Doe v. NoemDoe v. Noem
MATTHEW F. KENNELLY, District Judge:
Six Burmese nationals who currently hold Temporary Protected Status (TPS) under the Immigration and Nationality Act (INA) have sued the government alleging that Kristi Noem—the Secretary of the United States Department of Homeland Security—and other defendants violated the Administrative Procedure Act (APA) and the Fifth Amendment when terminating the TPS status of Burma, also known as Myanmar. That decision becomes effective January 26, 2026. The plaintiffs allege that the Secretary‘s decision to terminate Burma‘s TPS designation is part of a broader policy and practice of unlawfully terminating TPS designations for over ten countries. The plaintiffs have
Background
A. Temporary Protected Status
In 1990, Congress amended the INA to create the TPS program. Immigration Act of 1990, Pub. L. No. 101-649, 104 Stat. 4978, 5030 (codified at
(1) there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;
(2) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected, the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and the foreign state officially has requested designation under this subparagraph; or
(3) there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.
For an individual from a designated foreign nation to be eligible for TPS protection, that person must, among other requirements, have maintained continuous physical presence in the United States since the effective date of the TPS designation, be “admissible” as an immigrant, and not have a prior conviction for certain criminal offenses.
The TPS statute also requires the Secretary to periodically review a TPS designation to determine whether it should be extended or terminated.
Historically, United States Citizenship and Immigration Services (USCIS) manages and coordinates the TPS review process for the Secretary. Pls.’ Ex. 1 at 26. According to USCIS officials, at the start of a review for an existing designation, USCIS‘s Office of Policy & Strategy generally contacts USCIS‘s Refugee, Asylum and International Operations Directorate (RAIO) to request input on country conditions.
After review, the Secretary must provide, on a timely basis, for the publication of the notice of her determination.
The Secretary may postpone the effective date of a termination “in order to provide for an orderly transition.”
B. Burma‘s TPS designation
On May 25, 2021, former Secretary Alejandro Mayorkas designated Burma for TPS based on extraordinary and temporary conditions in the country. Designation of Burma (Myanmar) for Temporary Protected Status, 86 Fed. Reg. 28 (May 25, 2021). As an overview of why Burma was designated for TPS, the original notice stated:
On February 1, 2021, the Burmese military perpetrated a coup, deposing the democratically elected government and declaring a temporary one-year state of emergency, after which it has said it will hold elections. The military is responding with increasing oppression and violence to demonstrations and protests, resulting in large-scale human rights abuses, including arbitrary detentions and deadly force against unarmed individuals. The coup has triggered a humanitarian crisis, including the disruption of communications and limited access to medical care. The Burmese military has a clear and well-documented history of committing atrocities against the people of Burma, and again, the military is committing brutal violence
against the Burmese people, including young children.
Following the initial designation, former Secretary Mayorkas extended Burma‘s existing designation in 2022. Extension and Redesignation of Burma (Myanmar) for Temporary Protected Status, 87 Fed. Reg. 58,515, 58,518 (Sep. 27, 2022). As a summary of why Burma‘s TPS designation was extended, the second notice stated:
[M]ore than a year after the Burmese military perpetrated a coup, human rights violations and abuses including sexual violence, disappearances, excessive use of force, and killings are occurring in most parts of the country. As a result, more than 974,000 people are currently internally displaced throughout the country, while more than 45,500 remain in neighboring countries after fleeing since the coup. Burma was economically vulnerable when the coup took place, but has since suffered further economic decline, with mass job losses, business closures and the weakening of the country‘s currency, which has affected households across the country. As a result, major vulnerabilities related to shelter, food security, human trafficking risks, and the country‘s economy have arisen as Burmese families have lost on average more than half of their income since the February 2021.
Former Secretary Mayorkas again extended Burma‘s designation from May 25, 2024 through November 25, 2025. Extension and Redesignation of Burma (Myanmar) for Temporary Protected Status, 89 Fed. Reg. 20,682, 20,684 (Mar. 25, 2024). As a summary of the reasons supporting the second extension of Burma‘s TPS designation, the notice stated:
The February 1, 2021, military coup that overthrew Burma‘s democratically elected civilian government gave rise to further widespread violence that continues to put persons in Burma at significant risk. Attacks killing civilians are frequent, and particularly affect members of certain ethnic groups. Human trafficking perpetrated by both the military regime and criminal actors is prevalent. Burma also faces challenges in the provision of food, access to health care, and economic stability.
