National Tps Alliance v. Noem

Opinion

FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 11 2026 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. Concurrence by Judge Wardlaw Dissent by Judge Bumatay Concurrence by Judge Mendoza Dissent by Judge R. Nelson

Judges Wardlaw, Mendoza, and Johnstone voted to deny the petition for

rehearing en banc. The full court was advised of the petition for rehearing en banc.

A judge requested a vote on whether to rehear the matter en banc. The matter

failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R. App. P. 40. The Petition for Rehearing En Banc

is DENIED. An Amended Order with separate writings may be filed on Friday,

March 13, 2026. If an Amended Order is filed, the mandate shall issue forthwith

upon the filing of the Amended Order.1 See Fed. R. App. P. 41(b). If an Amended

Order is not filed on Friday, March 13, 2026, the mandate shall issue on that date

at 11:59 P.M. Id.

1 The portion of our February 4, 2026, Order, see Dkt. No. 77, indicating that the mandate would issue immediately upon the denial of the petition for rehearing en banc is VACATED.

2 25-5724 FILED MAR 11 2026 WARDLAW, J., joined by MENDOZA, J., and JOHNSTONE, J., concurring in the MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS denial of rehearing en banc:

This concurrence in the denial of rehearing en banc briefly reiterates that we

have jurisdiction to entertain this case and that we properly set aside former

Department of Homeland Security Secretary Kristi Noem’s unlawful actions. I

also call attention to the continuing harms at issue.

1. In this case we held that 8 U.S.C. § 1254a(b)(5)(A) does not bar

judicial review of Plaintiffs’ claim that Secretary Noem exceeded her statutory

authority by vacating Haiti’s and Venezuela’s Temporary Protected Status (“TPS”)

and terminating Venezuela’s TPS.1 NTPSA III, 166 F.4th at 755–58. This holding

comports with the plain meaning of the statute, reflects Congress’s stated intent to

provide “a system of temporary status that was predictable, dependable, and

insulated from electoral politics,” Nat’l TPS All. v. Noem, 150 F.4th 1000, 1008

(9th Cir. 2026), and conforms with the holdings of every other court to have

addressed the issue. 2

1 As we explained, “[t]he Venezuela Termination was predicated on and inextricably intertwined with the Venezuela Vacatur; therefore, the illegality of the Vacatur must be fatal to the Termination.” Nat. TPS All. v. Noem, 166 F.4th 739, 766 (9th Cir. 2026) (“NTPSA III”). We therefore refer primarily to the Secretary’s Vacatur in discussing the scope of the judicial review bar. 2 See, e.g., Miot v. Trump, No. 26-5050, 2026 WL 659420 (D.C. Cir. March 6, 2026), denying stay pending appeal of No. 25-cv-02471, 2026 WL 266413 (D.D.C. Feb. 2, 2026); Doe v. Noem, No. 25-2995, 2026 WL 544631 (2d Cir. Feb. 17, 2026), denying stay pending appeal of No. 25-CV-8686, 2025 WL 4477179 1 Congress did not immunize ultra vires acts of the Secretary from judicial

review. Our dissenting colleagues suggest that the Secretary’s vacatur—a power

expressly not granted to the Secretary in the TPS statute, 8 U.S.C. § 1254a—of a

TPS designation or extension is a “determination with respect to the designation, or

termination or extension of a designation, of a foreign state[’s]” TPS, id.

§ 1254a(b)(5)(A). As we have already explained, the “strong presumption” of

judicial review, combined with the Supreme Court’s interpretation of strikingly

similar judicial review provisions in McNary v. Haitian Refugee Center, 498 U.S.

479 (1991), and Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993),

undermine the dissents’ entirely-atextual reading of the statute. NTPSA III, 166

F.4th at 755–57.

Moreover, as in McNary and Reno, our holding does not rest on any fact

unique to the Secretary’s vacatur of Venezuela or Haiti’s TPS. A plain reading of

the statute demonstrates that the Secretary lacks the express, implied, or inherent

power to vacate a TPS designation regardless of the country. This case is not about

(S.D.N.Y. Nov. 19, 2025); Afr. Communities Together v. Noem, 2026 WL 395732 (D. Mass. Feb. 12, 2026); Doe v. Noem, 2026 WL 184544 (N.D. Ill. Jan. 23, 2026); Nat’l TPS All. v. Noem, 2025 WL 4058572 (N.D. Cal. Dec. 31, 2025); CASA, Inc. v. Noem, 792 F. Supp. 3d 576 (D. Md. 2025); Haitian Evangelical Clergy Ass’n v. Trump, 789 F. Supp. 3d 255 (E.D.N.Y. 2025); Saget v. Trump, 375 F. Supp. 3d 280 (E.D.N.Y. 2019); CASA de Md., Inc. v. Trump, 355 F. Supp. 3d 307 (D. Md. 2018); Ramos v. Nielsen, 321 F. Supp. 3d 1083 (N.D. Cal. 2018); Centro Presente v. U.S. Dep’t of Homeland Sec., 332 F. Supp. 3d 393 (D. Mass. 2018). 2 the Secretary’s “determination with respect to” a specific designation or extension.

8 U.S.C. § 1254a(b)(5)(A). It is about “the scope and extent of statutory authority

granted to the Secretary,” which is “a first order question.” NTPSA III, 166 F.4th at

756 (internal quotation marks and citation omitted). We have no doubt that the

judicial review bar precludes a wide variety of challenges to the Secretary’s

actions. For example, courts may not second-guess the Secretary’s procedurally

proper assessment of country conditions to substitute their own judgment as to the

appropriate TPS determination based on that evidence. But Congress chose not to

use “‘broader statutory language,’ such as language precluding review of ‘all

causes . . . arising’ under [the TPS statute], or of ‘all questions of law and fact’”

arising thereunder. NTPSA III, 166 F.4th at 756 (quoting McNary, 498 U.S. at

494). Thus, the strong presumption of judicial review is not overcome in this case,

and we may review the plain text of the statute to determine whether the Secretary

exceeded her authority in vacating TPS designations for Venezuela and Haiti.

2. To the extent that our dissenting colleagues believe that the Supreme

Court has hinted that we lack jurisdiction, they are mistaken. The Supreme Court

has explained that its unreasoned stay orders are “not conclusive as to the merits”

but merely “inform how [we] should exercise [our] equitable discretion in like

cases.” Trump v. Boyle, 606 U.S. ---. 145 S. Ct. 2653, 2654 (2025). As we

explained in NTPSA III, the two stay orders that lack explicit reasoning in this case

3 may have rested on the Court’s “assessment of the balance of the equities or the

parties’ respective irreparable harms, rather than its assessment of the merits.” 166

F.4th at 754. Indeed, the Court acknowledged in granting its second stay that the

“relative harms generally ha[d] not” “changed,” which would be irrelevant if the

Court believed it, and we, lacked jurisdiction to review Plaintiffs’ challenge. See

Noem v. Nat’l TPS All., --- U.S. ---, 146 S. Ct. 23, 24 (2025) (Mem.). Justice

Jackson’s dissent to the stay order further suggests that the Court was concerned

with the equities, not our jurisdiction. Id. at 26 (Jackson, J., dissenting) (arguing

that the Court “misjudge[d] the irreparable harm and balance-of-the-equities

factors,” rather than addressing the merits). We do not know how the Supreme

Court will ultimately resolve the merits in this case. But by now, at least a dozen

courts have had the opportunity to consider some or all of the issues that our

decision determined, and none has adopted the Government’s and our dissenting

colleagues’ atextual interpretation of the TPS statute’s judicial review bar. Supra

n.2. In the absence of further guidance from the Supreme Court, we do not read its

stay orders to suggest that we lack jurisdiction.

3. As to the merits, our opinion has been only strengthened in the month

since it was published. As the Supreme Court recently explained, “[t]he omission”

of a particular power in a statute “is notable in light of the significant but specific

powers Congress [does] go to the trouble of naming.” Learning Resources v.

4 Trump, 607 U.S. ---, --- S. Ct. ---, 2026 WL 477534, at *10 (2026). “It stands to

reason that had Congress intended to convey the distinct and extraordinary power

to” vacate a prior lawful designation or extension, “it would have done so

expressly.” Id.

To hold to the contrary would reduce the TPS statute’s procedural

requirements to a nullity. Why would Congress explicitly require that a

termination “shall not be effective earlier than 60 days after the date the notice is

published [in the Federal Register] or, if later, the expiration of the most recent

previous extension,” if it simultaneously empowered a Secretary to simply vacate a

prior extension whenever she wanted instead of waiting to terminate it? 8 U.S.C.

