Amicus Curiae Brief — Kristi Noem, Secretary, Department of Homeland Security, et al., Applicants v. National TPS Alliance, et al.

Nos. 24A1059

In the Supreme Court of the United States

KRISTI NOEM, SECRETARY OF HOMELAND

SECURITY, ET AL., Applicants,

v.

NATIONAL TPS ALLIANCE, ET AL., Respondents.

ON APPLICATION TO STAY THE ORDER ISSUED BY THE UNITED STATES

DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

BRIEF OF MEMBERS OF CONGRESS AS AMICI CURIAE IN

SUPPORT OF RESPONDENTS

ROSE CUISON-VILLAZOR

CENTER FOR IMMIGRANT JUSTICE

RUTGERS LAW SCHOOL

123 Washington Street

Newark, NJ 07102

(973) 353-3159

rose.villazor@law.rutgers.edu

ROBERT S. CHANG

Counsel of Record

FRED T. KOREMATSU CENTER FOR LAW

AND EQUALITY

UC IRVINE SCHOOL OF LAW

401 E. Peltason Dr.

Irvine, CA 92697

(949) 824-3034

rchang@law.uci.edu

Counsel for Amici Curiae

May 8, 2025

i

TABLE OF CONTENTS

Page

TABLE OF CONTENTS ................................................................................................ i

TABLE OF AUTHORITIES ......................................................................................... ii

INTEREST OF AMICI CURIAE .................................................................................. 1

ARGUMENT ................................................................................................................. 4

I.

The Executive Branch Seeks to Usurp Congressional Authority

Through Its Novel Interpretation of the TPS Statute. .......................... 4

II.

The Executive Branch Seeks to Usurp Judicial Authority By

Claiming that the Judiciary Is Barred from Deciding Whether

the TPS Statute Grants the Power to Vacate a TPS Designation. ....... 7

III.

A.

The Plain Language of Section 1254a(b)(5)(A) Does Not

Bar Judicial Review of the Secretary’s Vacatur. ......................... 9

B.

Legislative History Supports a Narrow Interpretation of

the Bar on Judicial Review. ....................................................... 12

The TPS Statute Does Not Allow for Vacatur. ..................................... 14

A.

The Plain Language of the TPS Statute Does Not

Authorize the Secretary to Vacate Designations or

Extensions of Designations. ....................................................... 14

B.

Congress Created the TPS Statutory Framework to Limit

the Executive Branch From Making Arbitrary Decisions

and Shield TPS From Domestic Politics. ................................... 18

C.

Congress Intended TPS Status to Fill Gaps in

Immigration Law Where Asylum Would Not Provide

Adequate Protections.................................................................. 20

CONCLUSION............................................................................................................ 22

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Labs. v. Gardner,

387 U.S. 136 (1967) ................................................................................................ 12

Azar v. Allina Health Servs.,

587 U.S. 566 (2019) .................................................................................................. 7

Block v. Cmty. Nutrition Inst.,

467 U.S. 340 (1984) .................................................................................................. 9

Conn. Nat’l Bank v. Germain,

503 U.S. 249 (2005) ................................................................................................ 14

Cuozzo Speed Techs. v. Com. for Intell. Prop.,

579 U.S. 261 (2016) ........................................................................................ 8, 9, 14

Davis v. Michigan Dep’t of Treasury,

489 U.S. 803 (1989) ................................................................................................ 10

Dodd v. United States,

545 U.S. 353 (2005) ............................................................................................... 14

Groff v. DeJoy,

600 U.S. 447 (2023) ................................................................................................ 14

Guerrero-Lasprilla v. Barr,

589 U.S. 221 (2020) ................................................................................................ 12

Gundy v. United States,

588 U.S. 128 (2019) (Gorsuch, J. dissenting) .......................................................... 5

INS v. Cardoza-Fonseca,

480 U.S. 421 (1987) ................................................................................................ 21

Ivy Sports Med., LLC v. Burwell,

767 F.3d 81 (D.C. Cir. 2014) .................................................................................. 15

Judge Rotenberg Educ. Ctr., Inc. v. FDA,

3 F.4th 390 (D.C. Cir. 2021) ................................................................................... 14

iii

Kucana v. Holder,

558 U.S. 233 (2010) ................................................................................................ 12

Leatherman v. Tarrant Cnty. Narcotics Intel. & Coordination Unit,

507 U.S. 163 (1993) ............................................................................................ 9, 18

Leocal v. Ashcroft,

543 U.S. 1 (2004) ...................................................................................................... 9

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) .............................................................................................. 7, 8

McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479 (1991) .......................................................................................... 11, 12

Miller v. French,

530 U.S. 327 (2000) ................................................................................................ 13

Morrill v. Jones,

106 U.S. 466 (1883) .................................................................................................. 6

Motor Vehicles Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins.

