July 16 (Reuters) - A U.S. appeals court on Wednesday seemed poised to block the administration of President Donald Trump from stripping nearly 350,000 Venezuelan immigrants of protections against deportation, with one judge singling out "arguably racist" comments by the Republican president and Homeland Security Secretary Kristi Noem.
A three-judge 9th U.S. Circuit Court of Appeals panel in Pasadena, California, heard arguments in the administration's appeal of a March ruling that blocked the cancellation of temporary protected status (TPS) for Venezuelans pending a challenge by advocacy group National TPS Alliance.
The U.S. Supreme Court in May stayed that ruling by U.S. District Judge Edward Chen in San Francisco pending the 9th Circuit appeal. The Trump administration would likely immediately appeal a 9th Circuit ruling against it to the Supreme Court.
TPS is a humanitarian program that allows individuals to live and work in the United States temporarily due to unsafe conditions in their home countries, such as armed conflict or environmental disaster. The administration of Democratic former President Joe Biden first granted TPS to Venezuelans in 2021, citing high levels of crime due to political and economic instability.
On Wednesday, all three judges on the 9th Circuit panel expressed concerns about the manner in which Noem abruptly eliminated TPS status for Venezuelans days after taking office in January, and just two weeks after the Biden administration had extended the program until October 2026.
"How can the country conditions have changed so drastically in that two-week period and the review by the new administration have been done so quickly?" Circuit Judge Kim McLane Wardlaw, an appointee of Democratic President Bill Clinton, said to Drew Ensign of the U.S. Department of Justice.
Ensign pointed to Noem's comments that the Biden administration's reasoning in extending the program was "thin and inadequately developed" and violated legal requirements for the TPS program.
"Agencies have the inherent authority to reconsider decisions as long as it's done in a timely manner," Ensign said.
Circuit Judge Anthony Johnstone countered that if the Biden-era policy was legally flawed it could be challenged in court.
"If it's a legal concern have the lawyers deal with it," said Johnstone, a Biden appointee. "But what you can't do is disguise that as a policy reason when there's not otherwise authorization to do so."
And Circuit Judge Salvador Mendoza, also a Biden appointee, questioned whether racial animus motivated the decision. He pointed to comments by Noem and Trump, which he said "arguably are racist," that Venezuela had intentionally sent people to the United States from prisons and mental health facilities, and Noem’s comments in a television interview that Venezuelan immigrants were "dirtbags."
Chen in his March ruling had cited the same comments in finding that the decision to cancel TPS protections for Venezuelans "smacks of racism."
Ensign on Wednesday said most of the comments came before Trump and Noem took office in January and so were not close enough in time to when the decision to eliminate TPS was made to bear on the case and that Noem had only referred to Venezuelan gang members as dirtbags.
Ahilan Arulanantham, who represents the TPS Alliance, told the panel that the federal law creating the TPS program does not allow for determinations to be revisited once they are made except to fix minor typographical or factual errors.
"This scheme was designed to give stability and some amount of certainty for refugees," he said.
TPS status had been granted to about 250,000 Venezuelans in 2021 and 348,000 more in 2023. Chen's ruling only applies to the latter group because their status was set to expire in April. The other recipients could lose their legal status and associated benefits in September if the policy change survives court challenges.
At least four other lawsuits have been filed challenging Noem's termination of TPS protections for Venezuelans and Haitians.
The case is National TPS Alliance v. Noem, 9th U.S. Circuit Court of Appeals, No. 25-2120.
- For the plaintiffs: Ahilan Arulanantham of UCLA School of Law Center for Immigration Law and Policy
- For the government: Drew Ensign of the U.S. Department of Justice