Most recently, on November 24, 2025, Secretary Noem announced her decision to terminate Burma‘s TPS designation in sixty days, on January 26, 2026. Pls.’ Ex. 20; Termination of Burma (Myanmar) Temporary Protected Status, 90 Fed. Reg. 53,378, 53,382 (Nov. 25, 2025). As a summary of the reasons for terminating Burma‘s TPS, the notice stated:
While some extraordinary and temporary conditions may exist, the Secretary has determined that, for the foregoing reasons of national security, public safety, foreign policy, and immigration integrity, permitting Burmese nationals to remain temporarily in the United States is contrary to the U.S. national interest.
90 Fed. Reg. at 53,382 (2025).
In a press release, Secretary Noem stated that the decision to terminate TPS for Burma “restores TPS to its original status as temporary.” Pls.’ Ex. 20.
C. Other TPS terminations
On January 29, 2025, Secretary Noem announced she was “revoking Joe Biden‘s extension of Venezuelan Temporary Protected Status. . . .” Pls.’ Ex. 8. On February 24, 2025, Secretary Noem announced a partial termination of TPS for Haiti. Pls.’ Ex. 9. DHS‘s press release regarding this termination stated that “the TPS system has been exploited and abused” “for decades.”
D. Public statements
In an interview on March 5, 2024, now-Secretary Noem (who was then the governor of South Dakota) described immigration as an “invasion happening on purpose . . . to remake the foundation of this country.” Pls.’ Ex. 44. At her confirmation hearing on January 15, 2025, Secretary Noem stated that “[TPS] has been abused and manipulated by the Biden Administration and that will no longer be allowed . . . .” Pls.’ Ex. 3 at 104:18-20. And, on January 29, 2025, Secretary Noem stated that the TPS program was “abused, exploited, and politicized” and promised “[n]o more immigration schemes that makes Americans less safe.” Pls.’ Ex. 8.
On May 19, 2025, DHS stated that TPS was “exploited” to “let half a million poorly vetted migrants into this country,” including “MS-13 gang members,” “known terrorists,” and “murderers.” Pls.’ Ex. 49. On October 14, 2025, DHS posted a message on social media that simply stated, “Remigrate.” Pls.’ Ex. 45. The plaintiffs cite an article describing how this term “invokes white nationalism and ethnic cleansing via ‘mass deportation of non-white immigrants.‘” Pls.’ Mem. at 31 (quoting Pls.’ Ex. 46). The defendants do not present any contrary interpretation of the word.
Secretary Noem also publicly stated, in relation to TPS, that “when the [P]resident gives a directive, the Department of Homeland Security will follow it . . . .” Pls.’ Ex. 43 at 4. On January 20, 2025, his first day in office, President Trump issued Executive Order 14159 titled “Protecting the American People Against Invasion.” E.O. 14159, 90 Fed. Reg. 8,443, 8,446 (Jan. 20, 2025). In Executive Order 14159, President
E. Procedural history
On December 19, 2025, six Burmese nationals (and TPS holders) filed the present lawsuit on behalf of themselves and others similarly situated. The plaintiffs assert three claims, two claims alleging violations of the Administrative Procedure Act and one claim alleging violation of equal protection under the Fifth Amendment. The plaintiffs have moved to postpone the effective date of the termination of Burma‘s TPS, currently set to take effect January 26, 2026.
Discussion
A. Jurisdiction
The government contends at the outset that the Court lacks jurisdiction over the
1. 8 U.S.C. § 1254a(b)(5)(A)
The government first argues that section 1254a(b)(5)(A) of the TPS statute strips the Court of jurisdiction over the plaintiffs’ claims. That provision states that “[t]here is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”
This statutory provision resembles those in two Supreme Court cases: McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991), and Patel v. Garland, 596 U.S. 328 (2022). These cases frame the parties’ arguments and the Court‘s analysis, so the Court begins by discussing them in some depth.
