Immigration /Preliminary Injunction

The panel vacated a preliminary injunction barring implementation of decisions to terminate Temporary Protected Status (TPS) designations of Sudan, Nicaragua, Haiti, and El Salvador, and remanded, holding that: (1) judicial review of Plaintiffs’ claim under the Administrative Procedure Act (APA) is barred by 8 U.S.C. § 1254a(b)(5)(A); and (2) Plaintiffs failed to show a likelihood of success, or even serious questions, on the merits of their Equal Protection claim...

Applying Arlington Heights, under which Plaintiffs needed to show that racial discrimination was at least a motivating factor for the challenged TPS terminations, the panel concluded that Plaintiffs failed to present even serious questions on the merits of their animus claim. The panel explained that, while the district court’s findings that President Trump expressed racial animus against “nonwhite, non-European” immigrants, and that the White House influenced the TPS termination decisions, were supported by record evidence, the district court cited no evidence linking the President’s animus to the TPS terminations—such as evidence that the President personally sought to influence the TPS terminations, or that any administration officials involved in the TPS decision-making process were themselves motivated by animus.

Concurring, Judge R. Nelson addressed two issues implicating separation-of-powers concerns. First, Judge Nelson wrote that the district court erred by not waiting until after the government produced the administrative record to order extra-record discovery. He wrote that errors like this are an affront to the limited waiver of sovereign immunity under the APA, disrespect the integrity of the administrative process, and improperly subvert the executive branch to the judiciary. Second, Judge Nelson addressed the increasing frequency of universal injunctions, observing that such an injunction issued recently by a district court in New York on Haiti’s TPS designation effectively nullified part of the panel’s decision. He wrote that universal injunctions: (1) result in an imbalance of power between the judicial and the other branches of government because such injunctions disregard the usual constraints on judicial powers by binding parties not before the court; and (2) lead to a lack of percolation of issues among the circuits that has serious consequences for judicial decision making and breeds the more serious problem of “forum-shopping.” Judge Nelson wrote that courts must carefully assess not only limits on injunctive relief, but also those under Rule 23, before granting universal relief.