National Tps Alliance v. Noem

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 17 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

NATIONAL TPS ALLIANCE; MARIELA No. 25-5724 GONZALEZ; FREDDY ARAPE RIVAS; D.C. No. M.H.; CECILIA GONZALEZ HERRERA; 3:25-cv-01766-EMC ALBA PURICA HERNANDEZ; E. R.; Northern District of California, HENDRINA VIVAS CASTILLO; VILES San Francisco DORSAINVIL; A.C.A.; SHERIKA BLANC, ORDER

Plaintiffs - Appellees,

v.

KRISTI NOEM; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; UNITED STATES OF AMERICA,

Defendants - Appellants.

Before: Kim McLane Wardlaw, Salvador Mendoza, Jr., and Anthony D. Johnstone, Circuit Judges.

On September 5, 2025, the district court granted summary judgment to

Plaintiffs, National TPS Alliance (“NTPSA”) and individual Temporary Protective

Status (“TPS”) holders, holding that Department of Homeland Security (“DHS”)

Secretary Kristi Noem’s vacatur and termination of Venezuela’s TPS status

“exceeded the Secretary’s statutory authority and was arbitrary and capricious, and

thus must be set aside under the Administrative Procedure Act (“APA”).” Nat’l TPS Alliance v. Noem, --- F. Supp. 3d. ---, 2025 WL 2578045, at *1 (N.D. Cal.

Sept. 5, 2025). More than 600,000 Venezuelan citizens living in the United States

rely on the protections provided by Venezuela’s TPS status. The real people

affected by the Secretary’s actions are spouses and parents of U.S. citizens,

neighbors in our communities, and contributing members of society who have

“lower rates of criminality and higher rates of college education and workforce

participation than the general population.” Id. at *35. Vacating and terminating

Venezuela’s TPS status threw the future of these Venezuelan citizens into disarray,

and exposed them to a substantial risk of wrongful removal, separation from their

families, and loss of employment. Congress did not contemplate such a result, and

we decline to take the extraordinary step of staying the district court’s order as the

Government Defendants (“Government”) request.

On March 31, 2025, the district court entered an order postponing Secretary

Noem’s decision to vacate prior DHS Secretary Alejandro Mayorkas’s designation

and extension of Venezuela’s TPS status. See Dkt. 93 (Order Granting Plaintiffs’

Mot. to Postpone), Nat’l TPS Alliance v. Noem, No. 25-cv-01766 (N.D. Cal. Mar.

31, 2025). The Government filed a notice of appeal of the March 31 order and also

sought an emergency stay before our Court, which we denied. Nat’l TPS Alliance

v. Noem, 2025 WL 1142444, at *1 (9th Cir. Apr. 18, 2025). The Government then

filed an application for a stay in the Supreme Court, which the Court granted.

2 25-5724 Noem v. Nat’l TPS Alliance, 145 S. Ct. 2728, 2728-29 (2025). The Court’s order

provided:

The application for stay presented to Justice Kagan and by her referred to the Court is granted. The March 31, 2025 order entered by the United States District Court for the Northern District of California, case No. 3:25-cv1766, is stayed pending the disposition of the appeal in the United States Court of Appeals for the Ninth Circuit and disposition of a petition for a writ of certiorari, if such a writ is timely sought. Should certiorari be denied, this stay shall terminate automatically. In the event certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. This order is without prejudice to any challenge to Secretary Noem’s February 3, 2025 vacatur notice insofar as it purports to invalidate EADs, Forms I-797, Notices of Action, and Forms I-94 issued with October 2, 2026 expiration dates. See 8 U.S.C. § 1254a(d)(3). Justice Jackson would deny the application.

Id.

We held argument on the merits on July 16, 2025, and on August 29, 2025,

we issued our opinion holding that Secretary Noem’s vacatur of Venezuela’s TPS

violated the APA given that “the TPS statute does not authorize the vacatur of a

prior grant of TPS.” Nat’l TPS Alliance v. Noem, --- F.4th ---, 2025 WL 2487771,

at *15 (9th Cir. Aug. 29, 2025) (NTPSA I). We affirmed the district court’s

postponement, under APA § 705, of that unauthorized action. The Government

did not file a petition for writ of certiorari.