Co.,

463 U.S. 29 (1983) .................................................................................................... 4

Nat’l Assn. of Mfrs. v. Dep’t of Def.,

583 U.S. 109 (2018) ................................................................................................ 14

Nixon v. Missouri Mun. League,

541 U.S. 125 (2004) .................................................................................................. 9

Ramos v. Wolf,

975 F.3d 872 (9th Cir. 2020), vacated, 59 F.4th 1010 (9th Cir. 2023) .................. 11

Reno v. Catholic Soc. Servs., Inc.,

509 U.S. 43 (1993) .................................................................................................. 11

Russello v United States,

464 U.S. 16 (1983) ............................................................................................ 11, 17

TRW Inc. v. Andrews,

534 U.S. 19 (2001) .................................................................................................. 10

iv

United States v. Miller,

145 S. Ct. 839 (2025) .............................................................................................. 11

United States v. Williamson,

90 U.S. 411 (1874) .................................................................................................... 6

Utility Air Regul. Grp. v. EPA,

573 U.S. 302 (2014) .................................................................................................. 6

Virginia Uranium, Inc. v. Warren,

587 U.S. 761 (2019) ................................................................................................ 14

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 579 (1952) (Jackson, J., concurring) ......................................................... 5

Statutes

8 U.S.C.

§ 1101(a)(42)(A) ...................................................................................................... 21

§ 1154 ...................................................................................................................... 18

§ 1155 ...................................................................................................................... 18

§ 1158(b)(1)(B)(ii) .................................................................................................... 21

§ 1160(e)(1) ............................................................................................................. 11

§ 1254a .................................................................................................................... 22

§ 1254a(b)(2) ........................................................................................................... 15

§ 1254a(b)(3)(A) ................................................................................................ 16, 17

§ 1254a(b)(3)(B) ............................................................................................ 6, 16, 18

§ 1254a(b)(3)(C) ...................................................................................................... 16

§ 1254a(b)(5)(A) ...............................................................................................passim

§ 1255a(f) ................................................................................................................ 11

Immigration and Nationality Act ................................................................... 17, 18, 21

Refugee Act of 1980 ..................................................................................................... 21

Other Authorities

133 Cong. Rec. (House) 21334 (1987) (statement of Rep. Mario Biaggi) ..................... 5

135 Cong. Rec. H7501 (daily ed. Oct. 25, 1989) (statement of Rep. Bill

Richardson) ......................................................................................................... 5, 13

135 Cong. Rec. H7501 (daily ed. Oct. 25, 1989) (statement of Rep.

Sander Levine)........................................................................................................ 19

v

135 Cong. Rec. H7501 (daily ed. Oct. 25, 1989) (statement of Rep.

Joseph Brennan) ..................................................................................................... 20

135 Cong. Rec. H7501 (daily ed. Oct. 25, 1989) (statement of Rep.

Hamilton Fish) ....................................................................................................... 22

136 Cong. Rec. (House) 8686 (statement of Rep. Mary Rose Oakar) ........................ 18

136 Cong. Rec. (House) 8686 (statement of Rep. William H. Gray) .......................... 22

88 Fed. Reg. 68130, 68134 (Oct. 3, 2023) .................................................................... 20

H.R. Rep. No. 100-627, 100th Cong., 2d Sess. (1988) ................................................. 21

H.R. Rep. No. 244, 101st Cong., 1st Sess. pt. 1 (1989) ............................................... 22

Matthew E. Price, Persecution Complex: Justifying Asylum Law’s

Preference for Persecuted People, 47 Harv. Int’l L.J. 413, 427 (2006) .................. 21

Peter C. Diamond, Temporary Protected Status Under the Immigration

Act of 1990, 28 Willamette L. Rev. 857, 861 (1992) .............................................. 21

1

INTEREST OF AMICI CURIAE1

Amici are the following 48 members of the One Hundred Nineteenth

Congress:

Debbie Wasserman Schultz

Representative of Florida

Jamie Raskin

Representative of Maryland

Bennie G. Thompson

Representative of Mississippi

James P. McGovern

Representative of Massachusetts

Nydia M. Velazquez

Representative of New York

Jared Huffman

Representative of California

Yvette D. Clark

Representative of New York

Adriano Espaillat

Representative of New York

Bradley Scott Schneider

Representative of Illinois

Greg Casar

Representative of Texas

Jerry Nadler

Representative of New York

Eleanor Holmes Norton

Representative of D.C.

Danny K. Davis

Representative of Illinois

Brad Sherman

Representative of California

Jan Schakowsky

Representative of Illinois

Betty McCollum

Representative of Minnesota

Kathy Castor

Representative of Florida

Steve Cohen

Representative of Tennessee

Henry C. (“Hank”) Johnson, Jr.

Representative of Georgia

Paul D. Tonko

Representative of New York

Frederica S. Wilson

Representative of Florida

Suzanne Bonamici

Representative of Oregon

Dina Titus

Representative of Nevada

1 No counsel for a party authored this brief in whole or in part, and no party or counsel for a party

made a monetary contribution intended to fund the preparation or submission of this brief. No person

other than amici curiae or its counsel made a monetary contribution to its preparation or submission.