§ 1254a(b)(3)(B). We do not think Congress gave such unconstrained authority to

the Secretary.

4. In these circumstances, 5 U.S.C. § 706 of the Administrative

Procedure Act (“APA”) provided a clear remedy: we set aside the Secretary’s

unlawful action. NTPSA III, 166 F.4th at 767–68. We did not enjoin the Secretary

from terminating any country’s TPS in accordance with the statutory guardrails

prescribed by Congress in the TPS statute. See id.; 8 U.S.C. § 1254a(b)(3). We

did not require her to do or proscribe her from doing anything. NPTSA III, 166

F.4th at 767–68. Trump v. CASA, Inc., expressly declined to alter lower courts’

ability to set aside administrative action under the APA. 606 U.S. 831, 847 n.10

5 (2025). And, as our dissenting colleagues acknowledge, set aside relief has been

afforded under the APA for decades. See, e.g., Corner Post Inc. v. Bd. of

Governors of Fed. Reserve Sys., 603 U.S. 799, 826–27 (2024) (Kavanaugh, J.,

concurring). Our opinion is consistent with decades of administrative law

precedent, and CASA did nothing to change that. 606 U.S. at 847 n.10.

5. Our ruling in NTPSA III clarified the rights of hundreds of thousands

of people, and every day that this case lingers unnecessarily in our court is another

day that one of those people may have been wrongfully “detained and deported to

a place where the Government promised—at least temporarily—it would not send

them.” 3 NTPSA III, 166 F.4th at 768. We should not sanction further delay.

3 In addition to the extraordinary harms described in NTPSA III, we have seen many other examples of the detention of TPS holders after their TPS was terminated. See, e.g., Colina-Rojas v. Noem, 2026 WL 412138, at *1 (W.D. Ky. Feb. 13, 2026) (Colina-Rojas, a native and citizen of Venezuela and TPS holder, was arrested on December 2, 2025, two weeks after having her TPS terminated, as part of Operation Metro Surge. Immigrations and Customs Enforcement (“ICE”) officers pulled her out of her car and broke her nose during her arrest. She was detained for more than two months before her detention was ruled unlawful.); Segundo Sangronis v. Unknown Party, 2026 WL 362790, at *2 (W.D. Mich. Feb. 10, 2026) (Segundo Sangronis, a native and citizen of Venezuela and TPS holder, was arrested at a scheduled ICE check-in appointment on September 9, 2025, before he lost his TPS on November 20, 2025. He spent five months in custody before his detention was ruled unlawful.); Quintero v. Francis, 2026 WL 265921, at *2–3 (S.D.N.Y. Feb. 2, 2026) (Quintero, a native and citizen of Venezuela and TPS holder, was arrested two weeks after her TPS was terminated on November 21, 2025. She alleged that she suffers from diabetic kidney disease, among other health conditions, and has been denied treatment while detained. She remains in custody.); see also Reyes Medina v. Raycraft, 2026 WL 591844 (W.D. Mich. Mar. 3, 2026); Osorio Ortega v. Chestnut, 2026 WL 539377 (E.D. Cal. Feb. 26, 2026). 6 The exceptionally important issues in this case will likely be litigated at the

Supreme Court in the coming months. In the interim, our Government’s promise

not to detain and deport hundreds of thousands of Venezuelan and Haitian TPS

holders will continue to ring hollow. Many will lose their jobs, suffer detention

under poor, if not brutal conditions, and face deportation to a country where they

have suffered violence, poverty, instability, or other extraordinary humanitarian

crises. Our duty is to say what the law requires and to not look away from the

devastating consequences when the law is ignored. That is precisely what we have

done here.

7 FILED MAR 11 2026 National TPS Alliance, et al. v. Noem, et al., No. 25-5724 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS BUMATAY, Circuit Judge, joined by CALLAHAN, BENNETT, R. NELSON, COLLINS, LEE, BRESS, VANDYKE, and TUNG, Circuit Judges, dissenting from the denial of rehearing en banc:

Federal courts are not all powerful. Under our Constitution, Congress has the

authority to preclude judicial review of certain matters and lower courts are bound

to follow Congress’s will. See Patchak v. Zinke, 583 U.S. 244, 252 (2018) (plurality

opinion). Judges may not serve as “Platonic Guardians” of our nation’s immigration

policies. E. Bay Sanctuary Covenant v. Biden, 993 F.3d 640, 687 (9th Cir. 2021)

(Bumatay, J., dissenting from the denial of rehearing en banc) (quoting L. Hand, The

Bill of Rights 73 (1958)). So when Congress entrusts an immigration matter to the

Executive and tells the Judiciary to restrain itself, we ought to listen.

With this understanding in mind, this case should have been an easy one.

Congress enacted a broad jurisdiction-stripping provision in the Temporary

Protected Status (“TPS”) statute. TPS protects certain aliens from removal if the

Secretary of Homeland Security designates a foreign state for protection under the

program. Congress straightforwardly commanded that “[t]here 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, of a foreign state” for TPS.

8 U.S.C. § 1254a(b)(5)(A). In this case, the Secretary decided to (1) vacate an

extension of TPS designation for Venezuela, (2) terminate the TPS designation of

1 Venezuela, and (3) shorten the extension of TPS designation for Haiti. Ordinary

users of the English language understand that all these decisions were

“determination[s] . . . with respect to the . . . termination or extension of a

designation.” 8 U.S.C. § 1254a(b)(5)(A). So under a plain reading of the statute,

we should have dismissed the plaintiffs’ claims challenging these determinations.

Federal courts simply lack jurisdiction over them.

But that’s not what the panel did. Instead, it created a loophole to the

sweeping judicial-review bar, claiming that challenges to “the scope and extent of

statutory authority granted to the Secretary” under the TPS statute are immune from

the jurisdiction-stripping provision. Nat’l TPS All. v. Noem, 166 F.4th 739, 756 (9th

Cir. 2026) (simplified). So in the panel’s view, all TPS determinations are

reviewable by federal courts so long as plaintiffs also challenge the “Secretary’s

statutory authority.” Id. This exception appears nowhere in the text of the statute.

In short, the panel made it up. Even more, this loophole will swallow the

§ 1254a(b)(5)(A) rule, allowing all TPS challenges to go forward with simple

pleading. I understand this issue may elicit strong reactions. See, e.g., Nat’l TPS

All., 166 F.4th at 769 (Mendoza, J., concurring) (quoting Maya Angelou’s

appearance on daytime T.V. to establish that the Secretary’s decisions were

“inexplicable” and “cloak[ed with] animus on the basis of race or national origin”).

But that’s no excuse to sidestep the plain meaning of a limit on our authority.

2 What’s worse, the panel has ignored strong hints from the Supreme Court that

we’ve gotten this wrong. Twice now, the Supreme Court has intervened and

effectively reversed the Ninth Circuit in this very case by granting stays that this

court had denied. See Noem v. Nat’l TPS All., 145 S. Ct. 2728, 2728–29 (2025);

Noem v. Nat’l TPS All., 146 S. Ct. 23, 24 (2025). The panel should have seen the

writing on the wall. See Miot v. Trump, 2026 WL 659420, at *5 (D.C. Cir. Mar. 6,

2026) (Walker, J., dissenting) (explaining that the judicial-review bar tips the

equities in the government’s favor). Instead, it turned a blind eye.

Because the panel made itself the Platonic Guardian of our immigration laws

rather than neutral interpreters of the law, I respectfully dissent from the denial of

rehearing en banc.

I.

Background

A.

Congress was very clear about the limits of judicial review over the TPS

program. Under the program, the government may grant aliens from designated

“foreign state[s]” work authorization and protection from removal. 8 U.S.C.

§ 1254a(a)(1)(A)–(B). To grant this benefit, the government must determine that the

aliens cannot safely return to the foreign state because of “ongoing armed conflict,”

3 natural disaster, or other “extraordinary and temporary conditions.” Id.

§ 1254a(b)(1), (A)–(C).

Before it can designate a foreign state for TPS, the government must publish

notice in the Federal Register. Id. § 1254a(b)(1)(C). For the “initial period of

designation,” the government can specify a period of “not less than 6 months and

not more than 18 months.” Id. § 1254a(b)(2)(B). At least 60 days before the end of

the initial designation period, the government must review country conditions in the

designated foreign state and either terminate or extend the TPS designation. Id.

