Mullin and Miot: Why the Court Rejected a Pause on TPS Terminations

TPS holders sought protection while their lawsuits continued

TPS allows a qualifying person from a designated country to remain and work in the United States during the protected period. Under 8 U.S.C. section 1254a, a country may qualify because of armed conflict, an environmental disaster or extraordinary and temporary conditions. The statute requires periodic review and consultation with appropriate government agencies. A country’s designation and an individual’s eligibility are separate parts of that system.

The opinion recounts Syria’s designation in 2012 and Haiti’s in 2010, followed by years of extensions and re-designations. Then-Secretary Kristi Noem announced the challenged terminations in 2025. The Syria notice cited changed conditions after the Assad regime’s fall while acknowledging continuing violence and widespread humanitarian needs. The Haiti notice acknowledged gang violence but identified some areas as suitable for return and separately invoked the national interest. These were the government’s stated reasons, as recounted by the Court.

Seven Syrian TPS holders sued in New York; five Haitian TPS holders sued in the District of Columbia. Both district courts granted temporary relief. In the Syrian case, the court used Administrative Procedure Act section 705 to postpone the termination’s effective date. The Supreme Court took both cases before the courts of appeals had entered final judgments. The immediate question was whether the orders preserving protection during the litigation could stand.

Calling the challenge procedural did not preserve court review

The central provision was section 1254a(b)(5)(A): “There is no judicial review of any determination” concerning a country’s designation, termination or extension. The majority read that language broadly. “Determination” could describe either a decision or the process leading to it. The words “with respect to” also reached steps connected to the final decision. On either reading, the Court held that the nonconstitutional challenges to these TPS terminations were barred.

The plaintiffs argued that courts could enforce the required consultation without second-guessing the ultimate termination. The majority treated the consultation itself as a series of procedural determinations: How to contact the State Department, what to ask and whether to proceed after its response. Those decisions were part of the termination process. The wording of this particular review bar therefore covered the plaintiffs’ challenge to how the decision had been made.

The earlier procedural-review cases depended on different language. The majority explained that McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), concerned a restriction tied to an individual application. Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667 (1986), involved differently structured Medicare provisions. The Court also examined the TPS statute as a whole and rejected an effort to limit “determination” to findings about country conditions. Its analysis made the exact statutory wording decisive.

The majority reached the same result when the plaintiffs tried to separate earlier steps from the final termination. It reasoned that subsidiary decisions merge into the final agency action. In this setting, a challenge to those steps fell within the same bar as a challenge to the ultimate decision. The useful question for a TPS lawsuit is therefore which determination the claim asks a court to review, together with the statute governing that review.

Haiti’s discrimination claim followed a different path

The Haitian plaintiffs also alleged that race helped motivate their country’s termination. The government urged the deferential immigration-policy approach used in Trump v. Hawaii, 585 U.S. 667 (2018). The plaintiffs relied on Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), which asks whether discriminatory purpose was a motivating factor. For its analysis, the Court assumed the plaintiffs’ proposed test.

The majority then assessed statements by President Trump and former Secretary Noem in their immigration-policy context. It characterized the statements as policy positions that could rest on race-neutral reasons, including opposition to the way TPS had been administered. It also said there was no justification for denigrating Haitians’ character. Its conclusion about the evidence was that the plaintiffs were unlikely to prove racial motivation at this stage.

The administration’s broader actions were central to that conclusion. The plaintiffs argued that it had made up its mind in advance and terminated every designation that came up for review. The majority read the same pattern as general opposition to TPS policy. It pointed to thirteen countries from several regions and explained that Ukraine’s designation had not yet come up for review. That was the June opinion’s explanation for finding the Haiti claim unlikely to succeed.

That finding concerned the prospects for temporary relief while the lawsuit continued. The Court reversed the lower-court judgments and sent the cases back for further proceedings.

Six justices agreed on the result, with a separate four-justice explanation

Six justices joined the statutory review-bar holding and the assessment of Haiti’s discrimination claim. A separate part of Justice Alito’s opinion had four votes: His own, Chief Justice Roberts’s and Justices Thomas’s and Kavanaugh’s. That part explained why they would assess the claim’s prospects without first deciding whether the statute also barred constitutional claims. They viewed the request for temporary relief as a prediction about the case’s prospects and would allow denial on either jurisdictional or merits grounds.

Justices Gorsuch and Barrett joined the other reasoning but not that four-justice explanation. Keeping the vote difference clear matters when reading the opinion’s discussion of a court’s authority to hear constitutional claims. Justice Thomas also wrote his own concurrence. He would have read the bar to cover those claims and argued that noncitizens lacked the asserted equal-protection rights against the federal government. Those broader grounds were Thomas’s separate position.

The dissent focused on the consultation record and mixed motives

Justice Kagan, joined by Justices Sotomayor and Jackson, read the required consultation as a step courts could enforce separately from the termination decision. Her dissent examined emails in which the State Department responded that it had “no foreign policy concerns.” She distinguished that response from advice about whether conditions allowed people to return safely. Kagan compared it to a doctor who says she consulted a specialist: The expected exchange would concern the patient’s condition, rather than an unrelated subject. In her reading, the statute required an exchange about the relevant country conditions, and the plaintiffs were likely to succeed on their consultation challenge.

The dissent also saw the discrimination evidence differently. Under Kagan’s reading of Arlington Heights, race could be one motivating factor alongside a race-neutral policy goal. General opposition to TPS could therefore coexist with racial discrimination. She read the President’s remarks as invoking racial stereotypes and emphasized the deference an appellate court owed the district court’s factual finding. That disagreement concerned both how to assess mixed motives and how to review the evidence.

Kagan emphasized that the government did not contest the irreparable harm the plaintiffs faced and described the personal stakes. Miot worked in a California laboratory studying Alzheimer’s disease. Laila Doe worked as a behavioral technician and cared for her elderly mother. Those examples explained why protection during a lengthy lawsuit mattered to the plaintiffs’ work and families. The dissent would have left the temporary protection in place while they litigated.

Match the court order to the protection you are relying on

The Supreme Court reversed and remanded both cases. The official docket records the judgment’s issuance on July 27, 2026. The judgment in the Syrian case directs further proceedings in the Second Circuit consistent with the opinion. The June decision explains the barriers these plaintiffs faced in obtaining a pause; any advice about continuing protection needs the later operative orders and relevant country notices.

If you are relying on TPS to remain and work here, gather your approval notices, employment-authorization card, renewal receipts and the specific notice or court order on which that protection rests. Counsel can then compare the country, covered people, dates and terms of the order with your own record. Our work-permit renewal guide addresses the separate question of when a pending renewal preserves work authorization.