Thereafter, on September 5, 2025, the district court granted summary

judgment to Plaintiffs on two APA claims: (1) a challenge to Secretary Noem’s

vacatur of Venezuela’s TPS extension, which was granted by Secretary Mayorkas

3 25-5724 on January 17, 2025, and (2) a challenge to Secretary Noem’s decision to terminate

Venezuela’s TPS status. Plaintiffs did not move for summary judgment on their

Equal Protection claims, and the district court denied the Government’s motion for

summary judgment on those claims.1 The Government filed a new notice of appeal

of this judgment and moved before the district court for a stay of enforcement of

the district court’s judgment pending appeal, which the district court denied on

September 10, 2025. The Government then filed an emergency motion in our

court on September 12, 2025, seeking an immediate administrative stay and a stay

pending appeal of the district court’s order. We have jurisdiction under 28 U.S.C.

§ 1291, and for the reasons discussed herein, we deny the Government’s motion.2

I. THE SUPREME COURT’S MAY 19, 2025 STAY

As a threshold matter, we reject the Government’s argument that the

Supreme Court’s May 19, 2025 order staying the district court’s March 31, 2025

postponement order “squarely control[s]” the outcome of its stay motion. That

argument ignores the text of the Supreme Court’s order and the reality that the

Supreme Court did not have the benefit of reviewing the now more fully developed

1 The district court also granted summary judgment on Plaintiffs’ claims related to Secretary Noem’s vacatur and termination of Haiti’s TPS status. The Government does not seek a stay of that portion of the judgment. 2 The Government moved for an administrative stay and a stay pending appeal, but did not distinguish between the two requests in briefing. Because we deny the stay pending appeal, the request for an administrative stay is denied as well.

4 25-5724 record on which the district court’s summary judgment order relied.

First, the Supreme Court’s stay order was textually limited to “[t]he March

31, 2025 order entered by the” district court, Noem v. Nat’l TPS Alliance, et al.,

145 S. Ct. 2728, 2728-29 (2025), and the appeal of that order to our court. As the

district court recognized, that order “did not bar [the district court] from

adjudicating the case on the merits and entering a final judgment issuing relief

under… the APA.” Nat’l TPS Alliance v. Noem, --- F. Supp. 3d. ---, 2025 WL

2578045, at *41, n.23 (N.D. Cal. Sept. 5, 2025).

Second, the Supreme Court granted the stay of the March 31, 2025

postponement order without explanation. The Government argues that the stay

“predict[s] that the government would prevail on the merits.” We do not read the

stay order that way. As the Court recently reiterated, its “interim orders are not

conclusive as to the merits.” Trump v. Boyle, 606 U.S. ---, 145 S. Ct. 2653, 2653-

54 (2025). And while the Court’s interim orders do “inform how a court should

exercise its equitable discretion in like cases,” Boyle, 145 S. Ct. at 2654, they do so

through analysis that is lacking in the stay order here. Boyle concerned the

President’s power to remove commissioners of the Consumer Products Safety

Commission (“CPSC”) subject to for-cause removal protections. A mere two

months before Boyle was decided, in Trump v. Wilcox, the Supreme Court stayed

an injunction preventing the President from removing officers of the National

5 25-5724 Labor Relations Board (“NLRB”) and Merit Systems Protection Board (“MSPB”).

145 S. Ct. 1415 (2025). Boyle held that the stay was “squarely controlled” by the

short opinion in Wilcox given that both cases had substantially similar facts and

turned on the same equities: “that the Government faces greater risk of harm from

an order allowing a removed officer to continue exercising the executive power

than a wrongfully removed officer faces from being unable to perform her

statutory duty.” Boyle, 145 S. Ct. at 2654 (quoting Wilcox, 145 S. Ct. at 1415).

Unlike the way in which the reasoning in Wilcox informed the decision in

Boyle, the unreasoned stay order in this case provides no analysis to inform our

view of the equities in this posture and on this record. We can only guess as to the

Court’s rationale when it provides none. Perhaps the Court found that the record

was not developed sufficiently as to the issue of irreparable harm to the Plaintiffs.