§ 1254a(b)(3). The Secretary of Homeland Security has responsibility for the TPS

program. See 8 U.S.C. § 1103(a), 6 U.S.C. § 557.

Congress then directed that “[t]here is no judicial review of any determination

of the [Secretary] with respect to the designation, or termination or extension of a

designation, of a foreign state under this subsection.” 8 U.S.C. § 1254a(b)(5)(A).

B.

Venezuela—During the Biden Administration, in March 2021, then-

Department of Homeland Security (“DHS”) Secretary Alejandro Mayorkas

designated Venezuela for TPS. Nat’l TPS All., 166 F.4th at 750. Secretary Mayorkas

extended this 2021 Designation twice, with the second extension set to expire on

September 10, 2025. Id. at 750–51.

4 In 2023, Secretary Mayorkas separately “re-designated” Venezuela for TPS,

which “expand[ed] the pool of Venezuelans eligible for protection.” Id. at 750. This

2023 Venezuela Designation was set to expire on April 2, 2025. Id. at 751. Three

days before the end of the Biden Administration, on January 17, 2025, then-

Secretary Mayorkas extended the 2023 Venezuela Designation again. Id. This 2025

Venezuela Extension would begin on April 3, 2025, and run through October 2,

2026. Id. (citing 90 Fed. Reg. 5961, 5962 (Jan. 17, 2025)). Secretary Mayorkas did

not expressly extend or terminate the 2021 Designation and instead allowed all

eligible Venezuela TPS beneficiaries under either the 2021 or 2023 Designations to

obtain TPS through the 2025 Extension. 90 Fed. Reg. 9040, 9041 (Feb. 5, 2025).

President Donald J. Trump took office on January 20, 2025. On February 3,

2025, DHS Secretary Kristi Noem announced in the Federal Register that she was

vacating the 2025 Venezuela Extension. See Nat’l TPS All., 166 F.4th at 751 (citing

90 Fed. Reg. 8805 (Feb. 3, 2025)). And then on February 5, 2025, Secretary Noem

filed notice that she was terminating the 2023 Venezuela Designation, which would

have taken effect 60 days later. Id. at 751–52 (citing 90 Fed. Reg. 9040, 9041–42).

Haiti—Although Haiti was first designated for TPS in 2010 after a major

earthquake, the Biden Administration newly designated Haiti for TPS in 2021. Id.

at 752. Then-Secretary Mayorkas extended and re-designated Haiti for TPS in 2023

and 2024. Id. This 2024 Haiti Extension was an 18-month extension set to expire

5 on February 3, 2026. Id. On February 24, 2025, Secretary Noem issued a notice

partially vacating the 2024 Haiti Extension. Id. at 752–53. The order shortened the

TPS extension from 18 months to 12 months, meaning that Haiti’s TPS designation

would expire on August 3, 2025, rather than February 3, 2026. Id. at 753 (citing 90

Fed. Reg. 10511 (Feb. 24, 2025)). On July 1, 2025, Secretary Noem terminated

Haiti’s TPS designation, effective September 2, 2025. Id.

C.

National TPS Alliance and several individual TPS beneficiaries (collectively,

“Plaintiffs”) sued the Trump Administration in February 2025. Id. at 748, 753. They

alleged that Secretary Noem lacked vacatur authority under the TPS statute and that

her Venezuela and Haiti decisions violated the Administrative Procedure Act

(“APA”) and the Constitution’s Equal Protection Clause. Nat’l TPS All. v. Noem,

798 F. Supp. 3d 1108, 1118 (N.D. Cal. 2025); see id. at 1143, 1150, 1153. On March

31, 2025, the district court granted Plaintiffs’ motion to postpone the vacatur of the

2025 Venezuela Extension and the termination of the 2023 Venezuela Designation.

See Nat’l TPS All., 166 F.4th at 753. The Ninth Circuit then denied a motion to stay

the district court’s March 31 order pending appeal. Id. The Supreme Court

intervened and granted the government’s emergency application for a stay. Nat’l

TPS All., 145 S. Ct. at 2728–29.

6 The case then returned to the district court. On September 5, 2025, the district

court granted Plaintiffs summary judgment on their APA claims and set aside the

Venezuela vacatur, the Venezuela termination, and the Haiti partial vacatur. Nat’l

TPS All., 798 F. Supp. 3d at 1164. The district court left Plaintiffs’ Equal Protection

claims undecided and stayed proceedings while the government appealed the APA

claims. Id. The government then sought a stay pending appeal of the order setting

aside the Venezuela TPS decisions. Nat’l TPS All., 166 F.4th at 753. Once again,

this court denied the government’s request. Id. And once again, the Supreme Court

granted the government’s emergency stay application. Nat’l TPS All., 146 S. Ct. at

24.

The government then appealed the district court’s summary judgment order.

Nat’l TPS All., 166 F.4th at 753. The panel affirmed. Id. at 769. It held that the TPS

statute’s judicial-review bar did not apply to Plaintiffs’ APA claims because Plaintiffs

were challenging the Secretary’s authority to issue the vacaturs and termination. Id.

at 756–57. On the merits, the panel held that Plaintiffs were entitled to summary

judgment because Secretary Noem lacked statutory authority to issue the vacaturs

and termination. Id. at 766–67.

II.

Congress Bars Judicial Review of TPS Determinations

7 Federal courts cannot act without jurisdiction. A faithful reading of the TPS

statute’s judicial-review bar makes clear that we lack jurisdiction here. The panel’s

conclusion that the judicial-review bar did not apply is egregiously wrong and should

have been corrected en banc.

Congress enacted a sweeping jurisdiction-stripping provision in the TPS

statute. It instructed that there would be “no judicial review of any determination .

. . with respect to the designation, or termination or extension of a designation[.]” 8

U.S.C. § 1254a(b)(5)(A) (emphasis added). “[A]ny,” “determination,” and “with

respect to” are capacious terms that signal Congress’s desire to completely exclude

federal courts from second-guessing the Secretary’s decision to “designat[e],”

“terminat[e],” or “exten[d]” TPS. In other words, Congress sent a clear message to

federal courts: “Stay out.”

First, the term “any” has an “expansive meaning” that applies to

determinations “of whatever kind.” Patel v. Garland, 596 U.S. 328, 338 (2022)

(quoting Webster’s Third New International Dictionary (1993)); see also Merriam-

Webster’s Collegiate Dictionary 53 (10th ed. 2000) (“Merriam-Webster’s”)

(defining “any” as “one or more indiscriminately of whatever kind”); A. Scalia & B.

Garner, Reading Law: The Interpretation of Legal Texts 419, 423 (2012) (classifying

Merriam-Webster’s as among “the most useful and authoritative [dictionaries] for

8 the English language” in the early 1990s). So “Congress’ use of ‘any’ to modify

[‘determination’] is most naturally read to mean [determinations] of whatever kind.”

Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 220 (2008). Thus, the “provision does

not restrict itself to certain kinds of decisions,” Patel, 596 U.S. at 338, and instead

applies to all decisions of whatever kind regarding the designation, termination, or

extension of TPS.

Second, the term “determination” itself could be read broadly. It refers to “a

single act . . . in making decisions.” McNary v. Haitian Refugee Ctr., Inc., 498 U.S.

479, 492 (1991). It is “[t]o settle or decide by choice of alternatives or possibilities.”

Black’s Law Dictionary (6th ed. 1990); see also Merriam-Webster’s at 315 (“the act

of deciding definitively and firmly”). So the term “determination” could apply to

any “single act” that “firmly” decides an issue.

Finally, “with respect to” is another all-embracing phrase. It only requires

“relation to,” Merriam-Webster’s at 995, or “reference to,” see The Concise Oxford

Dictionary of Current English 1025 (8th ed. 1990), the subject—not just the subject

itself. Courts thus typically read the phrase “expansively.” Lamar, Archer & Cofrin,

LLP v. Appling, 584 U.S. 709, 717 (2018) (interpreting the term “respecting”). So

“in a legal context,” the phrase “generally has a broadening effect, ensuring that the

scope of a provision covers not only its subject but also matters relating to that

subject.” Id. It does not encompass only the ultimate determination to designate,

9 extend, or terminate, but also any determination “relating to” the designating,

extending, or terminating of TPS. See Patel, 596 U.S. at 339.

