Yet another far-left federal judge has trespassed the separation of powers. This time, the lawfare activist is Edward Chen of the U.S. District Court for the Northern District of California. He has blocked the Trump administration from removing Temporary Protected Status (TPS) from some 350,000 Venezuelans.
Chen ordered the stay despite a previous federal court’s opinion in 2018 that that TPS determinations by the secretary of Homeland Security are not justiciable.
Noem’s Order Ending TPS
The communist-founded American Civil Liberties Union and other far-left groups sued the government after Homeland Security Secretary Kristi Noem ended TPS.
Noem’s predecessor, unindicted visa fraudster Alejandro Mayorkas, granted TPS for the Venezuelan invaders in 2021, then repeatedly extended it until 600,000 were included, because it was “unsafe” to return home. Noem’s order would have rightly rid the nation of 348,202 of them 60 days after her finding.
“After reviewing country conditions and considering whether permitting Venezuelan nationals covered by the 2023 designation is contrary to the national interest of the United States, in consultation with the appropriate U.S. Government agencies, the Secretary of Homeland Security has determined that Venezuela no longer continues to meet the conditions for the 2023 Designation,” the order said:
In particular, the Secretary has determined it is contrary to the national interest to permit the covered Venezuelan nationals to remain temporarily in the United States.
According to the order, “notable improvements in several areas such as the economy, public health, and crime … allow for these nationals to be safely returned to their home country.”
The secretary has the authority to terminate TPS, the order said, because she determined that “it is contrary to the national interest to permit the Venezuelan nationals (or aliens having no nationality who last habitually resided in Venezuela) to remain temporarily in the United States.”
As well, Noem’s order explained “Congress expressly prohibits the Secretary from designating a country for TPS or extending a TPS designation if she finds that “permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.”
Chen’s Decision
Thus, the lawsuit, then Chen’s ridiculous decision. It rested on the plaintiff’s claim that Noem trespassed the Administrative Procedures Act, which governs how federal agencies make rules and regulations. Plaintiffs argued, in part, that Noem’s order was “arbitrary and capricious.”
Noem’s action, Chen opined, “threatens to: inflict irreparable harm on hundreds of thousands of persons whose lives, families, and livelihoods will be severely disrupted, cost the United States billions in economic activity, and injure public health and safety in communities throughout the United States.”
As well, Chen wrote, “the government has failed to identify any real countervailing harm in continuing TPS for Venezuelan beneficiaries.”
The harm is to American taxpayers and murder victims such as Laken Riley and Jocelyn Nungaray, not that Chen cares about them. That might be one reason he trotted out the stereotype bogeyman:
The Secretary’s rationale is entirely lacking in evidentiary support. For example, there is no evidence that Venezuelan TPS holders are members of the TdA gang, have connections to the gang, and/or commit crimes. Venezuelan TPS holders have lower rates of criminality than the general population. Generalization of criminality to the Venezuelan TPS population as a whole is baseless and smacks of racism predicated on generalized false stereotypes.
The plaintiff, he concluded, “will likely succeed in demonstrating that the actions taken by the Secretary are unauthorized by law, arbitrary and capricious, and motivated by unconstitutional animus.”
So were those of visa crook Mayorkas, but alas, that didn’t matter.
Previous Ruling, Federal Law
As Fox News’s Bill Melugin observed, Chen ruling trespasses federal law.
“There is no judicial review of any determination of the [secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection,” says 8 U.S. Code 1254.
That law became the crux of a similar TPS termination case. In the case of Ramos v. Nielsen, the same district court ruled in favor of the plaintiffs who sued to stop the first Trump administration from ending TPS for illegal aliens from Sudan, Haiti, Nicaragua, and El Salvador.
A three-judge panel of the U.S. Ninth Circuit Court of Appeals ruled in favor of Trump on the matter. But Chen claimed, essentially, that the panel’s opinion didn’t count because Trump lost the 2020 election.
“The panel decision was later vacated so that the matter could be reheard en banc,” Chen wrote:
Ultimately, the en banc hearing did not take place because the government, having transitioned to the Biden administration, made new decisions regarding the TPS designations and terminations at issue.
Because the Ramos panel decision was vacated and no en banc ruling ever issued, this Court’s decision in Ramos has not been overturned.
Naturally the ACLU was beside itself with joy because Chen ruled that Venezuelan criminals can stay in the country.
Said Emi MacLean of the ACLU Foundation of Northern California:
The court’s ruling affirms that Secretary Noem breached the boundaries of DHS authority.… Judge Chen’s decision today recognizes the critical role of TPS, protecting people who cannot safely return to their home countries. This humanitarian protection cannot be stripped away from hundreds of thousands of people for illegitimate pretextual reasons.
Which has nothing to do with the Constitution.
Bottom line: The Trump administration cannot reverse unlawful decisions from the Biden administration because an unelected judge, appointed by former President Barack Obama, says so.
Rulings such as Chen’s have energized GOP legislation on Capitol Hill to limit the power of judges and halt unconstitutional nationwide injunctions.
As well, several judges, notably Judge James Boasberg — who barred the Trump administration from using the Alien Enemies Act to deport Venezuelan rapists, murderers, and gang members designated as terrorists — might well be impeached.
