Ninth Circuit: We Regret To Concede That Noem Has a Point About ‘Temporary’

The decision should not surprise anyone. Its origin, however, might.

Homeland Security Secretary Kristi Noem has ended Temporary Protected Status (TPS) waivers for refugees who have been in the US for years, sometimes decades, long after the acute disasters ended. TPS turned into a permanent limbo, with previous administrations loath to take action to disturb the status quo when it came to non-resident entrants, even those only granted “temporary” shelter. The Trump administration, however, wants to close the books on TPS entries and reinforce the temporary nature of such programs. 

A San Francisco judge blocked Noem’s decision to revoke TPS status for several different groups at the end of December. Late yesterday, the Ninth Circuit stayed the order, finding that Noem likely would prevail at trial on the merits and that her decision to end TPS status was neither arbitrary nor capricious

A federal appeals court in San Francisco granted a stay allowing the government to proceed with terminating Temporary Protected Status (TPS) for immigrants from Nepal, Honduras and Nicaragua.

The reliably liberal Ninth Circuit Court of Appeals issued an order freezing a lower court ruling that would have vacated Department of Homeland Security (DHS) Secretary Kristi Noem’s decision to end the protections.

The court found the government was likely to succeed on the grounds that the DHS decision was not “arbitrary or capricious,” suggesting that the decision-making process was rational.

“The government is likely to prevail in its argument that the Secretary’s decision-making process in terminating TPS for Honduras, Nicaragua, and Nepal was not arbitrary and capricious,” court documents said. 

“Famously liberal” is certainly one description of the Ninth Circuit. “Often overruled” is another, especially in recent years. The panel had that clearly in mind, as Courthouse News Servce reports:

The panel — composed of U.S. Circuit Judge Michael Hawkins, a Bill Clinton appointee; U.S. Circuit Judge Consuelo Callahan, a George W. Bush appointee; and U.S. Circuit Judge Eric Miller, a Donald Trump appointee — also said it was influenced by recent Supreme Court decisions that stayed lower court orders blocking Noem’s termination of TPS for Venezuela.

However, the judges acknowledged the justices did not include any reasoning for their decisions to stay orders blocking Noem from axing protected status for Venezuelan migrants, writing that the precedent “does not inform our analysis of the legal issues in this case.”

“The stay applications involved similar assertions of harm by both parties, and we have been admonished that the court’s stay orders must inform ‘how [we] should exercise [our] equitable discretion in like cases,’” the panel said. “We therefore conclude that the equitable factors favor a stay.”

In other words, the panel more or less just surrendered to the inevitable. However, one can also say that they surrendered to the obvious, because two of the TPS determinations in these cases relate to a disaster that occurred in the previous century. The third is more than a decade old. No, I am not kidding, as the order makes plain:

This case involves TPS designations for Nepal (initially designated in 2015 because of an earthquake) and Honduras and Nicaragua (initially designated in 1999 because of Hurricane Mitch). In 2025, the Secretary terminated the TPS designations for all three countries. See 90 Fed. Reg. 24,151 (June 6, 2025) (Nepal); 90 Fed. Reg. 30,086 (July 8, 2025) (Nicaragua); 90 Fed. Reg. 30,089 (July 8, 2025) (Honduras).

The TPS designations for Hondurans and Nicaraguans are more than a quarter-century old. The word “temporary” in TPS is supposed to get people past the immediate dangers of the acute events that drove them from their country. It is not meant for life-long asylum; the US has a different process for asylum, with different requirements. It is absolutely absurd that we have extended this status for 26-plus years after a hurricane. 

Furthermore, the Ninth Circuit also belatedly discovered that the statute on which TPS is based does not allow for judicial review of terminations, a point that the district court ignored:

In 8 U.S.C. § 1254a(b)(5)(A), Congress precluded “judicial review of any determination of the [Secretary] with respect to the designation, termination, or extension of a designation, of a foreign state” under section 1254a(b). The government argues that the Secretary’s terminations of TPS for Nepal, Honduras, and Nicaragua are therefore unreviewable. In our recent decision in National TPS Alliance v. Noem (NTPSA III), we held that section 1254a(b)(5) (A) “does not bar judicial review of a claim that the Secretary exceeded her statutory authority.” No. 25-5724, 2026 WL 226573, at *9 (9th Cir. Jan. 28, 2026). But that case involved the vacatur of a TPS designation, an action that we held was in excess of the Secretary’s statutory authority. Id. at *15–16. This case, by contrast, involves a termination of TPS, an action expressly authorized by statute.

Even the distinction between vacatur and termination is tenuous at best, the panel conceded:

We are not writing on a blank slate, however, because the Supreme Court has twice stayed district court orders blocking the Secretary’s vacatur of TPS for Venezuela. See Noem v. National TPS All., 146 S. Ct. 23 (2025); Noem v. National TPS All., 145 S. Ct. 2728 (2025). Those orders contained no reasoning, so they do not inform our analysis of the legal issues in this case, and the issues in any event are not identical. But the stay applications involved similar assertions of harm by both parties, and we have been admonished that the Court’s stay orders must inform “how [we] should exercise [our] equitable discretion in like cases.” Trump v. Boyle, 145 S. Ct. 2653, 2654 (2025). We therefore conclude that the equitable factors favor a stay.

The “equitable factors” favor a stay, because there’s no way to square a “temporary” protected status with a 26-year-old hurricane and an eleven-year-old earthquake. Even the Ninth Circuit grudgingly has to concede that point. And so they grudgingly have. The Supreme Court may have to rule directly on this point before district court judges get the message, but at least the nation’s most “famously liberal” court has begun to grasp the point. 

Perhaps the activists who keep filing these lawsuits will get the memo on TPS reports. Don’t hold your breath, however. 

The latest episode of The Ed Morrissey Show podcast is now up! Today’s show features:

•  Bad Bunny or Kid Rock? Neither Andrew Malcolm nor I can pick a winner for sure in this game, but at least the Halftime Show War may have been more competitive than the game. 
• We talk about the lost value of great defense in today’s NFL, plus we both wonder how long the NFL can stage football in its current form. 

The Ed Morrissey Show is now a fully downloadable and streamable show at  Spotify, Apple Podcasts, the TEMS Podcast YouTube channel, and on Rumble and our own in-house portal at the #TEMS page!

Editor’s Note: Democrat politicians and their radical supporters will do everything they can to interfere with and threaten ICE agents enforcing our immigration laws.

Help us hold these leftists accountable and expose their obstruction. Join Hot Air VIP and use promo code FIGHT to get 60% off your membership!