Imagine that you are a foreign national vacationing in New York when a civil war breaks out in your home country. Political dissidents, as well as bystanders who are unfortunate enough to get in the way of the warring factions, are being killed by the thousands. Meanwhile, the tourist visa allowing you to remain in the United States will expire soon, and returning home could mean a death sentence.
A 1990 federal law offers humanitarian relief to many foreign nationals who face this kind of dilemma. Under the law, the Department of Homeland Security (DHS) may offer “temporary protected status” to noncitizens who are already present in the United States during an “armed conflict” in their home nation, or if a natural disaster or some other catastrophe has made their home country unsafe. (Prior to 1990, foreign nationals in these circumstances could sometimes remain in the US under a program called “extended voluntary departure.” The 1990 law formalized the process that determines who may stay.)
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As the program’s name suggests, temporary protected status (TPS) is temporary. DHS is supposed to periodically review the list of countries whose nationals may seek this status, and to remove countries from the list once the humanitarian crisis abates. TPS holders must register, and they are ineligible if they have a felony conviction, more than one misdemeanor conviction, or if they have ties to drug trafficking or terrorism. People with TPS status may work in the United States during their temporary residence.
The Trump administration, as part of its harsh overarching approach to immigration, is hostile to the TPS program. On his first day back in office, President Donald Trump issued an executive order with the hyperbolic title “Protecting the American People Against Invasion.” Among other things, Trump ordered his Cabinet to ensure that TPS designations “are appropriately limited in scope and made for only so long as may be necessary to fulfill the textual requirements of that statute.”
Since then, Trump’s administration terminated TPS designations for all 13 countries whose designations were due for a review. In some cases, it did so before the review was supposed to occur, and before the country’s previous designation had expired. (The full list of 13 countries includes Yemen, Somalia, Ethiopia, Haiti, Burma, South Sudan, Syria, Venezuela, Honduras, Nicaragua, Nepal, Cameroon, and Afghanistan.)
And that brings us to Mullin v. Doe and Trump v. Miot, two Supreme Court cases asking whether Trump’s apparent decision to cancel the TPS program is lawful. Doe concerns the Trump administration’s decision to strip TPS designation from Syria, a country that was recently in a civil war and that ousted its president in 2024. Miot involves Haitian nationals who fear returning to a country without a stable government, and where much of the country is controlled by criminal gangs. Both cases will be argued on April 29.
Realistically, both cases are likely to end badly for Syrian and Haitian nationals (and for other TPS beneficiaries). The Supreme Court has already blocked other lower court orders protecting TPS holders on its “shadow docket,” cases that the Court decides on an expedited basis, and the Trump administration is correct that federal law strictly limits the judiciary’s power to interfere with its decisions regarding TPS policy. (Although, as Linda Greenhouse points out, the Court has not yet blocked the lower court decisions benefiting Haitians and Syrians, so that is a point in the Doe and Miot plaintiffs’ favor.)
As the lawyers representing Syrian nationals write in their brief, federal law “forecloses challenges asserting that TPS must be extended because a country remains unsafe.” Nevertheless, they also argue that the Trump administration did not comply with “procedural mandates” that are written into federal immigration law, and that these mandates may be enforced by the courts.
Even if the Supreme Court agrees that these procedural mandates may be enforced, however, that will merely delay a reckoning over TPS. If the justices rule that Trump or his subordinates must jump through certain procedural hoops before they strip TPS protections from citizens of a particular country, the Trump administration can always just jump through those hoops.
Still, a procedural delay isn’t nothing. In the best-case scenario for Syrians and Haitians who rely on TPS, such a delay could allow them to run down the clock on the Trump administration, in the hopes that the next president will be less hostile toward immigrants and other foreign nationals in the United States. And, even if they can’t secure such a long delay, every day that TPS is in effect is a day when they won’t be deported to a place where they could be killed.
Doe and Miot are likely to turn on a federal law that forbids the courts from hearing many cases involving TPS
The Trump administration’s brief relies heavily on a federal law 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” that a particular nation’s citizens are eligible for TPS. Trump’s lawyers argue that this statute prohibits the courts from hearing Doe and Miot altogether.
The plaintiffs, meanwhile, argue that this bar on judicial review is less total that it initially seems. Their primary argument is that the word “determination” appears multiple times in the TPS statute, and that it means only the DHS secretary’s conclusion that a particular country is or is not safe enough to allow citizens of that nation who are in the United States to return is forbidden from judicial review. Thus, they argue that other provisions of the TPS statute — including provisions that require the Trump administration to comply with certain procedures before it removes anyone’s eligibility for TPS — may be enforced by federal courts.
