Ninth Circuit Upholds Ruling that Termination of TPS for Venezuelans is Unlawful

On August 29, 2025, the U.S. Court of Appeals for the Ninth Circuit upheld the lower court’s ruling postponing U.S. Department of Homeland Security Secretary Kristi Noem’s Notices of Vacatur and Termination of Temporary Protection Status (TPS) for Venezuelans pending final adjudication of the case. The appellate court in National TPS Alliance v. Noem determined that the plaintiffs were likely to succeed on the merits of their claims, that TPS beneficiaries would suffer irreparable harm from termination of the program, and that the equities favored the postponement. 

Background

The opinion gives a brief history of TPS grants and extensions for Venezuelans. In October 2023, the former secretary of Homeland Security Alejandro Mayorkas extended TPS to September 10, 2025, and redesignated Venezuela for TPS, allowing eligible Venezuelans to apply for TPS—which allows them to live and work in the United States temporarily—for the first time. This created a two-track system, one for those registered in 2021 and another in 2023. Then, on January 17, 2025, Mayorkas allowed existing beneficiaries of either track to seek an 18-month extension through October 2, 2026. On February 3rd and 5th, 2025, Noem issued Notices vacating the extension and consolidation, and terminating the 2023 TPS designation. 

On February 19, 2025, the National TPS Alliance (NTPSA) sued Noem and the U.S. government in the Northern District of California, asking to postpone Noem’s Notices and to restore the prior extensions. The plaintiffs argued that Noem lacks authority to vacate TPS, and her actions violated the Administrative Procedure Act (APA) and the Equal Protection Clause of the Constitution. 

The district court granted the plaintiff’s motion for preliminary relief and postponed the Notices nationwide, holding that 1) the plaintiffs had established a likelihood of success on the merits; 2) TPS beneficiaries would suffer irreparable harm absent relief; and 3) the public interest and balance of equities strongly favored postponing the decision. The government appealed.

Plaintiffs Likely to Succeed on the Merits Because the Secretary Lacks Authority to Vacate TPS

The Ninth Circuit held that the plaintiffs were likely to succeed on their claim that the DHS secretary does not have authority to vacate a prior extension of TPS. Agencies lack authority to undo their actions where Congress has said otherwise, and the TPS statute only authorizes designation, extension, or termination of TPS (and termination only within a specific time frame), not vacatur. “Where Congress itself has significantly limited executive discretion by establishing a detailed scheme that the Executive must follow in dealing with [noncitizens], the [Executive] may not abandon that scheme because he thinks it is not working well.” E. Bay Sanctuary Covenant v. Trump, 932 F.3d 742, 774 (9th Cir. 2018). 

Plaintiffs Would Suffer Irreparable Injury and Balance of Equities Supports Postponement

The court also highlighted the irreparable harm to TPS holders from loss of legal status, even if the protection is merely temporary. As for the balance of equities/public interest, the court found that the public interest favors the protection of duly enacted statutes against executive action, while terminating Venezuelan’s status and cancelling their work authorization would negatively affect the economy and public safety. The court noted that the government had submitted no evidence that any TPS holder was a member of a criminal organization and had failed to rebut the finding that immigrants (especially TPS holders) are much less likely to commit crimes than U.S.-born Americans. 

Scope of Relief

The district court postponed the Vacatur and Termination Notices nationwide based on Section 705 of the APA, which allows 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.” The Ninth Circuit found that the plaintiffs had demonstrated that nationwide postponement of the vacatur is the only remedy that gives complete relief to the parties before the court and complies with the TPS statute. NTPSA is nationwide, and limiting relief to individuals would not be workable or comply with the statute. In so doing, it distinguished the matter from another case, Immigrant Defender, in which relief was limited to plaintiff asylum seekers, reasoning that unlike TPS, asylum eligibility is an individual determination, and a piecemeal approach was therefore appropriate. Here, “postponing the rule for just some individuals would require rewriting the statute itself.”  

There was no discussion as to whether the September 10, 2025, date was stayed or vacated, or whether the extension through October 2, 2026, would be restored. Further, as noted, on February 3, the DHS announced the termination of TPS for those registered in 2021, the remaining Venezuela termination track.

The amount of activity in both the administrative and judicial arenas makes this process, and interpretation of it, complex and confusing. It is prudent to coordinate with counsel since these issues are so time-sensitive.