Together, then, the plain text of § 1254a(b)(5)(A) bars judicial review of any

definitive decision of the Secretary—of whatever kind—that relates to a TPS

“designation,” “extension,” or “termination.” The challenged actions here easily fall

within this category of determinations barred from judicial review. First, the

Secretary’s decision to vacate the 2025 Venezuela Extension constitutes a

“determination” related to the “extension” of TPS. Second, the Secretary’s decision

to terminate the 2023 Venezuela Designation is a “determination” related to the

“termination” of TPS. Finally, the Secretary’s decision to shorten the 2024 Haiti

Extension was another “determination” related to the “extension” of TPS. Thus, all

these decisions fall within § 1254a(b)(5)(A)’s bar.

So we have no jurisdiction to review any of Plaintiffs’ APA claims—the only

claims on appeal. Indeed, the APA doesn’t apply where, as here, “statutes preclude

judicial review.” 5 U.S.C. § 701(a)(1). This should have been an open-and-shut

case. The panel simply had no business second-guessing the Secretary’s decisions.

Even more, the 2024 Haiti Extension expired on February 3, 2026—a few

days after the panel rushed to release its opinion on January 28, 2026. See

Termination of Designation of Haiti for Temporary Protected Status, 90 Fed. Reg.

54733 (Nov. 28, 2025). Despite the panel’s rush, the mandate has not issued, so its

10 decision to enjoin the shortening of the 2024 Haiti Extension is now moot. That’s

yet another reason we should have taken this case en banc—to vacate the panel’s

decision on the moot claim. See In re Pattullo, 271 F.3d 898, 900–01 (9th Cir. 2001)

(“Even after an appellate court has issued its decision, if it has not yet issued its

mandate and the case becomes moot, the court will vacate its decision and dismiss

the appeal as moot.”).

The panel thwarted Congress’s clear command in three steps. First, it used a

creative textual analysis to create a carveout to § 1254a(b)(5)(A)’s sweeping

judicial-review bar. Second, the panel misread precedent to justify its atextual

interpretation. Finally, it introduced a parade of horribles to avoid a plain reading of

the text. None of these moves are convincing.

1.

The panel evaded Congress’s jurisdiction-stripping provision by inventing a

non-existent carveout from its scope. It began by invoking what it called a “strong

presumption” of “judicial review of administrative actions.” Nat’l TPS All., 166

F.4th at 755 (simplified). Whatever the strength of that presumption, it is easily

overcome with § 1254a(b)(5)(A)’s clear language. The presumption is defeated

when “specific language” in the statutory scheme shows Congress’s intent to

preclude judicial review. Traynor v. Turnage, 485 U.S. 535, 542 (1988) (simplified);

11 see also Nicholas Bagley, The Puzzling Presumption of Reviewability, 127 Harv. L.

Rev. 1285, 1290 (2014) (noting that the presumption of judicial review doesn’t apply

when Congress has “foreclosed” judicial review in “explicit terms”). One struggles

to think of more “specific language” than Congress saying: “[t]here is no judicial

review of any determination . . . with respect to” a TPS termination, extension, or

designation. 8 U.S.C. § 1254a(b)(5)(A).

And the presumption can’t be used to justify the tortured reading of the plain

text the panel employed. Recall that Plaintiffs expressly asked the district court to

“[s]et aside” the order vacating the 2025 Venezuela Extension, the order terminating

the 2023 Venezuela Designation, and the order shortening the 2024 Haiti Extension.

As stated earlier, the panel should have easily found that these APA claims challenge

a “determination . . . with respect to . . . the termination or extension” of TPS and

disclaimed jurisdiction. Instead, the panel manufactured a loophole to the

jurisdictional bar—it claimed that “the scope and 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.” Nat’l

TPS All., 166 F.4th at 756 (simplified). According to the panel, then,

§ 1254a(b)(5)(A)’s text somehow doesn’t extend to any claims that include

challenges to “the scope and extent” of the Secretary’s statutory authority. And

because Plaintiffs asserted that the “Secretary exceeded her statutory authority,” the

12 panel felt free to ignore the jurisdiction-stripping provision. Id. at 757. Ironically,

despite § 1254a(b)(5)(A)’s sweeping language, the panel concluded that Congress

needed to use “broader language” for the judicial-review bar to mean what it says.

Id. at 756.

But the panel’s reasoning can’t be squared with § 1254a(b)(5)(A)’s text. It

applies broadly to “any determination . . . with respect to” the termination or

extension of TPS—no matter the theory of why those determinations should be set

aside. It doesn’t exempt claims from the jurisdiction-stripping provision simply

because Plaintiffs believe that the “Secretary exceeded her statutory authority.” Nor

does it exempt so-called “first order question[s]” that relate to TPS determinations.

So even if we were to read “determination” narrowly to mean only specific country

TPS “determination[s]” under § 1254a(b), these claims would still fall within the

judicial-review bar. At bottom, Plaintiffs are challenging specific determinations

with respect to the “extension” and “termination” of specific TPS designations. The

alleged reasons why these “determinations” are unlawful doesn’t remove them from

§ 1254a(b)(5)(A)’s scope. Indeed, even if the Secretary did exceed her statutory

authority in vacating the extensions early, such acts are still “determinations. . . with

respect to” an extension and termination. Had Congress intended to exclude “first

order question[s]”—whatever that means—from § 1254a(b)(5)(A)’s broad sweep,

Congress could have done so by, for example, excepting “challenges to the

13 Secretary’s authority.” “But Congress did not use such narrow language.” Lamar,

Archer & Cofrin, LLP, 584 U.S. at 719.

In the end, the panel created a roadmap for the complete evasion of

§ 1254a(b)(5)(A). Going forward in the Ninth Circuit, all a plaintiff must do is use

the password—“the Secretary exceeded her authority”—and the plaintiff will

receive an automatic ticket into federal court. All contrary to Congress’s will.

2.

Precedent is even less useful to the panel’s position. The panel relied on

McNary, 498 U.S. 479, and Reno v. Catholic Social Services, Inc., 509 U.S. 43

(1993) to justify its atextual carveout. But neither McNary nor Reno dealt with

specific individual determinations by the Secretary, as here, and so they don’t

support the panel’s reading.

Rather than a challenge to an individual agency determination, McNary

addressed a constitutional claim against an agency’s practices. McNary considered

an immigration statute that prohibited “judicial review of a determination respecting

an application for adjustment of status[.]” 498 U.S. at 491 (citing 8 U.S.C.

§ 1160(e)(1)). “[T]he only question” for McNary was whether the judicial-review

bar applied to a class action “alleging a pattern or practice of procedural due process

violations by the Immigration and Naturalization Service (INS) in its administration

of” an INS program. Id. at 483. McNary emphasized several times that the class

14 action didn’t challenge any “individual determination” under the program. See id.

at 488, 491–92. Given this, McNary concluded that the judicial-review bar didn’t

apply because the class action involved “general collateral challenges to

unconstitutional practices and policies used by the agency[.]” Id. at 492. McNary,

however, made clear that federal courts would have no jurisdiction over “the denial

of an individual application” under the statute. Id. So McNary merely recognizes

that a challenge to an agency’s pattern or practice—divorced from an “individual

determination”—was not covered by the jurisdiction-stripping provision. But

Plaintiffs are challenging three “individual determination[s]” here—(1) the order

vacating the 2025 Venezuela Extension, (2) the order terminating the 2023

Venezuela Designation, and (3) the order shortening the 2024 Haiti Extension. Thus,

McNary doesn’t help the panel.

Reno is similar. It too considered a statute prohibiting judicial review of

“determination[s] respecting an application for adjustment of status[.]” Reno, 509

U.S. at 54 (citing 8 U.S.C. § 1255a(f)(1)). Drawing on McNary, Reno concluded

that the judicial-review provision didn’t prohibit suits “challenging the legality of a

regulation without referring to or relying on the denial of any individual

application.” Id. at 56. Because the challenges there had nothing to do with “any

individual application,” the jurisdiction-stripping provision didn’t apply. Id. Reno

is thus limited to claims unrelated to a specific application. But unlike in Reno,

15 Plaintiffs’ APA claims “refer[] to” and “rely[] on” three specific determinations of

the Secretary—her determinations to shorten or terminate the Venezuela and Haiti

TPS designations. See id.

3.

Because text and precedent do not support its view, the panel resorts to

sensationalism. We can’t follow the text’s plain meaning, according to the panel,

because doing so invites a parade of sensational and “absurd” horribles. See Nat’l

TPS All., 166 F.4th at 757. Say the Secretary authorized a 30-year TPS period! Id.

Or what if the Secretary sold TPS designations? Id. Imagine that the Secretary made

TPS determinations based on “perceived favored racial or ethnic populations.” Id.