The plaintiffs also point to a handful of previous Supreme Court decisions, including McNary v. Haitian Refugee Center (1991), which read similarly worded bars to judicial review narrowly.
Although this argument persuaded many lower courts, it is far from clear that it will prevail in the Supreme Court. Again, the Court has already blocked lower court decisions that sought to extend the TPS program against the Trump administration’s wishes on its shadow docket, though some of those decisions were joined only by the Court’s Republican majority.
That said, the Doe plaintiffs also raise a policy argument that might convince some of the Republican justices that a total bar on lawsuits challenging the federal government’s TPS decisions would be undesirable. If no TPS-related decision by the Trump administration may be reviewed by the courts, that should also mean that a future administration could falsely claim that, say, Mexico has become so dangerous that its nationals should be eligible for TPS, and that it could do so “explicitly to accomplish mass legalization.”
So let’s assume that the TPS plaintiffs do prevail on this jurisdictional argument, and win the right to argue that the Trump administration must comply with certain procedures before it takes away anyone’s TPS status. What happens then? Even in the best reasonable case for these plaintiffs, they probably only gain a short-lived reprieve.
The Trump administration’s process for rolling back TPS does appear to have been sloppy
Assuming that the Doe and Miot plaintiffs do convince the Supreme Court to consider their procedural arguments, those plaintiffs raise several objections to the process this administration used to slash the TPS program.
The TPS statute, for example, requires the DHS secretary to consult “with appropriate agencies of the Government” before it determines whether a country should be removed from the list of nations whose citizens may claim TPS status. But, according to the plaintiffs, the Trump administration’s consultation process was extremely truncated, and seems to consist of a single email exchange between a DHS official and a State Department official, where State said in a one-paragraph email that it has “no foreign policy concerns” about rolling back TPS.
The plaintiffs also fault then-Secretary Kristi Noem for claiming that America’s “national interest” required rolling back TPS, even regarding countries that remain dangerous. While the TPS statute does require the DHS secretary to consider “the national interest of the United States” in its initial decision to designate a particular country for TPS, once a nation is on the list, the secretary is not supposed to consider this factor.
As the Miot plaintiffs argue, “it makes sense that Congress would give the Secretary discretion when making an initial designation but limit her discretion to terminate an existing designation” because, once someone has been given TPS status, they develop a “reliance interest.” It’s one thing for the United States to tell someone that it will not provide them with shelter in the first place. It’s far crueler to give them shelter, allow them to spend years building a life in the United States, then abruptly order them to resettle to another country or face deportation to a war zone.
Finally, the plaintiffs argue that Noem did not “base her decision on ‘a good-faith and objective review of country conditions,’” and that the real reason why she terminated so many people’s eligibility for TPS status was political. When Noem first announced that she was reducing the TPS program, she said that she was “getting direction” from Trump, and that “he is pausing this program.”
Rooting her decision in political conditions, the plaintiffs argue, violates the TPS statute, which required her to only consider whether “the conditions in the foreign state” still justify maintaining TPS status — that is, whether the country remains too dangerous to allow its citizens to return there.
There is one precedent where the Supreme Court sided with immigrants against the Trump administration, due to a procedural error by Trump and his subordinates. In Department of Homeland Security v. Regents of the University of California (2020), the Court reinstated the Deferred Action for Childhood Arrivals (DACA) program — which allows hundreds of thousands of noncitizens to live and work in the United States — thanks to a paperwork error by the Trump administration.
But Regents was also a 5-4 decision, with Chief Justice John Roberts joining the Court’s four Democrats. One of those Democrats, Justice Ruth Bader Ginsburg, died later that year and was replaced by Republican Justice Amy Coney Barrett. So it’s unclear whether Regents would come down the same way if it were decided today.
And even if the Court does reach an outcome similar to Regents in the Doe and Miot cases, now-DHS Secretary Markwayne Mullin could cure Noem’s procedural errors by running the TPS terminations through whatever process the Supreme Court deems adequate. And, unlike Regents, which was handed down in the final year of the first Trump administration, Trump currently has more than two years remaining in his term. So it is unlikely that TPS beneficiaries can run out the clock.
Again, a Supreme Court decision against Trump would still be a victory for Syrians and Haitians in the United States — and potentially for all TPS beneficiaries — because it would likely mean several months of safety while Mullin cures Noem’s procedural errors. But the law in this space does give Mullin a fair amount of authority that can’t be challenged in court.
No matter what the Supreme Court does, in other words, the future is probably very grim for many foreign nationals who have taken refuge in the United States.
