A federal appeals court appeared skeptical Wednesday of a lower court’s ruling that used President Trump’s derogatory “s—hole” comments about developing countries to halt his effort to end special status for immigrants from El Salvador, Haiti and other impoverished nations.
“I’m deeply troubled by what the district court did here,” said Judge Ryan D. Nelson, one of the three judges on the 9th U.S. Circuit Court of Appeals who heard oral argument on the case.
At stake is whether Homeland Security’s move to end Temporary Protected Status for hundreds of thousands of migrants, some of them living in the U.S. for two decades or longer after natural disasters struck their homelands, can move forward.
The district judge blocked the move, ruling that Homeland Security likely cut too many procedural corners and, besides, Mr. Trump’s attitude toward immigrants from impoverished countries was so derogatory that ending TPS for people from those countries could amount to illegal discrimination.
But the 9th Circuit prodded Ahilan T. Arulanantham, the lawyer for the TPS recipients, about that ruling.
Judge Consuelo Callahan, an appointee of President George W. Bush, called the evidence of animus “fairly thin.”
And Judge Nelson, a Trump appointee to the court, said the Homeland Security officials who made the decisions on TPS are independent of the president. He said they appeared to be honestly grappling with the issue in their decision-making, and it was not driven by Mr. Trump’s attitude.
“There’s not an inkling of animus,” he said.
Mr. Arulanantham countered that John F. Kelly, who as Homeland Security secretary made the decision ending TPS for Haiti, had said he was acting under the “America First” policy of Mr. Trump.
The lawyer said it was fair to “impute the animus-based motives of one actor” — in this case Mr. Trump — “to an ultimate decision maker,” or Mr. Kelly.
“That shows the president’s pressure is influencing the decision-maker,” Mr. Arulanantham said.
He said Mr. Trump’s comments about “s—hole countries” colored the entire debate over TPS.
Mr. Trump reportedly used the term to describe third world countries with TPS status in a private meeting with senators, including Sens. Richard Durbin and Lindsey Graham. The comments were widely denounced — though immigrant-rights advocates now argue that the countries Mr. Trump was talking about are in such poor shape that they cannot handle having their residents sent back.
TPS is a special humanitarian protection designed to cover citizens of foreign countries who are in the U.S. when their homes face natural disasters, political upheaval, war, famine or disease outbreaks. The philosophy behind TPS is that those home countries are overwhelmed and cannot handle the return of people.
The status gives migrants temporary permission to obtain work permits, which entitles them to driver’s licenses and some other limited taxpayer benefits. The status is supposed to end when countries recover, and TPS holders are supposed to go home.
The Bush and Obama administrations routinely renewed TPS for countries, arguing that conditions were still too poor to return most of those covered.
In the case of El Salvador, that meant the U.S. ruled that country hadn’t recovered from a series of earthquakes that struck in 2001, leaving more than 200,000 people with TPS in the U.S.
Haiti, battered by an earthquake in 2011, still has more than 50,000 of its citizens here in the U.S. under TPS.
Most of those countries are eager to see their residents remain in the U.S., because they hold jobs and often send cash to relatives back home, boosting the economies without draining services.
But the continued renewals have long irked those who want to see a stricter approach to immigration.
Mr. Trump took office a more critical review of the decisions. So far the administration has ruled that TPS should be canceled for El Salvador, Haiti, Honduras, Nicaragua, Nepal and Sudan. TPS has been extended for Somalia, South Sudan, Syria and Yemen.
Several courts have stepped in to block the moves to end TPS.
Outside the California courthouse where Wednesday’s case was argued, pro-TPS activists rallied.
“We’re fighting to stay together so that I can continue to provide for my children and see them achieve their dreams,” said Donaldo Posadas, a TPS holder from Honduras.
Should the 9th Circuit rule that the lower judge’s order was precipitous, there are several options. It could leave his injunction in place while sending the case back for more review. Or the appeals court could lift the blockade.
Under a deal struck by the government and the TPS plaintiffs, that would start a 120-day clock before the administration could take more action.
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