Because these hypotheticals are all decisions about a TPS designation, the panel

feared that they would be unreviewable under the plain meaning of

§ 1254a(b)(5)(A). Because this scenario would be “absurd” in the panel’s eyes, the

panel concluded that we must read § 1254a(b)(5)(A) contrary to its ordinary

meaning. See id. (“Section 1254a(b)(5)(A) simply cannot bear the weight of the

Government’s expansive interpretation.”).

But the panel’s argument fails for two reasons. First, it proves too much. Even

under the panel’s atextual reading of § 1254a(b)(5)(A), some of these examples

would be unreviewable. Take the hypothetical that the Secretary could “limit TPS

designations to countries with perceived favored racial or ethnic populations.” Id.

16 Even if the Secretary did select a country for TPS based on some sort of bias, that is

simply a “determination . . . with respect” to a designation. It has nothing to do with

“first order question[s]” or questions about “the scope and extent of statutory

authority granted to the Secretary[.]” Id. at 756 (simplified). Thus, under the panel’s

own interpretation, this “absurd” result is unreviewable. Indeed, at an earlier stage,

the panel admitted that § 1254a(b)(5)(A) “restrict[s] review of the Secretary’s

determinations of whether to grant TPS in a particular situation[.]” Nat’l TPS All. v.

Noem, 150 F.4th 1000, 1017 (9th Cir. 2025) (simplified). So it makes no sense to

disregard the most natural reading of § 1254a(b)(5)(A) because of a hypothetical that

even the panel agreed falls within its scope.

Second, the parade of horribles only matters if one accepts the panel’s flawed

view of the judicial role. Simply, the federal judiciary doesn’t exist to remedy every

wrong. Lower courts are courts of limited jurisdiction. We only decide cases and

controversies over which Congress has given us jurisdiction. And we must faithfully

adhere to the limits Congress places on us. See Sheldon v. Sill, 49 U.S. (8 How.)

441, 449 (1850) (“Congress may withhold from any court of its creation jurisdiction

of any of the enumerated controversies.”); see generally Richard H. Fallon, Jr. et al.,

Hart and Wechsler’s The Federal Courts and the Federal System 307–314 (7th ed.

2015) (canvassing authorities on Congress’s jurisdiction-stripping power).

17 The panel was right in one respect—the TPS statute “was not meant to be a

blank check.” Nat’l TPS All., 166 F.4th at 757. But lower courts aren’t the bank—

policing every transaction. Sometimes Congress decides that the political process is

the proper forum for remedying improper conduct. For example, if the Secretary

were to sell TPS designations, the political branches have several remedies: (1) she

could be charged with bribery, see 18 U.S.C. § 201; (2) Congress could impeach her,

U.S. Const. art. II, § 4; or (3) Congress could refuse to fund the agency she leads, id.

art. I, § 9, cl. 7. Faithful adherence to the plain meaning of our jurisdictional limits

is not absurd—it’s our job. After all, the absurdity canon “does not license courts to

improve statutes . . . substantively, so that their outcomes accord more closely with

judicial beliefs about how matters ought to be resolved.” Caleb Nelson, Statutory

Interpretation 96 (2d ed. 2024) (quoting Jaskolski v. Daniels, 427 F.3d 456, 461 (7th

Cir. 2005) (Easterbrook, J.)).

III.

Creative textual analysis, off-point precedent, and sensational hypotheticals

cannot defeat the plain meaning of the words that survived bicameralism and

presentment. Try as it might, the panel cannot avoid the clear results: vacating an

extension is a determination with respect to that extension, and terminating a

designation is a determination with respect to a termination. The panel’s conclusion

to the contrary “strains credulity for even the most casual user of words.” McDonald

18 v. City of Chicago, 561 U.S. 742, 811 (2010) (Thomas, J., concurring in part and

concurring in the judgment).

Because the panel opinion strikes a blow to Congress’s authority over federal

courts and to “speaker[s] of ordinary English,” Mass. Lobstermen’s Ass’n v.

Raimondo, 141 S. Ct. 979, 980 (2021) (Roberts, C.J., respecting the denial of

certiorari), I respectfully dissent from the denial of rehearing en banc.

19 FILED MENDOZA, J., joined by WARDLAW, J., concurring in the denial of rehearing MAR 11 2026 en banc: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS

We write only to address the arguments contained within Part II of Judge

Nelson’s dissent from the denial of rehearing en banc (“dissental”).1 At the outset,

we make one thing clear: Judge Nelson’s sweeping characterizations of the

concurrence and its reach are his alone. He does not speak for us. We stand only

by what is written in the panel opinion, the concurrence, and this statement. What

the concurrence did was straightforward. It acknowledged what the record plainly

revealed. The Administrative Procedure Act does not require courts to shut their

eyes and ears to unreasoned and pretextual explanations. And it certainly does not

require courts to ignore evidence that bad faith animus was the driving factor

behind an agency’s decision. Judge Nelson would prefer a rule of deliberate

blindness to decisions even when driven by racism and national origin animus. We

decline to adopt it.

1 We do not address the arguments contained in Part I of Judge Nelson’s dissental given that they are addressed in Judge Wardlaw’s statement concurring in the denial of rehearing en banc. Additionally, Judge Wardlaw takes no position with respect to the concurrence’s Part III’s arguments, because she did not join the discussion of animus. 1 II.

Judge Nelson’s dissental rests on a curious premise: although he publicly

maintains that the concurrence is nonbinding and therefore does not control future

cases, he nonetheless spends a great deal of time evaluating its analysis as part of

his broader justification for en banc review. 2

Those positions cannot be reconciled. If, as the dissental asserts, the

concurrence carries no precedential effect and the panel opinion alone resolves the

case, then there is nothing for the en banc court to “correct” as to the concurrence.

En banc review is neither a vehicle for litigating personal grievances with the

nonbinding reasoning of another judge nor a means of issuing sweeping advisory

opinions on issues entirely unnecessary to the disposition. And if the concurrence

carries binding precedential weight, that would not aid the dissental either, because

the analysis it criticizes reflects nothing more than an application of settled

Administrative Procedure Act principles. Either way, Judge Nelson’s position

identified no error warranting rehearing.

2 If this concurrence is as plainly nonbinding as Judge Nelson publicly maintains, it is unclear why this case would be an appropriate vehicle on which to expend the Court’s en banc resources. Perhaps it is because Judge Nelson actually believes that the concurrence carries precedential weight. Judge Nelson further suggests that we do not object to his characterization of the concurrence’s precedential force. Because the dissental repeatedly misconstrues the opinion and the concurrence, we reiterate that we have only agreed to what is stated in the opinion, concurrence, and this statement—nothing else. 2 The dissental’s merits critique fares no better. According to Judge Nelson,

the concurrence improperly “commingled doctrines” by considering several State

Farm deficiencies to determine that the Secretary’s explanation was pretextual and

that the decision-making process reflected a preordained outcome. But the

concurrence did nothing of the sort; nowhere in the concurrence is there a finding

that only when considering the pretext and preordained evidence “together” does

the Secretary’s actions amount to a violation of the APA.3 Instead, we applied the

familiar framework articulated in Motor Vehicle Manufacturers Association v.

State Farm Mutual Automobile Insurance Co., 463 U.S. 29 (1983), and reaffirmed

in Department of Commerce v. New York, 588 U.S. 752 (2019). Those cases both

stand for the proposition that courts must set aside agency action where the agency

3 Judge Nelson misconstrues the words “[t]aken together” in our concurrence to suggest that we were “commingl[ing] doctrines.” But he should read the full paragraph to understand that we were discussing the evidence that, “[t]aken together,” reveals pretext:

In sum, the district court rightly identified a litany of APA defects, each of which render the Secretary’s actions arbitrary and capricious. Taken together, these deficiencies paint a picture of agency action that was not the product of reasoned decision-making, but of a rushed and pre- determined agenda masked by pretext.

Nat’l TPS All. v. Noem, 166 F.4th 739, 774 (9th Cir. 2026) (Mendoza, J., joined by Wardlaw, J., concurring) (emphasis added).

3 fails to consider important aspects of the problem, offers explanations that run

counter to the evidence before it, or provides rationales so implausible that they

cannot be attributed to agency expertise.