2

Lois Frankel

Representative of Florida

Juan Vargas

Representative of California

Robin L. Kelly

Representative of Illinois

Donald Beyer

Representative of Virginia

Lou Correa

Representative of California

Pramila Jayapal

Representative of Washington

Darren Soto

Representative of Florida

Steven Horsford

Representative of Nevada

Veronica Escobar

Representative of Texas

Lizzie Fletcher

Representative of Texas

Jesús G. “Chuy” García

Representative of Illinois

Sylvia R. Garcia

Representative of Texas

Alexandria Ocasio-Cortez

Representative of New York

Rashida Tlaib

Representative of Minnesota

Troy A. Carter, Sr.

Representative of Louisiana

Sheila Cherfilus-McCormick

Representative of Florida

Maxwell Frost

Representative of Florida

Robert Garcia

Representative of California

Sydney Kamlager-Dove

Representative of California

Jared Moskowitz

Representative of Florida

Andrea Salinas

Representative of Oregon

Gabe Amo

Representative of Rhode Island

Janelle Bynum

Representative of Oregon

Maxine Dexter

Representative of Oregon

Luz Rivas

Representative of California

Many of the amici have served in the House through the implementation of TPS

under Democratic and Republican Administrations.

3

As members of Congress, amici have a strong and unique interest in ensuring

that the Executive Branch faithfully executes the laws Congress enacts and does not

usurp Congressional or Judicial authority. Amici offer their perspectives and

expertise to assist this Court in resolving questions related to statutory construction

and the scope of what Congress delegated to the Executive Branch in the Temporary

Protected Status (TPS) statute. Amici have a special interest in ensuring that the

TPS statute is faithfully followed because of the severe and substantial economic and

social impacts that the unlawful revocation of TPS for hundreds of thousands of

people would have on their districts and the communities they represent in Congress.

INTRODUCTION AND SUMMARY OF ARGUMENT

Amici, as members of Congress, are keenly aware of the critical role that

separation of powers plays in our constitutional democracy as a means to safeguard

against the concentration of power within a single government branch. Separation of

powers requires that the Executive Branch not usurp Congress’s power to make laws;

it mandates that the Executive Branch not override the Judiciary’s power to declare

what the law is; and it obligates the Judiciary to not shy from its duty to prevent

Executive Branch overreach that upsets the carefully calibrated role each co-equal

branch plays in our constitutional democracy.

The Executive Branch advances an interpretation of the TPS statute that, in

essence, rewrites the statute to claim a power that Congress did not delegate to the

Executive Branch. Further, the Executive Branch asserts an interpretation of the

4

TPS statute that leaves no role for the judiciary. Amici, drawing on their experience

and expertise as members of Congress, explain how these offered interpretations are

incorrect and further explain that the TPS statute does not allow for vacatur.

ARGUMENT

I.

The Executive Branch Seeks to Usurp Congressional Authority Through

Its Novel Interpretation of the TPS Statute.

This case arises from Secretary Noem’s decision to “vacate” the previous

administration’s decision to extend temporary protected status—a legislatively

created immigration status subject to a statutory framework—to certain Venezuelan

migrants. In its application to stay, the Solicitor General, representing the Executive

Branch here, claims the Secretary’s vacatur falls within the discretionary power of

the Executive Branch and is the result of a “change in administration brought about

by people casting their votes.” Stay Application at 1, 15 (quoting Motor Vehicles Mfrs.

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 59 (1983) (Rehnquist,

J., concurring in part)).

Because the power to vacate is not mentioned in the TPS statute, the Executive

Branch is left to claim an “inherent” power to vacate an extension of a temporary

protected status or TPS designation. This claim of “inherent” power must be assessed

against the will of Congress; when the action taken—here by the Secretary—is

“incompatible with the expressed or implied will of Congress, . . . [the Executive

Branch’s] power is at its lowest ebb.” Youngstown Sheet & Tube Co. v. Sawyer, 343

5

U.S. 579, 637 (1952) (Jackson, J., concurring). Rather than grant unfettered

authority, Congress enacted the TPS statutory framework to limit the Executive

Branch’s discretion when making decisions related to temporary protected status by

“replac[ing]. . . ad hoc, haphazard regulations and procedures.” 135 Cong. Rec. H7501

(daily ed. Oct. 25, 1989) (statement of Rep. Bill Richardson). Congress wanted to

ensure that migrants are not “subject to the vagaries of our domestic politics,” id.

(statement of Rep. Sander Levine), and that factors “other than purely political

ramifications be considered when granting this status to a nation’s people,” 133 Cong.

Rec. (House) 21334 (1987) (statement of Rep. Mario Biaggi).

Ignoring this history, the Executive Branch elevates its own statutory

interpretation of the TPS statute to grant itself a power that was neither authorized

by Congress nor consistent with the regulatory structure it enacted. In so doing, the

Executive Branch intrudes on the legislative function of Congress. It then compounds

this intrusion on the separation of powers by claiming the Secretary’s novel

interpretation is shielded from judicial review.

