Ahilan Arulanantham, lead counsel for the plaintiffs in the case, said that they were "deeply disappointed" by the decision by the 9th U.S. Circuit Court of Appeals and they intend to seek review of the panel decision by all of the judges of the 9th Circuit and, should that not be successful, by the U.S. Supreme Court.
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Should the decision stand, the earliest dates on which the DHS could remove TPS holders from the U.S. is March 5, 2021, for people from Sudan, Nicaragua, Haiti, Honduras and Nepal and Nov. 5, 2021, for El Salvador. People from those countries have been allowed to stay in the U.S. due to war, disaster or other "extraordinary and temporary" conditions in their home countries.
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The ruling not only affects the TPS holders but more than 200,000 of their children who were born in the United States and hold U.S. citizenship, according to Arulanantham.
The majority opinion, authored by Judge Consuelo M. Callahan, found that Congress had decided that direct challenges to DHS decisions to terminate the TPS designations were not subject to review by the courts.
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The majority rejected arguments that review was appropriate because the plaintiffs challenged a collateral matter -- DHS abandonment of a long-standing practice of considering subsequent events in designated countries when considering TPS status.
The majority also rejected a challenge based on President Donald Trump's alleged "animus" against people from the designated countries.
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In entering the injunction, the District Court had found that Trump's public comments revealed "an animus against non-white, non-European aliens". The majority found there was no evidence that Trump's alleged animus influenced DHS' decision to terminate the designations.
In a 50-page dissenting opinion, Judge Morgen Christen sharply disagreed with the majority.
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She said, "the consequences of the majority's decision are monumental, but the majority's reasoning is deeply flawed."
Christen would have affirmed the District Court's decision based on her view that the plaintiffs did not directly challenge the DHS termination, but the collateral policy change.
Callahan and Judge Ryan D. Nelson, who concurred in the decision, were appointed to the 9th Circuit by Presidents George W. Bush and Trump, respectively. Judge Christen was appointed by President Barack Obama.