Perhaps it was concerned about our jurisdiction. Therefore, without more, we

cannot say that the Court’s May 19, 2025 order “squarely control[s]” our decision

on a later, distinct emergency stay motion, presented in a different procedural

posture and on a different record.

Third, this is an appeal from a final order of judgment of a materially

different case, based on a fully developed record. This judgment is a set-aside of

agency action under APA § 706, not a mere postponement. Moreover, neither we,

nor the Supreme Court, had the benefit of discovery when we reviewed the district

6 25-5724 court’s order postponing the Secretary’s vacatur. The record before us today is

different in several material respects from the one before the district court in

March. See Dkt. 296 (Order Denying Defendants’ Mot. to Stay) at 3, Nat. TPS

Alliance v. Noem, No. 25-cv-01766 (N.D. Cal. Sept. 10, 2025) (summarizing

evidence elicited in discovery and distinguishing the record the Supreme Court

considered in May from the record upon which the district court based its summary

judgment order). In short, discovery has revealed that DHS ran a barebones

process, “acting with unprecedented haste and in an unprecedented manner… for

the preordained purpose of expediting termination of Venezuela’s TPS” status.

2025 WL 2578045, at *29. Neither we nor the Supreme Court had the benefit of

reviewing this evidence when the Government first sought an emergency stay of

the district court’s March 31 postponement order.

II. JURISDICTION AND STANDARD OF REVIEW The Government raises largely the same challenges to our jurisdiction that

we rejected in NTPSA I. First, the Government argues that 8 U.S.C.

§ 1254a(b)(5)(A) bars judicial review of “any determinations—that is,

determinations of whatever kind—with respect to TPS terminations.” As we have

explained, “[t]he extent of statutory authority granted to the Secretary is a first

order question that is not a ‘determination … with respect to the designation, or

termination or extension’ of a country for TPS.” NTPSA I, at *10. We reject the

7 25-5724 Government’s argument that NTPSA I “is likely to be vacated as moot… so it

should not control the Court’s assessment of the government’s likelihood of

success in this appeal.”

The Government also reasserts its argument that 8 U.S.C. § 1252(f)(1) bars

our review of the Secretary’s actions. Our circuit has already squarely resolved

this issue, see Imm. Def’s v. Noem, 145 F.4th 972, 989 (9th Cir. 2025), and we

decline to revisit it today. Although some Justices have expressed doubts as to

whether the remedy issued in this case under the APA is barred by Section

1252(f)(1), see United States v. Texas, 599 U.S. 670, 690-92, 695-701 (2023)

(Gorsuch, J. concurring), the Court has yet to resolve this question. There are very

good reasons to read Section 1252(f)(1) to permit “challenges to actions that fall

outside of a statutory grant of authority.” NTPSA I, at *11.

We have jurisdiction to review the Secretary’s actions and consider the

following factors in deciding the Government’s motion: “(1) whether the stay

applicant has made a strong showing that he is likely to succeed on the merits; (2)

whether the applicant will be irreparably injured absent a stay; (3) whether

issuance of the stay will substantially injure the other parties interested in the

proceeding; and (4) where the public interest lies.” Nken v. Holder, 556 U.S. 418,

426 (2009) (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987). “The burden

of demonstrating that these factors weigh[] in favor of a stay [lies] with the

8 25-5724 proponent” of the stay. Mi Familia Vota v. Fontes, 111 F.4th 976, 981 (9th Cir.

2024) (per curiam).

III. LIKELIHOOD OF SUCCESS A. First APA Claim

As we previously held, the Government’s argument that it has “inherent

authority” to reconsider Venezuela’s TPS extension is predicated on a clear

misapprehension of our circuit’s case law and is irreconcilable with the text and

purpose of the TPS statute. See NTPSA I, at *12 (distinguishing the FCC’s

inherent authority to revoke telecommunications certificates from the Secretary’s

inability to revoke a TPS designation or extension because “the statutory

framework for the issuance of telecommunications certificates… provides [for] no

time limitation at all, [which] ‘is a factor that weighs in favor of an implied power

of revocation.’”) (quoting China Unicom (Ams.) Ops. Ltd. v. FCC, 124 F.4th 1128,

1148 (9th Cir. 2024)) (emphasis removed). To hold that the Government could

simply vacate any designation or extension of a prior TPS designation on the

whims of shifting political winds would undermine Congress’s careful choice to

balance the “predictability and stability” of TPS status “with temporal limits.” Id.

at *14, n.9.

