Petition for Writ of Certiorari — Fritz Emmanuel Lesly Miot, et al., Petitioners v. Donald J. Trump, President of the United States, et al.

Supreme Court briefMar 10, 2026

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No. 25IN THE

Supreme Court of the United States

_____________

FRITZ EMMANUEL LESLEY MIOT, et al.,

Petitioners,

DONALD J. TRUMP, et al.,

_____________

Respondents.

On Petition for Writ of Certiorari to the United

States Court of Appeals for the D.C. Circuit

_____________

CONDITIONAL PETITION FOR A WRIT OF

CERTIORARI BEFORE JUDGMENT

_____________

GEOFFREY M. PIPOLY

BRYAN CAVE LEIGHTON

PAISNER LLP

161 N. Clark Street Suite 4300

Chicago, IL 60601

JEAN-CLAUDE ANDRE

BRYAN CAVE LEIGHTON

PAISNER LLP

120 Broadway, Suite 300

Santa Monica, CA 90401

MATTHEW STANFORD

BRYAN CAVE LEIGHTON

PAISNER LLP

2 N. Central Ave., Suite 2100

Phoenix, AZ 85004

ANDREW E. TAUBER*

BRYAN CAVE LEIGHTON

PAISNER LLP

1155 F Street NW, Suite 700

Washington, DC 20004

(202) 508-6111

andrew.tauber@bclplaw.com

IRA J. KURZBAN

KURZBAN, KURZBAN,

TETZELI & PRATT

131 Madeira Ave.

Coral Gables, FL 33134

SEJAL ZOTA

JUST FUTURES LAW

1629 K Street NW, Suite 300

Washington, DC 20006

Counsel for Petitioners

(additional counsel listed inside)

March 10, 2026

*Counsel of Record

RAYMOND AUDAIN

GISKAN SOLOTAROFF &

ANDERSON

1 Rockefeller Plaza, 8th Floor

New York, NY 10020

QUESTIONS PRESENTED

Congress created Temporary Protected Status to

permit individuals from a designated country to lawfully live and work in the United States when conditions in that country prevent its nationals from returning in safety. As this Court has seen on its interim orders docket, the Secretary of Homeland Security has

terminated several countries’ TPS designations. The

government has sought certiorari before judgment to

review one such termination, for Syria, in Doe v. Noem,

25A952. The Court should deny that petition for the

reasons petitioners explained in their amicus brief in

support of respondents there. No stay should issue and

that appeal—like this appeal—should be heard in the

ordinary course. But if the Court grants that petition,

it should also grant this one, which addresses the termination of Haiti’s TPS designation. Raising facts and

arguments absent from Doe, this case is a better vehicle to review the questions presented. Granting both

petitions and consolidating them for argument is the

only way for the Court to address immediately all the

issues implicated by the Secretary’s various TPS designations.

Haiti has been designated for TPS since 2010. In November, the Secretary announced that she was terminating Haiti’s TPS designation. Alleging that it is procedurally improper and motivated by racial animus,

petitioners challenged the termination under the Administrative Procedure Act. Finding that they are

likely to succeed on their statutory and constitutional

claims under the APA, the district court granted petitioners interim relief.

The questions presented are whether 8 U.S.C.

§ 1254a(b)(5)(A) bars petitioners’ APA claims and, assuming not, whether petitioners have shown a likelihood of success on the merits of their APA claims.

(i)

PARTIES TO THE PROCEEDING

Petitioners are Fritz Emmanuel Lesly Miot, Rudolph

Civil, Marlene Gail Noble, Marica Merline Laguerre,

and Vilbrun Dorsainvil.

Respondents are Donald J. Trump, President of the

United States of America; United States of America;

the Department of Homeland Security; and Kristi

Noem, Secretary of Homeland Security.

RULE 29.6 STATEMENT

There are no corporate parties involved in this case.

RELATED PROCEEDINGS

United States District Court (D.D.C.): Miot v.

Trump, No. 25-cv-2471 (Feb. 2, 2026).

United States Court of Appeals (D.C. Cir.): Miot v.

Trump, No. 26-5050 (Feb. 6, 2026).

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..........................................i

PARTIES TO THE PROCEEDING ...........................ii

RULE 29.6 STATEMENT ..........................................ii

RELATED PROCEEDINGS.......................................ii

TABLE OF CONTENTS........................................... iii

TABLE OF AUTHORITIES ....................................... v

CONDITIONAL PETITION FOR A WRIT OF

CERTIORARI BEFORE JUDGMENT .................1

OPINIONS AND ORDERS BELOW..........................1

STATEMENT OF JURISDICTION ...........................1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED ...................................2

INTRODUCTION .......................................................2

STATEMENT..............................................................3

A. Temporary Protected Status ......................5

B. Haiti’s TPS designation..............................7

C. The termination of Haiti’s TPS

designation..................................................8

D. The termination of all TPS

designations .............................................. 11

E. Proceedings below................................... 111

REASONS FOR GRANTING THE PETITION

IF THE COURT GRANTS THE PETITION

IN DOE ................................................................14

I. THIS CASE IS A BETTER VEHICLE

THAN DOE FOR DECIDING THE

QUESTIONS PRESENTED. ..............................14

(iii)

A. This case raises threshold issues not

raised in Doe. ............................................ 15

B. This case implicates a wider range of

APA claims................................................ 17

C. This record and decision below are

more developed in this case...................... 20

II. THE DECISION BELOW IS CORRECT. ........ 200

A. The district court correctly held that

it has jurisdiction over petitioners’

claims. ..................................................... 200

B. The district court correctly

determined that petitioners are likely

to succeed on the merits. ..........................22

Petitioners are likely to

succeed on their APA claims. ....... 22

Petitioners are likely to

succeed on their equalprotection claim. ......................... 255

III.REVIEW AT THIS STAGE OF THE

PROCEEDINGS IS UNWARRANTED BUT

PROCEDURALLY PROPER. .............................27

CONCLUSION..........................................................29

APPENDICES

D.D.C. opinion and order .................................... 1a

D.D.C. order denying stay................................. 99a

D.C. Circuit order denying stay ...................... 104a

Termination notice .......................................... 120a

Constitutional and statutory provisions ........ 147a

TABLE OF AUTHORITIES

CASES

Page

Afr. Communities Together v. Noem,

2026 WL 395732 (D. Mass. Feb. 12, 2026) .... 21, 23

Biden v. Texas,

597 U.S. 785 (2022) .............................................. 21

Camreta v. Greene,

563 U.S. 692 (2011) .............................................. 28

CASA de Md., Inc. v. Trump,

355 F. Supp. 3d 307 (D. Md. 2018) ...................... 22

Centro Presente v. DHS,

332 F. Supp. 3d 393 (D. Mass. 2018) ................... 22

Doe v. Noem,

2026 WL 184544 (N.D. Ill. Jan. 23, 2026) ........... 23

Haitian Evangelical Clergy Ass’n v. Trump,

789 F. Supp. 3d 255 (E.D.N.Y. 2025)............... 9, 22

Learning Res., Inc. v. Trump,

2026 WL 477534 (U.S. Feb. 20, 2026) ................. 28

Marcello v. Bonds,

349 U.S. 302 (1955) ........................................ 15, 16

McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479 (1991) .............................................. 21

Mistretta v. United States,

488 U.S. 361 (1989) .............................................. 28

Motor Vehicle Mfrs. Ass’n of the United States,

Inc. v. State Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983) .......................................... 23, 24

Nat'l TPS All. v. Noem,

166 F.4th 739 (9th Cir. 2026)............................... 21

Nat’l TPS All. v. Noem,

2026 BL 42675 (9th Cir. Feb. 9, 2026)................. 21

Ramos v. Wolf,

975 F.3d 872 (9th Cir. 2020) ................................ 21

Saget v. Trump,

375 F. Supp. 3d 280 (E.D.N.Y 2019).............. 22, 24

Shaughnessy v. Pedreiro,

349 U.S. 48 (1955) ................................................ 16

Trump v. Hawaii,

585 U.S. 667 (2018) .............................................. 25

United States v. Nixon,

418 U.S. 683 (1974) .............................................. 28

United States v. United Mine Workers of Am.,

330 U.S. 258 (1947) .............................................. 28

Village of Arlington Heights v. Metropolitan

Housing Development Corp.,

429 U.S. 252 (1977) .............................................. 25

Webster v. Doe,

486 U.S. 592 (1988) .............................................. 20

Wilson v. Girard,

354 U.S. 524 (1957) .............................................. 28

vii

Youngstown Sheet & Tube Co. v. Sawyer,

343 U.S. 937 (1952) .............................................. 28

CONSTITUTION AND STATUTES

5 U.S.C.

§ 559 ...................................................... 2, 15, 16, 21

§ 705 ........................................................ 1, 2, 12, 15

§ 706 .................................................................. 2, 15

§ 706(2)(A)............................................................... 6

§ 706(2)(B)................................................... 6, 16, 17

§ 706(2)(D) ............................................................ 17

8 U.S.C.

§ 1182(a)(2) ....................................................... 6, 24

§ 1182(a)(3) ....................................................... 6, 24

§ 1254a .................................................................... 2

§ 1254a(a)(1)(A) ...................................................... 6

§ 1254a(a)(1)(B) ...................................................... 6

§ 1254a(b)........................................................ 17, 18

§ 1254a(b)(1)(A) ................................................ 5, 18

§ 1254a(b)(1)(B) ...................................................... 5

§ 1254a(b)(1)(C) ................................................ 5, 17

§ 1254a(b)(2) ........................................................... 6

§ 1254a(b)(3)(A) ................................ 6, 7, 18, 22, 23

§ 1254a(b)(3)(B) ...................................................... 7

§ 1254a(b)(3)(C) ...................................................... 7

§ 1254a(b)(5)(A) ........... 2, 12, 13, 15, 16, 17, 20, 21

§ 1254a(c)(1)(A)....................................................... 6

§ 1254a(c)(2)(A)....................................................... 6

§ 1254a(c)(2)(B)................................................. 6, 24

§ 1254a(c)(3)............................................................ 6

§ 1254a(c)(3)(A)................................................. 6, 24

§ 1254a(c)(3)(C)..................................................... 25

28 U.S.C.

§ 1254(1)................................................................ 27

viii

§ 1331 ...................................................................... 1

§ 2101(e)............................................................ 1, 27

Administrative Procedure Act, Pub. L. No. 79404, 60 Stat. 237 (June 11, 1946) ........................ 15

Homeland Security Act of 2002, Pub. L. No.

107-296, 116 Stat. 2135 (Nov. 25, 2002)................ 5

Homeland Security Act Amendments of 2003,

Pub. L. No. 108-7, 117 Stat. 11 (Feb. 20,

2003)........................................................................ 5

Immigration Act of 1990, Pub. L. No. 101-649

Tit. III, § 302, 104 Stat. 4978 (Nov. 29,

1990)...................................................................... 15

U.S. Const. amend. V............................................. 2, 12

EXECUTIVE ACTIONS

75 Fed. Reg. 3476 (Jan. 21, 2010) ............................... 7

76 Fed. Reg. 29000 (May 19, 2011) ............................. 7

77 Fed. Reg. 59943 (Oct. 1, 2012)................................ 8

79 Fed. Reg. 11808 (Mar. 3, 2014) .............................. 8

80 Fed. Reg. 51582 (Aug. 25, 2015)............................. 8

86 Fed. Reg. 41863 (Aug. 3, 2021)............................... 8

88 Fed. Reg. 5022 (Jan. 26, 2023) ............................... 8

89 Fed. Reg. 54484 (July 1, 2024) ............................... 8

90 Fed. Reg. 8443 (Jan. 29, 2025) ............................. 10

90 Fed. Reg. 8805 (Feb. 3, 2025) ............................... 11

90 Fed. Reg. 9040 (Feb. 5, 2025) ............................... 11

90 Fed. Reg. 10511 (Feb. 24, 2025) ....................... 9, 11

90 Fed. Reg. 20309 (May 13, 2025) ........................... 11

90 Fed. Reg. 23697 (June 4, 2025) ............................ 11

90 Fed. Reg. 24151 (June 6, 2025) ............................ 11

90 Fed. Reg. 28760 (July 1, 2025) ......................... 9, 11

90 Fed. Reg. 30086 (July 8, 2025) ............................. 11

90 Fed. Reg. 30089 (July 8, 2025) ............................. 11

90 Fed. Reg. 43225 (Sept. 8, 2025) ............................ 11

90 Fed. Reg. 45398 (Sept. 22, 2025) .......................... 11

90 Fed. Reg. 50484 (Nov. 6, 2025)............................. 11

90 Fed. Reg. 53378 (Nov. 25, 2025)........................... 11

90 Fed. Reg. 54733 (Nov. 28, 2026)...............................

.................... 4, 9, 10, 11, 18, 24, 26

90 Fed. Reg. 58028 (Dec. 15, 2025) ........................... 11

91 Fed. Reg. 1547 (Jan. 1, 2026) ............................... 11

91 Fed. Reg. 10402 (Mar. 3, 2026) ............................ 11

Exec. Order No. 14159 (Jan. 20, 2025) ....................... 9

RULES

S. Ct. R. 11 ................................................................. 27

OTHER AUTHORITIES

Maggie Astor, Trump Says He Would Try

Again to Revoke Haitian Immigrants’ Protections, N.Y. TIMES (Oct. 3, 2024),

https://nyti.ms/48QQTtS ........................................ 9

Riley Hoffman, READ: Harris-Trump presidential debate transcript, ABC (Sept. 10, 2024),

https://bit.ly/4aLeOgQ ............................................ 9

Fredlyn Pierre Louis, Haitian immigrants

grapple with uncertainty as TPS end date

looms, NBC NEWS (Mar. 8, 2025),

https://bit.ly/3MVcSbK ........................................... 4

Héctor Ríos Morales, Four Haitian Women

Were Deported from Puerto Rico; They Have

Now Been Found Decapitated, LATIN TIMES

(Feb. 4, 2026), https://bit.ly/3Pa1LwK................... 4

Travel Advisory: Haiti, U.S. Dep’t of State

(July 15, 2025), https://bit.ly/48wRYs0 (last

visited Mar. 9, 2026)............................................... 4

CONDITIONAL PETITION FOR A WRIT OF

CERTIORARI BEFORE JUDGMENT

If the government’s petition for a writ of certiorari is

granted in Dahlia Doe v. Noem, No. 25A952, petitioners Fritz Emmanuel Lesly Miot, Rudolph Civil, Marlene Gail Noble, Marica Merline Laguerre, and Vilbrun Dorsainvil respectfully and conditionally petition

for a writ of certiorari before judgment to the United

States Court of Appeals for the District of Columbia

Circuit and ask that this case be consolidated with Doe

for argument.

OPINIONS AND ORDERS BELOW

The opinion and order (App. 1a) of the United States

District Court for the District of Columbia postponing

the termination of Haiti’s TPS designation under 5

U.S.C. § 705 will be published in the Federal Supplement and is available at 2026 WL 266413. Docketed as

No. 26-5050, respondents’ appeal from that order is

pending in the United States Court of Appeals for the

District of Columbia Circuit.

The district court order denying Respondents’ application to stay the postponement order is available at

2026 WL 544434. The D.C. Circuit order denying Respondents’ application to stay the postponement order

has yet to be published.

STATEMENT OF JURISDICTION

The district court order was entered on February 2,

2026. App. 98a. The district court had subject matter

jurisdiction pursuant to 28 U.S.C. § 1331. Respondents’ appeal from the district court order was filed on

February 6, 2026. The jurisdiction of this Court rests

on 28 U.S.C. § 2101(e).

(1)

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The relevant statutory and constitutional provisions—5 U.S.C. § 559; 5 U.S.C. § 705; 5 U.S.C. § 706; 8

U.S.C. § 1254a; and U.S. Const. amend. V—are set

forth in the appendix.

INTRODUCTION

Like the petitioners in Doe v. Noem, No. 25A952, petitioners here are TPS holders. Petitioners in Doe are

from Syria. Petitioners here are from Haiti. The legal

questions presented in the two petitions overlap, but

there are facts and legal issues in play here that are

not present in Doe.

The government’s petition for a writ of certiorari in

Doe asks whether 8 U.S.C. § 1254a(b)(5)(A) bars judicial review of claims brought under the Administrative

Procedure Act and, if not, whether petitioners’ APA

claims are likely to succeed on the merits. This case

raises those questions, too, and others subsumed

within them.

This case is a better vehicle than Doe for addressing

myriad issues these petitions raise. In this case, unlike

Doe, the district court issued a written decision—an

83-page decision that not only analyzes the jurisdictional and merits questions in detail but does so with

respect to a wider range of APA claims than was considered in Doe. And in this case, unlike Doe, the administrative record has been produced, which will enable a more informed analysis of the merits.

Petitioners assert that certiorari should be denied in

Doe, including for the reasons explained the amicus

brief that they filed in support of respondents in that

case. Although they are important—indeed, because

they are important—the questions presented are best

decided in the normal course after the courts of appeals have addressed them. No stay should issue in either appeal and certiorari before judgment should not

be granted. The government identifies no emergency

that warrants review (or a stay of the district court order) at this stage of the proceedings. But if the Court

nonetheless grants the government’s petition in Doe, it

should also grant certiorari in this case.

STATEMENT

Absent Temporary Protected Status (TPS), petitioners face the risk of immediate deportation to Haiti.1

Without a functioning government, Haiti is a nation in

chaos. Rape, kidnapping, and murder are rampant,

while food, housing, and medical care are scarce.

Since the assassination of President Jovenel

Moïse in 2021, armed gangs have gained control over much of [Haiti’s capital] Port-auPrince, creating a power vacuum that has made

governing a challenge and fueled further violence, homelessness and starvation. More than

5,600 people were killed and 1,400 were kidnapped amid gang conflicts last year, according

to the United Nations. The violence has ren-

Petitioners’ amicus brief in opposition to the government’s

stay application in Doe sets forth the dangers that would await

them in Haiti—and the other hardships that would befall them—

if Haiti’s TPS designation is terminated. Br. of Haitian TPS Holders as Amici Curiae in Opp. to Application to Stay Amicus Br. of

Haitian TPS Holders at 5–9, Doe v. Noem, No. 25A952 (Mar. 6,

2026).

dered 1 million people homeless in Haiti, forcing many into makeshift shelters and exacerbating the country’s economic challenges.2

That was as of last March. Conditions have only gotten

worse. Indeed, the Federal Register notice announcing

the termination of Haiti’s TPS designation reports

that as of late August “1.3 million people—approximately 12% of Haiti’s population—have been forced to

flee their homes and are internally displaced due to escalating violence” that “has engulfed Port-au-Prince

and spreads beyond.” 90 Fed. Reg. 54733, 54735 (Nov.

28, 2026) (cleaned up).