When multiple such evidentiary indicators appear in the administrative

record, it is neither novel nor improper for a court to evaluate them collectively in

assessing whether the agency’s stated rationale is pretextual. The Supreme Court

in Department of Commerce undertook precisely that holistic inquiry, examining

the “evidence as a whole” and concluding that “[s]everal points, taken together,

reveal a significant mismatch between the Secretary’s decision and the rationale he

provided.” 588 U.S. at 783. 4 And Department of Commerce never imposed any

sort of categorical sequencing rule requiring courts to isolate each State Farm

deficiency before considering whether the record as a whole reveals pretext. In

any event, the administrative record in this case did not support the Secretary’s

stated rationale.

Beyond the concurrence, Judge Nelson fundamentally misunderstands

pretext and preordained decision-making as siloed doctrines that must never be

considered in tandem. That is not how APA review operates. Instead, pretext and

preordained decision-making are both evidence of the same thing: arbitrariness and

4 See also Dep’t of Com., 588 U.S. at 782 (“We accordingly review the District Court’s ruling on pretext in light of all the evidence in the record before the court, including the extra-record discovery.”). 4 capriciousness. Where there is evidence that a decision-maker is hiding their true

reasons for taking action behind a faulty explanation, that is pretext. And where

there is evidence that an agency decided to take action prior to any reasoned and

official decision-making process, that is preordained reasoning. Evidence of

preordained outcomes is itself evidence that an agency’s post-factum official

reason for taking action was not the driving motive, and vice versa. Judge

Nelson’s conceptualization of arbitrary and capricious review would allow for

agencies to sprinkle in just enough (but not too much!) pretext and just enough (but

not too much!) preordained decision-making to skirt the APA’s reasoned decision-

making requirement.

Judge Nelson also accuses the concurrence of substituting its policy

judgment for that of the agency. To the contrary, the concurrence repeatedly

emphasized that courts may not second-guess policy choices entrusted to the

Executive. See, e.g., Nat’l TPS All., 166 F.4th at 781 (Mendoza, J., concurring).

The defect identified was not the Secretary’s national security or policy

preferences, but the absence of a reasoned explanation connecting those

preferences to the statutory criteria and the agency’s own decision-making

processes. Recognizing that an agency decision may be both “preordained” and

unsupported by the rationale offered does not expand arbitrary-and-capricious

review; it simply acknowledges the commonsense principle that courts need not

5 accept explanations that the record itself patently undermines. See Dep’t of Com.,

588 U.S. at 785 (“Accepting contrived reasons would defeat the purpose of the

enterprise. If judicial review is to be more than an empty ritual, it must demand

something better than the explanation offered for the action taken in this case.”).5

Judge Nelson’s criticism of the concurrence’s discussion of extra-record

evidence is similarly futile. First, we reiterate that the concurrence evaluated the

administrative record itself and concluded that the Secretary’s stated rationale

failed under the ordinary State Farm framework on that record alone. See, e.g.,

Nat’l TPS All., 166 F.4th at 771 (Mendoza, J., joined by Wardlaw, J., concurring).

The additional discussion addressed whether Secretary Noem’s statements

reflecting discriminatory animus could illuminate the context of the agency’s

decision-making, a question the Supreme Court has repeatedly recognized may

arise when there is a “strong showing of bad faith or improper behavior.” Dep’t of

Com. 588 U.S. at 781 (quoting Citizens to Pres. Overton Park, Inc. v. Volpe, 401

U.S. 402, 420 (1971)).

5 Judge Nelson’s accusation that “[t]he Majority Concurrence used its pretext finding as a license to disregard the agency’s valid rationale” stands in contrast to what the concurrence actually does. The concurrence expressly provides that it does not evaluate the merits of the Secretary’s policy preferences and it instead concludes that the Secretary’s stated reasons for vacating TPS designations for Venezuela and Haiti do not amount to “a satisfactory explanation” for its action in light of plethora of nonsensical contradictions contained in the record. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009). 6 The dissental’s suggestion that courts must categorically ignore such

damning evidence whenever a decision-maker throws out the words “national

security” with no further explanation misreads that precedent. Department of

Commerce did not require courts to blind themselves to clear evidence of improper

motive; it only cautioned that inquiry into decision-makers’ mental processes

should not occur lightly. See id. The concurrence expressly noted that

understandable reluctance but also recognized that caution does not mean courts

must pretend that plainly relevant extra-record evidence does not exist. Nat’l TPS

All., 166 F.4th at 771 (Mendoza, J., joined by Wardlaw, J., concurring).

The rule the dissental appears to propose would lead to an absurd result:

courts would be required to accept a proffered rationale at face value even where

the surrounding record and the decision-maker’s own extra-record public

statements clearly undermine its authenticity. This would eviscerate the

fundamental precepts of judicial review of agency decision-making,

notwithstanding its inherently deferential review. See Nw. Ecosystem All. v. U.S.

Fish & Wildlife Serv., 475 F.3d 1136, 1140 (9th Cir. 2007) (“Our task is simply to

ensure that the agency considered the relevant factors and articulated a rational

connection between the facts found and the choices made.”) (internal quotation

marks and citation omitted); Cook County v. Wolf, 461 F. Supp. 3d 779, 794 (N.D.

7 Ill. 2020) (“Most people know by now that the quiet part should not be said out

loud.”). Administrative law has never demanded such studied naiveté.

Indeed, Judge Nelson does not object to the fact that the Secretary’s

statements directly tied her decision to vacate TPS status for Venezuela to racist

stereotypes surrounding TPS holders’ nation of origin. Nor does he object to the

fact that the Secretary publicly categorized all Venezuelan TPS holders as

criminals and mentally unwell and stated that those stereotypes were the basis of

her decision to vacate TPS status for Venezuela. Instead, the dissental appears to

contend that the extra-record statements here just weren’t enough to show “bad

faith.” Cf. Kristi Noem, Meet the Press (NBC television broadcast, Feb. 2, 2025)

(“Folks from Venezuela that have come into this country are members of [Tren de

Aragua]. And remember, Venezuela purposely emptied out their prisons, emptied

out their mental health facilities and sent them to the United States of America. So

we are ending that extension of that [TPS] program, adding some integrity back

into it. And this administration's evaluating all of our programs to make sure that

they truly are something that’s to the benefit of the United States, so they’re not for

the benefit of criminals.”). There could not possibly be a stronger showing of “bad

faith” and “improper behavior” to consider these extra-record statements. Dep’t of

Com., 588 U.S. at 781. The relevance of this evidence arises not from its political

8 ramifications or character but from its obvious bearing on whether the agency’s

stated rationale reflects reasoned decision-making.

Judicial review under the APA requires courts to ensure that agencies offer

genuine explanations for their actions, not contrived ones. Judge Nelson’s

reasoning, by contrast, would require the judiciary to cover its ears even where

decision-makers brazenly say “the quiet part” out loud and publicly announce their

animus-laden reasons for taking an action against a specific subset of immigrants.

The denial of rehearing en banc reaffirms that Judge Nelson’s approach is one that

we are unwilling to follow.

9 FILED MAR 11 2026 National TPS Alliance v. Noem, et al., No. 25-5724 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS R. NELSON, Circuit Judge, dissenting from the denial of rehearing en banc:

When reviewing the Executive’s Temporary Protected Status (TPS) decisions,

the judicial role is highly constrained. The first constraint is jurisdictional. Judge

Bumatay correctly explains why 8 U.S.C. § 1254a(b)(5)(A) bars judicial review of

Plaintiffs’ Administrative Procedure Act (APA) claims. I fully join Judge Bumatay’s

dissent from the denial of rehearing en banc. Congress unambiguously precluded

review of “any determination” of the Secretary “with respect to the designation, or

termination or extension of a designation.” § 1254a(b)(5)(A). This forecloses

Plaintiffs’ APA challenge to the Secretary’s TPS decisions. See Ramos v. Wolf, 975

F.3d 872, 891–900 (9th Cir. 2020), reh’g en banc granted, opinion vacated, 59 F.4th

1010 (9th Cir. 2023).

While our court lacked statutory jurisdiction to decide this case, because the

panel reached the merits, I address those errors as well. First, the panel granted

universal relief without properly analyzing the legal authority to do so. In Trump v.

CASA, Inc., 606 U.S. 831 (2025), the Supreme Court restricted universal relief to

prevent enforcement of governmental policies to three potential circumstances:

(1) class actions; (2) complete relief for injuries to state plaintiffs; or (3) statutory

“set aside” relief under 5 U.S.C. § 706(2). Although the Court reserved the question,

Justices disagreed about whether the third option is authorized by statute. The Ninth

Circuit has not decided this question, either. And the panel did not take up the open

1 question. Instead, the panel conflated the doctrines, invoking the equitable

“complete relief” principle (option two) while purporting to act under statutory “set

aside” authority (option three). The panel thus revived arguments for equitable

remedial powers foreclosed in CASA. The panel should have picked a lane. Its

refusal gives future courts a roadmap around CASA’s limits.