Separately, the district court found that Secretary Noem’s vacatur, if she had

such authority, was arbitrary and capricious. The Government does not

9 25-5724 meaningfully engage with the district court’s conclusion that a primary rationale

for Secretary Noem’s vacatur—that “vacatur [was] warranted to untangle the

confusion” of consolidating the 2021 and 2023 TPS designations—was squarely

contradicted by evidence that the consolidations were “not novel, did not engender

confusion, and [were] not ‘thin’ in explanation.” Nat’l TPS Alliance v. Noem, ---

F. Supp. 3d ---, 2025 WL 2578045, at *27 (quoting 90 Fed. Reg. 8805, at 8807).

Discovery revealed that effectively none of DHS’s normal procedures was

followed with respect to the vacatur and termination of Venezuela’s TPS status.

For example, a 2020 Governmental Accountability Office (“GAO”) Report details

“the general process that DHS has long followed when a TPS designation is

subject to periodic review.” Id. at *4. Specifically, “DHS’s practice is to collect

four documents to inform each TPS decision,” including “a country conditions

report compiled by USCIS,” “a memo with a recommendation from the USCIS

Director to the DHS Secretary,” “a country conditions report compiled by the State

Department,” and “a letter with a recommendation from the Secretary of State to

the Secretary of DHS.” Id. at *4-5. DHS typically receives input from “other

agencies or other entities” and “may hold briefings or meetings on TPS reviews,

both internally and externally.” Id. at *5-6. Yet the government’s “draft of the

vacatur decision was begun before Secretary Noem was confirmed as DHS

secretary,” “[j]ust four days” into the second Trump administration. Id. at *7.

10 25-5724 Secretary Noem finalized the vacatur decision and began pressuring staff to

terminate Venezuela’s TPS status before receiving any input from the Department

of State, the Secretary of State, or USCIS. Id. at *7-8.

When DHS finally did “belatedly” seek input from the State Department,

Secretary Rubio sent a “one-and-a-half page letter” recommending termination of

TPS for Venezuela which “failed to include any information on country conditions

in Venezuela.” Id. at *30, 7-8. USCIS’s recommendation memo did cite country

conditions evidence, but inexplicably relied on the exact report that Secretary

Mayorkas had cited as necessitating the extension of TPS status for Venezuela just

two weeks earlier. Id. at *8. That memo “did not explain how USCIS could rely

on the Biden Administration country conditions report – which led Secretary

Mayorkas to extend TPS for Venezuela – to conclude that conditions had improved

to such an extent that TPS should be terminated.” Id. Significantly, this sudden

reversal of “DHS’s established practices for TPS decision-making” was made

“without providing any explanation for that reversal.” Id. at *31.

Indeed, the district court found that the reasons given for the Secretary’s

decision were entirely pretextual. The district court found that DHS made its

vacatur and termination decisions first and searched for a valid basis for those

decisions second. See id. at *7 (explaining that DHS attempted to create post-hoc

rationalizations for the vacatur after a decision had already been made by

11 25-5724 instructing staff to “‘focus on any improvements in Venezuela,’ implicitly to

advance and support termination of Venezuela’s TPS.”). In fact, before a vacatur

decision was even finalized, DHS was already “preparing to terminate Venezuela’s

TPS” even though no “country conditions analysis was conducted.” Id. The

Government ultimately failed to provide “any evidence substantiating” its position

that “there are notable improvements in several areas such as the economy, public

health, and crime that allow for these nationals to be safely returned to their home

country.” Id. at *10. And the evidence it did submit undermined its argument that

the vacatur was necessary to avoid confusion caused by merging the 2021 and

2023 TPS designations. Id. at *27 (“[E]vidence that the government submitted in

conjunction with the summary judgment proceedings demonstrates that the Biden

Administration consolidated the process for the 2021 and 2023 TPS holders

precisely to avoid confusion.”).3

Nor does the Government point to any evidence that “Venezuelan TPS

holders constitute a threat to national security.” Id. at *10. And, the mere

conclusory statement that “the Secretary’s TPS terminations rested on reasoned

decision making based on her review of relevant country conditions evidence” falls

far short of the “strong showing” of a likelihood of success on the merits that we