In short, the Executive Branch’s position usurps both legislative and judicial

powers. But “[w]hen the separation of powers is at stake,” this Court does not “just

throw up [its] hands.” Gundy v. United States, 588 U.S. 128, 168 (2019) (Gorsuch, J.

dissenting). This Court must continue to guard against the Executive Branch’s

attempt to both write and interpret the law.

6

Contrary to any claim of “inherent power,” the Executive Branch does not have

the “power to revise clear statutory terms that turn out not to work in practice.”

Utility Air Regul. Grp. v. EPA, 573 U.S. 302, 327 (2014). As discussed in further detail

below, the TPS statute is clear: if a foreign state’s designation is terminated, such

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

published or, if later, the expiration of the most previous extension under

subparagraph (C).” 8 U.S.C. § 1254a(b)(3)(B). The Secretary cannot avoid that

statutory scheme by granting itself a new power to vacate an extension. See infra

Part II. And only the Secretary’s “determination[s]” as to designations, terminations,

or extensions are excluded from judicial review, 8 U.S.C. § 1254a(b)(5)(A), not the

question of statutory interpretation implicated by the Secretary’s novel reading of the

TPS statute. See infra Part II.A.

Allowing the Secretary to elevate her own interpretation of her powers over

those enumerated by Congress “would deal a severe blow to the Constitution’s

separation of powers[,]” Utility Air, 573 U.S. at 327, and upend precedent governing

the Congress-Executive relationship that pre-dates the Civil War, see Morrill v.

Jones, 106 U.S. 466, 424–25 (1883) (“The secretary of the treasury cannot by his

regulations alter or amend a revenue law. All he can do is regulate the mode of

proceeding to carry into effect what congress has enacted.”); United States v.

Williamson, 90 U.S. 411, 416 (1874) (“It is not in the power of the executive

department, or any branch of it, to reduce the pay of an officer of the army. The

7

regulation of the compensation . . . belongs to the legislative department of the

government.”).

Indeed, even this Court cannot, via its judicial power, “rewrite clear statutes”—

such as the TPS statute—to address “policy concerns.” Azar v. Allina Health Servs.,

587 U.S. 566, 581 (2019). Nor can the Secretary, who lacks judicial power. See Loper

Bright Enters. v. Raimondo, 603 U.S. 369, 391–92 (2024); id., 413–16 (Thomas, J.

concurring). Rather than act unilaterally, the executive “must take its complaints” to

Congress. Azar, 587 U.S. at 581.

II. The Executive Branch Seeks to Usurp Judicial Authority By Claiming

that the Judiciary Is Barred from Deciding Whether the TPS Statute

Grants the Power to Vacate a TPS Designation.

In order to safeguard the separation of powers, there must be judicial review

of the Executive Branch’s interpretation of a Congressional statute, and that review

must follow the proper rules of statutory construction, including deference to the

plain language of a statute, and where necessary, to the legislative intent of Congress.

Anything less would subvert the traditional role of Congress (to make the laws) and

the executive (to faithfully execute the laws).

By vacating a prior determination to extend a TPS designation, the Secretary

interprets the TPS statute to grant herself unenumerated powers never granted by

Congress when it created the TPS statutory framework. The Secretary now tries to

evade review by claiming that Section 1254a(b)(5)(A) of the TPS statute bars judicial

8

review of her vacatur, even though that section never mentions the terms vacate or

vacatur.

The crux of the Executive Branch’s argument is that the Secretary’s vacatur is

encompassed in the determination of whether to extend a designation, and thus,

judicial review of its interpretation of the TPS statute is barred. But that tautology

presumes the answer to the question at hand—does the TPS statute allow the

Secretary to vacate a previous determination to extend a designation? That

question—irrespective

of

any

particular

“determination” of

a

designation,

termination, or extension—is one of statutory construction, and thus, properly within

the province of judicial review. Proper analysis of a statute must defer to principals

of statutory construction, including legislative intent, not the self-serving

interpretation of an Executive Branch officer.

“Congress expects courts to handle technical statutory questions.” Loper

Bright, 603 U.S. at 402. “Courts interpret statutes, no matter the context, based on

the traditional tools of statutory construction, not individual policy preferences.” Id.

at 403. This Court “recognize[s] a ‘strong presumption in favor of judicial review” in

interpreting statutes, “including statutes that may limit or preclude review.” Cuozzo

Speed Techs. v. Com. for Intell. Prop., 579 U.S. 261, 273 (2016). This presumption

may be overcome only “by ‘clear and convincing indications, drawn from ‘specific

language,’ ‘specific legislative history,’ and ‘inferences of intent drawn from the

9

statutory scheme as a whole,’ that Congress intended to bar review.’” Id. (quoting

Block v. Cmty. Nutrition Inst., 467 U.S. 340, 349–50 (1984)).

A. The Plain Language of Section 1254a(b)(5)(A) Does Not Bar Judicial

Review of the Secretary’s Vacatur.

