the scope of relief, the court found the plaintiffs demonstrated that a postponement of the vacatur notice, effective nationwide, was the only remedy that provides complete relief to the parties and complies with the TPS statute. Plaintiff NTPSA, a membership organization, brought this challenge on behalf of its more than 84,000 members who are Venezuelan TPS holders in all 50 states and the District of Columbia. As the district court reasoned, “[f]ull relief for the NTPSA and its members cannot be obtained absent application to all fifty states and the District of Columbia.”

Nor, said the court, can relief be structured on an individual basis as “TPS does not allow for partial determinations; no Secretary has the authority to designate a country for TPS when it comes to California residents, but not for Pennsylvania residents.” Thus, the district court did not abuse its discretion by postponing the vacatur and termination notices.

The case is No. 25-2120.

Judge: Wardlaw, K.

Attorneys: Ahilan Thevanesan Arulanantham, UCLA School of Law, for National TPS Alliance, Mariela Gonzalez, Freddy Arape Rivas, and Cecilia Gonzalez Herrera. Carlton Frederick Sheffield, U.S. Department of Justice, for Kristi Noem, U.S. Department of Homeland Security and the United States.

Companies: National TPS Alliance

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