3 The Secretary apparently failed to recognize that 2021 TPS holders were necessarily 2023 TPS holders, such that consolidating the two designations would avoid confusing, overlapping processes.

12 25-5724 require. Nken, 556 U.S. at 426. The record strongly supports the district court’s

conclusion that the Secretary’s actions were “preordained.” 2025 WL 2578045, at

*29. The Government has not made a sufficient showing to obtain a stay of the

district court’s order.

B. Second APA Claim

Plaintiffs also argue that the Secretary’s termination decision violated the

APA. The Government’s motion does not meaningfully distinguish between

Plaintiffs’ APA claims. The Government argues that “the district court…

erroneously concluded that it had jurisdiction to review and second-guess whether

a TPS termination is in the ‘national interest’ of the United States” and the district

may not “substitute its own policy judgment for that of the agency.”

The Government’s argument is contradicted by the record. The district court

found that the Secretary failed to “consult[] with appropriate agencies of the

Government” or to “review the conditions in the foreign state” as required by 8

U.S.C. § 1254a(b)(3)(A). Uncontradicted evidence established that the Secretary

effectively decided to terminate Venezuela’s TPS status before consulting with any

government agency and before reviewing any country conditions evidence. 2025

WL 2578045, at *7-8.

The Government also points to no evidence that Secretary Noem’s

termination was based on any national security interest, and the Federal Register

13 25-5724 publication does not reflect such a rationale for the termination. Id. at *22 (finding

that “the Secretary has not asserted national interest whatsoever in justifying her

vacatur decisions”).

The Government is not likely to succeed on the merits of its second APA

claim.

IV. REMAINING NKEN FACTORS

Mere weeks ago, we found that Plaintiffs would suffer irreparable harm

absent postponement of the Secretary’s actions, and that the balance of the equities

favored Plaintiffs. NTPSA I, at *16-18. With the benefit of a more developed

record, these conclusions are only strengthened.

As the district court found, the Government “provide[d] zero evidence – or

argument – [of] irreparable injury.” Dkt. 296 (Order Denying Defendants’ Mot. to

Stay) at 3, Nat. TPS Alliance v. Noem, No. 25-cv-01766 (N.D. Cal. Sept. 10, 2025).

That failure is “difficult to disregard” and “should matter.” Id. In its emergency

motion, the Government points to no evidence of irreparable harm and merely

recycles its argument that the Supreme Court’s May 19 order already resolved this

issue. The Government contends that “removal alone cannot constitute the

requisite irreparable injury to justify a stay and the possibility of family separation

is an unfortunate possible consequence of any removal proceeding.” But as we

explained, the irreparable harm in this case is not removal in a vacuum, it is

14 25-5724 “[w]rongful removal,” which brings with it “fears of family separation, detention,

and deportation” to a country that “is rated by the U.S. State Department as a

‘Level 4 Do Not Travel’ country.” NTPSA I, at *17, 20.

We similarly see no reason to disturb our holding that the balance of the

equities heavily favors Plaintiffs.

V. SCOPE OF RELIEF

Lastly, we reject the Government’s argument that the relief ordered by the

district court is overbroad. As we have already explained, it is impossible to

structure relief on an individual basis or to impose any relief short of nationwide

set asides under APA § 706 of Secretary Noem’s vacatur and termination of

Venezuela’s TPS status. Id. at *20.

VI. CONCLUSION

The Government’s Motions for a Stay Pending Appeal and an Immediate

Administrative Stay are DENIED. The Court shall set an expedited briefing

schedule by separate order on the merits of this appeal.

15 25-5724