Recognizing the ongoing crises that grip Haiti, the

State Department has issued a Level 4 travel advisory

warning that people should “not travel to Haiti due to

kidnapping, crime, terrorist activity, civil unrest, and

limited health care.”3 That warning “is not limited to

Port-au-Prince” but also applies to “all other parts of

Haiti.” ECF 81-1 ¶ 20.4

That petitioners risk death upon their removal to

Haiti is not speculative. In February, the decapitated

bodies of four Haitian women deported from the U.S.

several months earlier were found dumped in a river.5

Fredlyn Pierre Louis, Haitian immigrants grapple with uncertainty as TPS end date looms, NBC NEWS (Mar. 8, 2025),

https://bit.ly/3MVcSbK.

Travel Advisory: Haiti, U.S. Dep’t of State (July 15, 2025),

https://bit.ly/48wRYs0 (last visited Mar. 9, 2026).

All ECF references are to the docket in Miot v. Trump, No.

25-cv-2471 (D.D.C.).

Héctor Ríos Morales, Four Haitian Women Were Deported

from Puerto Rico; They Have Now Been Found Decapitated,

LATIN TIMES (Feb. 4, 2026), https://bit.ly/3Pa1LwK. People who

(continued . . .)

A. Temporary Protected Status

When the Secretary designates a country for TPS,

nationals of that country already present in the United

States can lawfully live and work in the U.S. for the

duration of the designation. A country may be designated for TPS if certain statutory conditions are met.

The Secretary of Homeland Security may designate a

country for TPS if the Secretary finds that (1) there is

“an ongoing armed conflict” within the country; (2) the

county has suffered “an earthquake, flood, drought, epidemic, or other environmental disaster” that renders

it “unable, temporarily, to handle adequately the return” of nationals to the country; or (3) “there exist extraordinary and temporary conditions in the” country

“that prevent” its nationals “from returning . . . in

safety.” 8 U.S.C. §§ 1254a(b)(1)(A)–(C). When considering whether to designate a country because it is unsafe for its nationals to return home, the Secretary is

allowed but not required to consider whether “permitting the [country’s nationals] to remain temporarily in

the United States is contrary to the national interest

of the United States.” Id. § 1254a(b)(1)(C).6

Once a country is designated for TPS, that country’s

nationals who are physically present in the United

return to Haiti after having lived in the United States, especially

those who—like Petitioner Marlene Noble—came to the U.S. as

young children and do not speak Creole, are targeted by the violent gangs that control Haiti. See ECF 81-1 ¶ 146; ECF 81-4 ¶¶ 3–

8, 17–18; App. 87a–89a.

Originally, Congress charged the Attorney General with administering the TPS statute, and the statute still refers to “the

Attorney General.” But in 2002 Congress transferred responsibility to the Secretary of Homeland Security. See Homeland Security

Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135, 2142–45, 2177–

2212 (Nov. 25, 2002); Homeland Security Act Amendments of

2003, Pub. L. No. 108-7, 117 Stat. 11, 526–32 (Feb. 20, 2003).

States may register as TPS holders unless they are ineligible to do so.7 TPS holders may not be deported and

are authorized to work in the United States so long as

their home country’s designation remains in place. Id.

§ 1254a(a)(1)(A)–(B).

Individuals are ineligible for TPS if (1) they have

been convicted of a felony or more than one misdemeanor; (2) they are known to have engaged in drug

trafficking; (3) they belong to a terrorist organization;

or (4) their presence in the United States would have

potentially serious adverse foreign policy consequences for the United States. 8 U.S.C.

§§ 1254a(c)(1)(A), (2)(A)–(B); id. §§ 1182(a)(2)–(3). Recognizing that errors might be made and that circumstances might change, the Secretary of Homeland Security is required to withdraw TPS from any individual who has received TPS but is subsequently determined to be ineligible. Id. § 1254a(c)(3).

A country’s initial designation is for a “period . . . of

not less than 6 months and not more than 18 months.”

8 U.S.C. § 1254a(b)(2).

A TPS designation is subject to periodic review. At

least 60 days before the TPS designation is set to expire, the DHS 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 . . . continue to be met.” 8 U.S.C. § 1254a(b)(3)(A). If the Secretary determines that the conditions for designation

continue to exist, the designation must be extended.

Id. § 1254a(b)(3)(A). Conversely, if the Secretary determines that the conditions for designation are no longer

Individuals who have been convicted of a felony or two misdemeanors are not eligible for TPS. See 8 U.S.C. § 1254a(c)(2)(B),

(3)(A); id. § 1182(a)(2)–(3)

met, the designation must be terminated. Id.

§ 1254a(b)(3)(B). Regardless which, “notice of . . .such

determination (including the basis for the determination . . .)” must be timely published “in the Federal

fails to make the mandated determination within the

statutorily prescribed period, the designation is automatically extended by at least six months. Id.

§ 1254a(b)(3)(C). Thus, the only circumstance under

which a TPS designation may be lawfully terminated

is if, as a result of the statutorily mandated periodic

review, the Secretary affirmatively determines that a

foreign state “no longer continues to meet the conditions for designation under [8 U.S.C. § 1254a(b)(1)]”

and then gives timely notice of “the basis for the determination.” Id. § 1254a(b)(3)(A)(B).

B. Haiti’s TPS designation

Haiti was first designated for TPS in January 2010,

following a devastating earthquake. 75 Fed. Reg. 3476

(Jan. 21, 2010). Since then, Haiti’s TPS designation

has been extended—and the country has been redesignated—multiple times over multiple administrations.8

These successive actions were prompted by the enduring effects of the 2010 earthquake, which not only

damaged Haiti’s infrastructure and public health systems but also worsened pre-existing conditions, such

as food insecurity and the lack of sufficient housing.

Subsequent natural disasters, including Hurricane

Matthew in 2016 and Hurricane Irma in 2017, compounded these problems, which directly and indirectly

affect millions of Haitians. See 76 Fed. Reg. 29000

An extension of a TPS designation applies only to those who

already hold TPS. The redesignation of country for TPS enables

individuals who were not present in the U.S. at the time of the

prior designation to register for TPS.

(May 19, 2011); 77 Fed. Reg. 59943 (Oct. 1, 2012); 79

Fed. Reg. 11808 (Mar. 3, 2014); 80 Fed. Reg. 51582

(Aug. 25, 2015); 86 Fed. Reg. 41863 (Aug. 3, 2021); 88

Fed. Reg. 5022 (Jan. 26, 2023); 89 Fed. Reg. 54484

(July 1, 2024).

During the prior administration, Haiti’s TPS designation was extended three times by then-Secretary

Mayorkas who, upon completing the statutorily mandated review process, concluded each time that the

statutory conditions for Haiti’s TPS designation continued to be met. See 86 Fed. Reg. 41863; 88 Fed. Reg.

5022; 89 Fed. Reg. 54484. In 2021, Secretary Mayorkas

concluded that “Haiti is grappling with,” among other

things, “a deteriorating political crisis, violence, and a

staggering increase in human rights abuses” in addition to “rising food insecurity” and “a severe lack of

healthcare services.” 86 Fed. Reg. at 41864–67.

In 2023, Secretary Mayorkas, reciting extensive evidence of Haiti’s deteriorating situation, determined

once again that “Haiti is experiencing economic, security, political, and health crises simultaneously.” 88

Fed. Reg. at 5025. Finally, in July 2024, Secretary

Mayorkas—citing political corruption, human-rights

abuses, escalating gang violence, limited health care,

food insecurity, and the continuing impact of a destructive 2021 earthquake that was quickly followed

by a severe tropical storm—“determined” again “that

an 18-month TPS extension is warranted because the

extraordinary and temporary conditions supporting

Haiti’s TPS designation remain.” 89 Fed. Reg. at

54487. The extension extended Haiti’s TPS designation through February 3, 2026. Id.

C. The termination of Haiti’s TPS designation

Shortly before taking office, President Trump—who

infamously claimed that Haitian TPS holders in

Springfield, Ohio were “eating the pets of the people”

there9—vowed to “revoke” Haiti’s TPS designation and

send Haitian TPS holders “back to their country.”10 He

has made good on that threat.

President Trump’s termination of Haiti’s TPS designation has been a three-step process. On February 24,

his Secretary of Homeland Security, Kristi Noem, issued a “partial vacatur” prematurely terminating

Haiti’s TPS designation effective August 3, 2025. 90

Fed. Reg. 10511 (Feb. 24, 2025). On July 1, the partial

vacatur was held unlawful. Haitian Evangelical

Clergy Ass’n v. Trump, 789 F. Supp. 3d 255 (E.D.N.Y.

2025) (HECA). The same day, Secretary Noem issued

a termination notice that purported to terminate

Haiti’s designation effective September 2, 2025. 90

Fed. Reg. 28760 (July 1, 2025). Then, on November 28,

three months after petitioners challenged the July 1

termination notice on constitutional and statutory

grounds, Secretary Noem issued a superseding termination notice purporting to terminate Haiti’s TPS designation effective February 3, 2026. 90 Fed. Reg. 54733

(Nov. 28, 2025). The operative complaint, petitioners’

second amended complaint, challenges the November

28 notice. ECF 90, Miot v. Trump, No. 25-cv-2471 (Dec.

19, 2025).

Secretary Noem issued the termination notice in

“furtherance of” Executive Order 14159 (Jan. 20,

2025). 90 Fed. Reg. at 54736. Issued by President

Trump within hours of regaining office, the order decries what it characterizes as an “unprecedented flood

Riley Hoffman, READ: Harris-Trump presidential debate

transcript, ABC (Sept. 10, 2024), https://bit.ly/4aLeOgQ.

Maggie Astor, Trump Says He Would Try Again to Revoke

Haitian Immigrants’ Protections, N.Y. TIMES (Oct. 3, 2024),

https://nyti.ms/48QQTtS.

of illegal immigration into the United States.” 90 Fed.

Reg. 8443, 8443 (Jan. 29, 2025). Directing each to

“align any and all departmental activities with the policies set out by this order,” the order instructs the Secretary of State, Attorney General, and DHS Secretary

to “promptly” take action “to rescind the policy decisions of the previous administration” that “led to the

increased or continued presence of illegal aliens in the

United States.” Id. at 8446.

Although TPS holders are not “illegal aliens”—because the TPS designation itself makes their presence

lawful—the order states that “[s]uch action shall include . . . ensuring that” TPS designations are “limited

in scope and made for only so long as may be necessary

to fulfill the textual requirements of the statute.” Id.

The Secretary gave two reasons for terminating

Haiti’s TPS designation. First, despite acknowledging

that “1.3 million people—approximately 12% of Haiti’s

population—have been forced to flee their homes and

are internally displaced due to escalating violence”

that “has engulfed Port-au-Prince and spreads beyond,” she “determined that there are no extraordinary and temporary conditions in Haiti that prevent

Haitian nationals . . . from returning in safety.” 90

Fed. Reg. at 54735 (cleaned up). Second, relying

largely on purported criminality, she determined that

even if . . .there existed conditions that were extraordinary and temporary that prevented Haitian nationals . . .from returning in safety, termination of Temporary Protected Status of

Haiti is still required because it is contrary to

the national interest of the United States to

permit Haitian nationals . . . to remain temporarily in the United States.

Id.

D. The termination of all TPS designations

Since President Trump returned to office, TPS designations for thirteen countries have been up for periodic review. The administration has terminated, sometimes in multiple steps, the designations for all thirteen. See 91 Fed. Reg. 10402 (Mar. 3, 2026) (Yemen);

91 Fed. Reg. 1547 (Jan. 1, 2026) (Somalia); 90 Fed.

Reg. 58028 (Dec. 15, 2025) (Ethiopia); 90 Fed. Reg.

54733 (Nov. 28, 2025) (Haiti); 90 Fed. Reg. 53378 (Nov.

25, 2025) (Burma); 90 Fed. Reg. 50484 (Nov. 6, 2025)

(South Sudan); 90 Fed. Reg. 45398 (Sept. 22, 2025)

(Syria); 90 Fed. Reg. 43225 (Sept. 8, 2025) (Venezuela);

90 Fed. Reg. 30089 (July 8, 2025) (Honduras); 90 Fed.

Reg. 30086 (July 8, 2025) (Nicaragua); 90 Fed. Reg.

28760 (July 1, 2025) (Haiti); 90 Fed. Reg. 24151 (June

6, 2025) (Nepal); 90 Fed. Reg. 23697 (June 4, 2025)

(Cameroon); 90 Fed. Reg. 20309 (May 13, 2025) (Afghanistan); 90 Fed. Reg. 10511 (Feb. 24, 2025) (Haiti);

90 Fed. Reg. 9040 (Feb. 5, 2025) (Venezuela); 90 Fed.

Reg. 8805 (Feb. 3, 2025) (Venezuela).

The terminations share at least two commonalities.

First, each country whose designation was terminated

is a majority non-white country. Second, in each instance, the Secretary concluded that “it is contrary to

the national interest of the United States to permit”

TPS holders “to remain . . . in the United States.” E.g.,

90 Fed. Reg. at 54735.

E. Proceedings below

Petitioners filed their original complaint, targeting

the July 1 termination notice, on July 30. ECF 1. Petitioners filed an amended complaint, challenging the

superseding November 28 termination notice on December 5. ECF 74. Two weeks later, on December 19,

petitioners filed a slightly revised second amended

complaint, which is the operative complaint. ECF 90.

Alleging that the termination was a procedurally defective predetermined outcome motivated at least in

part by racial animus, petitioners assert claims under

the Administrative Procedure Act and the Fifth

Amendment.

The government produced the administrative record

on December 10. ECF 78.

Recognizing that the litigation would not be complete before the scheduled February 3 termination

date, petitioners filed a motion for interim relief under

5 U.S.C. § 705, asking that termination be postponed

until a final resolution on the merits. ECF 81.

The government moved to dismiss, contending, inter

alia, that 8 U.S.C. § 1254a(b)(5)(A) deprived the district court of jurisdiction and that petitioners claims

failed on the merits. ECF 80.

Briefing on the parties’ respective motions ensued.

The government filed a brief in opposition to petitioners’ motion for interim relief while petitioners filed a

brief in opposition to the government’s motion to dismiss. ECF 92; ECF 93.

After both parties had filed replies in support of their

respective motions (ECF 99; ECF 100), the court held

a two-day hearing on January 6 and 7. To ensure that

the parties had a full opportunity to be heard, the court

allowed the government to submit a post-hearing supplemental brief in support of its positions and allowed

petitioners to file a supplemental brief in response.

ECF 103; ECF 108.

On February 2, the day before Haiti’s TPS designation was to have been terminated, the court denied the

government’s motion to dismiss and granted petitioners’ motion to postpone the termination pending a final

resolution on the merits. App. 1a–98a.

The court rejected the government’s contention that

§ 1254a(b)(5)(A) bars review of petitioners’ claims, recognizing that petitioners do not challenge the Secretary’s substantive determinations but instead the process by which she arrived at those determinations.

App. 23a.

The court held that petitioners are likely to succeed

on the merits of their APA claims, finding sufficient

evidence in the administrative record and the administration’s across-the-board termination of all TPS designations to conclude that the termination of Haiti’s

designation was not only arbitrary and capricious but

the preordained result of a pattern and practice of terminating TPS designations without adherence to the

statutorily mandated periodic review process. App.

47a–76a. The evidence for this finding as to Haiti, as

compared to other countries, was particularly strong,

given the specific comments that President Trump had

made about Haitian TPS holders and his corresponding declaration that he would revoke Haiti’s TPS designation.

Finally, the court concluded that petitioners are

likely to succeed on the merits of their equal-protection

claim, finding sufficient evidence that the termination

was motivated, at least in part, by racial animus. App.

76a–86a. Here again, the specific comments about

Haitian TPS holders provided evidence for this claim

absent from other TPS terminations.

On February 23, the district court denied Respondents’ application to stay its order postponing termination of Haiti’s TPS designation pending appeal. App.

99a. The court found, among other things, that petitioners “and other Haitian TPS holders face a greater

risk of harm from an order allowing the Government

to remove them to a perfect storm of suffering than the

Government faces from maintaining the status quo.”

Id. 102a (cleaned up).

On March 6, the D.C. Circuit denied Respondents’

application to stay the postponement order. App. 104a.

Like the district court, it found that “the termination

of TPS would have devastating consequences for the

plaintiffs, including risk of detention and deportation,

separation from family members, and loss of work authorization,” and that TPS holders “removed to Haiti

would be vulnerable to violence amid a collapsing rule

of law and lack access to life-sustaining medical care.”

App. 110a (cleaned up).

REASONS FOR GRANTING THE PETITION IF

THE COURT GRANTS THE PETITION IN DOE

I. THIS CASE IS A BETTER VEHICLE THAN

DOE FOR DECIDING THE QUESTIONS

PRESENTED.

This Court need not—and should not—grant review

in Doe or this case now. It can—and should—allow

each appeal to unfold in the ordinary course and can

consider the merits after the issues are fully decided

below. But if the Court accepts the government’s request to intervene now in Doe, the Court should simultaneously grant review in this case, too, which presents a better vehicle by which to review these issues.

This petition, unlike the petition in Doe, presents

threshold issues that must be addressed before resolving the questions presented; implicates a broader

range of APA claims than raised in Doe; and rests on a

record that it is more developed both legally and factually. That makes this case a better vehicle for resolving

the questions presented than Doe.

A. This case raises threshold issues not

raised in Doe.

1. The first question presented in Doe is whether 8

U.S.C. § 1254a(b)(5)(A) precludes judicial review of the

respondents’ APA claims. The Court cannot decide

that question without considering 5 U.S.C. § 559, pursuant to which a “[s]ubsequent statute may not be held

to supersede or modify . . . chapter 7” of the APA “except to the extent that it does so expressly.” Petitioners

in this case raised § 559 below. See ECF 93 at 4–6;

ECF 100 at 1–3; ECF 108 at 1. The respondents in Doe

did not. Because petitioners in this case raised this potentially dispositive antecedent issue below, it is the

better vehicle by which to resolve the § 1254a(b)(5)(A)

question.

The APA was enacted in 1946, decades before the jurisdictional bar in 8 U.S.C. § 1254a(b)(5)(A) was

passed in 1990. See Administrative Procedure Act,

Pub. L. No. 79-404, 60 Stat. 237 (June 11, 1946); Immigration Act of 1990, Pub. L. No. 101-649 Tit. III,

§ 302, 104 Stat. 4978, 5032 (Nov. 29, 1990). But the

later-enacted statute does not expressly supersede or

modify 5 U.S.C. § 705, which is both part of chapter 7

of the APA and the basis for the relief granted below.

To the contrary, § 1254a(b)(5)(A) is silent as to the

APA. Thus, § 559 forbids the Court from construing

§ 1254a(b)(5)(A) as limiting judicial review of unlawful

agency action under § 705.11

Fighting this conclusion, the government argued below that this Court “has explicitly rejected Plaintiffs’

theory” in Marcello v. Bonds, 349 U.S. 302 (1955). ECF

92 at 10. But the government’s reliance on Marcello is

It also prevents the Court from construing § 1254a(b)(5)(A) as

limiting judicial review of unlawful agency action under § 706,

which is the ultimate basis for Petitioners’ APA claims.

misplaced. Marcello not only rests on a unique constellation of historical facts absent here (see 349 U.S. at

306–10) but addresses the displacement of hearing

procedures, not the preclusion of judicial review.