Section 1254a(b)(5)(A) states, “[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.” 8 U.S.C. § 1254a(b)(5)(A). The

Executive Branch argues the statute unambiguously gives the Secretary

“unreviewable authority” such that her decision to vacate the 2023 Designation

extension is unreviewable. Stay Application at 16. However, Congress narrowly

drafted the scope of the bar on judicial review. First, the word “vacatur” was excluded

from the types of determinations the Secretary makes, indicating that the Secretary’s

vacatur is outside of the scope of Section 1254a(b)(5)(A). Cf. Leatherman v. Tarrant

Cnty. Narcotics Intel. & Coordination Unit, 507 U.S. 163, 168 (1993) (applying the

principle of expressio unius est exclusion alterius or expression of one is the exclusion

of the other).

Second, the Executive Branch argues that the word “any” has an expansive

meaning and captures “determinations of whatever kind.” Stay Application at 16

(internal citations and quotation marks omitted). This argument ignores the principle

that courts “must give effect to every word of a statute wherever possible,” Leocal v.

Ashcroft, 543 U.S. 1, 12 (2004) (emphasis added); and ignores that “any” will mean

“different things depending on the setting,” Nixon v. Missouri Mun. League, 541 U.S.

10

125, 132 (2004). Here, Congress expressly included a qualification: “to designations,

or terminations or extensions.” 8 U.S.C. 1254a(b)(5)(A). These are categorical

limitations—the statute does not extend to “determinations of whatever kind,” but

rather any determinations to designate, terminate or extend TPS. Any other

interpretation renders the remaining words of Section 1254a(b)(5)(A) superfluous.

See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (“[It is] a cardinal principle of

statutory construction that a statute ought, upon the whole, to be so construed that,

if it can be prevented, no clause, sentence, or word shall be superfluous, void, or

insignificant.”).

Third, the phrase “with respect to” does not have the “broadening effect” the

Executive Branch argues, Stay Application at 16-17, particularly in light of the

fundamental statutory canon: “the words of a statute must be read in their context

and with a view to their place in the overall statutory scheme,” Davis v. Michigan

Dep’t of Treasury, 489 U.S. 803, 809 (1989). The Executive Branch claims that “with

respect to” “covers not only its subject but also matters relating to that subject.” Stay

Application at 16-17. Here, the subject of “with respect to” is “any determination” of

a “designation, or termination or extension of a designation.” 8 U.S.C. §

1254a(b)(5)(A). But the Executive Branch wants to extend the bar on judicial review

to whether the TPS statute includes the unenumerated action, “vacate,” not to

matters relating to the determination of designation, termination, or extension.

Accepting the Executive Branch’s interpretation of “with respect to” means that

11

Congress’s qualification of “any determination” would necessarily submit to the

whims of whatever the Executive Branch says is encompassed by the text of the

statute. Cf. United States v. Miller, 145 S. Ct. 839, 853 (2025) (rejecting a broad

reading of “with respect to” when doing so defied the principle “that sovereignimmunity waiver must be construed narrowly”).

Finally, a narrow reading of Section 1254a(b)(5)(A) to allow limited judicial

review is consistent with the understanding that “Congress acts intentionally and

purposely.” Russello v United States, 464 U.S. 16, 23 (1983). If Congress intended to

limit judicial review in all instances, Congress could “easily have used broader

statutory language.” McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 494 (1991)

(holding 8 U.S.C. section 1160(e)(1) barred judicial review only to “direct review of

individual denials of SAW status” and not collateral challenges to unconstitutional

practices); see also Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 53–56 (1993)

(finding 8 U.S.C. section 1255a(f) only barred judicial review of “the denial of an

individual application” while broader challenges not tied to such denials were not

barred from judicial review); cf. Ramos v. Wolf, 975 F.3d 872, 888–92 (9th Cir. 2020),

aff’g, Ramos v. Nielsen, 321 F. Supp. 3d 1083 (N.D. Cal. 2018), vacated, 59 F.4th 1010

(9th Cir. 2023) (agreeing with lower court that section 1254a(b)(5)(A) only barred

judicial review of inquiries “into the underlying considerations and reasoning

employed by the Secretary in reaching her country-specific TPS determinations” but

challenges to unconstitutional practices and policies considered collateral were

12

reviewable). Because the plain reading of Section 1254a(b)(5)(A) supports a narrow

interpretation, the Court is not barred from reviewing the Secretary’s vacatur of the

2023 Designation extension.

B. Legislative History Supports a Narrow Interpretation of the Bar on

Judicial Review.

Beyond the statutory text, a narrow interpretation of Section 1254a(b)(5)(A) is

supported by this Court’s “well-settled” and “strong presumption” favoring judicial

review of administrative actions. McNary, 498 U.S. at 496. This Court has long held

that “when a statutory provision is reasonably susceptible to divergent

interpretation, we adopt the reading that accords with traditional understandings

and basic principles: that executive determinations generally are subject to judicial

review.” Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020) (citing Kucana v.

Holder, 558 U.S. 233, 251 (2010)) (internal quotations marks omitted). This

presumption can only be overcome by “clear and convincing evidence” of congressional

intent to preclude judicial review. Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967).