In McNary, the Supreme Court interpreted a different jurisdictional bar in the INA, section 210(e)(1) of the Immigration Reform and Control Act of 1986 (Reform Act). McNary, 498 U.S. at 481–84; see
The Court held that section 210(e)(1) did not bar jurisdiction over the plaintiffs’ claim. McNary, 498 U.S. at 494. The “critical words” in the provision were “of a determination respecting an application.” Id. at 491–92. The Court reasoned that “the reference to ‘a determination’ describes a single act rather than a group of decisions or a practice of procedure employed in making decisions.” Id. at 492. That reading was supported by section 210(e)(3)‘s reference to “judicial review of such a denial,” again referring to a single act. Id. at 492 (quoting
The Court pointed to three additional factors that supported limiting section 210(e)(1) to direct review of individual denials. First, the limited judicial review permitted in section 210(e)(3) was to be “based solely upon the administrative record.” Id. at 493. That “incorporate[d] an assumption that the limited review provisions of § 210(e) apply only to claims that . . . have resulted in the creation of an adequate administrative
Second, section 210(e)(3) prescribed an “abuse-of-discretion” standard for the judicial review permitted by the Reform Act. The Court noted that standard would be “appropriate for judicial review of an administrative adjudication of the facts of an individual application for SAW status” but not for “constitutional or statutory claims, which are reviewed de novo by the courts.” Id. at 493. The standard of review contemplated by the Act thus further suggested that the Act‘s jurisdictional provisions did not apply to the plaintiffs’ challenge.
Third, the Court noted that if Congress intended to preclude challenges to procedures and practices, “it could easily have used broader statutory language.” Id. at 494. Indeed, Congress had already done so in other provisions of the INA by referring to “all causes . . . arising under any of the provisions” or “all questions of law and fact.” Id.
Finally, the Court distinguished McNary from its earlier decision in Heckler v. Ringer, 466 U.S. 602 (1984). In Ringer, the plaintiffs challenged the Secretary‘s policy of refusing Medicare reimbursement for a surgical procedure. Id. at 604–05. The Court held that the plaintiffs who had already received the procedure were required to exhaust administrative remedies, as would be required for a claim for benefits. Id. at 619. Though the plaintiffs’ claims were styled as a collateral challenge to the reimbursement policy, the Court viewed them as “inextricably intertwined” with their claims for benefits. Id. at 614. It observed that the relief sought—invalidation of the policy and a “‘substantive’ declaration . . . that the expenses . . . are reimbursable“—would leave
McNary was different from Ringer because the plaintiffs in McNary did not “seek review on the merits of a denial of a particular application” or seek a “substantive declaration that they are entitled to SAW status.” McNary, 498 U.S. at 494–95. Rather, if they prevailed, they would “only be entitled to have their case files reopened and their applications reconsidered in light of the newly prescribed INS procedures.” Id.
The Court further noted that, unlike in Ringer, applying the jurisdictional bar to the plaintiffs in McNary would “as a practical matter” deprive them of “meaningful judicial review of their application denials or of their objections to INS procedures.” Id. at 496. The Court observed that if the jurisdictional bar applied to the plaintiffs’ challenge, their only chance for judicial review of their SAW status would be in removal proceedings. Id. at 496. That, the Court explained, was “tantamount to a complete denial of judicial review for most undocumented aliens.” Id. at 496–97. Additionally, one of the plaintiffs’ central claims was that the administrative process was inadequate. But if the jurisdictional bar applied to the plaintiffs’ challenge, their only opportunity for judicial review would be based solely on the allegedly deficient administrative record. Id. at 497. The administrative record would also develop in the context of an individual application, likely omitting facts necessary for the plaintiffs’ challenge to an overarching pattern and practice. Id. at 497. The Court reasoned that judicial review on that limited
Drawing upon the statutory text, the collateral nature of the claims, and the presumption of judicial review, the Court concluded that section 210(e) did not bar the plaintiffs’ challenge to INS‘s procedures. The Court adhered to that reading two years later in Reno v. Catholic Social Services, Inc., 509 U.S. 43 (1993), where it held that a “virtually identical” jurisdictional bar did not apply to statutory and constitutional claims “challenging the legality of a regulation without referring to or relying on the denial of any individual application.” Id. at 56.
