More Judicial Arrogance in California



In a decision issued on Wednesday, in the matter of Ramos v. Nielsen, U.S. District Judge Edward M. Chen, issued a temporary injunction blocking the Trump administration’s rescission of Temporary Protected Status (TPS) for Haiti, Sudan, Nicaragua and El Salvador. TPS allows foreign nationals who hail from countries experiencing natural disasters or ongoing armed conflict to remain in the U.S. temporarily, until conditions in their home country improve.

Judge Chen suggested that the decision to terminate TPS for nationals of these countries did not comply with the Administrative Procedure Act (APA) and was based on racism. Therefore, it likely violated constitutional due process and equal protection requirements. However, there are a number of serious flaws in Judge Chen’s reasoning.

First off, the provision of the Immigration and Nationality Act (INA) authorizing TPS specifically states, “There is no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” It’s hard to imagine Congress expressing its will more explicitly.

Nevertheless, Judge Chen held that this clause does not prohibit the courts from reviewing “general collateral practices or certain colorable constitutional claims.” He did not explain how it would be possible to evaluate any such claims without also calling into question the Secretary of Homeland Security’s rescission decree.

In addition, Judge Chen’s decision is filled with legally vacuous pronouncements such as:

  • “Plaintiffs have also raised serious questions whether the actions taken by the [Secretary of Homeland Security] was [sic] influenced by the White House and based on animus against non-White, non-European immigrants in violation of Equal Protection guaranteed by the Constitution.”
  • The Secretary of Homeland Security, in deciding to terminate TPS for the Plaintiffs, “…changed the criteria applied by the prior administrations, and did so without any explanation or justification in violation of the Administrative Procedure Act.”

However, such statements are riddled with errors that should be obvious to first-year law students:

  • The president is the Chief Executive of the United States. The entire Executive Branch works for him. Therefore, it is in no way improper if the White House influenced, or even ordered, the decision to terminate TPS for the plaintiffs.
  • The Plaintiff’s equal protection claims are dubious, at best. As the Supreme Court held in Matthews v. Diaz, Congress “regularly makes rules regarding aliens that would be unacceptable if applied to citizens.”
  • The Trump administration isn’t obligated to retain the TPS designation criteria used by prior administrations. TPS may be terminated whenever the Secretary of Homeland Security determines that it is safe for nationals of an affected state to return home or that their presence in the United States is not in the national interest.
  • The Trump administration was not required to provide any explanation for or justification of its decisions. The relevant portions of the INA only require the Secretary of Homeland Security to publish a notice of termination, including the basis for the termination (g. it’s safe to go home) in the Federal Register.

This is only the latest example of a disturbing trend toward judicial arrogance in the immigration realm. We are rapidly morphing into a nation where an unelected judicial elite ignores the will of the people, expressed through the acts of Congress, in order to implement their open borders vision of the world. It’s high time for Congress to come to the aid of the president and push back.

About Author

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Matthew J. O’Brien joined the Federation for American Immigration Reform (FAIR) in 2016. Matt is responsible for managing FAIR’s research activities. He also writes content for FAIR’s website and publications. Over the past twenty years he has held a wide variety of positions focusing on immigration issues, both in government and in the private sector. Immediately prior to joining FAIR Matt served as the Chief of the National Security Division (NSD) within the Fraud Detection and National Security Directorate (FDNS) at U.S. Citizenship and Immigration Services (USCIS), where he was responsible for formulating and implementing procedures to protect the legal immigration system from terrorists, foreign intelligence operatives, and other national security threats.He has also held positions as the Chief of the FDNS Policy and Program Development Unit, as the Chief of the FDNS EB-5 Division, as Assistant Chief Counsel with U.S. Immigration & Customs Enforcement, as a Senior Advisor to the Citizenship and Immigration Services Ombudsman, and as a District Adjudications Officer with the legacy Immigration & Naturalization Service. In addition, Matt has extensive experience as a private bar attorney. He holds a Bachelor of Arts in French from the Johns Hopkins University and a Juris Doctor from the University of Maine School of Law.

5 Comments

  1. avatar

    Wouldn’t it be great to have all our decisions made for us by such wise individuals? Oh..wait,,we used to call the “kings” and they ruled by “divine right!”

  2. avatar

    This judge’s argument that the new policy was based on White House “animus against non-white non-European immigrants” has already been addressed by the Supreme Court in the “Muslim ban” case. The court made it clear that trying to bring the political opinions of the president into the administration of what is clearly defined and previously upheld law is a specious argument. And yet here it’s made again.

    Hillary’s snearing statement that “You cannot be civil with a political party that wants to destroy what you stand for” is ironic considering that not that many years ago both of the Clintons were adamantly against illegal immigration and said it caused job losses and wage suppression for American workers. Was it “civil” when she trashed Trump supporters as “deplorable” because many of us supported his trade and immigration restriction policies. Maybe we’re tired of the Democrats trying to “destroy” this country through their open border policies.

    Of course, the Democrats deny that they want anyone attacked or harassed, but they say the exact opposite. Get in their face, gather a crowd and confront them, when they go low we kick them, all these are incitements to violate the civil rights of others. “Protest” does not include the right to harass and intimidate others.

    Another example of hypocrisy is the fact that DNC vice chair and Louis Farrakhan acolyte Keith Ellison has been accused by a former girlfriend of physical abuse and no one on that side is calling for him to resign. Actually, he is entitled to his presumption of innocence but why the double standard for the far less credible accusations against Kavanaugh. What the Republicans should be making a big deal of are the pictures of Ellison wearing a t-shirt saying Yo No Creo En Fronteras, which translates to I don’t believe in borders. What’s up with letting him get away with that? Good grief, they spell it out and no one points it out?

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