The Executive Branch argues that it “has long exercised inherent authority to

afford temporary immigration status based on its assessment of conditions in foreign

states.” Stay Application at 17. However, Congress expressly enacted TPS to address

prior concerns about the lack of criteria guiding the Executive Branch and the lack of

transparency in the then existing ad hoc process. While Congress recognized the

Executive Branch’s unique role in matters of foreign policy, it understood that the

Executive Branch could not have unfettered discretion in TPS determinations. As

13

Representative Richardson explained in discussion over a predecessor safe haven bill

in 1989, the goal was to “establish an orderly, systematic procedure for providing

temporary protected status for nationals of countries undergoing civil war or extreme

tragedy, because we need to replace the current ad hoc, haphazard regulations and

procedures that exist today.” 135 Cong. Rec. H7501 (daily ed. Oct. 25, 1989)

(statement of Rep. Bill Richardson). Against this backdrop, Congress would not create

a detailed statutory scheme and then, as the Executive Branch argues, eliminate any

mechanism to ensure the process was followed.

Instead, in Section 1254a(b)(5)(A) Congress preserved the Secretary’s

authority in matters uniquely within her purview while preserving judicial review on

procedural issues arising under the TPS statute. Thus, as discussed above, Section

1254a(b)(5)(A) only bars judicial review of the Secretary’s specific “determination” to

designate, extend, or terminate designation of a particular foreign state based on the

enumerated statutory framework. But acknowledgment of Executive authority in one

respect does not equal an abdication of judicial authority in all.

Where “Congress has made its intent clear, the Court must give effect to that

intent.” Miller v. French, 530 U.S. 327, 328 (2000). Barring judicial review of the

Secretary’s vacatur ignores the congressional intent behind creating the TPS statute

in the first place: to eliminate ad hoc designations and ensure the Executive follows

a statutorily prescribed procedure. Because there are no “‘clear and convincing

indications, drawn from ‘specific language,’ ‘specific legislative history,’ and

14

‘inferences of intent drawn from the statutory scheme as a whole,’ that Congress

intended to bar review,’” the presumption favoring judicial review controls. Cuozzo

Speed Techs., 579 U.S. at 273.

III. The TPS Statute Does Not Allow for Vacatur.

A. The Plain Language of the TPS Statute Does Not Authorize the

Secretary to Vacate Designations or Extensions of Designations.

“Statutory interpretation must ‘begi[n] with,’ and ultimately heed, what a

statute actually says.” Groff v. DeJoy, 600 U.S. 447, 468 (2023) (quoting Nat’l Assn.

of Mfrs. v. Dep’t of Def., 583 U.S. 109, 127 (2018)). This Court “must presume that

[the] legislature says in a statute what it means and means in a statute what it says

there.” Dodd v. United States, 545 U.S. 353, 357 (2005) (quoting Conn. Nat’l Bank v.

Germain, 503 U.S. 249, 253–54 (2005)) (internal quotation marks omitted).

“Federal agencies are creatures of statute. They possess only those powers that

Congress confers upon them.” Judge Rotenberg Educ. Ctr., Inc. v. FDA, 3 F.4th 390,

399 (D.C. Cir. 2021). Where, as here, there exists a question requiring statutory

interpretation, “as in any field of statutory interpretation, it is [the Court’s] duty to

respect not only what Congress wrote but, as importantly, what it didn’t write.”

Virginia Uranium, Inc. v. Warren, 587 U.S. 761, 765 (2019) (emphasis added). Here,

the plain text and purpose of the TPS statute demonstrates that Congress did not

authorize the Secretary to vacate an already-granted TPS extension or designation.

15

As described more fully below, the TPS statute describes a detailed process and

time frame for the Secretary to implement designations, extensions, and

terminations. It says nothing, however, about vacatur of extensions or designations

that have already been granted.

Even though the statute says nothing of vacatur, the Executive Branch argues

that the Secretary has “inherent authority” to reconsider past decisions. Stay

Application at 20-21. While it is true that administrative agencies possess “some”

inherent authority to revisit their prior decisions, this argument oversimplifies the

law and fails to recognize that “any inherent reconsideration authority does not apply

in cases where Congress has spoken.” Ivy Sports Med., LLC v. Burwell, 767 F.3d 81,

86 (D.C. Cir. 2014).

Careful review of the Immigration and Nationality Act’s (“INA”) statutory

framework belies any argument that the TPS statute impliedly authorizes the

Secretary to vacate prior designations and extensions. The TPS statute meticulously

describes how the Secretary may designate, extend, and terminate temporary

protected status, when such determinations take effect, and provides specific time

periods that apply to each. For example, an initial designation “take[s] effect upon

the date of publication of the designation” and “shall remain in effect until the

effective date of the termination of the designation.” 8 U.S.C. § 1254a(b)(2).