Whether a subsequently enacted statute bars judicial

review under the APA is governed by Shaughnessy v.

Pedreiro, 349 U.S. 48 (1955), not Marcello.

In any event, regardless which side is correct, the

Court must address § 559 before it can decide whether

§ 1254a(b)(5)(A) precludes judicial review under the

APA. This case, unlike Doe, squarely raises the issue.

2. Unlike Doe, this petition presents the question

whether § 1254a(b)(5)(A) precludes review of constitutional claims brought under 5 U.S.C. § 706(2)(B),

which requires courts to “hold unlawful and set aside

agency action . . . found to be . . . contrary to constitutional right [or] power.” The Court would have no opportunity to address the question in Doe because the

relief granted there does not rest on the respondents’

constitutional allegations. Stay App. 28a–29a, Noem v.

Doe, No. 25A952.12 The relief granted in this case, by

contrast, rests in part on petitioners’ equal-protection

claim. App. 76a–86a. This case therefore would enable

the Court to more fully address the scope of

§ 1254a(b)(5)(A).

Whether § 1254a(b)(5)(A) applies to claims brought

under § 706(2)(B) is relevant here and in the other

cases currently challenging the termination of TPS

designations. In each case, the plaintiffs have asserted

an equal-protection claim. The question presented by

the government’s petition for a writ of certiorari in Doe

Finding the Doe petitioners’ definition of the protected class

“too expansive,” the Doe court concluded that the petitioners

there had not shown a likelihood of success on their equal-protection claim.

is whether § 1254a(b)(5)(A) “precludes respondents’

APA claims.” Stay App. 32, Doe, No. 25A952. Were the

Court to answer that question without considering

claims brought under § 706(2)(B)—claims that must

be addressed in the case—its decision would leave

open the pressing question whether § 1254a(b)(5)(A)

bars such claims.

B. This case implicates a wider range of APA

claims.

In additional to being a better vehicle because this

case squarely presents a constitutional claim under

the APA, this case also raises other, non-constitutional

APA claims not pursued in Doe..

1. Here, petitioners allege that the termination of

Haiti’s TPS designation rests on three unexplained departures from past practice that are not raised in Doe:

the Secretary’s failure to meaningfully consult with

the State Department; the Secretary’s reliance on purported criminality among TPS holders; and the Secretary’s reliance on the supposedly temporary nature of

a TPS designation. ECF 90 ¶¶ 188–90, 221, 247; see

also ECF 81 at 24–25; ECF 93 at 24; ECF 100 at 10–

11.

2. This case, unlike Doe, also raises the question

whether the Secretary acted “without observance of

procedure required by law” (5 U.S.C. § 706(2)(D)) inasmuch as her periodic review, such that it was, failed to

consider all the conditions for designation set forth in

§ 1254a(b) and instead limited her supposed periodic

review to the conditions set forth in § 1254a(b)(1)(C).

See ECF 90 ¶ 248; see also ECF 81 at 25–26; ECF 93

at 27–28; ECF 100 at 15–16. When determining

whether Haiti’s TPS designation should be extended

or terminated, the Secretary failed to consider whether

“there is an ongoing armed conflict within” Haiti and

whether, “due to such conflict, requiring the return of”

Haitians to Haiti “would pose a serious threat to their

personal safety.” 8 U.S.C. § 1254a(b)(1)(A). Her failure

to consider this enumerated basis for designation violated the TPS statute, which requires the Secretary to

“determine whether the conditions for . . . designation

under this subsection”—i.e., § 1254a(b)—“continue to

be met.” Id. § 1254a(b)(3)(A). This case would allow the

Court to analyze the viability of an APA claim based

on that failure.

3. In this case, as in Doe and all pending TPS

cases, the Secretary terminated a TPS designation

based on U.S. “national interest.” 90 Fed. Reg. at

54735. The recent terminations mark the first time in

the history of the TPS statute that a Secretary has relied on national interest as a basis for terminating a

TPS designation. There is good reason why no previous

Secretary has done so: Pursuant to the congressionally

mandated periodic review process, the termination of

a TPS designation may be based only on “conditions in

the

[designated]

foreign

state.”

U.S.C.

§ 1254a(b)(3)(A). Because U.S. national interest is not

a condition “in” a foreign state, it has no role in the

periodic review process and is not a lawful basis on

which to terminate a TPS designation. Both petitioners and the respondents in Doe challenge the Secretary’s statutorily impermissible invocation of national

interest.

But petitioners present arguments that are not presented in Doe.

First, petitioners here argue that even if a termination may be based on national interest, the Secretary’s

discretion in defining the national interest is statutorily and constitutionally cabined. ECF 108 at 9–10;

Hr’g Tr. 157–60, Miot v. Trump, No. 25-cv-2471 (Jan.

7, 2026); see also ECF 93 at 19–20. By enacting the

TPS statute, Congress conclusively determined that

TPS should exist, that each TPS designation should be

reviewed on a country-specific basis, and that the termination of a country’s TPS designation must be based

on conditions in that country. The Secretary’s termination of all TPS designations because she believes that

TPS designations are categorically contrary to the national interest effectively negates the statute that Congress enacted, substituting the Executive’s view of the

factors that should be considered in place of those specified by Congress. Petitioners—who allege that the termination of Haiti’s TPS designation is animated by

hostility to non-white immigrants—also argue that the

Secretary’s definition of the national interest is limited

by the Fifth Amendment’s equal-protection guarantee,

which precludes the Secretary from terminating a TPS

designation based on racial animus. The government

disagrees with each of these assertions: It takes the

position that the Secretary may adopt any definition of

the national interest that she wishes and that she may

determine the national interest in any manner she

chooses, including arbitrarily through the flip of a coin.

Hr’g Tr. 158–59 (respondents’ counsel “agree[ing] that

[the Secretary]” can “take a coin and flip it and decide,

heads, it’s in the national interest, tails, it’s not”), Miot

v. Trump, No. 25-cv-2471 (Jan. 7, 2026). Regardless

who is right, this case, unlike Doe, squarely presents

the issues.

Second, petitioners argue in the alternative that the

TPS statute would violate the non-delegation doctrine

if it did confer unfettered discretion on the Secretary

to define the national interest however she chooses.

Doe, by contrast, does not raise the issue.

C. This record and decision below are more

developed in this case.

If certiorari is granted in Doe, granting certiorari in

this case too will assist the Court’s analysis of the

questions presented because this case is better developed legally and factually. In Doe, the district court issued an oral ruling based on 66 pages of briefing and

a three-hour hearing. In this case, the district court received 173 pages of briefing and issued an 83-page

written decision after a two-day hearing that spanned

14 hours. The briefing and decision in this case cover

a wider range of issues in greater detail than the briefing and decision in Doe. The breadth and depth of the

district court decision in this case will help the Court

give thorough consideration to the multi-faceted questions presented. Granting review in this case alongside

Doe would be particularly helpful to the Court’s consideration of the merits question because here, in contrast to Doe, the administrative record has been produced and the district court decision relies on that record.

II. THE DECISION BELOW IS CORRECT.

A. The district court correctly held that it

has jurisdiction over petitioners’ claims.

Recognizing the “well-settled” and “strong” presumption “favoring judicial review of administrative

action”—a presumption that is especially strong with

respect to constitutional claims (see Webster v. Doe,

486 U.S. 592, 603 (1988)—the district court held that

8 U.S.C. § 1254a(b)(5)(A) does not deprive it of jurisdiction to hear petitioners’ claims. App. 22a (quoting

Guerrero-Lasprilla v. Barr, 589 U.S. 221, 229 (2020);

Kucana v. Holder, 558 U.S. 233, 251 (2010)).

The district court rightly concluded that although it

divests courts of jurisdiction to “review . . . any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of

a foreign state” for TPS, § 1254a(b)(5)(A) does not bar

review of claims such as those asserted here.13 As the

court explained, petitioners do not challenge the Secretary’s “determination” as to conditions in Haiti or the

U.S. national interest. App. 23a. “They challenge instead how the Secretary went about making her determination.” Id. The distinction is dispositive because—

as every court to have considered the issue on the merits has concluded14—§ 1254a(b)(5)(A) “does not prevent courts from reviewing and setting aside agency

action that is procedurally deficient.” HECA, 789 F.

Supp. 3d at 269.15

This consensus is rooted in McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991), a case in which the

Court interpreted a provision analogous to

§ 1254a(b)(5)(A). See, e.g., Nat’l TPS All. v. Noem, 166

F.4th 739, 757 (9th Cir. 2026) (citing McNary), aff’g

798 F. Supp. 3d 1108, 1133 (N.D. Cal. 2025) (same);

Afr. Communities Together v. Noem, 2026 WL 395732,

The court noted 5 U.S.C. § 559 (App. 39 n.16) but did not rest

its decision on it. Cf. supra at 15–16.

The Ninth Circuit has suggested to the contrary in an unpublished stay order, Nat’l TPS All. v. Noem, No. 26-199, 2026 BL

42675 (9th Cir. Feb. 9, 2026), and in a subsequently vacated panel

decision, Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020), reh’g en

banc granted, opinion vacated, 59 F.4th 1010 (9th Cir. 2023).

That the Secretary’s procedurally defective termination notice invoked national interest as a basis for terminating Haiti’s

TPS designation is immaterial because “the Constitution gives

Congress broad authority to set immigration policy” and the Executive “does not have the authority to override immigration laws

enacted by Congress.” Biden v. Texas, 597 U.S. 785, 830 (2022)

(Alito, J., dissenting).

at *5–8 (D. Mass. Feb. 12, 2026) (ACT); HECA, 789 F.

Supp. 3d at 269 (citing McNary); CASA de Md., Inc. v.

Trump, 355 F. Supp. 3d 307, 317–21 (D. Md. 2018)

(same); Centro Presente v. DHS, 332 F. Supp. 3d 393,

408–09 (D. Mass. 2018) (same). The district court was

right to join that consensus.

B. The district court correctly determined

that petitioners are likely to succeed on

the merits.

Petitioners are likely to succeed on

their APA claims.

1. The congressionally mandated periodic review

process requires the Secretary to “consult[] with appropriate agencies of government” before terminating

a TPS designation. 8 U.S.C. § 1254a(b)(3)(A). Here, the

government has admitted that the only supposed consultation was a three-sentence email exchange between a DHS staffer and a State Department staffer

that did not address conditions in Haiti at all and

touched on national interest obliquely at best. App.

49a (citing ECF 78 at 409–10).

That perfunctory exchange stands in sharp contrast

to the practice of every prior administration, including

the first Trump administration, all of which based periodic reviews on a series of vetted State Department

memos that compiled and analyzed information gathered from country and regional experts at the Department and culminated in a formal recommendation to

the Secretary of State. See Saget v. Trump, 375 F.

Supp. 3d 280, 298–300 (E.D.N.Y 2019). The divergence

from past practice “puts the inadequacy of the email

exchange here into stark relief.” App. 52a.

Regardless of past practice, the email exchange did

not constitute the meaningful consultation required by

§ 1254a(b)(3)(A). The district court therefore was right

to conclude that petitioners “are likely to succeed on

their claim that Secretary Noem acted contrary to law

and in excess of her statutory authority by failing to

consult appropriate agencies as required by the TPS

statute.” App. 48a. That the Secretary could terminate

a TPS designation is not in dispute. The question is

whether she may do so in the way that she has here,

notwithstanding Congress’s carefully calibrated termination procedure.

2. By statute, any decision to terminate a TPS designation must be based on the Secretary’s review of “conditions in the [designated] state.” 8 U.S.C.

§ 1254a(b)(3)(A). In other words, a termination must

be based on a country-specific review. But, as noted

above (supra at 11), the current administration has

terminated every TPS designation that has come up

for review despite the disparate conditions in the various designated countries. As the district court found,

this “strongly suggests that the Secretary engaged in

a pattern and practice of terminating all TPS designations without the country specific statutorily-mandated periodic review.” App. 54a; accord, e.g., ACT,

2026 WL 395732, at *12; Doe v. Noem, 2026 WL

184544, at *14 (N.D. Ill. Jan. 23, 2026).

3. Agency action is

arbitrary and capricious if the agency has relied

on factors which Congress has not intended it

to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the

evidence before the agency, or is so implausible

that it could not be ascribed to a difference in

view or the product of agency expertise.

Motor Vehicle Mfrs. Ass’n of the United States, Inc. v.

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

The termination of Haiti’s TPS designation is arbitrary and capricious under each of these standards.

To start, “Secretary Noem’s determination that conditions in Haiti permit safe return” is not merely implausible but “‘runs counter to the evidence before

[her].’” App. 58a (quoting State Farm, 463 U.S. at 43).

As the court found:

The Certified Administrative Record contains

over 1,450 pages, and it speaks with remarkable consistency. Every document describing

conditions in Haiti in 2025 describes the country as a nation deep in crisis.

Id.

The Secretary’s conclusion that allowing Haitian

TPS holders to remain in the United States is contrary

to the national interest rests in significant part on the

suggestion that Haitians are criminals prone to overstaying their visas. 90 Fed. Reg. at 54736. But there is

no “rational connection between the facts found and

the choice” to terminate Haiti’s TPS designation. State

Farm, 463 U.S. at 43.

The Secretary’s reliance on criminality is misplaced.

Individuals who commit the types of crimes described

in the termination notice are not eligible for TPS by the

statute’s own terms. See 8 U.S.C. § 1254a(c)(2)(B),

(3)(A); id. § 1182(a)(2)–(3); Saget, 375 F. Supp. 3d at

300. That presumably is why the termination notice

and underlying data “say[] nothing about the criminality rate of Haitian TPS holders” in particular, relying

instead on statements about Haitians generally. App.

73a.

Nor does the Secretary’s decision to terminate

Haiti’s TPS designation have any rational connection

to visa overstay rates. The termination notice says

that visa overstays hinder immigration enforcement

because individuals who overstay their visas “may be

harder to locate and monitor.” 90 Fed. Reg. at 54736.

But, as the district court correctly noted, “TPS holders,” who are lawfully present in the United States

“are easy to locate because they regularly update their

address information with DHS to maintain that status

and their work authorization.” App. 70a; cf. 8 U.S.C.

§ 1254a(c)(3)(C). And even if that were not the case,

the government has conceded that the administrative

record contains no data on Haitian TPS holders’ overstay rate. App. 70a.

Consistent with President Trump’s vow to “revoke”

Haiti’s TPS designation (supra at 9), there is, as the

district court found, abundant evidence that the termination of Haiti’s TPS designation was a preordained

outcome rather than the product of a the congressionally mandated periodic review process. That evidence

“includes Secretary Noem: (1) following the President’s

direction to terminate before conducting any analysis;

(2) terminating every TPS designation to come before

her; (3) failing to consult appropriate agencies; (4)

making gross generalizations without any supporting

data; and, among other things, (5) ignoring key aspects

of the analysis.” App. 75a–76a.

Petitioners are likely to succeed on

their equal-protection claim.

The district court correctly held that petitioners’

equal-protection claim is governed by Village of Arlington Heights v. Metropolitan Housing Development

Corp., 429 U.S. 252 (1977), which governs equal-protection claims asserted by individuals in the United

States, rather than Trump v. Hawaii, 585 U.S. 667

(2018), which governs claims asserted by individuals

outside the U.S., because petitioners are present in,

rather than seeking entry to, the United States. App.

77a–79a. The court was, moreover, correct to conclude

that petitioners are likely to succeed on the merits of

their claim. App. 79a–86a.

There are numerous indicia—in both word and

deed—that the termination of Haiti’s TPS designation

was motivated, at least in part, by racial animus.

The termination notice acknowledges that the decision to terminate Haiti’s designation was made in “furtherance” of President Trump’s directives. 90 Fed.

Reg. at 54736. President Trump “has repeatedly invoked racist tropes of national purity, declaring that

‘illegal immigrants’—a category he wrongly assigns to

Haitian TPS holders—are ‘poisoning the blood’ of

America.” App. 79a. He has also “complained . . . that

nonwhite immigration is an ‘invasion,’ creating a

‘dumping ground’ that is ‘destroying our country.’”

App. 80a. And he has “stated that he prefers immigrants from ‘nice’—predominantly white—countries

like Norway, Sweden, and Denmark over immigrants

from ‘shithole countries’” like Haiti. Id.

Secretary Noem too has expressed racially charged

antipathy toward nonwhite immigrants, describing

them as “leeches,” “entitlement junkies,” and “foreign

invaders” who “suck dry our hard-earned tax dollars.”

App. 85a. And the conclusion that she draws from

those characterizations is unambiguous: “WE DON’T

WANT THEM. NOT ONE.” Id.

The administration has translated this racial animus into policy. Every country whose TPS designation

has been cancelled is majority nonwhite. And, while it

is expelling nonwhite TPS holders, it is giving preferential treatment to white—and only white—South Africans. ECF 90 ¶¶ 103–05.

Thus, as the district court found, petitioners “are

likely to prevail on their Equal Protection claim.” App.

86a.

III. REVIEW AT THIS STAGE OF THE PROCEEDINGS IS UNWARRANTED BUT PROCEDURALLY PROPER.

Again, petitioners do not think that certiorari (or a

stay of the lower-court orders) should be granted in either Doe or this case at this stage of the proceedings.

This Court will grant a petition for a writ of certiorari

to review a case before intermediate appellate judgment “only upon a showing that the case is of such imperative public importance as to justify deviation from

normal appellate practice and to require immediate

determination in this Court.” S. Ct. R. 11.

To be sure, the legal issues concerning the termination of a TPS designation are exceedingly important.

But the government has come nowhere close to making

the requisite showing in Doe for a deviation from normal appellate practice. Syria has been designated for

TPS since 2011. The government has identified no crisis requiring the immediate removal of Syrian TPS

holders. Rather than grant review in its current posture, the Court should allow Doe to play out in the ordinary course so that the Court has the benefit of an

appellate decision based upon a complete record before

deciding the issues presented. But if this Court disagrees and grants the government’s request in Doe for

certiorari before judgment, the Court should then also

grant petitioners’ conditional petition for certiorari

here for the reasons stated throughout this petition.

The fact that petitioners prevailed in the district

court poses no bar to granting certiorari before judgment, either as a statutory or constitutional matter.