In Patel, the Supreme Court interpreted another jurisdictional bar in the INA,
Finally, the Court rejected the plaintiff‘s reliance on the presumption that
With those cases in mind, this Court returns to the jurisdictional bar in the TPS statute. The TPS jurisdictional bar applies to “any determination . . . with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”
The plaintiffs’ reading is too narrow. McNary did not interpret the word “determination” in isolation. Rather, it interpreted the phrase “a determination” to refer to a single act. Moreover, McNary did not limit the jurisdictional bar to only the final decision whether to adjust SAW status. It held only that the jurisdictional bar did not apply to a particular type of claim—a collateral challenge to a general pattern and practice. Unlike McNary, and more like Patel, the TPS jurisdictional bar applies to “any determination with respect to” the enumerated TPS decisions. Under the reasoning in Patel, the words “any” and “with respect to” broaden the TPS jurisdictional bar to cover more than just the final decision of whether designation is warranted.
The question before the Court is whether Congress, in the TPS statute, intended to preclude collateral claims of the kind endorsed in McNary. The Court concludes that Congress did not. McNary held that “a determination” did not include collateral challenges to a pattern and practice, and it contrasted that limited language with more sweeping language in the INA that applied to “all causes . . . arising under any of the provisions” and similarly broad language in the veteran benefits statute barring review of “all questions of law and fact.” McNary, 498 U.S. at 494. In the TPS statute, passed one year after McNary, Congress elected not to use similarly broad language or make any other prominent change to indicate its intent to preclude collateral, pattern-and-practice challenges. Instead it largely adhered to the language in McNary, with only the relatively modest adjustment from “a determination” to “any determination.”
To be sure, Congress presumably worded the statute differently for a reason. But it likely meant to foreclose the reading proposed by the plaintiffs in this case. In McNary, the Court was clear that “a determination” meant a single act. By specifying that the TPS jurisdictional bar applies to “any determination” rather than “a determination,” Congress ensured that not only the final decisions to designate, extend, or terminate TPS, but also any antecedent determinations leading to those decisions, were insulated from judicial review. That is what the Supreme Court believed that
Moreover, interpreting the TPS statute to bar collateral challenges to underlying practices or policies would effectively preclude judicial review of all TPS-related decisions. Like in McNary, if the TPS statute barred collateral challenges, the only possible opportunity for judicial review of the plaintiffs’ claims would be later on, in the context of removal proceedings. But just as in McNary, that opportunity is illusory. As an initial matter, plaintiffs would have to voluntarily surrender themselves for deportation to affirmatively bring their claims. As the Court in McNary recognized, that is “tantamount to a complete denial of judicial review.” McNary, 498 U.S. at 496–97. And even at the end of removal proceedings, a plaintiff would not receive adequate review of
This all reinforces the inference that Congress, by choosing to make a relatively minor change, did not intend to preclude collateral challenges. Congress is presumed to legislate with knowledge of the courts’ basic rules of statutory construction, including the “well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action.” Id. at 496. If Congress had intended to overcome that presumption, it would have done so in a clearer way than changing “a” to “any.”
Consistent with other courts that have interpreted the provision, this Court concludes that
The Supreme Court has consistently described McNary narrowly, as permitting pattern-and-practice claims. See, e.g., Cath. Soc. Servs., 509 U.S. at 56 (citing McNary to uphold “jurisdiction over an action challenging the legality of a regulation without referring to or relying on the denial of any individual application“); Thunder Basin Coal Co. v. Reich, 510 U.S. 200, 213 (1994) (describing McNary as permitting “broad ‘pattern and practice’ challenges“). And it has cautioned against circumventing jurisdictional bars by merely recharacterizing claims as procedural. See Ringer, 466 U.S. at 614.
