Win Some, Lose Some: Trump’s TPS and Visa Rulings a Mixed Bag

President Donald Trump was handed a mixed bag of rulings from federal courts this week, exemplifying the old saying that you have to take the bad with the good. Certainly, he isn’t happy about his 75-country visa ban being struck down on Friday. Yet, on the same day, he was granted permission to keep working on the controversial White House ballroom, and on Thursday night, the first deportation flight left for Haiti since the country and a dozen others lost Temporary Protected Status (TPS).

The TPS Triumph

Now, the Supreme Court decision that eventually brought about this week’s TPS triumph for the Trump administration actually came down in June. The High Court ruled that courts didn’t have the power to review the administration’s decision to end protections for citizens of Haiti and Syria. Flash forward to earlier this week, and the final stay that barred immigration officials from deporting illegals back to Ethiopia was lifted, freeing up deportations to 13 countries that previous presidents had determined were too unstable due to natural disasters or civil unrest to safely return migrants. Altogether, that’s Syria, Haiti, Venezuela, Nicaragua, Honduras, Afghanistan, Cameroon, Nepal, South Sudan, Burma, Ethiopia, Yemen, and Somalia.

Four more countries – El Salvador, Lebanon, Sudan, and Ukraine – still enjoy the protected status, but that designation is set to expire soon as well.

Haitians are reportedly one of the largest groups of TPS holders, with nearly 350,000 people previously protected in the US. Thursday night’s flight to Haiti carried 161 deportees and was the first of presumably many to come.

Trump’s Visa Vexation

But, as the saying goes, you can’t win ‘em all. And nothing shows that quite so well as the juxtaposition of TPS and visa bans. Back in January, the US Department of State halted the processing of immigrants from 75 countries worldwide, including Afghanistan, Egypt, Russia, and Brazil, among many others.

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Yet on Friday, August 21, the very day Supreme Court Chief Justice John Roberts granted an emergency stay to allow construction to continue on the White House ballroom, a federal judge in New York ruled the new visa policy was illegal. US District Judge Jeannette Vargas, an appointee of Joe Biden, called the ban “contrary to law and in excess of statutory authority.”

"Congress imbued these officers with exclusive authority and discretion to determine if an immigrant is eligible for a visa based upon review of specific and detailed criteria set forth in the statute," she wrote. "The Policy, which categorically prohibits the issuance of immigrant visas based upon the nationality of the applicant, represents a direct abrogation of this statutory scheme."

At the time the policy was issued, the State Department announced it had told consular officers to stop accepting immigrant visa applications from the 75 countries and that non-immigrant visas should be “fully vetted and screened” as well to ensure applicants wouldn’t try to seek public benefits while in the US.

Like TPS and the ballroom build, this will likely also end up in the hands of the Supreme Court – but the next step is the US Court of Appeals for the Second Circuit. The Trump administration will almost certainly appeal the district judge’s ruling and ask for an emergency stay, though whether such a stay or a Trump-friendly final ruling would come from the Second Circuit is far from guaranteed.

The court is largely considered a mixed bag in itself. Seven of the 13 active judges were appointed by Democrats – one by Barack Obama and six by Joe Biden – and the remaining six judges were appointed by Trump himself. Appeals aren’t heard by the full court; a three-judge panel is chosen by randomly drawing names. So, any appeal could be theoretically reviewed by a trio of solidly conservative Trump appointees, progressive Biden appointees, or any mix in between. There are also another 15 "senior" judges who are semi-retired and can still end up on these panels, two of whom have been on the bench since 1979, so the exact ideological load-out is impossible to predict.

Of course, however that eventual panel rules, the losing side is likely to petition for the Supreme Court to have a final say in the matter. As well, if the circuit court denies a request for an emergency stay while the case is considered, the administration can immediately ask the Supreme Court for an emergency stay. In any case, Friday’s visa ruling is the single vexation in a week of judicial wins – and even that may prove just a temporary setback.