This Court may review cases “in the courts of appeals”

upon a petition for certiorari before judgment by “any

party to any civil or criminal case.” 28 U.S.C. § 1254(1)

(emphasis added); see also 28 U.S.C. § 2101(e) (“An application to the Supreme Court for a writ of certiorari

to review a case before judgment has been rendered in

the court of appeals may be made at any time before

judgment.”). That language “covers petitions brought

by litigants who have prevailed.” Camreta v. Greene,

563 U.S. 692, 700 (2011) (citing Eugene Gressman et

al., Supreme Court Practice 87 (9th ed. 2007)).16 Moreover, it is beyond doubt that this case presents a live

case or controversy: Respondents’ appeal seeking reversal is pending in the D.C. Circuit, and the serious

harms that the district court found petitioners would

suffer if the district court’s order is reversed (or if this

Court grants review in Doe, rules for the government

on the issues presented there, and thus removes some

of the arrows in the Haitian TPS holders’ legal quiver)

are real. There is thus no procedural impediment to

this Court’s immediate review. And, for the reasons

stated throughout this petition, granting the conditional petition here—if the Court has already decided

This Court has granted review of petitions filed by prevailing

parties on numerous occasions. See, e.g., Mistretta v. United

States, 488 U.S. 361, 371 (1989) (granting petitions of both Mistretta and United States where district court ruled in favor of

United States on constitutionality of federal sentencing guidelines); United States v. Nixon, 418 U.S. 683, 689-690 (1974)

(granting petition of United States where district court denied

President Nixon’s motions regarding subpoena issued by United

States); see also, e.g., Wilson v. Girard, 354 U.S. 524, 526 (1957);

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 937, 937 (1952)

(per curiam); United States v. United Mine Workers of Am., 330

U.S. 258, 269 (1947). And even more significant, this Court recently has granted review of a petition filed by a prevailing party

in the precise certiorari-before-judgment posture presented by petitioners here. See Learning Res., Inc. v. Trump, No. 24-1287,

2026 WL 477534, at *6 (U.S. Feb. 20, 2026).

to review the questions presented in Doe—will allow

the Court to consider the issues presented against a

more-fully developed record and more-fulsome lowercourt decision than what Doe presents and with additional bookending issues that Doe lacks.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari before judgment should be granted if the

government’s petition in Doe is granted.

Respectfully submitted,

GEOFFREY M. PIPOLY

BRYAN CAVE LEIGHTON

PAISNER LLP

161 N. Clark Street

Suite 4300

Chicago, IL 60601

JEAN-CLAUDE ANDRÉ

BRYAN CAVE LEIGHTON

PAISNER LLP

120 Broadway,Suite 300

Santa Monica, CA 90401

MATTHEW STANFORD

BRYAN CAVE LEIGHTON

PAISNER LLP

2 N. Central Ave.

Suite 2100

Phoenix, AZ 85004

RAYMOND AUDIAN

GISKAN SOLOTAROFF &

ANDERSON

1 Rockefeller Plaza

8th Floor

New York, NY 10020

ANDREW E. TAUBER*

BRYAN CAVE LEIGHTON

PAISNER LLP

1155 F Street NW

Suite 700

Washington, DC 20004

(202) 508-6111

andrew.tauber@bclplaw.com

IRA J. KURZBAN

KURZBAN, KURZBAN,

TETZELI & PRATT

131 Madeira Ave.

Coral Gables, FL 33134

SEJAL ZOTA

JUST FUTURES LAW

1629 K Street NW

Suite 300

Washington, DC 20006

APPENDIX

APPENDIX TABLE OF CONTENTS

Page

APPENDIX A: D.D.C. opinion and order ..........

APPENDIX B: D.D.C. order denying stay .........

99a

APPENDIX C: D.C. Circuit order denying

stay ....................................................................... 104a

APPENDIX D: Termination notice .................... 120a

APPENDIX E: Constitutional and statutory

provisions ............................................................. 147a

APPENDIX A

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

————

Case No. 25-cv-02471 (ACR)

————

FRITZ EMMANUEL LESLY MIOT, et al.,

Plaintiffs,

DONALD J. TRUMP, et al.,

Defendants.

————

MEMORANDUM OPINION

On December 2, 1783, then-Commander-in-Chief

George Washington penned: “America is open to receive

not only the Opulent & respected Stranger, but the

oppressed & persecuted of all Nations & Religions.”1

More than two centuries later, Congress reaffirmed

President Washington’s vision by establishing the

Temporary Protected Status (TPS) program. See 8

U.S.C. § 1254a (TPS statute). It provides humanitarian

relief to foreign nationals in the United States who

come from disaster-stricken countries. It also brings in

substantial revenue, with TPS holders generating $5.2

billion in taxes annually. See Part VI.

Department of Homeland Security (DHS) Secretary

Kristi Noem has a different take.2

Letter from George Washington to Joshua Holmes (December

2, 1783).

Dkt. 90 (Second Am. Compl.) ¶ 110 n.91. But see supra n.1.

So says the official responsible for overseeing the TPS

program. And one of those (her word) “damn” countries

is Haiti.3 Relevant here, three days before making the

above post, Secretary Noem announced she would

terminate Haiti’s TPS designation as of February 3,

2026. See 90 Fed. Reg. 54733 (Nov. 28, 2025)

(Termination).

Plaintiffs are five Haitian TPS holders. They are not,

it emerges, “killers, leeches, or entitlement junkies.”

They are instead: Fritz Emmanuel Lesly Miot, a

neuroscientist researching Alzheimer’s disease, Dkt.

90 (Second Am. Compl. (SAC)) ¶ 1; Rudolph Civil, a

software engineer at a national bank, id. ¶ 2; Marlene

Gail Noble, a laboratory assistant in a toxicology

department, id. ¶ 3; Marica Merline Laguerre, a college

economics major, id. ¶ 4; and Vilbrun Dorsainvil, a fulltime registered nurse, id. ¶ 5. They claim that

Secretary Noem’s decision violates the Administrative

Procedure Act (APA), 5 U.S.C. § 706(2), and the Fifth

See 90 Fed. Reg. 24497 (June 10, 2025); see also USCIS Policy

Memorandum, Hold and Review of all Pending Asylum

Applications and all USCIS Benefit Applications Filed by Aliens

from High-Risk Countries, December 2, 2025 (PM-602-0192)

(naming Haiti as one of nineteen countries banned from certain

immigration relief).

Amendment of the U.S. Constitution. The Government

counters that the Court does not have jurisdiction,

and, in any case, the Secretary did not violate the law.

Plaintiffs seek to stay the Secretary’s decision under

5 U.S.C. § 705 pending the outcome of this litigation.

See Dkt. 81 (§ 705 Mot.). To decide their motion, the

Court considers first whether it has jurisdiction. It

does. See Part II. It then considers: whether Plaintiffs

have a substantial likelihood of success on the merits;

whether they will be irreparably harmed absent a

stay; and whether a merged balance of the equities and

public interest analysis favors a stay. See Part III.

Each element favors Plaintiffs. See Parts IV, V, and VI.

Plaintiffs charge that Secretary Noem preordained

her termination decision and did so because of hostility

to nonwhite immigrants. This seems substantially

likely. Secretary Noem has terminated every TPS

country designation to have reached her desk—twelve

countries up, twelve countries down. See Section

IV.A.2. Her conclusion that Haiti (a majority nonwhite

country) faces merely “concerning” conditions cannot

be squared with the “perfect storm of suffering” and

“staggering” “humanitarian toll” described in pageafter-page of the Certified Administrative Record

(CAR). See Section IV.A.3.a. She ignored Congress’s

requirement that she “review the conditions” in Haiti

only “after” consulting “with appropriate agencies.”

8 U.S.C. § 1254a(b)(3)(A); see Section IV.A.1. Indeed,

she did not consult other agencies at all. See id. Her

“national interest” analysis focuses on Haitians outside

the United States or here illegally, ignoring that

Haitian TPS holders already live here, and legally so.

See Section IV.A.3.b. And though she states that the

analysis must include “economic considerations,” she

ignores altogether the billions Haitian TPS holders

contribute to the economy. See id.

The Government’s primary response is that the TPS

statute gives the Secretary unbounded discretion to

make whatever determination she wants, any way

she wants. And, yes, the statute does grant her some

discretion. But not unbounded discretion. To the

contrary, Congress passed the TPS statute to standardize the then ad hoc temporary protection system—

to replace executive whim with statutory predictability. See Section I.A.

As to irreparable harm, the Government contends

that, at most, the harms to Haitian TPS holders are

speculative. But the Department of State (State)

warns:

Dkt. 100 (§ 705 Reply) at 20–21.4 “Do not travel to

Haiti for any reason” does not exactly scream, as

Secretary Noem concluded, suitable for return. And so,

the Government studiously does not argue that

Plaintiffs will suffer no harm if removed to Haiti.

Instead, it argues Plaintiffs will not certainly suffer

irreparable harm because DHS might not remove

them. But this fails to take Secretary Noem at her

Citations to pages in a filing on the docket refer to the page

numbers assigned by the Court’s CM/ECF system.

word: “WE DON’T WANT THEM. NOT ONE.” See

Section IV.B.2.b.

Finally, the balance of equities and public interest

favor a stay. The Government does not cite any reason

termination must occur post haste. Secretary Noem

complains of strains unlawful immigrants place on our

immigration-enforcement system. Her answer? Turn

352,959 lawful immigrants into unlawful immigrants

overnight. She complains of strains to our economy.

Her answer? Turn employed lawful immigrants who

contribute billions in taxes into the legally unemployable.

She complains of strains to our healthcare system. Her

answer? Turn the insured into the uninsured. This

approach is many things—in the public interest is not

one of them.

For the reasons below, the Court GRANTS Plaintiffs’

Renewed Motion for a Stay Under 5 U.S.C. § 705,

Dkt. 81.

I. BACKGROUND

A. The TPS Statute

Before Congress passed the TPS Statute, the Executive

Branch handled nationality-based temporary protection

through an “ad hoc framework for providing relief to

nationals of certain designated countries.” Nat’l TPS

All. v. Noem (NTPSA III), 150 F.4th 1000, 1010 (9th

Cir. 2025).5 This led to haphazard regulations and

For the remainder of this Memorandum Opinion, the Court

cites the relevant NTPSA opinions as follows: NTPSA I, 773

F. Supp. 3d 807 (N.D. Cal. 2025) (postponing vacatur/termination

decisions on Venezuela’s designation); NTPSA II, 145 S. Ct. 2728

(May 19, 2025) (staying postponement pending appeal); NTPSA

III, 150 F.4th 1000 (9th Cir. 2025) (affirming postponement);

NTPSA IV, 798 F. Supp. 3d 1108 (N.D. Cal. 2025) (setting aside

Haiti’s partial vacatur decision on summary judgment, and

procedures, resulting in discretionary temporary stays

that left recipients uncertain of their immigration

status. In 1990, Congress stepped in to replace chaos

with structure by enacting the TPS statute, codified

at 8 U.S.C. § 1254a. Congress wanted “a system of

temporary status that was predictable, dependable,

and insulated from electoral politics.” NTPSA III, 150

F.4th at 1008. So, it gave first the Attorney General

and then the DHS Secretary, see 6 U.S.C. § 557,

responsibility for the program but prescribed the

relevant criteria and applicable process. It specified

the kind of country conditions severe enough to

warrant a designation under the statute. 8 U.S.C.

§ 1254a(b)(1). It prescribed the specific time frame

for any such designation. Id. § 1254a(b)(2). And it

prescribed with specificity the process for periodic

review of a TPS designation, which would culminate in

either termination or extension of such designation.

Id. § 1254a(b)(3).

Before designating a country for TPS, the DHS

Secretary must “consult[] with appropriate agencies.”

Id. § 1254a(b)(1). And she must find one of three

circumstances: that (1) “there is an ongoing armed

conflict within the [foreign] state” such that “requiring

the return” of nationals “would pose a serious threat to

their personal safety”; (2) there has been an “environmental disaster in the state resulting in a substantial,

but temporary, disruption of living conditions in the

area affected” and the foreign state is both “unable,

temporarily, to handle adequately the return” of

taking related action with respect to Venezuela’s designation);

NTPSA V, 146 S. Ct. 23 (Oct. 3, 2025) (staying district court’s

summary-judgment order as to the vacatur/termination decisions

on Venezuela pending appeal); NTPSA VI, No. 25 5724, 2026 WL

226573 (9th Cir. Jan. 28, 2026) (affirming summary-judgment).

nationals and “has requested [temporary protected

status] designation”; or (3) “there exist extraordinary

and temporary conditions in the foreign state that

prevent [its nationals] from returning to the state in

safety, unless the [Secretary] finds that permitting”

that country’s nationals “to remain temporarily in the

United States is contrary to the national interest of the

United States.” Id. § 1254a(b)(1)(A)–(C).

A country’s TPS designation does not automatically

mean its citizens receive TPS. A foreign national is

eligible for TPS only if she meets several criteria,

including being otherwise admissible and registering

for TPS within a specific time frame. Id. § 1254a(c);

8 C.F.R. § 244.2. In addition, a non-citizen waives

eligibility for TPS if, among other things, she has been

convicted of a felony or two or more misdemeanors in

the United States. 8 U.S.C. § 1254a(c)(2)(B).

All initial TPS designations last six to eighteen

months. Id. § 1254a(b)(2). Before the expiration of a

designation, the statute mandates that the Secretary—

again, “after consultation with appropriate agencies of

the Government”—“review the conditions in the

foreign state” and “determine whether the conditions

for such designation . . . continue to be met.” Id.

§ 1254(a)(b)(3)(A). Following this review, the Secretary

determines whether to redesignate, extend, or terminate TPS for the country.

Extension is the default—the designation “shall be

extended” unless the Secretary affirmatively determines that conditions are “no longer me[t].” Id.

§ 1254a(b)(3)(C). And Congress did not cap how many

times the Secretary can extend the designation. Nor

did it set a maximum number of years an individual

can hold TPS. The statutory design is straightforward:

TPS exists because threats to life exist; when the

threat persists, so should TPS protection, unless

the Secretary articulates a well-reasoned and wellsupported national interest to the contrary.

B. Factual Background

The Court bases this background on the entire

record, including the SAC and the documents the SAC

cites, the CAR, exhibits to the parties’ pleadings, and

party concessions and points of agreement in joint

stipulations and at oral argument (altogether, the record).

1. Obama Administration Designates Haiti

for TPS

We begin with an earthquake that registered 7.0 on

the Richter scale. 75 Fed. Reg. 3476, 3477 (Jan. 21,

2010). It hit Haiti on January 12, 2010, and precipitated an unprecedented humanitarian crisis. Shortly

after, then-DHS Secretary Janet Napolitano, in consultation with State, designated Haiti for TPS

due to “extraordinary and temporary conditions.” Id.

at 3476 (citing 8 U.S.C. § 1254a(b)(1)(C)). Haitian

nationals in the United States continuously as of

January 12, 2010, could thus apply for TPS. Id. TPS

recipients also obtained the right to remain and work

in the United States while Haiti maintained its TPS

designation. Id. at 3476–77.

Secretary Napolitano set the initial designation for

eighteen months. Id. at 3476. Unfortunately, repeated

environmental and political crises continued to batter

the island. Secretary Napolitano and her successor,

Jeh Johnson, therefore redesignated Haiti and/or

extended its designation on May 19, 2011, 76 Fed. Reg.

29000; October 1, 2012, 77 Fed. Reg. 59943; March 3,

2014, 79 Fed. Reg. 11808; and August 25, 2015, 80 Fed.

Red. 51582. “With each of these decisions, DHS

outlined conditions arising from the 2010 earthquake

in Haiti and its attendant damage to infrastructure,

public health, agriculture, transportation, and educational facilities.” Saget v. Trump, 375 F. Supp. 3d 280,

301 (E.D.N.Y. 2019). “In addition, each extension cited

the cholera epidemic and the exacerbation of preexisting vulnerabilities caused by the earthquake, including food insecurity and a housing crisis.” Id.

In the 2015 extension, the Secretary found that

conditions prompting the original January 2010 TPS

designation, “persist[ed], including a housing shortage,

a cholera epidemic, limited access to medical care,

damage to the economy, political instability, security

risks, limited access to food and water, a heightened

vulnerability of women and children, and environmental risks.” 80 Fed. Reg. at 51583. The Secretary found

that “Haiti lacks sufficient housing units to address its

pre-earthquake shortage.” Id. “Some Haitians have

returned to unsafe homes or built houses in informal

settlements located in hazardous areas without access

to basic services.” Id. “Even prior to the 2010 earthquake, Haiti had one of the highest rates of hunger

and malnutrition in the Western Hemisphere, with

45 percent of the population undernourished and

30 percent of children under 5 suffering from chronic

malnutrition.” Id. Unfortunately, “[d]amage from the

2010 earthquake exacerbated Haiti’s historic food

security challenges.” Id.

There was more. Public health, for example,

continued to suffer. “The introduction of cholera in

Haiti shortly after the earthquake, and its persistence

since then, [was] mainly due to the lack of access to

clean water and appropriate sanitation facilities.” Id.

And the political situation continued to deteriorate.

“The January 2010 earthquake had an immediate

impact on governance and the rule of law in Haiti,

10a

killing an estimated 18 percent of the country’s civil

service and destroying key government infrastructure.” Id. As of 2015, “Haiti was left without a

functioning legislative branch or duly elected local

authorities. Increasingly, politically and economically

motivated protests and demonstrations . . . turned

violent.” Id. at 51584.

2. First Trump Administration Attempts to

Terminate TPS for Haiti

On January 20, 2017, President Donald J. Trump

became the 45th President of the United States. He

expressed little regard for Haiti and Haitians. He

referred to Haiti as a “shithole”6 country. See § 705

Motion at 46–47. He also “stated in a June 2017

meeting with then-DHS Secretary Kelly and others

that Haitians ‘all have AIDS’ upon learning 15,000

Haitian people received visas to enter the U.S. that

year.” Saget, 375 F. Supp. 3d at 371; SAC ¶ 93. To little

Alexander Moritz Frey was the first to use “shithole” as a

descriptor of a “wretched place,” doing so in his seminal antiwar

novel, The Cross Bearers (1930). See Shithole, Oxford English

Dictionary, https://www.oed.com/search/dictionary/?scope=Entrie

s&q=shithole.

Frey’s life story confirms the role democracies can play in

welcoming, as George Washington did, “the oppressed and

persecuted.” Frey, a prolific author and pacifist, served as a medic

in the trenches of World War I alongside Adolf Hitler. Hitler later

tried to convert him to Nazism, but Frey staunchly refused. He

fled Germany in 1933, as Nazis burned his books, raided his

apartment, and issued a warrant for his arrest. He lived his

remaining years in exile, first in Austria and then in Switzerland.

See Von David Gordon Smith, Eye-Witness Account of Hitler’s

WWI Years Found, Spiegel International (April 30, 2007),

https://www.spiegel.de/international/zeitgeist/rediscovering-alex

ander-moritz-frey-eye-witness-account-of-hitler-s-wwi-years-fou

nd-a-478359.html [https://perma.cc/RU49-2Y4U].

11a

surprise, then, his administration attempted to end

TPS for Haiti.

Litigation ensued in the Eastern District of New

York before Judge William F. Kuntz, II. See Saget, 375

F. Supp. 3d at 280. In his decision, he laid out the series

of events leading to the litigation, which the Court

recounts here only for historical context. In March

2017, career officials at DHS recommended extending

TPS for Haiti for eighteen months, through January

22, 2019. Id. at 304–05. They did so based in large

part on United States Citizenship and Immigration

Services (USCIS) career analysts’ reporting on the

effects of Hurricane Matthew, which had made landfall

in Haiti in October 2016. It was “the strongest storm

to hit Haiti in more than half a century and caused

extensive damage.” Id. at 304. Haiti was “in a state of

near total destruction” and “[b]y mid-December 2016

as many as 1.4 million people were in need of humanitarian assistance.” Id. Hurricane Matthew “exacerbated”

conditions, and career officials highlighted that it

would “likely take Haiti years to recover from the

damages.” Id.

