What Mullin v. Doe Means for TPS Litigation, Employers, and Immigration Counsel

by Richard T. Herman

The Supreme Court’s decision in Mullin v. Doe will be read first as a Temporary Protected Status case. That is understandable. More than 330,000 Haitians and about 6,000 Syrians now face the prospect of losing TPS-related protection and work authorization.

But for immigration lawyers, employers, and administrative law practitioners, the larger point is about judicial review.

The controlling statutory text is 8 U.S.C. §1254a(b)(5)(A):

“There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”

Although TPS authority now rests with the Secretary of Homeland Security, the jurisdictional command remains the same. The Court held that this language bars not only review of the final TPS termination decision, but also review of many process-based challenges leading to that decision.

That is why Mullin matters beyond Haiti and Syria. It narrows the path for program-wide APA challenges to TPS terminations and forces practitioners, employers, and affected workers to plan earlier for individualized immigration options and workforce disruption.

1. The Court Treated TPS Procedures as Part of the Unreviewable “Determination”

For years, TPS litigation often relied on Administrative Procedure Act theories. Plaintiffs challenged whether DHS properly consulted with the State Department, considered country conditions, explained departures from prior policy, or followed required statutory procedures. Those claims were often framed as challenges to agency process, not as direct challenges to the ultimate decision to terminate TPS.

Mullin rejects much of that distinction.

Justice Samuel Alito’s majority opinion reads “any determination” and “with respect to” broadly. In the Court’s view, the Secretary’s TPS “determination” includes the process leading to the final designation, extension, or termination decision. Consultation, evaluation of country conditions, and related procedural steps are not independently reviewable merely because plaintiffs label them procedural.

That is the practical holding immigration litigators must absorb: a TPS challenge does not escape §1254a(b)(5)(A) simply by attacking the process rather than the final result.

2. Patel Continues to Matter in Immigration Jurisdiction-Stripping Cases

The Court’s reasoning fits within a broader trend in immigration judicial-review cases.

In Patel v. Garland, the Court read broad jurisdiction-stripping language in the Immigration and Nationality Act according to its ordinary meaning. Mullin applies a similar textual approach to TPS. Congress used expansive language: “any determination” and “with respect to.” The Court gave those phrases real force.

For practitioners, the lesson is straightforward. Where Congress uses broad jurisdiction-stripping language in the INA, courts may be increasingly unwilling to preserve review through procedural reframing. The question will not be whether the claim sounds in the APA, but whether it is, in substance, “with respect to” a decision Congress insulated from review.

3. Loper Bright Does Not Reopen Review Where Congress Closed the Door

Mullin also matters in the post-Loper Bright Enterprises v. Raimondo administrative law landscape.

After Loper Bright, courts no longer defer to agency interpretations under Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.. But that does not mean every agency action is now more reviewable. Mullin was not about deference to DHS’s interpretation of the TPS statute. It was about whether Congress permitted judicial review at all.

If the best reading of the statute is that Congress withdrew review, the APA cannot restore it. The APA is not an independent grant of jurisdiction. It provides a mechanism for review only where review has not been precluded.

That point is especially important for immigration lawyers who have relied heavily on APA claims to challenge policy shifts. Loper Bright may strengthen statutory interpretation arguments in some cases. It does not overcome a clear jurisdictional bar.

4. Constitutional Claims Remain Possible, but Narrow

Mullin does not fully close the door on constitutional litigation.

The Court assumed, without deciding, that the Haitian plaintiffs’ equal protection claim could be considered. But it concluded that the claim was unlikely to succeed on the preliminary injunction record because the administration had sought to terminate every TPS designation that came before it during the relevant period, rather than singling out Haiti.

That leaves future constitutional claims possible, but difficult.

Practitioners should not read Mullin as eliminating all constitutional review. Nor should they treat constitutional claims as an easy substitute for APA claims. The evidentiary burden will be substantial, particularly in equal protection litigation requiring proof of discriminatory purpose under Village of Arlington Heights v. Metropolitan Housing Development Corp..

Justice Clarence Thomas’s concurrence would go further and raises questions about whether Congress may also bar constitutional claims in this context. No other Justice joined that view, and the Court did not resolve the broader issue. But the concurrence signals that future litigation over constitutional review in immigration cases remains unsettled.

5. Employers Need to Treat TPS Termination as a Compliance and Workforce Issue

The immediate human consequences of Mullin fall on TPS holders and their families. But employers should not treat the decision as only a humanitarian or removal-defense issue.

If TPS terminations take effect, affected workers may lose employment authorization. Employers will need to monitor expiring Employment Authorization Documents, conduct timely Form I-9 reverification, avoid continuing unauthorized employment, and also avoid discriminatory document practices.

For employers in health care, construction, hospitality, logistics, manufacturing, elder care, food service, and other labor-sensitive industries, TPS termination can create sudden workforce disruption. FWD.us estimates that Haitian TPS holders contribute about $5.9 billion annually to the U.S. economy and pay more than $1.5 billion in combined federal, payroll, state, and local taxes.

The correct response is not panic. It is planning.

Employers should identify employees whose work authorization depends on TPS, review reverification timelines, consult immigration counsel before taking adverse action, and consider whether affected employees may have alternative immigration options, including family-based, employment-based, asylum-related, or other lawful pathways.

6. Immigration Counsel Should Pivot Earlier to Individualized Relief

For TPS beneficiaries, Mullin changes litigation strategy.

Program-wide APA litigation has long served as a way to delay termination, preserve work authorization, and create time for clients to pursue adjustment of status, employment sponsorship, asylum, or other permanent relief. After Mullin, that assumption is much weaker.

Counsel should evaluate individual options earlier. Depending on the facts, those may include family-based adjustment, employment-based petitions, asylum, withholding of removal, protection under the Convention Against Torture, cancellation of removal, motions to reopen, consular processing strategies, or other statutory remedies.

The availability of relief will vary widely. Prior entries, parole, unlawful presence, criminal history, prior removal orders, family relationships, employer sponsorship, and country-specific facts will all matter.

The central point is timing. TPS holders should not wait until work authorization expires or enforcement begins before analyzing options.

The Bottom Line

Mullin v. Doe is a TPS case with immediate consequences for Haitians, Syrians, employers, and communities. But its longer-term significance is broader.

The Court treated TPS termination procedures as part of the Secretary’s unreviewable determination under §1254a(b)(5)(A). That sharply limits non-constitutional, program-wide APA challenges to TPS terminations.

For lawyers, the decision is a reminder that the APA has limits. For employers, it is a warning to prepare for I-9 and workforce consequences. For TPS holders, it is a signal to evaluate individualized immigration options now.

Congress drew a jurisdictional line in the TPS statute.

In Mullin, the Supreme Court enforced it.

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