A court therefore must look behind the label of the plaintiffs’ claims to assess whether they actually challenge a pattern and practice. Otherwise, the jurisdictional bar would be illusory; it is arguable that virtually any claim could be reframed as a challenge to an underlying pattern and practice. See Morales v. Yeutter, 952 F.2d 954, 957 (7th Cir. 1991) (“We are mindful of . . . the danger of undermining the remedial scheme of the immigration laws by imputing patterns and policies behind determinations and then allowing those patterns and policies to be challenged in injunction suits under
Applying these principles to this case, the Court concludes that it has jurisdiction over the plaintiffs’ claims only to the extent that they challenge a general pattern and practice. The plaintiffs challenge several aspects of the Secretary‘s decision to terminate Burma‘s TPS. In substance, they argue that: (1) the Secretary did not consult with appropriate agencies; (2) the Secretary did not conduct a review of country conditions; (3) the Secretary impermissibly considered the national interest; (4) the Secretary was improperly influenced by political considerations and provided a pretextual rationale for her decision; (5) the Secretary broke from previous agency practice by declining to provide any period of orderly transition after termination; and (6) the Secretary was improperly motivated by racial and national origin animus.
Importantly, the plaintiffs assert that these claimed deficiencies are not unique to the Secretary‘s decision on Burma‘s status. Instead, they contend and allege that each
Those challenges thus are not barred by 1254a(b)(5)(A).3
2. 8 U.S.C. § 1252(a)(2)(B)(ii)
The government next contends that
[N]o court shall have jurisdiction to review—
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision or action of the Attorney General or the Secretary of Homeland Security the authority of which is specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security . . . .
The Court does not agree. Section 1252(a)(2)(B)(ii) applies only to decisions “made discretionary by legislation.” Bouarfa v. Mayorkas, 604 U.S. 6, 17 (2024)
The TPS statute deals with several types of decisions. As relevant here, it provides for initial TPS designation, periodic review of that designation, and termination or extension after such review. The plaintiffs challenge only the Secretary‘s periodic review and termination of TPS designations.
For initial TPS designations, the statute provides that the Secretary, “after consultation with appropriate agencies of the Government, may designate any foreign state . . . only if” the Secretary finds that the conditions for TPS status are met.
By the text of the statute, conducting periodic review and deciding whether to terminate or extend a TPS designation—which is what the plaintiffs challenge here—are not discretionary. It is well established that “the word ‘may’ clearly connotes discretion.” See Bouarfa, 604 U.S. at 13 (cleaned up). That word, however, appears only in the part of the statute describing initial TPS designation. In contrast, the provisions addressing periodic review and termination use the word “shall,” which carries a mandatory
The government resists this conclusion by arguing that Congress need not use any particular language to grant discretion. The government points out that the words “may designate,” “extraordinary circumstances,” and “national interest” all connote discretion. Those terms, however, appear only in the portion of the statute involving the initial TPS designation. To the extent that those words indicate that Congress intended for initial designation to be discretionary, they highlight that Congress deliberately chose to substitute mandatory language in the other parts of the statute that are relevant to the plaintiffs’ claims. See Kucana, 558 U.S. at 248-49 (“[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” (quoting Nken v. Holder, 556 U.S. 418, 430 (2009))). That clear contrast in statutory language, and not the absence of magic words, is what indicates that Congress did not intend for periodic review, termination, or extension under the TPS statute to be discretionary.
The government also contends that “the use of the word ‘shall’ only confirms termination is required if the Secretary determines in her discretion that the original designation is no longer warranted.” Defs.’ Resp. at 12. To be sure, the Secretary‘s
But almost every action authorized by statute depends on some predicate determination that, as a practical matter, requires the exercise of judgment. That is not the sort of discretionary determination usually shielded from judicial review in the law. See, e.g., Berkovitz v. United States, 486 U.S. 531, 536 (1988) (“[T]he discretionary function exception will not apply when a federal statute, regulation, or policy specifically prescribes a course of action . . . to follow.“). Nor is it enough to make TPS termination decisions discretionary under section
In sum, section
3. 8 U.S.C. § 1252(f)(1)
The government‘s last jurisdictional argument relies on
Regardless of the nature of the action or claim or of the identity of the party or parties bringing the action, no court (other than the Supreme Court) shall have jurisdiction or authority to enjoin or restrain the operation of the provisions of part IV of this subchapter, as amended by the Illegal
Immigration Reform and Immigrant Responsibility Act of 1996, other than with respect to the application of such provisions to an individual alien against whom proceedings under such part have been initiated.