Second, given the other en banc-worthy questions in this case, we should have

decided whether a majority concurrence is binding precedent to avoid any future

confusion. By its terms, however, the Majority Concurrence in this case is not

binding. Still, the Majority Concurrence concluded that the Venezuela Vacatur was

arbitrary and capricious by substituting its own policy judgment for the agency’s

reasoning. It improperly disregarded the agency’s stated rationale as “pretext.” But

the administrative record falls well short of what Department of Commerce v. New

York, 588 U.S. 752 (2019), demands for this finding.

I

The panel’s grant of universal relief flouts the Supreme Court’s decision in

CASA. The panel conflated options open after CASA. Only the “set aside” option

could be relevant to universal relief. But rather than decide that issue, the panel

concluded that “the proper remedy under APA § 706(2) is to set aside [the

Secretary’s] actions and restore the status quo.” Nat’l TPS All. v. Noem, 166 F.4th

739, 767 (9th Cir. 2026). While the panel perhaps could have granted relief under

2 § 706(2), it never analyzed whether the phrase “set aside” grants that power. See id.

It even disclaims deciding the question—while exercising power under the very

provision it refuses to interpret. See id. (“We need not resolve this question for our

circuit.”).

Worse, the panel invokes the need for “complete relief”—an equitable

concept. See id. Granting enforceable equitable relief to nonparties is generally

outside the inherent powers of the federal courts. See CASA, 606 U.S. at 841. By

grafting equitable considerations onto a statutory “set aside” question, the panel

skirted both theories. The result is analytically incoherent and opens the floodgates

for future courts to grant universal injunctions in situations foreclosed by CASA.

An equitable injunction is a precise concept. Courts issue prohibitory

injunctive relief through an order preventing a government officer from enforcing a

statute or administrative decision against a plaintiff. See, e.g., id. at 853; Ex parte

Young, 209 U.S. 123 (1908). The statute or rule remains legally in effect and may

even be enforced if the court dissolves the injunction. See Jonathan F. Mitchell, The

Writ-of-Erasure Fallacy, 104 Va. L. Rev. 933, 987 (2018).

A universal injunction goes a step further by enjoining the government from

enforcing the statute or rule against anyone, even nonparties. This is “relief that

extend[s] beyond the parties.” CASA, 606 U.S. at 843. Such relief was unheard of

at equity and is not part of the courts’ equitable powers. Id. at 847. Thus, the

3 Supreme Court held in CASA that Congress did not grant the Judiciary the power to

impose universal injunctions when it gave the Judiciary equitable powers in the

Judiciary Act of 1789. See id. at 841 & n.4.

The Court left open the possibility that some other statute may authorize relief

that prevents the government from enforcing a statute or rule against nonparties. See

id. at 841, 855–56. The most likely candidate is § 706(2). See id. at 847 n.10. That

provision provides that the reviewing court may “hold unlawful and set aside agency

action, findings, and conclusions found to be” arbitrary, capricious, or an abuse of

discretion. § 706(2).

But setting aside a rule is not an equitable injunction. Many courts have

suggested that “set aside” means the courts can vacate agency action itself. See, e.g.,

Sugar Cane Growers Co-op. of Fla. v. Veneman, 289 F.3d 89, 97–98 (D.C. Cir.

2002). For decades, the D.C. Circuit has used § 706(2) to strip agency rules of legal

effect, without enjoining agency officials from enforcing the vacated rule. See

Corner Post, Inc. v. Bd. of Governors of Fed. Rsrv. Sys., 603 U.S. 799, 831 (2024)

(Kavanaugh, J., concurring) (citing Harmon v. Thornburgh, 878 F.2d 484, 495 n.21

(D.C. Cir. 1989)). “[V]acatur neither compels nor restrains further agency decision-

making.” Texas v. United States, 40 F.4th 205, 220 (5th Cir. 2022). The relief does

not carry the threat of contempt and does not require the courts to maintain

continuing jurisdiction to ensure compliance. See, e.g., Horne v. Flores, 557 U.S.

4 433, 447–48 (2009); see also Mi Familia Vota v. Petersen, 152 F.4th 1153, 1156 (9th

Cir. 2025) (R. Nelson, J., dissenting from the denial of rehearing en banc).

Had the panel explained why the phrase “set aside” supports this kind of relief,

its conclusion may have been defensible. Still, Justices have questioned that

conclusion, and the panel never analyzed the issue. Compare United States v. Texas,

599 U.S. 670, 695 (2023) (Gorsuch, J., concurring in the judgment) (expressing

skepticism that § 706(2) authorizes universal set aside relief), with Corner Post, 603

U.S. at 826 (Kavanaugh, J., concurring) (defending the D.C. Circuit’s practice of

setting aside rules under the APA).

Rather than answer the textual question, the panel asserted that universal relief

was necessary to give Plaintiffs “complete relief.” But complete relief “is not a

guarantee”—it is “the maximum a court can provide” under its inherent equitable

powers. CASA, 606 U.S. at 854. Complete relief is not an automatic indicator of

what Congress authorized with the statutory phrase “set aside” agency action. The

answer to that question can come only from the text. The panel’s failure to determine

what the text authorizes warrants en banc review.1

The panel’s extended discussion of “complete relief” is more problematic for

an additional reason. The panel did not provide injunctive relief. See Panel

1 I express no view whether decisions finding statutory authority are correctly decided after CASA—only that the conclusion must be analytically defensible.

5 Concurrence at 5. But that highlights the potential confusion its analysis of equitable

considerations will cause for future courts purporting to act under § 706(2). See

Nat’l TPS All., 166 F.4th at 767–68. Carefully recognizing the differences between

these remedies is important for our court and the lower courts.

The concept of complete relief is a “principle” of what a “court of equity may

fashion.” CASA, 606 U.S. at 850. The panel invokes equitable relief each time it

references “complete relief.” But injunctive relief imposed against the government

is inherently disruptive. “[I]njunctions issued in such cases often remain in force for

many years, and the passage of time frequently brings about changed

circumstances . . . that warrant reexamination of the original judgment.” Horne, 557

U.S. at 447–48. Once a permanent injunction is entered, a federal court may shape

policy outcomes for decades, either through direct orders or through governmental

officials’ caution to avoid possible sanctions. See id. at 448. CASA sought to correct

this dynamic.

With the advent of forum-shopping, plaintiffs could rush to a single favorable

district court and obtain an injunction affecting national policy. And the odds were

stacked against the government: “A plaintiff must win just one suit to secure

sweeping relief,” but “the Government must win everywhere.” See 606 U.S. at 855.

This gave a single district court judge unilateral ability to shape and control policy

set by the political branches. The only recourse was emergency stays, forcing us and

6 the Supreme Court to resolve issues of national importance on expedited briefing

and truncated schedules. See id. at 870 (Kavanaugh, J., concurring). By collapsing

vacatur and equitable relief principles into a single “complete relief” rationale, the

panel reopens a door CASA closed.

While “set aside” relief under the APA may be the “functional equivalent of a

universal injunction” from a plaintiff’s perspective, Nat’l TPS All., 166 F.4th at 767

(quoting CASA, 606 U.S. at 873 (Kavanaugh, J., concurring)), it is not from the

courts’ perspective. Requiring “district courts to follow proper legal procedures

when awarding such relief” means courts must look to Congress for the legal

authorization. CASA, 606 U.S. at 869 (Kavanaugh, J., concurring). This restores

some power to Congress, who can strip jurisdiction from overbearing courts. See,

e.g., Patchak v. Zinke, 583 U.S. 244, 253 (2018) (plurality opinion).

Vacating an agency rule is also less intrusive than enjoining the government

from enforcing it. Set aside relief acts against the unlawful agency action itself, not

the agency’s decision maker. See Corner Post, 603 U.S. at 838 (Kavanaugh, J.,

concurring) (citing Mitchell, supra, at 1012). This “does nothing but re-establish the

status quo absent the unlawful agency action.” Texas, 40 F.4th at 220. Agency

decision makers are thus free to implement new policies.

The upshot is that if we enter set aside relief under § 706(2) (assuming support

in the text), courts must not do so based on equitable principles. By giving future

7 courts the potential to use § 706(2) to consider equitable principles, the panel garbled

the Supreme Court’s decision in CASA. We should have corrected that error.

II

Part II of the Majority Concurrence is also nonbinding and wrong.