Ignoring this information and the recommendation,

“new USCIS appointees began to cultivate a record

they believed would weigh in favor of termination.” Id.

at 305. These actions leaked to the press. The leaks

included that then-DHS Secretary John F. Kelly

sought “criminal activity data” of TPS holders, even

though no Secretary had before considered that data

to assess TPS and even though that data was, in any

event, unavailable to USCIS. Id. at 305–11.

After substantial public pushback, Secretary Kelly

issued a limited six-month extension of TPS to

January 22, 2018. Id. at 311–12; 82 Fed. Reg. 23830

(May 24, 2017). The Federal Register Notice “cited the

12a

effects of more recent natural disasters, such as

Hurricane Matthew and extensive flooding in the

spring of 2017.” Saget, 375 F. Supp. 3d at 313. But

Secretary Kelly also signaled that the end was near:

“[i]t is in the best interest of TPS beneficiaries to

prepare for their return to Haiti in the event that

Haiti’s TPS designation is not extended again.” 82 Fed.

Reg. at 23832.

The same day that Secretary Kelly granted the sixmonth extension, “officials at DHS began exploring

rationales for terminating TPS for Haiti, recognizing

Secretary Kelly—or whoever would be Secretary at the

time—would seek termination.” Saget, 375 F. Supp. 3d

at 313. What happened next is a rather long story. Id.

at 313–28. Bottom line: on November 20, 2017, thenacting-DHS Secretary Elaine C. Duke announced she

would terminate TPS for Haiti. Id. at 328. The official

notice published in January 2018. See 83 Fed. Reg.

2648 (Jan. 18, 2018).

After an extensive review of the record and legal

analysis, Judge Kuntz found that substantial evidence,

“at the very least [raised] serious questions” that the

DHS Secretary based the termination decision on

“animus toward nonwhite immigrants, including

Haitians specifically.” Saget, 375 F. Supp. 3d at 372.

Based on this and many other legal infirmities, Judge

Kuntz held that Plaintiffs were “likely to succeed on

and ha[d] raised serious questions going to the merits

of their substantive APA claims and equal protection

claim.” Id. at 379. He enjoined the Government from

terminating TPS for Haiti pending a final decision on

the merits of the case. Id. DHS appealed.

Before that appeal concluded, President Joseph R.

Biden became the 46th President of the United States.

Subsequently, DHS withdrew the appeal. See Saget v.

13a

Trump, No. 18-cv-1599 (E.D.N.Y. Oct. 5, 2021) (Dkt.

164).

3. The Biden Administration Redesignates

Haiti for TPS

Haiti’s deterioration continued. Gang violence and

kidnappings spiked. 86 Fed. Reg. 41863, 41866 (Aug. 3,

2021). State officials and police became “complicit[] . . .

in gang attacks that left hundreds of people dead” and

“the government . . . helped to unleash criminal

violence on poor neighborhoods, including by providing

gangs with money, weapons, police uniforms, and government vehicles.” Id. This support encouraged “gangs

to grow to the point where they [could] no longer be

reined in, allowing criminality to explode.” Id.

On July 7, 2021, an already fragile security situation

spiraled when a group of assailants killed Haiti’s

then-President Jovenel Moïse. Id. This led to “a

deteriorating political crisis, violence, and a staggering

increase in human rights abuses.” Id. at 41864. Haiti

simultaneously faced “the challenges of ‘rising food

insecurity and malnutrition, . . . waterborne disease

epidemics, and high vulnerability to natural hazards,

all of which [were] further exacerbated by the

coronavirus disease 2019 (COVID–19) pandemic.” Id.

And so, on August 3, 2021, then-DHS Secretary

Alejandro N. Mayorkas redesignated and extended

Haiti’s TPS through February 3, 2023. Id. at 41863.

Just eleven days later, another catastrophic earthquake

hit Haiti. This time, a 7.2-magnitude one “kill[ed] more

than 2,200 people, injur[ed] 12,700, destroy[ed] 130,000

homes, and le[ft] thousands of people in urgent need of

assistance.” 88 Fed. Reg. 5022, 5027 (Jan. 26, 2023).

Adding to the environmental crisis, Haitian gangs

posed “an increasing threat as they expand[ed] their

14a

influence and geographic presence” across the country.

Id. at 5025.

Secretary Mayorkas therefore extended and redesignated Haiti, this time effective February 4, 2023,

through August 3, 2024. Id. at 5022. During this

period, the situation worsened. “Haitian law enforcement [was] unable to cope with the level of gang

violence,” while gangs “expanded their arsenals and

upgraded their firepower.” 89 Fed. Reg. 54484, 54489

(July 1, 2024). Extreme weather events continued to

pummel the country. In June 2023, a 4.4 magnitude

earthquake and 5.5 magnitude earthquake hit Haiti’s

west coast only two days apart, causing deaths and

destroying homes, blocking roads, and overwhelming

healthcare facilities. Id. at 54490. Simultaneously,

Haiti experienced “one of the highest levels of chronic

food insecurity in the world with more than half of its

total population chronically food insecure and 22

percent of children chronically malnourished.” Id.

“Amidst the political, security, and environmental

crises, Haiti’s economy ha[d] been decimated.” Id.

In response to these conditions, on July 1, 2024,

Secretary Mayorkas again extended and redesignated

Haiti, this time effective from August 4, 2024, through

to February 3, 2026. Id. at 54484. This period—August

4, 2024, to February 3, 2026—is key because the dates

bookend the core disputes in this litigation.

4. The 2024 Presidential Campaign

President Trump hit the campaign trail again

during the 2024 election cycle. Time had not tempered

his views on Haiti. During a presidential debate, he

accused Haitians of “eating the dogs,” “eating the cats,”

and “eating the pets of the people [who] live” in

Springfield, Ohio. See § 705 Mot. at 36–37; SAC ¶¶ 87–

15a

92. He stated elsewhere that he would “[a]bsolutely . . .

revoke” Haiti’s TPS designation and send “them back

to their country.” SAC ¶ 60.

5. Second Trump Administration Attempts

to End All TPS Designations

On January 20, 2025, President Trump became the

47th President of the United States. On January 25,

2025, the Senate confirmed Kristi Noem as the

Secretary of DHS. She immediately took steps to end

Venezuela’s TPS designation and, since then, has

attempted to terminate the TPS designation for each

country whose periodic review process has come due.

See infra Section IV.A.2; Dkt. 113.

On February 24, 2025, Secretary Noem issued a

“partial vacatur” of Secretary Mayorkas’s July 2024

extension and redesignation of Haiti for TPS. She

purported to shorten Haiti’s designation period from

the existing end date of February 3, 2026, to August 3,

2025. 90 Fed. Reg. 10511, 10511 (Feb. 24, 2025) (Partial

Vacatur). Litigation quickly ensued in the Eastern

District of New York. In Haitian Evangelical Clergy

Ass’n v. Trump, Judge Brian M. Cogan concluded that

Secretary Noem lacked statutory authority to issue

the Partial Vacatur. 789 F. Supp. 3d 255, 273 (E.D.N.Y.

2025) (HECA). And so, he set aside the Partial Vacatur

under the APA. See id.

Meanwhile, Secretary Noem continued her efforts to

terminate TPS for Haiti. On July 1, 2025, she issued a

formal notice purporting to terminate Haiti’s TPS

designation as of September 2, 2025. See 90 Fed. Reg.

28760 (July 1, 2025) (July Termination). Other

plaintiffs in a different TPS lawsuit in front of Judge

Edward M. Chen in the Northern District of California

amended their complaint to include a challenge to

16a

Secretary Noem’s Partial Vacatur and July Termination.

Nat’l TPS All. v. Noem (NTPSA), No. 25-cv-1766 (N.D.

Cal. Mar. 20, 2025) (Dkt. 74); id. (July 8, 2025) (Dkt.

250). Their initial complaint challenged Secretary

Noem’s TPS decisions regarding Venezuela.

Enter our Plaintiffs. Independent of the HECA and

NTPSA litigations, on July 30, 2025, Plaintiffs filed

this suit to set aside the July Termination. See Dkt. 1.

C. Procedural Background

1. The Parties

Plaintiffs are five Haitian nationals who hold TPS.

See SAC ¶¶ 1–6. Fritz Emmanuel Lesly Miot is 32

years old and has held TPS since 2011. Id. ¶ 1. He is

completing his Ph.D. in neuroscience at Loma Linda

University in California, where he works on therapies

targeting Alzheimer’s disease. Id. Mr. Miot has Type 1

diabetes and alleges that “[i]n Haiti, neither the

insulin nor the specialists” he requires to treat the

disease “would be readily accessible, if at all.” Id.

Rudolph Civil is 23 years old and has held TPS since

2010. Id. ¶ 2. He currently works as a software

engineer for a major national bank in New York City.

Id. He financially supports his aunt, her three

children, one of whom has Down syndrome, and his

grandmother in Haiti. Id.

Marlene Gail Noble is 34 years old and has held TPS

since 2024. Id. ¶ 3. She contracted spinal tuberculosis

as a toddler in Haiti, which caused her spinal cord to

collapse. Id. In 1993, a faith-based organization in

Florida brought her to the United States, where she

received spinal fusion surgery and obtained temporary

humanitarian parole status. Id. She currently works

as a prep laboratory assistant in a toxicology

17a

department. Id. She received a second spinal fusion

surgery in 2017 and continues to live with kyphosis in

spinal tuberculosis. Id. Ms. Noble plans to work as a

post-mortem forensic toxicologist after pursuing

further education. Id.

Marica Merline Laguerre is 21 years old and has

held TPS since 2010. Id. ¶ 4. She simultaneously

obtained a high school and associate degree in biology,

along with an Advanced Regents Diploma, from a New

York preparatory high school and the City University

of New York. Id. She studies economics at Hunter

College and aspires to a career in finance. Id.

Finally, Vilbrun Dorsainvil is 34 years old and has

held TPS since 2021. Id. ¶ 5. He completed medical

school and worked as a doctor in Haiti. Id. He

currently works as a registered nurse at Springfield

Regional Medical Center in Ohio. Id. He financially

supports family members and plans to obtain a

Bachelor of Science in Nursing. Id.

Plaintiffs name as Defendants Donald J. Trump in

his official capacity as the President of the United

States, Kristi Noem in her capacity as DHS Secretary,

DHS, and the United States (collectively, the

Government). Id. ¶¶ 7–10.

2. The Haiti Litigation Continued

On August 20, Plaintiffs filed their First § 705

Motion. Dkt. 26 (First § 705 Mot.). The Government

confirmed, however, that because of HECA, Haiti’s TPS

designation would expire no earlier than February 3,

2026, notwithstanding the July Termination. Dkt. 31;

Dkt. 65.

Before briefing concluded on Plaintiffs’ First § 705

Motion, Judge Chen in California entered a final

18a

judgment in the NTPSA litigation. See NTPSA IV, 798

F. Supp. 3d at 1108. He found the Partial Vacatur

arbitrary and capricious because it “was preordained

without any meaning[ful] analysis and review.” Id. at

1155. And that the Secretary made it without consulting government agencies or engaging in a review of

country conditions. Id. at 1155–56. In fact, the only

country conditions report in that record “supported the

Mayorkas extension/redesignation.” Id. at 1156.

Judge Chen found it “ironic, if not disingenuous, for

Secretary Noem to rely on a report which supported

the Mayorkas extension/redesignation to vacate that

extension/redesignation.” Id. He concluded that her

decision “was simply driven by her predetermined

desire to terminate Haiti's TPS on a hastened

timeline.” Id. He granted the NTPSA plaintiffs

summary judgment and set aside the Secretary’s

Partial Vacatur under the APA. Id. at 1164.

As for the July Termination, Judge Chen denied the

Government’s motion to dismiss. He concluded that

“Plaintiffs’ APA and Equal Protection claims related to

the Haiti termination are . . . plausible as there are

allegations in the operative complaint suggesting

pretext.” Id. at 1159. These included the following:

[O]n June 7, 2025, DHS announced in a press

release that Haiti’s TPS would be terminated,

both because country conditions had improved

and because allowing Haitians to remain

temporarily in the United States was against

national interest. However, on July 1, 2025,

when the decision to terminate was published

in the Federal Register, no mention was made

of improved conditions; the decision rested on

a national interest assessment alone. Country

conditions were referenced only indirectly in

19a

the context of the Secretary’s national

interest findings—and here there was no

mention of any improved conditions; rather,

the clear suggestion [was] that there was

significant instability in the country.

Id.

Anticipating the Government’s appeal of his setting

aside the Partial Vacatur, however, Judge Chen stayed

the July Termination litigation. Id. at 1164–65.

The HECA and NTPSA decisions impacted this

action. On September 17, 2025, the Government

informed the Court that the “[t]he Secretary intends to

conduct a review, make a decision regarding Haiti’s

Temporary Protected Status (TPS) designation, and

publish in the Federal Register no later than

December 5, 2025.” Dkt. 59 at 1. Plaintiffs insisted that

the Court grant a stay despite the Government’s

representation. Dkt. 60 at 2–4. The Court instead took

the Government at its word and denied Plaintiffs’

First § 705 Motion as moot and without prejudice.

Sept. 22, 2025, Min. Order.

Secretary Noem then issued a decision, published on

November 28, 2025, to terminate Haiti’s TPS

designation as of February 3, 2026. See 90 Fed. Reg. at

54733. On December 5, 2025, Plaintiffs filed an

amended complaint. Dkt. 74. They renewed their

motion to stay on December 12, 2025. See § 705 Mot.

Also on December 12, the Government filed a Motion

to Dismiss under Federal Rule of Civil Procedure

12(b)(1) and (b)(6). Dkt. 80 (MTD).

On December 15, 2025, the Court entered an order

directing the Government to identify “all portions of

the CAR that constitute ‘consultation with appropriate

agencies of the Government’” under the TPS statute, 8

20a

U.S.C. § 1254a(b)(3)(A). Dec. 15, 2025. Min. Order. The

Court also directed the Government to provide “a

complete list of agencies” the Secretary “consulted in

[her] decision-making process.” Id.

The Government answered on January 2, 2026. Dkt.

98. It stated that the Secretary had not consulted with

the U.S. Ambassador to Haiti, the U.S. Embassy in

Haiti, State’s regional office or Haiti desk, or Congress

in reaching her decision. Id. ¶¶ 2–4. She also did not

consult with Secretary of State Marco Rubio, though

the Government added that “DHS has no reason to

believe that information provided by the Department

of State to DHS during the consultation process lacks

the support of the Secretary of State.” Id. ¶ 5. The

Government also confirmed that of the eleven TPSdesignated countries that had by that time come up for

periodic review, “[t]he Secretary terminated TPS

designations for all eleven countries as required by

statute.” Id. ¶ 12. Another country came up for periodic

review afterward, and the Secretary terminated the

designation for that country as well. See Dkt. 113.

The Court held a two-day hearing on the renewed

§ 705 Motion on January 6 and 7, 2026. During that

hearing, the Court granted in part Plaintiffs’ motion

for discovery. It ordered, however, that such discovery

must be limited and narrowly tailored, in line with the

Supreme Court’s decision in Department of Commerce

v. New York, 588 U.S. 752, 781–82 (2019).7 See Dkt. 107

(Jan. 7 Hr’g Tr.) at 18–31; Jan. 23, 2026, Min. Order. It

also accepted Plaintiffs’ SAC, Dkt. 90, which is the

“[I]n reviewing agency action, 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.

The Court authorized discovery here based on “a strong showing

of bad faith or improper behavior.” Id. (cleaned up).

21a

operative complaint here. See Dkt. 106 (Jan. 6 A.M.

Hr’g Tr.) at 8.

II. JURISDICTION

Courts have federal-question jurisdiction over APA

and constitutional claims, unless a specific statute

says otherwise. See Elgin v. Dep’t of Treasury, 567 U.S.

1, 9 (2012); Chrysler Corp. v. Brown, 441 U.S. 281, 317

n.47 (1979). The Government cites four: the TPS

statute, 8 U.S.C. § 1254a(b)(5)(A); two subsections of a

provision of the Immigration and Nationality Act of

1942 (INA) governing judicial review of removal

orders, 8 U.S.C. §§ 1252(f)(1) and (a)(2)(B)(ii); and a

provision of the APA, 5 U.S.C. § 701(a)(2).

The Government has made the same jurisdiction

challenge in every other current TPS case—and there

have been many. To varying degrees, each court has

rejected the Government’s rather expansive view that

the Secretary’s TPS decision making is immune from

judicial review.8 This Court joins the chorus.

The cases on point from President Trump’s second

administration include NTPSA VI, 2026 WL 226573, at *7–16;

NTPSA III, 150 F.4th at 1016–18; CASA, Inc. v. Noem, 792 F.

Supp. 3d 576, 588–94 (D. Md. 2025) (finding jurisdiction as to the

termination of Afghanistan’s and Cameroon’s designations but

denying cross-motions for summary judgment and plaintiffs’

motion for a stay); Doe v. Noem, No. 25 C 15483, 2026 WL 184544

(N.D. Ill. Jan. 23, 2026) (staying termination of Burma’s

designation); HECA, 789 F. Supp. 3d at 269; Nat’l TPS All. v.

Noem, No. 25-cv-5687, 2025 WL 4058572, at *7–12 (N.D. Cal. Dec.

31, 2025) (granting summary judgment setting aside Honduras’,

Nepal’s, and Nicaragua’s designations); Doe v. Noem, No. 25 Civ.

8686 (S.D.N.Y. Nov. 18, 2025) (Dkt. 59 at 9–11 (Oral Ruling Tr.)

(postponing the termination of Syria’s TPS designation)).

The relevant cases from the first Trump administration

include Saget, 375 F. Supp. 3d at 330–33 and Centro Presente v.

22a

A. The Presumption in Favor of Judicial Review

The Court begins with a “familiar principle of

statutory construction: the presumption favoring

judicial review of administrative action.” Kucana v.

Holder, 558 U.S. 233, 251 (2010). This presumption is

“well-settled” and “strong.” Guerrero-Lasprilla v. Barr,

589 U.S. 221, 229 (2020) (cleaned up); accord Dep’t of

Homeland Sec. v. Regents of the Univ. of Cal., 591 U.S.

1, 16 (2020). And relevant here, courts “consistently”

apply it “to legislation regarding immigration, and

particularly to questions concerning the preservation

of federal-court jurisdiction.” Kucana, 558 U.S. at 251;

see also McNary v. Haitian Refugee Ctr., Inc., 498 U.S.

479, 496 (1991).

The presumption applies with force to claims that

an agency exceeded statutory authority, see Amgen,

Inc. v. Smith, 357 F.3d 103, 111 (D.C. Cir. 2004), or

violated the Constitution, see Webster v. Doe, 486 U.S.

