Judges have NO authority to review TPS — but do it anyway

· July 25, 2018  
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The president is racist and is therefore not allowed to follow immigration laws passed by Congress. And a group of largely illegal immigrants have the right to sue the president for not making an elective and temporary relief program passed by Congress mandatory and permanent.

That is the gist of Judge Denise Casper’s opinion allowing a group of aliens to go forward with a lawsuit against Trump for ending temporary protected status (TPS) for people from some countries at the designated time it expired.

“This Court finds that the combination of a disparate impact on particular racial groups, statements of animus by people plausibly alleged to be involved in the decision-making process, and an allegedly unreasoned shift in policy sufficient to allege plausibly that a discriminatory purpose was a motivating factor in a decision,” wrote Casper in a 42-page ruling. She also cited Trump’s pardoning of Joe Arpaio as reason to prohibit him from enforcing immigration law!

Yup, this is another example of how a judge is saying the president must follow the lawless executive actions of past administration and not duly passed statutes because, supposedly, he’s a racist.

Bogus TPS is just like bogus asylum  

TPS was designed as a temporary relief from deportation. It was never designed as an amnesty program for illegal aliens or as a mass migration scheme for those from impoverished or even dangerous Third World countries. It was a very limited program intended for a tiny population of people who happen to be here legally on vacation, work, or as a student while a natural disaster or armed conflict occurs in their home countries, making it difficult for them to return. Only in those limited cases can the secretary of Homeland Security grant temporary legal status to remain in the country. And of course, this status is discretionary, not mandated by law.

Since 1990, when Congress initiated this limited program, past administrations have offered over 430,000 people status. More than half of them were from El Salvador alone. No, we didn’t have tens of thousands of impoverished people who happened to be vacationing in Disney World when a natural disaster hit. Whether it was the earthquakes in El Salvador and Haiti or hurricanes in Guatemala and Honduras, a number of people who came here illegally or overstayed their visas used these natural disasters as an opportunity to claim TPS. They were erroneously granted such status. Furthermore, whereas the statute only grants the status for 6-18 months, past administrations extended the policy indefinitely.

According to law (INA §244 (b)(1)), TPS may not be designated if the DHS secretary finds that allowing migrants to temporarily stay in the United States is against the national interest or for individuals with criminal convictions. Yet past administrations categorically extended this program without any regard for the effects on Americans and the fact that many of these people should never have been eligible in the first place.

In comes the Trump administration and initially extends most of the TPS designations and then finally ends some of them, while continuing others. Now, Judge Casper, an Obama-appointed federal judge in Boston, has granted standing to TPS recipients from Honduras, Haiti, and El Salvador to sue Trump for following the actual TPS law. Much like those foreign nationals who were granted standing to challenge the “travel ban,” these seekers of permanent protected status charge that Trump cannot follow the law because, in their view, he has shown a “dislike and disregard for Latino and black immigrants” and has called their countries “$&!#holes.” Amazingly, yet not surprisingly, this liberal judge ruled that plaintiffs “allege plausibly that a discriminatory purpose was a motivating factor in a decision.”

A judge and a ruling without a shred of legitimacy

Although this ruling is not on the merits, the fact that she is allowing such a lawsuit to proceed is astounding on many levels:

  • The Supreme Court’s ruling in Trump v. Hawaii, once again, has been proven impotent in reining in lower courts. Writing for the majority, Chief Justice John Roberts categorically rejected the notion that the president’s power to enforce immigration laws can be abridged because of subjective allegations about how nice or mean his political views are to immigrants. This case demonstrates that moving the Supreme Court to the right will do nothing to deter these lower court judges from coming back for more bites at the apple, as Justice Thomas warned.
  • These individuals are predominantly illegal aliens and should never get standing to sue. El Salvador was given TPS in 2001 due to an earthquake and Honduras was given TPS due to Hurricane Mitch in 1998. TPS for Haiti was granted because of an earthquake in 2010. There is no way anyone can say with a straight face that the natural disasters are still preventing people from these countries from returning. And no, the fact that these are otherwise miserable countries does not qualify these people for TPS. Either way, these people are mainly illegal aliens who were never stranded here because of natural disasters, and the entire policy is discretionary.
  • By far, El Salvador is the home country of most of these bogus TPS claims. It is also the home to MS-13. As Jessica Vaughn of the Center for Immigration Studies has warned, by liberal judges conferring official status on these people, they have ensured that MS-13 gangsters here illegally are not deported. This is a classic example of how, much as with asylum and unaccompanied alien children, the liberal judges and past administrations have interpreted a statute in the exact opposite manner of its intended purpose. TPS, precisely because it’s not an immigration or amnesty program but rather a temporary dwelling, doesn’t require the applicants to show “good moral character.” Yet the Left has turned it into a permanent amnesty program but still, of course, does not require a showing of good character, which makes it much harder to get rid of the bad guys.

As Vaughn warned, such tragedy already played out in the state of Massachusetts as a result of a judge. “A judge in Massachusetts blocked ICE efforts to remove a Salvadoran MS-13 member who had been convicted of relatively minor crimes, noting that because of his nationality and date of illegal arrival, the offender was eligible for TPS, even though he had not applied for it. ICE did get a second chance, as the gangster later participated in one of the most horrifying crimes in the Boston area at the time, the gang rape of two deaf girls in a public park, one of whom had cerebral palsy and was in a wheelchair.”

Finally, there is one important factor we must not overlook. Normally, I’d use this case as another opportunity to call on Congress to kick the courts out of immigration. But on TPS, Congress already did so: 8 U.S.C. § 1254a(b)(5)(A) states unambiguously, “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.”

As the Supreme Court said this past term (Patchake v. Zinke), “When Congress strips federal courts of jurisdiction, it exercises a valid legislative power no less than when it lays taxes, coins money, declares war, or invokes any other power that the Constitution grants it.”

The president should order the DOJ not to even show up in court and waste resources. This judge has no authorization, and in fact, explicit non-authorization to grant such a frivolous claim.


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Author: Daniel Horowitz

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.