The TPS statute is similarly prescriptive with respect to extensions and

terminations. “At least 60 days before the end of the initial period of designation, and

16

any extended period of designation,” the Secretary “after consultation with

appropriate agencies of the Government, shall review the conditions in the foreign

state . . . and shall determine whether the conditions for such designation under this

subsection continue to be met.” 8 U.S.C. § 1254a(b)(3)(A). The Secretary must

“provide on a timely basis for the publication of notice of such determination . . . in

the Federal Register.” Id. If the Secretary determines “that a foreign state . . . no

longer continues to meet the conditions for designation” the Secretary “shall

terminate the designation by publishing a notice in the Federal Register.” Id.

1254a(b)(3)(B). Without such a determination, the designation “is extended.” Id. §

1254a(b)(3)(A) & (C) (emphasis added). Extensions take effect immediately, and last

for the length of time specified in the notice, up to 18 months. Id.

In contrast, a termination “shall not be effective earlier than 60 days after the

date the notice is published or, if later, the expiration of the most recent

previous extension.” Id. § 1254a(b)(3)(B) (emphasis added). Against this backdrop,

the Executive Branch’s claim that Secretary Noem had inherent authority to vacate

the extension of the 2023 Designation is plainly at odds with this statutory

framework. As noted, the statute expressly provides that termination of the TPS

designation cannot occur earlier than the expiration of the “most recent previous

extension,” or here, the 18-month extension former Secretary Mayorkas granted on

January 17, 2025.

17

While the Executive Branch complains that former Secretary Mayorkas

extended the 2023 Designation “before the statute required action,” Stay Application

at 26, nothing in the TPS statute mandates that the Secretary wait until the last

second to review and grant extensions. Indeed, to the extent the Secretary seeks to

extend an expiring designation extension, the TPS statute requires the Secretary to

act “[a]t least 60 days before end of the initial period of designation, and any

extended period of designation.” 8 U.S.C. § 1254a(b)(3)(a) (emphasis added). That is,

while the TPS statute sets the minimum amount of time before the expiration of a

designation or extension to act (at least 60 days), it does not dictate how far in

advance the Secretary may act. Secretary Noem’s vacatur thus operates as an endrun around the statutory framework adopted by Congress because it effectively

terminates a designation before its “most recent previous extension” in violation of

the TPS statute.

The lack of implied or inherent authority to vacate TPS designations or

extensions is further confirmed by evaluating language Congress used to grant the

Secretary revocation authority elsewhere in the INA. “Where Congress includes

particular language in one section of a statute but omits it in another section of the

same Act, it is generally presumed that Congress acts intentionally and purposely in

the disparate inclusion or exclusion.” Russello, 464 U.S. at 23 (internal quotation

marks and citation omitted); see also Leatherman, 507 U.S. at 168.

18

Other sections of the INA demonstrate that Congress granted the Secretary

the authority to revisit and revoke prior approvals in more narrow circumstances.

Pursuant to 8 U.S.C. section 1155, the Secretary “may, at any time, for what he deems

to be good and sufficient cause, revoke the approval of any petition approved by him

under section 1154 of this title.” 8 U.S.C.A. § 1155. Congress could have, but did not,

include similar language in the TPS statute. Exclusion of similar language in the TPS

statute evinces Congress’s intent to limit the Secretary’s ability to revoke or vacate a

prior approval outside of the termination procedure prescribed by Section

1254a(b)(3)(B).

B. Congress Created the TPS Statutory Framework to Limit the

Executive Branch From Making Arbitrary Decisions and Shield TPS

From Domestic Politics.

The TPS statute’s prohibition against the type of ad hoc vacatur attempted by

Secretary Noem is further supported by the legislative history leading up to the TPS

statute’s passage. As discussed above, Congress’s rationale behind passing TPS was

to eliminate the Executive Branch’s prior practice of granting humanitarian

protection on an ad hoc basis through the practice of “extended voluntary departure”.

See supra (discussing statement of Rep. Bill Richardson); see also 136 Cong. Rec.

(House) 8686 (statement of Rep. Mary Rose Oakar) (“An orderly, systematic

procedure for providing temporary protected status for nationals of countries

undergoing war, civil war, or other extreme tragedy is needed to replace the current

ad hoc haphazard procedure.”). Specifically, Congress recognized the need to

19

regularize the process of awarding humanitarian protection based on enumerated

criteria to protect the decision from political pressures.

As is evident from the legislative history of the TPS statute, Congress

anticipated the current political situation, where the current Secretary seeks to

vacate TPS for a class of Venezuelan migrants even though the previous Secretary

found, following the statutory framework of the TPS statute, that extending the

designation of Venezuela warranted. Venezuelans covered by the TPS extension are

thus subject to the changing political winds and arbitrary action by the Executive

Branch. This is precisely what Congress sought to avoid by passing the TPS statute.

For example, Representative Levine stated: “[p]erhaps the most important

aspect of this bill is that it will standardize the procedure for granting temporary

stays of deportation. Refugees, spawned by the sad and tragic forces of warfare,

should not be subject to the vagaries of our domestic politics as well. . . . Our

recent domestic political squabble over the relative merits of Salvadorans and

Nicaraguans as political refugees should never be repeated.” 135 Cong. Rec. H7501

(daily ed. Oct. 25, 1989) (statement of Rep. Sander Levine) (emphasis added).