A

We should have clarified whether a majority concurrence—a relatively rare

occurrence—is binding. Some members of our court have noted this potential issue.

See Truth v. Kent Sch. Dist., 551 F.3d 850, 851 n.1 (9th Cir. 2008) (Bea, J., dissenting

from the denial of rehearing en banc) (“This is no standard concurrence . . . because

two of the three members of the panel concur in it.”). Given the other en banc worthy

questions in this case, we should have clarified this issue to avoid any future

confusion.

By its own terms, the Majority Concurrence is not binding. Indeed, the

Majority Concurrence addressed an issue that the unanimous panel “decline[d] to

reach”—“the remainder of Plaintiffs’ APA challenge.” Nat’l TPS All., 166 F.4th

at 766. The unanimous panel thus does not adopt the analysis of the Majority

Concurrence. And the concurrence expressly noted that the panel’s “explanation is

sufficient to dispose of this case” and that it only addressed the APA claims “had we

reached the merits.” Nat’l TPS All., 166 F.4th at 769 (Mendoza, J., concurring). By

its own terms—which my colleagues stand by, see Majority En Banc Concurrence

8 at 1—the Majority Concurrence never purports to be binding. And the Majority En

Banc Denial Concurrence does not provide any reason to conclude otherwise. As a

result, the Majority Concurrence is nonbinding; it does not control future district

court and panel decisions.

B

Because the Majority Concurrence addresses a recurring issue in our court, it

is worth noting that it is wrong in any event. It concluded that Secretary Noem’s

vacatur of the Venezuela designation was “arbitrary and capricious in contravention

of the APA.” Nat’l TPS All., 166 F.4th at 771 (Mendoza, J., and Wardlaw, J.,

concurring). Under the APA’s “narrow” “arbitrary and capricious” standard, courts

may only set aside agency action when the agency fails to examine “the relevant

data” or cannot give “a satisfactory explanation for its action.” Motor Vehicle Mfrs.

Ass’n of the United States, Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43 (1983)

(internal quotation marks omitted). A court may not “substitute its judgment for that

of the agency.” Id.

But the Majority Concurrence dismissed the agency’s rationale—not because

the administrative record contradicts or fails to support the rationale—but because

the Majority Concurrence found that the Secretary’s “decisions were both

preordained and rooted in pretext.” Nat’l TPS All., 166 F.4th at 771 (Mendoza, J.,

and Wardlaw, J., concurring). The Majority Concurrence never found support from

9 a single doctrine to justify its finding but claimed commingled doctrines may be

“[t]aken together” to find agency action was “masked by pretext.” Id. at 774.

Indeed, the Majority Concurrence repeatedly reviewed standard State Farm

principles and then used them to support its pretext finding. See, e.g., id. at 771

(“[A] cursory review of the record indicates that her decisions were both preordained

and rooted in pretext.”); id. at 772 (a review of the agency’s consideration of

alternatives “underscores the preordained and pretextual character of the Secretary’s

decision”); id. at 773 n.3 (“[W]e may still view the Secretary’s failure to consider

these reliance interests as evidence of pretext.”).

No court has aggregated individual State Farm deficiencies in this way to

support a pretext finding. “[A] court is ordinarily limited to evaluating the agency’s

contemporaneous explanation in light of the existing administrative record.” Dep’t

of Com., 588 U.S. at 780 (citing Vermont Yankee Nuclear Power Corp. v. Nat. Res.

Def. Council, Inc., 435 U.S. 519, 549 (1978)). This principle “reflects the

recognition that further judicial inquiry into ‘executive motivation’ represents ‘a

substantial intrusion’ into the workings of another branch of Government and should

normally be avoided.” Id. at 780–81 (quoting Vill. of Arlington Heights v. Metro.

Hous. Dev. Corp., 429 U.S. 252, 268 n.18 (1977)); see also Ramos, 975 F.3d at 900

(R. Nelson, J., concurring) (“[T]he record-review requirement is not just a

10 meaningless procedural hurdle to overcome, but a fundamental constitutional

protection to government agency action.”).

The corollary is that courts must generally accept the rationale provided by

the agency so long as it is supported by the administrative record. That rule applies

with added force when the agency is acting “within the core of executive

responsibility.” Trump v. Hawaii, 585 U.S. 667, 701–02 (2018). Only on a strong

evidentiary showing of bad faith may the courts disregard the valid, stated reason.

Dep’t of Com., 588 U.S. at 780.

By commingling doctrines, the Majority Concurrence improperly expanded

the exceptions. Nat’l TPS All., 166 F.4th at 771. Department of Commerce does not

support this approach. There, the Supreme Court reviewed emails showing that the

rationale offered by the agency was adopted “late in the process,” because a leading

member of the project knew “the Secretary wished to reinstate the question,” and

“saw it as his task to ‘find the best rationale.’” 588 U.S. at 783. 2

2 Unlike the Majority En Banc Concurrence’s characterization of Department of Commerce (Op. at 4), the Supreme Court did not use State Farm discrepancies to disregard the valid rationale supported by the administrative record. Instead, the Court found that the agency stated a valid rationale under ordinary arbitrary or capricious review. Dep’t of Com., 588 U.S. at 777. The Court disregarded that valid rationale only after reviewing evidence of bad faith in an expanded administrative record. Id. at 783–84. And because the Court disregarded the “sole stated reason,” it found the action was arbitrary or capricious. Id. at 784. The Court never suggests that some evidence of political or ulterior motivations mixed with valid stated reasons is grounds to find that an agency action is arbitrary or capricious. The

11 The closest the Majority Concurrence came to evidence of pretext is its

assertion that the “timeline is strikingly suspicious.” Nat’l TPS All., 166 F.4th at

774. But it “is hardly improper for an agency head to come into office with policy

preferences and ideas.” Dep’t of Com., 588 U.S. at 783. Presidents are elected with

mandates to implement their own policy preferences, see Free Enter. Fund v. Pub.

Co. Acct. Oversight Bd., 561 U.S. 477, 498 (2010) (citing 1 Annals of Cong., at 499

(J. Madison)), and the rush to implement those preferences is not arbitrary or

capricious.

The Majority Concurrence used its pretext finding as license to disregard the

agency’s valid rationale. The agency stated the vacatur was “warranted to untangle

the confusion and provide an opportunity for informed determinations regarding the

TPS designations and clear guidance,” after Secretary Mayorkas’s prior decision

caused internal agency confusion. Vacatur of 2025 Temporary Protected Status

Decision for Venezuela, 90 Fed. Reg. 8805, 8807 (Feb. 3, 2025). The Majority

Concurrence glossed over these concerns because, in its view, “streamlining tracks

tend[s] to eliminate confusion.” Nat’l TPS All., 166 F.4th at 772. So too for the

Majority Concurrence’s conclusion that Secretary Noem should have considered

“de-consolidat[ion]” or individually revoking designations for beneficiaries. Id.

Majority Concurrence never relies on the type of evidence that Department of Commerce cited as a prerequisite.

12 Every time, the Majority Concurrence substituted its own judgment of how to run

an agency.

Finally, the Majority Concurrence found that the “Secretary’s decision-

making process deviated dramatically from established” agency “norms and

procedures” based on a Government Accountability Office (GAO) report. Nat’l TPS

All., 166 F.4th at 773. The GAO report does not appear in the administrative record,

and the Government opposed its consideration on appeal. The Majority Concurrence

considered the GAO report without a threshold finding of bad faith under

Department of Commerce. See 588 U.S. at 780.

The Majority Concurrence’s pretext finding stretched Department of

Commerce beyond its breaking point.3 The Secretary stated valid national security

concerns which the Majority Concurrence disregarded. See Ramos, 975 F.3d at 896

(maj. op.). We should have corrected that error en banc.

III

Our role is to say what the law is. The panel opinion and the Majority

Concurrence (nonbinding as it is) commingle and misconstrue Supreme Court

3 The sole concurrence highlights the danger in extending Department of Commerce to “inquire into the ‘mental processes of administrative decisionmakers.’” Nat’l TPS All., 166 F.4th at 771 (Mendoza, J., and Wardlaw, J., concurring) (quoting Dep’t of Com., 588 U.S. at 781). The sole concurrence wrongly looked to extra-record evidence and, along with the other errors, would have benefitted from en banc review. Cf. Ramos, 975 F.3d at 900–02 (R. Nelson, J., concurring).

13 precedent to invite judicial interference in the Executive’s decisions about national

security. I respectfully dissent from the denial of rehearing en banc.