592, 603 (1988). Not surprising. For it would be “an

extreme position” indeed to offer no recourse for action

taken outside the bounds of an agency’s statutory

grant or our constitutional order. Bowen v. Mich. Acad.

of Fam. Physicians, 476 U.S. 667, 680 (1986). That

noted, when Congress addresses jurisdiction in a statute,

courts must determine “whether the challenged action

falls within the preclusive scope of the statute.” DCH

Reg’l Med. Center v. Avar, 925 F.3d 503, 506 (D.C. Cir.

2017) (cleaned up).

These principles guide the Court’s interpretation of

the four provisions the Government raises. For each

provision, the presumption against jurisdiction stripping

Department of Homeland Security, 332 F. Supp. 3d 393, 404–05

(D. Mass. 2018).

23a

is consistent with the Court’s interpretation of the

statute’s plain text.

B. The TPS Statute Does Not Strip the Court’s

Jurisdiction

Perhaps the Government’s strongest jurisdictional

argument lies within the TPS statute itself.

Section 1254a(b)(5)(A) divests courts of jurisdiction to

“review . . . any determination of the [Secretary] with

respect to the designation, or termination or extension

of a designation, of a foreign state” for TPS. Indeed,

if Plaintiffs had challenged the Secretary’s determination, the Court would lack jurisdiction. But they have

not. They challenge instead how the Secretary went

about making her determination.

This distinction between decision and process is the

ballgame.

1. Plaintiffs Do Not Challenge the

Secretary’s Substantive Determination

Twice in the immigration context, the Supreme

Court has interpreted statutory language constraining

review of an agency’s “determination.” Each case

supports that Secretary Noem’s “determination” here

refers to her act of designating, terminating, or

extending TPS. And each contradicts the Government’s

view that it applies more broadly to how she reached

her determination.

In McNary v. Haitian Refugee Center, Inc., the

Supreme Court considered the statutory language in 8

U.S.C. § 1160(e)(1): “[t]here shall be no administrative

or judicial review of a determination respecting an

application for adjustment of status” for certain

special agricultural workers. 498 U.S. at 483. The

McNary Court concluded “the reference to ‘a

24a

determination’ describes a single act rather than a

group of decisions or a practice or procedure employed

in making decisions.” Id. at 492 (emphasis added).

In that case, the “single act” in question was the

Secretary’s denial of Special Agricultural Worker

(SAW) status to plaintiffs. Id. Had the Secretary

instead, say, flipped a coin to make her decision, that

would be a “practice or procedure” subject to review.

The Supreme Court doubled down two years later.

In Reno v. Catholic Social Services, Inc., 509 U.S. 43

(1993), it considered a provision of the INA that

prohibits “judicial review of a determination respecting an application for adjustment of status” for certain

non-citizens, 8 U.S.C. § 1255a(f)(1). The Reno Court

likewise held that a “determination” does not cover an

entire agency regulation but refers only to the “‘single

act’” of adjudicating individual adjustment-of-status

applications. 509 U.S. at 56 (quoting McNary, 498 U.S.

at 492).

So too here. The Secretary has exclusive authority to

engage in the “single act” of designating a country or

terminating or extending its designation thereafter.

McNary, 498 U.S. at 492. As all agree, the Court cannot

override one of these “substantive” determinations.

See Dkt. 93 (MTD Opp’n) at 22; Dkt. 99 (MTD Reply)

at 4–6. But Plaintiffs do not ask for that. They instead

assert that the Secretary failed to consult; engaged in

a pattern or practice of terminating TPS writ large;

preordained the outcome of her review; engaged in

both unreasoned and unsupported decision making;

and, among other failures, acted with discriminatory

animus. These claims challenge purported deficiencies

in Secretary Noem’s “group of decisions,” “practice,”

and “procedure” in reviewing Haiti’s TPS designation.

McNary, 498 U.S. at 492.

25a

The Government counters that a stay or “set aside”

of the Secretary’s Termination under the APA would

inhibit the substance of that termination decision. To

be sure, McNary does warn that a process decision can

have “the practical effect of also deciding . . . claims for

benefits on the merits.” 498 U.S. at 495 (distinguishing

Heckler v. Ringer, 466 U.S. 602 (1984)).9 But here, at

most, the Court can order the Secretary to restart the

periodic review process under lawful criteria, not to

arrive at a particular substantive outcome. See 5

U.S.C. § 706(2); see also infra Section II.C.1 (explaining

that a “set aside” does not impact the TPS statute’s

“operation” or “enjoin” or “restrain” the Government).10

Indeed, most of Plaintiffs’ claims also do not assail

the Secretary’s “single act” of terminating Haiti’s TPS

designation at all. The APA claim that the Secretary

exceeded her “statutory authority” presents a “first

order question” unrelated to her final determination.

NTPSA III, 150 F.4th at 1017. Likewise, the APA claim

that the Secretary engaged in a “general pattern and

practice” of unlawful terminations is “not unique to the

Secretary’s decision on [Haiti’s] status.” Doe v. Noem,

25 C 15483, 2026 WL 184544, at *8–9 (N.D. Ill. Jan. 23,

2026); cf. Dkt. 103 (Gov’t’s Suppl. Br.) at 9. Finally, the

Equal Protection claim presents a “general collateral

The McNary Court distinguished Heckler. Unlike in Heckler,

the McNary plaintiffs “d[id] not seek a substantive declaration

that they are entitled to SAW status” and if they prevailed on

their procedural claims, they would not have “establish[ed] their

entitlement to SAW status.” McNary, 498 U.S. at 495.

The Government’s reliance on Federal Law Enforcement

Officers Ass’n v. Ahuja, 62 F.4th 551 (D.C. Cir. 2023), fails for the

same reason. See Dkt. 103 (Gov’t’s Suppl. Br.) at 9; Jan. 7 Hr’g Tr.

at 82–84. There, the plaintiff sought a “permanent injunction

barring” the agency from pursuing a particular course. Ahuja, 62

F.4th at 561.

26a

challenge[] to unconstitutional practices and policies.”

McNary, 498 U.S. at 492. Even the Government’s best

case (a vacated Ninth Circuit decision) acknowledges

that plaintiffs can bring constitutional challenges to

TPS determinations. See Ramos v. Wolf, 975 F.3d 872,

892 (9th Cir. 2020), vacated, 59 F.4th 1010 (9th Cir.

2023); MTD at 20–21 & n.4. At the very least, claims

of these types all escape the TPS statute’s jurisdictional bar under the plain meaning of “determination.”

Confronted with McNary’s “single act” language, the

Government falls back to the position that “at a

minimum, § 1254a(b)(5)(A) bars claims that an

agency’s decision was arbitrary and capricious,” unlike, for

example, claims that the Secretary exceeded her

authority. MTD at 21. That is not an unfair point. The

garden-variety arbitrary-and-capricious claim presents

the closest call. Still, even they fall on the procedural

side of McNary’s line since they each implicate failures

in how she came to her decision. See infra Section

IV.A.3.

2. The TPS Statute’s Jurisdiction-Stripping

Provision Is Narrow

The Government claims that the words “any” and

“with respect to” in the TPS statute’s jurisdictionstripping provision—“any determination of the

[Secretary] with respect to” (emphasis added)—suggest

that courts should read “determination” broadly

enough to encompass the Secretary’s decision-making

process. See MTD at 19–20. That argument misreads

the statute. Grammatically, both phrases modify the

noun “determination.” They do not invite in other

nouns, nouns such as group of decisions, practice, or

procedure.

27a

To be sure, the word “any,” as the Government

contends, “indicates a broad sweep.” Id. at 19. But,

however broad, “[t]he adjective ‘any’ . . . cannot expand

the reach of the noun it modifies.” City & Cnty. of San

Francisco v. EPA, 604 U.S. 334, 348 (2025). So the word

“any determination” captures all determinations the

Secretary may make—whether to expand, designate,

or terminate—but it does not capture the process by

which she reaches that determination.

Similarly, the interpretive canon “that the words of

a statute must be read in their context and with a view

to their place in the overall statutory scheme . . .

carries particular force when construing phrases that

govern conceptual relationships—like ‘with respect

to’—whose meanings inherently depend on their

surrounding context.” United States v. Miller, 604 U.S.

518, 533 (2025) (cleaned up). Here, “determination” is

the jurisdiction-stripping provision’s key word. And

“determination” means a “single act.” See supra

Section II.B.1.11

The Government cites Patel v. Garland for the

proposition that a “statute barring review of ‘any

judgment regarding the granting of relief’ covers ‘any

The TPS statute’s phrasing does not appear as expansive as

other jurisdiction-stripping provisions within the same Title of

the U.S. Code. See, e.g., Gebhardt v. Nielsen, 879 F.3d 980, 987–89

(9th Cir. 2018) (discussing 8 U.S.C. § 1154(a)(1)(A)(viii)(I)

endowing the Secretary with “sole and unreviewable discretion”

to determine whether a citizen convicted of certain offenses poses

a risk to a non-citizen for whom the citizen seeks to file an I-130

petition); Saget, 375 F. Supp. 3d at 331 (discussing statutory

language, as in 8 U.S.C. § 1252(b)(9), that references review of “all

questions of law and fact, including interpretation and

application of constitutional and statutory provisions”). The

Government itself recognizes this contrasting language (albeit for

a different purpose). See Gov’t’s Supp. Br. at 10.

28a

authoritative decision’ on the matter.” MTD at 19

(quoting 596 U.S. 328, 337–40 (2022)). Patel involved a

statute that barred review of “any judgment regarding

the granting of relief ” concerning a non-citizen’s

eligibility for adjustment of status. 596 U.S. at 335

(quoting 8 U.S.C. § 1255). There, “any judgment”

encompasses an immigration judge’s (IJ’s) “factual

findings.” Id. at 339. Even if the Court accepts that an

IJ’s “judgment” (in a quasi-judicial proceeding) and the

DHS Secretary’s TPS “determination” are similar

enough statutory terms to compare directly, Patel does

not help the Government. A factual finding is a constituent “authoritative decision” in an IJ’s “judgment.”

Id. at 337–39 (emphasis added). But procedural and

constitutional defects in the Secretary’s periodic

review and consultation process are not decision-like

at all. The Secretary’s path to the substantive

“determination” is not part of the determination

itself—for the reasons McNary sets out. See supra

Section II.B.1.

The Government cites only one case interpreting the

same TPS provision that arguably supports its view,

Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020). See MTD

at 20. But, again, the Government honestly concedes

that the Ninth Circuit vacated this panel opinion on

rehearing and the case later became moot. Id. at n.4.

The Government claims that, even a vacated decision

“still carries persuasive value.” Id. Maybe. But not

Ramos—not least because the Ninth Circuit has twice

since Ramos taken a more expansive view of

jurisdiction under the TPS statute. See supra n.5.

Indeed, the citation backfires—it speaks volumes that

a vacated decision from a sister circuit is the best

authority the Government can muster.

29a

3. Jurisdiction Here Does Not Eviscerate the

Statutory Bar

Quoting the D.C. Circuit’s decision in DCH Regional

Medical Center v. Azar, the Government separately

suggests that permitting review of Plaintiffs’ claims

“would eviscerate the statutory bar, for almost any

challenge to [a determination] could be recast as a

challenge to its underlying methodology.” MTD at 21

(alteration in original) (quoting 925 F.3d 503, 506 (D.C.

Cir. 2019)). But the Government replaced the original

case language “estimates” with “determination.” This

was no small change. DCH involved a bar on judicial

review of Medicare “estimate” payments to hospitals.

The D.C. Circuit held that “a challenge to the

methodology for estimating uncompensated care is

unavoidably a challenge to the estimates themselves.”

Id. at 506. Change the methodology, necessarily

change the estimates. Not so here. After changing her

process to comport with the APA, the Secretary can

determine to keep or end Haiti’s TPS designation.

The Government’s evisceration concern contains

another flaw. In several jurisdictional statutes, Congress

expressly permits a court to “modify” the substantive

decision an agency makes. See, e.g., Solondz v. FAA,

141 F.4th 268, 276 (D.C. Cir. 2025) (appellate

jurisdiction to “modify” a final order of the FAA

regarding a pilot’s medical clearance); Axon Enter., Inc.

v. FTC, 598 U.S. 175, 181 (2023) (appellate jurisdiction

to “modify” an SEC order “in whole or in part”). The

TPS statute’s language here bars the Court from

modifying the Secretary’s determination—and so at a

minimum, is not superfluous on this score.

30a

4. Plaintiffs Have No Other Avenue to

Challenge the Termination

The Government claims that the TPS statute directs

any judicial challenge exclusively to removal proceedings in immigration court, from which Plaintiffs can

appeal to the applicable Federal Circuit. See Gov’t’s

Suppl. Br. at 9–11; Jan. 7 Hr’g Tr. at 82–84, 95–102.

Federal district courts, it argues, have no role.

But the Government does not explain, as it must, see

Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 208–16

(1994), what in the TPS statute makes it “fairly

discernible” that Congress intended to channel the

“type” of claims here exclusively to an IJ through the

“comprehensive review process” for orders of removal

for which the INA provides. Indeed, it ignores altogether

the proper analysis, which asks the following three

questions:

First, could precluding district court jurisdiction “foreclose all meaningful judicial review”

of the claim? Next, is the claim “wholly

collateral to [the] statute’s review provisions”? And last, is the claim “outside the

agency’s expertise”? When the answer to all

three questions is yes, “we presume that

Congress does not intend to limit jurisdiction.”

Axon Enter., 598 U.S. at 186 (citations omitted).

Here, the answer to all three questions is yes.

McNary, and common sense, readily provide an

affirmative answer to the first factor. Consider that

non-citizens who lose TPS must depart voluntarily,

and those who do can have no judicial review. See

Jan. 7 Hr’g Tr. at 92–102. To see the inside of an

immigration court, a former TPS holder must first

break the law—i.e., not depart. Then, she must either

31a

go about her day in fear of being detained by

Immigration and Customs Enforcement (ICE) or

affirmatively self-surrender. But asking non-citizens

to “voluntarily surrender themselves for deportation”

to obtain review “is tantamount to a complete denial of

judicial review.” McNary, 498 U.S. at 496–97; accord

Reich, 510 U.S. at 212–13.

As to the second question, the APA and constitutional claims Plaintiffs raise are “wholly collateral” to

8 U.S.C. § 1252(b)(9). Section 1252(b)(9) provides for

“[j]udicial review of all questions of law and fact . . .

arising from any action take or proceeding brought to

remove” a non-citizen. 8 U.S.C. § 1252(b)(9); see id.

§ 1252(a)(5) (channeling review of an order of removal

to a circuit court). But the claims raised here “do not

relate to the subject of the enforcement actions” that

that provision covers—i.e., orders of removal. Axon

Enter., 598 U.S. at 193. Finally, the “standard questions

of administrative and constitutional law” at play here

are outside the bread-and-butter determinations an IJ

makes in everyday removal proceedings. Id. at 194

(cleaned up).

* * *

In sum, the Government cannot bear its “heavy

burden” of showing that the TPS statute displaces the

strong presumption in favor of judicial review of the

Secretary’s Termination. Mach Mining, LLC v. EEOC,

575 U.S. 480, 486 (2015).

C. The INA’s Bars on Judicial Review of

Removal Decisions Do Not Apply

The Court next examines the two subsections of the

INA that the Government also argues precludes

judicial review of Plaintiffs’ claims—Subsection (f)(1)

and Subsection (a)(2)(B)(ii). Straight away, the

32a

Government encounters a roadblock. Section 1252 is

titled “[j]udicial review of orders of removal.” 8 U.S.C.

§ 1252 (emphasis added). In fact, the text of § 1252

mentions some permutation of “order” forty-eight

times and “remove” or “removal” thirty-one times. See

id. The Secretary’s Termination is decidedly not an

order of removal.

But of course, a statute’s title is not dispositive. See

Yates v. United States, 574 U.S. 528, 540 (2015). The

Government’s greater problem is that the text of

Subsection (f)(1) and Subsection (a)(2)(B)(ii) “points in

the same direction as [the] title.” Dubin v. United

States, 599 U.S. 110, 124 (2023). Both Subsections

apply only to individualized immigration adjudications. They do not prevent judicial review of a

generally-applicable agency action.

1. Subsection (f)(1)

Defendants first point to Subsection (f)(1). It

provides:

Regardless of the nature of the action or the

claim or of the identity of the party or parties

bringing the action, no court (other than the

Supreme Court) shall have jurisdiction or

authority to enjoin or restrain the operation

of the provisions of part IV of [subchapter II

of Title 8], as amended by the Illegal

Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to

the application of such provisions to an

individual alien against whom proceedings

under such part have been initiated.

Id. § 1252(f)(1).

33a

But for good reason, “[n]o court” to consider the

question has adopted the view that Subsection (f)(1)

prevents a court from reviewing the Secretary’s action

on a country’s TPS designation. NTPSA I, 773 F. Supp.

3d at 826; accord HECA, 789 F. Supp. 3d at 270.

a. Subsection (f)(1) does not cover the

TPS statute

Subsection (f)(1) on its face applies only to

“provisions of part IV” of subchapter II of Title 8 of the

U.S. Code. The TPS statute appears in part V of that

subchapter, not part IV.12 The Government has

conceded as much elsewhere. See NTPSA I, 773 F.

Supp. 3d at 824. The Government counters that the

relevant public law, the Illegal Immigration Reform

and Immigrant Responsibility Act of 1996 (IIRIRA),

contradicts this categorization. See Dkt. 72 at 5. True,

where a public law conflicts with the codified language,

the enacted version controls. See U.S. Nat’l Bank of Or.

v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 448

(1993). But on closer study, IIRIRA’s language is not

the slam dunk the Government contends.

IIRIRA describes Subsection (f)(1)’s coverage as

encompassing “chapter 4 of title II” of the INA. See

IIRIRA, Pub. L. No. 104-208 § 306(a)(2), 110 Stat 3009611–12 (Sept. 30, 1996). That is, the enacted text,

unlike the codified version, refers to its own

numbering system (one different from the U.S. Code’s

numbering system). IIRIRA does place the TPS statute

within chapter 4 of Title II of the enacted INA. See id.

§ 308, 110 Stat. at 3009-614–15. So far, so good for the

This organization is logical, as the TPS statute more readily

concerns “Adjustment and Change of Status” (part V) than

“Inspection, Apprehension, Examination, Exclusion, and Removal”

(part IV). See 8 U.S.C. ch. 12, subch. II.

34a

Government—but there is more. The enacted text of

Subsection (f)(1) itself falls under the heading labeled

“Appeals from Orders of Removal” and the Subsection

concerns orders of removal—which just about mirrors

the title of § 1252 in the U.S. Code. See 8 U.S.C. § 1252

(“Judicial review of orders of removal”). So, the publiclaw version of Subsection (f)(1) counsels that this

provision applies to every statute that both (1) appears

under “chapter 4 of title II” of the INA as amended in

the enacted law; and (2) concerns an order of removal.

The TPS statute meets only the first criteria.

In English: the Government relies on a statute,

Subsection (f)(1), that it claims tells lower courts not

to stick their judicial noses into agency actions falling

within a range of statutes. But the range differs based

on whether one consults the enacted version of

Subsection (f)(1) or the U.S. Code version. Because the

TPS statute falls inside the range described in the

enacted text, but outside the range identified in the

U.S. Code, the Government claims the Court must

mind its own business.13 The Government’s problem is

that it does not matter either way. Even if the TPS

statute falls initially inside the statutory range that

Subsection (f)(1) identifies, both the enacted and

codified versions of Subsection (f)(1)’s text concern

orders of removal and TPS decision-making is not an

order of removal. So, Subsection (f)(1) does not cover

TPS-related claims.

