This article was prepared with the assistance of ABIL, the Alliance of Business Immigration Lawyers, of which Loan Huynh is an active member.
On January 28, 2026, the U.S. Court of Appeals for the Ninth Circuit ruled that Homeland Security Secretary Kristi Noem exceeded her statutory authority in her vacatur and termination of Venezuela’s Temporary Protected Status (TPS) designation and her partial vacatur of Haiti’s TPS designation. The Ninth Circuit affirmed the district court’s setting aside of the Venezuelan vacatur and termination, and the Haitian partial vacatur.
The Ninth Circuit noted that Secretary Noem vacated the prior administration’s extension of TPS for Venezuela through October 2, 2026, and terminated Venezuela’s TPS effective April 3, 2025. Secretary Noem also partially vacated the prior administration’s extension of Haiti’s TPS such that the designation would expire in August 2025 instead of February 2026. Among other things, the court noted that the plain text of the TPS statute provides that a TPS termination cannot be effective earlier than the expiration of the most recent previous extension.
The court said that Secretary Noem’s actions “have left hundreds of thousands of people in a constant state of fear that they will be deported, detained, separated from their families, and returned to a country in which they were subjected to violence or any other number of harms. The Secretary’s actions fundamentally contradict Congress’s statutory design, and her assertion of a raw, unchecked power to vacate a country’s TPS is irreconcilable with the plain language of the statute.”
In a concurrence, Judge Salvador Mendoza, Jr., remarked on Secretary Noem’s “rushed and abnormal process” in vacating Venezuelan and Haitian TPS, leading to a “preordained outcome,” and underscored “why we must not permit government agencies to justify their actions with pretext, especially when that pretext is cloaking animus on the basis of race or national origin.” He said that “Secretary Noem’s vacatur actions would fail on the independent ground that they were arbitrary and capricious in contravention of the [Administrative Procedure Act], as even a cursory review of the record indicates that her decisions were both preordained and rooted in pretext.” Noting that public statements by President Donald Trump and Secretary Noem were founded on “racist stereotyping based on country of origin,” he said, “This case presents one of the rare situations where the strong showing of bad faith needed to look beyond the administrative record is easily met.”