Similarly, Representative Brennan warned that the prior process of “extended

voluntary departure” potentially sent migrants “mixed messages which result from a

vague or arbitrary policy.” 135 Cong. Rec. H7501 (daily ed. Oct. 25, 1989) (statement

of Rep. Joseph Brennan).

20

These contemporaneous statements of various members of Congress reflect

clear legislative intent to constrain executive discretion and replace the prior practice

of providing nationality-based humanitarian protection on an ad hoc and opaque

basis. The Executive Branch asks this Court to defer to its judgment and allow it to

reinterpret the TPS statute in a way that will effectively negate it and return to the

pre-TPS era. In the Secretary’s view, the outcome of the last election justifies her

ability to vacate her predecessor’s extension decision, which if upheld, would result

in the immediate termination of TPS for the approximately 472,000 individuals

previously subject to the 2023 Designation. See 88 Fed. Reg. 68130, 68134 (Oct. 3,

2023). Overnight these individuals’ lives would be completely upended. That is

precisely the kind of “haphazard” process the TPS statute was designed to prevent

from occurring to individuals deserving of humanitarian protection.

C. Congress Intended TPS Status to Fill Gaps in Immigration Law

Where Asylum Would Not Provide Adequate Protections.

The Executive Branch also suggests respondents have not established

irreparable harm because they may apply for asylum if they are afraid to return to

Venezuela. See Stay Application at 37−38. This assertion also contravenes Congress’s

intent in passing the TPS statute. Congress specifically designed TPS to provide a

statutory framework allowing relief to individuals facing serious but generalized

forms of harm as opposed to the targeted persecution necessary to receive asylum.

The Refugee Act of 1980 allows asylum seekers to receive limited immigration

benefits on a case-by-case basis. 8 U.S.C. § 1101(a)(42)(A). Asylum applicants bear

21

the burden of showing that they meet the definition of “refugee” under the INA. Id.

Id. § 1158(b)(1)(B)(ii). The INA defines refugee as any person outside of their country

of origin “who is unable or unwilling to return to, and is unable or unwilling to avail

himself or herself of the protection of, that country because of persecution or a wellfounded fear of persecution on account of race, religion, nationality, membership in a

particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A).

To establish a well-founded fear of persecution, asylum applicants must

demonstrate that they face both a subjective and objective fear of returning to their

country of origin. See INS v. Cardoza-Fonseca, 480 U.S. 421, 430−31 (1987).

Analyzing persecution is highly fact-dependent and generally only includes

individuals who can demonstrate individualized and targeted persecution. See

generally Matthew E. Price, Persecution Complex: Justifying Asylum Law’s Preference

for Persecuted People, 47 Harv. Int’l L.J. 413, 427 (2006); Peter C. Diamond,

Temporary Protected Status Under the Immigration Act of 1990, 28 Willamette L.

Rev. 857, 861 (1992). Thus, individuals who face generalized forms of harm—no

matter how life-threatening—would not qualify for asylum. See, e.g., H.R. Rep. No.

100-627, 100th Cong., 2d Sess. at 5 (1988).

In response, Congress created the TPS program to provide temporary

protection to individuals unable to return to their country of origin because of ongoing

armed conflict, natural disaster, or other extraordinary circumstances. 8 U.S.C.

§ 1254a. The drafters of the TPS statute recognized that “not everyone who needs

22

protection meets the strict standard of asylum.” See 136 Cong. Rec. (House) 8686

(statement of Rep. William H. Gray).

In fact, Congress noted that despite the severe conditions in El Salvador at the

time, the asylum approval rate for Salvadorans averaged less than five percent. H.R.

Rep. No. 244, 101st Cong., 1st Sess. pt. 1, at 11 (1989). Congress therefore intended

the TPS statute to “fill[] an important gap in our immigration and refugee laws.” 135

Cong. Rec. H7501 (daily ed. Oct. 25, 1989) (statement of Rep. Hamilton Fish).

The Secretary’s improper vacatur of Respondents’ TPS status causes them to

suffer irreparable harm despite the potential availability of asylum (or other relief)

that may be presented under the immigration laws. Vacatur of Respondents’ TPS

status defies both the letter and the well-established legislative intent behind Section

1254a. Asylum (or other relief) cannot negate the irreparable harm by the Secretary

reopening a “gap” in the immigration laws that Congress sought to fill.

CONCLUSION

For the foregoing reasons, the Court should deny the application.

May 8, 2025

Respectfully submitted,

/s/ Robert S. Chang

Robert S. Chang

Counsel of Record

FRED T. KOREMATSU CENTER FOR LAW

AND EQUALITY

UC IRVINE SCHOOL OF LAW

401 E. Peltason Dr.

Irvine, CA 92697

(949) 824-3034

23

rchang@law.uci.edu

Rose Cuison-Villazor

CENTER FOR IMMIGRANT JUSTICE

RUTGERS LAW SCHOOL

123 Washington Street

Newark, NJ 07102

(973) 353-3159

rose.villazor@law.rutgers.edu

Counsel for Amici Curiae