For a surprisingly engaging explanation of the history and

structure of the United States Code, the Court commends the

aptly titled, Detailed Guide to the U.S. Code Content and Features,

created by the U.S. House of Representatives Office of the Legal

Revision Counsel. It is available at https://uscode.house.gov/detai

led_guide.xhtml [https://perma.cc/MC98-58CQ].

35a

Hence, when the Supreme Court has described

Subsection (f)(1)’s scope, it has repeatedly excluded the

TPS statute (which is codified at § 1254a). It instead

refers to Subsection (f)(1)’s coverage as extending to

either “§§ 1221–1232” or “part IV of subchapter II” of

Title 8 of the U.S. Code. See Biden v. Texas, 597 U.S.

785, 798 (2022); Garland v. Aleman Gonzalez, 596 U.S.

543, 549 (2022); Jennings v. Rodriguez, 583 U.S. 281,

312–13 (2018); Reno v. Am.-Arab Anti-Discrimination

Comm., 525 U.S. 471, 481 (1999); see also Gonzalez v.

Immigr. & Customs Enf’t, 975 F.3d 788, 812 (9th Cir.

2020). The agency actions in this covered group all

relate to “immigration laws governing the inspection,

apprehension, examination, and removal of aliens.”

Aleman Gonzalez, 596 U.S. at 544.14 The TPS statute,

which governs wholesale designation of foreign states

for TPS, rather than enforcement of immigration laws

on individual non-citizens, is of a different ilk.

b. The relief sought does not affect the

“operation of” the TPS statute

Helpfully, other statutory terms in Subsection (f)(1)

independently confirm that it does not cover judicial

review of the Secretary’s Termination. That is because

even if the Court affords Plaintiffs the full relief they

request, the Court will not (1) “enjoin” or “restrain”

(2) the “operation of” the TPS statute. 8 U.S.C. § 1252(f)(1).

Start with “the operation of ” language. The

Government relies on an applicable Supreme Court

case, but, unfortunately for it, the case contradicts its

The listed exception in Subsection (f)(1), too, concerns an

individualized immigration determination. See § 1252(f)(1)

(excepting from the jurisdiction-stripping language “the application

of such provisions [of part IV] to an individual alien against whom

proceedings under such part have been initiated”).

36a

position. In Garland v. Aleman Gonzalez, the Supreme

Court interpreted “to enjoin,” “to restrain,” and “operation

of ” in Subsection (f)(1). 596 U.S. at 550. It held that

“[p]utting these terms together, § 1252(f)(1) generally

prohibits lower courts from entering injunctions that

order federal officials to take or to refrain from taking

actions to enforce, implement, or otherwise carry out

the specified statutory provisions.” Id. (emphasis added).

Applying this standard, the Supreme Court held

that Subsection (f)(1) prohibited the district court’s

order enjoining the Government from detaining,

beyond a certain number of days without a bond

hearing, a class of non-citizens “ordered removed,”

when a statute explicitly permits such detention. See

id. at 546 (cleaned up). The district court impermissibly “require[d] officials to take actions” that the statute

does not require and “to refrain from actions” the

statute allows. Id. at 551. In so doing, it impeded the

“operation” of that detention statute. Id. Consistent

with this approach, in N.S. v. Dixon, the D.C. Circuit

recently held that an injunction that “prevents the

Marshals from arresting and detaining any criminal

defendant in the D.C. Superior Court for a suspected

civil immigration violation” falls within Subsection

(f)(1)’s ambit because a statute, 8 U.S.C. § 1226(a),

permits such arrest and detention. 141 F.4th 279, 289

(D.C. Cir. 2025).

In contrast, a “set aside” of the Termination (and an

accompanying declaration), 5 U.S.C. § 706(2), does not

impact the TPS statute’s “operation.” Unlike in

Aleman Gonzalez, Plaintiffs do not ask this Court to

impose limitations that the TPS statute itself does not

contain. See 596 U.S. at 551. They ask the Court only

to hold that the Secretary did not follow the process

the APA and the Constitution require and to set aside

37a

her decision while she begins anew. Even with the set

aside, she remains free to “carry out” the TPS statute’s

full range of provisions—i.e., to make discretionary

decisions to designate countries or extend and

terminate such designations following periodic review.

Id. at 543; cf. Dkt. 68 at 21–22.

And the subset of Plaintiffs’ allegations that the

Secretary exceeded her statutory authority fall outside

of Subsection (f)(1)’s ambit for another reason. Any

relief the Court could order against “conduct that

allegedly is not even authorized by the statute” could

not, by definition, enjoin “the operation” of that

statute. NTPSA III, 150 F.4th at 1018–19.

c. The relief sought would not “enjoin” or

“restrain” operation of the TPS statute

Subsection (f)(1)’s verbs pose yet another problem

for the Government. Plaintiffs request two forms of

relief: APA vacatur of the Termination and an

accompanying declaration that the Secretary’s action

violated the APA and the Equal Protection Clause. See

SAC ¶ 90. If granted, neither would “enjoin” or

“restrain” operation of the TPS statute.

First, APA vacatur. The Aleman Gonzalez Court

applied Subsection (f)(1) proscription’s against

“enjoin[ing]” or “restrain[ing]” operation of certain

statutes to a district court’s injunction, as described

supra Section II.C.1.b. It “d[id] not purport to hold that

§ 1252(f)(1) affects courts’ ability to ‘hold unlawful and

set aside agency action, findings, and conclusions’”

under the APA. Aleman Gonzalez, 596 U.S. at 571

(Sotomayor, J., concurring and dissenting in part)

(citing 5 U.S.C. § 706(2)).

This Court concurs with the Fifth Circuit that

Subsection (f)(1) does not extend to APA vacaturs,

38a

because they are unlike injunctions. See Texas v.

United States, 40 F.4th 205 (5th Cir. 2022).15 Via

injunction, a court can “compel[] or restrain[] further

agency decision-making.” Id. at 220; see Citizens for

Resp. & Ethics in Wash. v. U.S. Dep’t of Just., 846 F.3d

1235, 1242 (D.C. Cir. 2017) (explaining that “breadth

and flexibility are inherent in equitable remedies”).

An APA vacatur, meanwhile, is neither forwardlooking nor coercive. It accomplishes “nothing but

reestablish[ment] [of] the status quo absent the

unlawful agency action.” Texas v. United States, 40

F.4th at 220. So, while an injunction “enjoins” or

“restrains” an actor under Subsection (f)(1), vacatur of

past agency action does not.

Statements across three Supreme Court cases, two

of which post-date Aleman Gonzalez, confirm this

interpretation. In Reno v. Am.-Arab AntiDiscrimination Comm., the Supreme Court explained

that § 1252(f) is “nothing more or less than a limit on

injunctive relief.” 525 U.S. at 481. Then, in Biden v.

Texas, it stated that § 1252’s “title—‘Limit on

injunctive relief ’—makes clear the narrowness of its

scope.” 597 U.S. at 798. Finally, in its landmark

decision prohibiting district courts from issuing

nationwide

injunctions, the

Supreme

Court

distinguished APA vacaturs as a form of relief. It

explained that “[n]othing” in its opinion “resolves the

distinct question [of] whether the Administrative

Procedure Act authorizes federal courts to vacate

federal agency action.” Trump v. CASA, Inc., 606 U.S.

While the D.C. Circuit has yet to decide the question, it has

held that § 1252(f)(1) does not cover declaratory relief. See N.S.,

141 F.4th at 290 n.7. And it has recognized the Fifth Circuit

holding “that § 1252(f)(1) does not bar vacatur under the APA.”

Id.

39a

831, 847 n.10 (2025); accord id. at 869 (Kavanaugh, J.,

concurring). The limited purview of Subsection (f)(1)

does not include a “set aside” under the APA.

Second, declaratory relief. On this point, the Court

applies D.C. Circuit precedent. Subsection (f)(1) “does

not proscribe issuance of a declaratory judgment.”

N.S., 141 F.4th at 290 n.7; accord Brito v. Garland, 22

F.4th 240, 252 (1st Cir. 2021); Rodriguez v. Marin, 909

F.3d 252, 256 (9th Cir. 2018).

Neither the setting aside of the Termination nor a

declaration that it issued unlawfully falls within

Subsection (f)(1)’s proscription.

d. The posture of this case does not alter

the Court’s analysis of Subsection

(f)(1)’s scope

The Government tries yet another tack. An APA

stay, it claims, requires an evaluation of the same

factors that a court would consider when issuing a

preliminary injunction. See § 705 Opp’n at 18–20. So,

it infers, a stay is the type of injunctive relief covered

by Subsection (f)(1). And, yes, the factors are the same.

But the similarities end there.

To begin, Subsection (f)(1)’s text “expressly identifies

injunctive relief but makes no mention of stays nor

other forms of relief under the APA.” Immigrant Defs.

L. Ctr. v. Noem, 145 F.4th 972, 990 (9th Cir. 2025);

accord NTPSA VI, 2026 WL 226573, at *9–11.

Congress, however, knows “how to limit relief under

the APA in other statutory schemes such as the

Magnuson-Stevens Act and the Clean Air Act.” Id. So,

the omission here must be intentional.16

Section 1252(f)(1) was enacted in 1996, a half-century after

the APA. See Gonzalez, 596 U.S. at 562. It “may not be held to

40a

Moreover, an APA stay and a preliminary injunction

are fundamentally different remedies. While there is

some “functional overlap,” a stay is not “a coercive

order.” Nken v. Holder, 556 U.S. 418, 428 (2009). Its

effect (like that of a vacatur) is merely to return

circumstances to the status quo. Id. And a stay does

not operate in personam. So, here, an APA stay would

not “direct[] the conduct of ” the Secretary. Id. It would

merely “temporarily divest[]” her Termination “of

enforceability.” Id. Finally, it would be odd indeed,

given the Court’s determination that Subsection (f)(1)

permits APA vacatur, if it did not also allow the far less

drastic APA stay.

Subsection (f)(1) does not strip the Court of

jurisdiction in this case.

2. Subsection (a)(2)(B)(ii)

Undeterred, the Government tries a different

provision of § 1252 next. Subsection (a)(2)(B)(ii) bars

judicial review of “any other decision or action [not

enumerated in § 1252(a)(2)(B)(i)] of . . . the Secretary

of Homeland Security the authority for which is

specified under [subchapter 12 of Title 8] to be in the

discretion” of the Secretary. Subchapter 12 of Title 8

includes the TPS statute. But as with Subsection (f)(1),

Subsection (a)(2)(B)(ii)’s text supports its application

only to individual immigration adjudications.

Section 1252(a)(2)(B) contains a clause (i) and clause

(ii). Clause (i) bars review of “judgment[s] regarding

the granting of relief ” under certain statutes—e.g.,

cancellation of removal, adjustment of status, etc.

supersede or modify [the APA] . . . except to the extent that it does

so expressly.” 5 U.S.C. § 559; cf. Marcello v. Bonds, 349 U.S. 302,

309 (1955).

41a

8 U.S.C. § 1252(a)(2)(B)(i). Clause (ii), meanwhile, is

“a catchall provision” that applies to “decisions of the

same genre” as in clause (i). Kucana, 558 U.S. at 246;

see RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 566 U.S. 639, 645 (2012) (explaining the canon

of “avoid[ing] . . . the superfluity of a specific provision

that is swallowed by the general one”). That genre

encompasses “orders denying discretionary relief in

individual cases.” Make the Rd. New York v. Wolf, 962

F.3d 612, 630–31 (D.C. Cir. 2020) (emphasis added); see

Nasrallah v. Barr, 590 U.S. 573, 586 (2020) (explaining

the two clauses cover “cancellation of removal, voluntary

departure, adjustment of status, certain inadmissibility waivers,” and the like).

The Government asserts that various cases broaden

the scope of Subsection (a)(2)(B)(ii) to all manner of

immigration-related decisions entailing some discretion.

See MTD at 21–25; Gov’t’s Suppl. Br. at 6. Those cases,

however, all apply Subsection (a)(2)(B)(ii) in a manner

that fits comfortably with this Court’s interpretation.

In Bouarfa v. Mayorkas, 604 U.S. 6, 14 (2024), the

Supreme Court precluded review of the Secretary’s

revoked approval of an individual visa petition. In

iTech U.S., Inc. v. Renaud, 5 F.4th 59, 68 (D.C. Cir.

2021), the D.C. Circuit prohibited review of USCIS’s

revoked approval of a non-citizen’s I-140 immigration

visa petition. And in Zhu v. Gonzales, 411 F.3d 292, 293

(D.C. Cir. 2005), it precluded review of the Attorney

General’s refusal to waive the requirement that four

non-citizens obtain a labor certification to petition for

a work visa.

Subsection (a)(2)(B)(ii) poses no barrier to the

Court’s review here.

42a

D. The Administrative Procedure Act Does Not

Bar Review

The Government makes one last statutory stand.

The APA excludes from its own purview cases where

the “agency action is committed to agency discretion

by law.” 5 U.S.C. § 701(a)(2).17 This exception, however,

applies only where a statute offers “absolutely no

guidance as to how [an agency’s] discretion is to be

exercised.” Make the Rd. N.Y., 962 F.3d at 632. For the

reasons described below, the TPS statute is not (by a

long shot) drawn so broadly. Accord HECA, 789

F. Supp. 3d at 275; Nat’l TPS Alliance v. Noem, No. 25cv-05687, 2025 WL 4058572 (N.D. Cal. Dec. 31, 2025)

(Dkt. 197).

To begin, the Government aims its § 701(a)(2)

argument at only Plaintiffs’ APA claim (Count One),

and not their Equal Protection claim (Count Two). See

MTD at 28. The latter does not implicate APA review,

which is all § 701(a)(2) covers. See 5 U.S.C. § 701(a)(2);

Make the Rd. N.Y., 962 F.3d at 632.

As to the APA claim, time and again, the Supreme

Court has counseled that § 701(a)(2)’s scope is

“narrow.” E.g., Heckler v. Chaney, 470 U.S. 821, 838

(1985). It precludes review only of action “traditionally

left to agency discretion,” Lincoln v. Vigil, 508 U.S. 182,

191 (1993), and “where the relevant statute is drawn

so that a court would have no meaningful standard

against which to judge the agency’s exercise of

discretion,” Dep’t of Com., 588 U.S. at 772 (cleaned up).

The APA also provides a court may not review agency action

where a “statute[] preclude[s] judicial review.” 5 U.S.C. § 701(a)(1).

The Court has already explained why that provision is inapplicable here. Cf. MTD at 27–28.

43a

The quintessential example is an agency’s exercise

of enforcement discretion. See, e.g., Heckler, 470 U.S. at

837–38; Schieber v. United States, 77 F.4th 806, 813

(D.C. Cir. 2023); Baltimore Gas & Elec. Co. v. FERC,

252 F.3d 456, 459–60 (D.C. Cir. 2001). So, in the

immigration context, there is no APA review of the

Government’s policy of prioritizing for removal certain

categories of non-citizens over others. See United

States v. Texas, 599 U.S. 670, 682–83 (2023). In such

cases, the agency’s discretion is so expansive that

there is no “law to apply.” Citizens to Pres. Overton

Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971).

This action is not that. It instead resembles

Weyerhaeuser Co. v. U.S. Fish & Wildlife Serv., 586 U.S.

9 (2018), where the Supreme Court found § 701(a)(2)

inapplicable. In Weyerhaeuser, a group of landowners

challenged the designation of their property as a

critical habitat. Id. at 13. The Endangered Species

Act mandates such designation after the Secretary of

the Interior “tak[es] into consideration the economic

impact, the impact on national security, and any other

relevant impact, of specifying any particular area as

critical habitat.” 16 U.S.C. § 1533(b)(2). The Secretary

of the Interior “may” still thereafter choose not to

designate an area if he determines that the costs of

doing so outweigh the benefits—“unless he determines, based on the best scientific and commercial

data available, that failure to designate such area as

critical habitat will result in the extinction of the

species concerned.” Id. (emphasis added). Plaintiffs

challenge that the agency did not follow “a standard

set forth in the statute” (i.e., the mandatory part),

which the Supreme Court held is a garden-variety

APA claims subject to review. Weyerhaeuser, 586 U.S.

at 23–24.

44a

Our statutory scheme is symmetrical. Under both

the Endangered Species Act and the TPS statute, the

decisionmaker is required to conduct a study weighing

certain enumerated factors—in the TPS context,

“country conditions” against “national interest,” in

“consultation with appropriate agencies,” 8 U.S.C.

§ 1254a(b)(1), (3). In both statutory schemes, the

discretionary part of the statute kicks in only after the

Secretary has properly weighed these factors. The

statute hardly offers “absolutely no guidance” to either

the agency or this Court. Make The Rd. New York, 962

F.3d at 632 (cleaned up).18 And so it is subject to APA

review. See Weyerhaeuser, 586 U.S. at 23–24.

Section 701(a)(2) does not preclude APA review here.

E. The NTPSA Litigation Does Not Compel a

Different Result

The Court ends its exhaustive (arguably exhausting)

survey of subject-matter jurisdiction by addressing the

Government’s non-statutory argument. It contends

that two recent Supreme Court orders from its emergency

docket concerning the TPS statute confirm this Court

lacks jurisdiction. See MTD at 21. They do not.

Yes, the Supreme Court’s interim orders, while not

“conclusive as to the merits,” “inform how a court

should exercise its equitable discretion in like cases.”

The Government also analogizes this case to Webster v. Doe,

486 U.S. 592 (1988). There the Supreme Court considered a

statute permitting the Central Intelligence Agency’s (CIA’s)

Director to terminate an employee when he “shall deem such

termination necessary or advisable in the interests of the United

States.” Webster, 486 U.S. at 600 (quoting 50 U.S.C. § 403(c)).

“Necessary or advisable,” without additional clarifying language,

allocates great discretion to the CIA. Such unrestricted terminology is absent from the TPS statute.

45a

Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025). But the

cited interim orders never discuss jurisdiction. And

given the presumption of judicial review discussed

earlier, the Court cannot conclude that the Supreme

Court implicitly intended for every court handling

every TPS case to find it likely has no jurisdiction.

Recall that in 2025, different plaintiffs challenged

Secretary Noem’s vacatur of the previous administration’s extension of a 2023 designation of Venezuela for

TPS and then her later decision to terminate that

designation. See NTPSA I, 773 F. Supp. 3d 807. Judge

Chen granted plaintiffs’ motion to postpone the

Venezuela TPS actions pending litigation. See id. at

868. Without statement or opinion, the Supreme Court

stayed that order pending appeal in May 2025. See

NTPSA II, 145 S. Ct. 2728. After the district court

entered final judgment for plaintiffs, the Supreme

Court again stayed the decision pending appeal. See

NTPSA V, 146 S. Ct. 23 (2025).19 This time, it said

more, but not much more: “[a]lthough the posture of

the case has changed, the parties’ legal arguments and

relative harms generally have not. The same result

that we reached in May is appropriate here.” Id.

From this, the Governmnent claims the Supreme

Court agrees with its jurisdiction argument. Since its

“only argument” on appeal, it says, was that the TPS

statute’s jurisdiction-stripping provision bars arbitraryand-capricious claims, that must be the “legal

argument” the Supreme Court telegraphed has merit.

See MTD at 21 (cleaned up). But the Government

The district court also set aside the Partial Vacatur of Haiti’s

designation made in 2024. The Government did not petition for a

stay of that portion of district court’s opinion. See NTPSA V, 146

S. Ct. at 24.

46a

undersells its argumentative thoroughness. Its stay

application also contended, jurisdiction aside, that

the Secretary had authority to “vacate the outgoing

administration’s extension” of Venezuela’s TPS designation. Noem v. Nat’l TPS All., No. 25A326, Appl. for

Stay at 19–22 (U.S. Sept. 19, 2025).

If this is what intrigued the Supreme Court, its

order would not inform, much less resolve, this case.

The Court is adjudicating the legality of a TPS

termination, not a vacatur of a previous Secretary’s

TPS designation. In fact, if the Supreme Court

agreed with the Government on the merits—that the

Secretary has authority to vacate a previous designation before its expiration, id., or, as the Government’s

first stay application asserted, that the Government

did not violate the Equal Protection Clause, Noem v.

Nat’l TPS All., No. 24A1059, Appl. for Stay at 59–75

(U.S. May 1, 2025)—that would have presumably

entailed an antecedent finding of district-court jurisdiction for at least some TPS-related claims.

In any event, this Court declines the invitation to try

its hand at divination.

* * *

The TPS statute preserves the Secretary’s discretion

to make designation, extension, and termination

decisions according to her “value judgments.” MTD at

23–25. But the Court retains jurisdiction—and indeed

has a positive duty—to ensure that the Secretary

adheres to the APA and the U.S. Constitution when the

Secretary takes TPS-related action. It turns to that

responsibility next.

47a

III. LEGAL STANDARD

Section 705 is the APA’s “general stay provision.”

Mexichem Specialty Resins, Inc. v. E.P.A., 787 F.3d 544,

558 (D.C. Cir. 2015). It authorizes courts to “issue all

necessary and appropriate process to postpone the

effective date of an agency action or to preserve status

or rights pending conclusion of the review proceedings.” 5 U.S.C. § 705. A court may do so “[o]n such

conditions as may be required and to the extent

necessary to prevent irreparable injury.” Id.

The factors governing issuance of a section 705 stay

are the same as those that govern the grant of a

preliminary injunction. See Dist. of Columbia v. U.S.

Dep’t of Agric., 444 F. Supp. 3d 1, 15 (D.D.C. 2020). To

prevail on such a motion, the movant “must show (1) a

substantial likelihood of success on the merits, (2) that

it would suffer irreparable injury if the [stay] were not

granted, (3) that a[] [stay] would not substantially

injure other interested parties, and (4) that the public

interest would be furthered by the [stay].” Chaplaincy

of Full Gospel Churches v. England, 454 F.3d 290, 297

(D.C. Cir. 2006). In a case like this one, where the

Government is the non-movant, the third and fourth

factors merge. Nken, 556 U.S. at 435.

IV. LIKELIHOOD OF SUCCESS

A. APA Claim

1. The Secretary Likely Acted Contrary to

Law in Failing to “Consult[]” Properly

with “Appropriate Agencies”

We begin with the APA’s familiar requirement that

courts “hold unlawful and set aside agency action,

findings, and conclusions” that are “in excess of

statutory jurisdiction, authority, or limitations” or are

48a

“without observance of procedure required by law.” 5

U.S.C. § 706(2)(C)– (D). Plaintiffs are likely to succeed

on their claim that Secretary Noem acted contrary to

law and in excess of her statutory authority by failing

to consult appropriate agencies as required by the TPS

statute.

The statutory text is unambiguous. Congress vested

the DHS Secretary with the decision of whether

to extend a country’s TPS designation upon “review

[of] the conditions in the foreign state.” 8 U.S.C.

§ 1254a(b)(3)(A). But, among other limitations, she can

terminate a TPS designation only “after consultation

with appropriate agencies of the Government.” Id.

That did not occur.

Recall that on February 24, 2025, Secretary Noem

issued the Partial Vacatur of Haiti’s TPS designation.

On September 5, 2025, the court in the NTPSA

litigation found that the Partial Vacatur violated the

APA, in part because the Secretary made the decision

“without consultation with government agencies or

country conditions review.” NTPSA IV, 798 F. Supp. 3d

at 1155. Although the court did not formally invalidate

DHS’s July Termination of Haiti’s TPS designation,

it noted that the July Termination would be unlawful

if the Vacatur is unlawful. Id. at 1164 & n.24. Presumably accepting that “the better part of valour is

discretion,”20 DHS decided to re-issue its periodic

review decision on November 28, 2025, when it again

terminated Haiti’s TPS designation (the operative

Termination here). See 90 Fed. Reg. at 54733.

William Shakespeare, Henry IV, Part I, in The Complete

Works of William Shakespeare—Comprising His Plays and Poems

385, 411 (1979).

49a

On Friday, September 5, 2025—that is, the same day

that the NTPSA court set aside the Partial Vacatur of

Haiti’s TPS designation—a DHS staffer emailed a

State staffer at 4:55 p.m.: “Due to the litigation, we are

re-reviewing country conditions in Haiti based on the

original TPS deadline. Can you advise on State’s views

on the matter?” CAR 78-7 at 9–10 (HaitiTPSAR 409–

10). The State staffer responded within 53 minutes:

“State believes that there would be no foreign policy

concerns with respect to a change in the TPS statue of

Haiti.” Id.

This was it. The full extent of the supposed

“consultation with appropriate agencies.” Believing it

must be missing something, the Court questioned

Government counsel about this:

Court: So in the Federal Register notice, the

Secretary wrote, “After reviewing country

conditions and consulting with appropriate

U.S. Government agencies, the Secretary

determined that Haiti no longer meets the

conditions for the designating as TPS”; right?

Government Counsel: Yes.

Court: What were the appropriate agencies

that the Secretary consulted? . . .

Government Counsel: So, Your Honor, it’s the

Department of State email found at 409 and

410. That is what we have.

...

Court: No other agency was consulted?

Government Counsel: No other agency was

consulted. . . .

Court: And the extent of the Department of

50a

State consultation was the email exchange at

409 and 410.

Government

Counsel:

understanding.

That

Jan. 6 A.M. Hr’g Tr. at 19:14–21:6.

Was this “consultation”? The Court “look[s] first to

[the statute’s] language, giving the words used their

ordinary meaning.” Lawson v. FMR LLC, 571 U.S. 429,

440 (2014). The ordinary meaning of “consultation” is

“[t]he act of asking the advice or opinion of someone

(such as a lawyer)” or “[a] meeting in which parties

consult or confer.” Consultation, Black’s Law Dictionary

(12th ed. 2024). To consult is to “seek information or

advice from (someone with expertise in a particular

area)” or to “have discussions or confer with (someone),

typically before undertaking a course of action.”

Consult, The New Oxford Dictionary (3d ed. 2015).

The Government contends that the email exchange

suffices as consultation because “the statute leaves

each Secretary with substantial discretion to determine when, where, how, and with whom to consult as

appropriate in each instance.” Gov’t’s Suppl. Br. at 6.

But Congress did not vest the Secretary with Humpty

Dumpty-like power to make the word “consultation”

mean “just what [she] chooses it to mean—neither

more nor less.”21 And the above exchange cannot

suffice if the word “consultation” is to play any role in

the TPS designation process. Instead, some “meaningful

exchange of information” must occur. Cal. Wilderness

Coalition v. U.S. DOE, 631 F.3d 1072, 1086 (9th Cir.

Lewis Carroll, Alice’s Adventures in Wonderland and

Through the Looking-Glass 198 (Messner 1982); cf. Lopez v.

Gonzales, 549 U.S. 47, 54 (2006).

51a

2011); Nat’l TPS All., 2025 WL 4058572 at *14; Doe,

2026 WL 184544 at *13–14.

The statutory text supports this view. To start, the

Government is wrong about the level of the Secretary’s

discretion. Congress did tell the Secretary “when” and

“with whom” to consult. When: the Secretary “shall

review the conditions in the foreign state” only “after

consultation.” 8 U.S.C. § 1254a(b)(3)(A) (emphasis

added). And only after consulting and reviewing

country conditions can she make her “determin[ation].”

Id. With whom: “appropriate agencies of the Government.”

Id. And recall that Congress passed the TPS program

to curb the Executive’s discretion, not expand it. See

supra Section I.A.

Consider further that Congress requires “consultation with appropriate agencies” three times: before

making the initial designation, 8 U.S.C. § 1254a(b)(1);

before undertaking a periodic review, id. § 1254a(b)(3);

and before issuing an annual report to Congress about

the operation of the TPS program, id. § 1254a(i). And

each time, the DHS Secretary can act, again, only

“after consultation.” Id. (emphasis added). And only

after consultation with agencies—plural, not singular.

Id. Plainly, Congress’s consultation requirement was

not an afterthought, but instead an integral

mechanism to ensure the DHS Secretary understands

country conditions before acting.

The Government more specifically contends that

“[w]hat constitutes sufficient consultation is nothing

more than the Secretary’s ‘determination’ ‘with respect

to the termination’ of a country’s designation.” Gov’t’s

Suppl. Br. at 5–6 (citing 8 U.S.C. § 1254a(b)(5) (citation

modified)) (emphasis added). That cannot be. Given

that, as just noted, the Secretary can make a

52a

“determination” only “after consultation,” consultation

must mean something different than determination.

The Government cites Government Accountability

Office Report 20-134, titled, Temporary Protected

Status: Steps Taken to Inform and Communicate

Secretary of Homeland Security’s Decision (GAO TPS

Report). See Gov’t’s Suppl. Br. at 5. Relying on it, the

Government contends that “the INA does not prescribe

the other agencies that must be consulted”; that

“State . . . generally has a role in providing input for

the Secretary[’s] . . . TPS reviews”; and that “DHS

generally consults with State on TPS decisions,

although it is not specifically required to do so under

the statute.” Id. (citing GAO TPS Report at 2, 18–19).

Fair.

But the consultation detailed in the GAO TPS

Report puts the inadequacy of the email exchange

here into stark relief. Typically, State’s Bureau of

Population, Refugees, and Migration (PRM) compiles a

“joint action memo” by reaching out to the regional

bureau, which in turn reaches out to the overseas post

(e.g., the embassy), which in turns fills out and returns

a detailed questionnaire about country conditions. See

GAO Report at 23. Other agencies (e.g., the U.S.

Agency for International Development) may also

provide information. See id. The Secretary of State

then reviews PRM’s memorandum and sends a

recommendation letter and final country conditions

report to the DHS Secretary. See id. at 22–23.22

Compare this with the late Friday afternoon, threesentence email exchange between staffers that

occurred here.

For a detailed review of this process, see NTPSA IV, 798 F.

Supp. 3d at 1120–22, and Saget, 375 F. Supp. 3d at 298–300.

53a

The most the Government can muster as to the

Secretary of State’s position is that there is “no reason

to believe” that the “information provided by the

Department of State to DHS”—in its one-sentence

email—lacks the Secretary of State’s support. Dkt. 98

¶ 5. Maybe as to foreign policy.23 But as to Haiti’s

country conditions, Secretary Rubio—as recently as

October 1, 2025—raised the concern that Haiti continues

to face, “immediate security challenges.” CAR 78-7 at

32. And earlier in 2025, he warned that criminal

elements in Haiti seek to create “a gang-controlled

state where illicit trafficking and other criminal

activities operate freely and terrorize Haitian

citizens.” Id. at 46.

The Court makes the following observation: The

State Travel Advisory for Haiti in the CAR is dated

September 18, 2024. See CAR 78-7 at 17. Secretary

Noem published her initial termination notice for

Haiti on July 1, 2025. Two weeks later, on July 15,

2025, State “[r]eissued” its travel advisory because

conditions had worsened since the previous September.

It added a “terrorism indicator,” and the language “[d]o

not travel to Haiti for any reason.” § 705 Reply at 20–

21. This July reissue was State’s operative travel

advisory on November 28, 2025, when Secretary Noem

issued the Termination, and it remains in effect today.

But it does not appear in the CAR. So? The Secretary

The Government contends that “foreign policy” covers

“country conditions.” Jan. 6 A.M. Hr’g Tr. at 34:21–36:6. Not

according to Secretary Noem. In the Termination, she listed

“foreign policy” as part of the national interest analysis, not the

country conditions analysis. See 90 Fed. Reg. at 54735 (“‘National

interest’ is an expansive standard that may encompass an array

of broad considerations, including foreign policy . . . .”).

54a

did not even consider updated information from State

freely available to the public.

Perhaps every government agency would have

agreed with Secretary Noem’s Termination decision.

Perhaps none of them would. We do not know. Because

the Secretary did not consult. In terminating Haiti’s

TPS designation without consulting, she acted

contrary to law and in excess of statutory authority.

2. The Secretary Engaged in a Pattern and

Practice of Terminating All TPS Designations Without the Requisite Periodic

Review

As of the publication of this Memorandum Opinion,

the Secretary has terminated the TPS designations of

all twelve countries, including Haiti, that “have come

up for . . . period[ic] review” since President Trump

took office in January 2025. Dkt. 98 at 4; Dkt. 113. This

alone strongly suggests that the Secretary engaged

in a pattern and practice of terminating all TPS

designations without the country specific statutorilymandated periodic review.

The Supreme Court has recognized that when

agency action “appl[ies] some particular measure

across the board,” a person adversely affected may

challenge “the entire . . . program, insofar as the

content of that particular [contested] action is

concerned.” Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871,

890 n.2 (1990) (cleaned up). The D.C. Circuit describes

such a claim as assailing an agency’s alleged wholesale

“practice of shrugging off . . . statutory . . . limitations.”

Hisp. Affs. Project v. Acosta, 901 F.3d 378, 387 (D.C. Cir.

2018).

Plaintiffs’ pattern-and-practice allegations, see SAC

¶¶ 240–43; Dkt. 108 at 10–13, claim just that. They

55a

assert that “[t]he fact that the administration has

terminated every TPS designation that it has reviewed

despite the disparate conditions in those countries is

evidence that the administration is terminating TPS

designations, including Haiti’s TPS designation, based

on a predetermined agenda rather than a good-faith,

fact-based, country-specific review as required by

8 U.S.C. § 1254a(b)(3)(A).” SAC ¶ 241. In fewer words,

they allege that the Secretary impermissibly engaged

in a “habitual[]” “practice” or “de facto policy” of

terminations across the board. Hisp. Affairs Project,

901 F.3d at 386–88.

The Government concedes that twelve designated

countries have come up for periodic review since

January 20, 2025, and Secretary Noem has terminated

all twelve.

Table of TPS Actions

Date of

Publication

TPS Action

Taken

Country

Federal Register

Citation

2/3/2025

Vacatur

Venezuela

90 Fed. Reg. 8805

2/5/2025

Termination

Venezuela

90 Fed. Reg. 9040

2/24/2025

Partial

Vacatur

Haiti

90 Fed. Reg. 10511

5/13/2025

Termination

Afghanistan

90 Fed. Reg. 20309

6/4/2025

Termination

Cameroon

90 Fed. Reg. 23697

6/6/2025

Termination

Nepal

90 Fed. Reg. 24151

7/1/2025

Termination

Haiti

90 Fed. Reg. 28760

7/8/2025

Termination

Nicaragua

90 Fed. Reg. 30086

7/8/2025

Termination

Honduras

90 Fed. Reg. 30089

9/8/2025

Termination

Venezuela

90 Fed. Reg. 43225

9/22/2025

Termination

Syria

90 Fed. Reg. 45398

11/6/2025

Termination

South Sudan

90 Fed. Reg. 50484

Burma

90 Fed. Reg. 53378

11/25/2025 Termination

56a

11/28/2025 Termination

Haiti

90 Fed. Reg. 54733

12/15/2025 Termination

Ethiopia

90 Fed. Reg. 58028

1/14/2026

Somalia

91 Fed. Reg. 1547

Termination

Dkt. 113.24 It is, to the Court’s knowledge, unprecedented in the thirty-five years since the establishment

of the TPS program for a DHS Secretary to terminate

every TPS designation that crosses her desk for review.

See Jan. 7 Hr’g Tr. at 11–15, 60–68. This unprecedented, across-the-board nature of the Secretary’s

terminations strongly suggests that each decision

sprang from a “de facto policy” and “shrug[ed] off ” the

“statutory command” that she engage in an

individualized review of the conditions of each country.

Hisp. Affairs Project, 901 F.3d at 386– 88.

This is not only educated speculation. Secretary

Noem has failed to consult, as required, appropriate

agencies in making other termination decisions. As

this Court does with Haiti, courts have concluded that

she failed to consult before terminating the TPS

designations for Burma, Honduras, Nepal, Nicaragua,

and Venezuela, despite her statutory obligation to do

so. See Doe, 2026 WL 184544 at *14 (Burma); Nat’l

TPS Alliance, 2025 WL 4058572 at *22–23 (Honduras,

Nepal, and Nicaragua); NTPSA IV, 798 F.Supp.3d at

1118 (Venezuela). These consistent judicial findings

support a broader pattern of terminating TPS

designations writ large.

Whatever the “Administration’s priorities,” Dep’t of

Com., 588 U.S. at 781, the Secretary has no authority

This chart omits one extension. South Sudan’s TPS

automatically extended six months in May 2025 because

Secretary Noem failed to conduct the required periodic review.

See Dkt. 113. At the next opportunity, she terminated its

designation. See 90 Fed. Reg. 5084 (Nov. 6, 2025).

57a

to contravene an act of Congress. A pattern and

practice of doing so is “arbitrary, capricious, and

contrary to law, in violation of the APA.” Hisp. Affairs

Project, 901 F.3d at 386. Plaintiffs are likely to succeed

on the merits of their pattern-and-practice APA claim.

3. The Secretary’s Actions Were Arbitrary

and Capricious

Agency action is arbitrary and capricious if the

agency “has relied on factors which Congress has not

intended it to consider, entirely failed to consider an

important aspect of the problem, offered an explanation for its decision that runs counter to the evidence

before the agency, or is so implausible that it could not

be ascribed to a difference in view or the product of

agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S.,

Inc. v. State Farm Mut. Auto. Ins., 463 U.S. 29, 43

(1983). “The scope of review under the ‘arbitrary and

capricious’ standard is narrow and a court is not to

substitute its judgment for that of the agency.” Id. But

a court must ensure that the agency “remained within

the bounds of reasoned decisionmaking.” Dep’t of Com.,

588 U.S. at 773 (cleaned up). It does so by considering

whether the record confirms that the agency

“examine[d] the relevant data and articulate[d] a

satisfactory explanation for its action including a

rational connection between the facts found and the

choice made

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