Section
The government contends that “part IV of this subchapter” should be understood by reference to the United States Statutes at Large, not the U.S. Code. The government asserts that, on that reading, section
The Court rejects that alternative reading for the reasons stated by the district court in CASA. See id. at 595-96. First and foremost, the Supreme Court has consistently read section
The Court therefore concludes that
B. Standard for motion to postpone
The standard for postponement of an agency action under section
1. Likelihood of success on the merits
a. APA claims
The APA permits courts to review “final agency action.”
The plaintiffs bring two categories of APA claims, each in the form of a challenge to the most recent instance of a pattern or practice. First, they claim that the Secretary‘s
i. Predetermination - contrary to law
The APA instructs reviewing courts to “hold unlawful and set aside agency action, findings, and conclusions found to be . . . contrary to constitutional right, power, privilege, or immunity[.]”
The plaintiffs argue that the termination of TPS for Burma was predetermined based on the Secretary‘s objective of eliminating TPS entirely. The Secretary has engaged in a pattern of predetermined terminations that violates the TPS statute, they
As the Court has concluded,
a) Consultation
Turning to the merits, the first portion of the plaintiffs’ claim concerns the Secretary‘s failure to engage in “consultation with appropriate agencies” as required by
The certified administrative record filed by the defendants lacks any indication of consultation with other agencies regarding the termination of the TPS designation for Burma. As best as the Court can tell, the only communication between DHS and another agency in the record is a set of three emails from July 2025. First, an employee of the Office of the Secretary of Homeland Security wrote the following to an employee of the Department of State‘s Bureau of Population, Refugees, and Migration: “The following TPS designations are coming up for review: Syria: Aug. 1 decision deadline[;] South Sudan: September 3 decision deadline[;] Burma: September 26 decision deadline[;] Ethiopia: October 13 decision deadline[.]” Administrative Record (AR) at 292. The email did not contain a question or a request for input from the State Department. The State Department official responded, “I confirm that State has no foreign policy concerns with ending these TPS designations on or before those dates. As you are aware, sanctions on Syria have recently been lifted, and we have partnered with South Sudan on immigration-related issues.”
There are numerous reasons why this exchange does not qualify as a consultation. There was no “meaningful exchange of information.” Cal. Wilderness
Additionally, the conclusory statement by the State Department official addressed only “foreign policy concerns with ending these TPS designations[,]” a distinct issue from the statute‘s reference to whether “the conditions for [TPS] designation under this subsection continue to be met.”
Historically, before terminating a TPS designation, DHS engaged in genuine consultations with the Department of State and DHS‘s subcomponents. According to the Government Accountability Office, the Secretary would collect country conditions reports from USCIS RAIO and the Department of State‘s Bureau of Population,
Although that specific historical consultation practice may not have been required by law, it reflects what a meaningful exchange of information might look like. Relatedly, unlike previous TPS notices related to Burma, the Secretary‘s notice of termination does not cite any reports or publications by the State Department, or from any other agency, which supports a conclusion that no consultation occurred.4 Compare 90 Fed. Reg. at 53,378 (2025) (citing no sources from other agencies in the termination notice), with 89 Fed. Reg. at 20,684 nn.11, 17, 20,685 nn.21, 26 (2024) (citing in extension of TPS for Burma several Department of State reports on genocide, trafficking, and human rights concerns in Burma).
The government does not respond to the plaintiffs’ consultation argument in its brief, but at oral argument, it contended that the TPS statute does not define the scope
The lack of consultation is part of a larger pattern. Courts have similarly held that the Secretary failed to consult agencies when terminating TPS designations for Venezuela, Nicaragua, and Cameroon. See Pls.’ Mem. at 20 (collecting cases). The larger pattern is supported by the brief emails with the State Department described above, which reference not only Burma but the assumed TPS terminations for three other nations (Syria, South Sudan, and Ethiopia). AR at 292. The State Department‘s two-sentence response mentioned two of those countries by name in one sentence,
b) Review of conditions in the foreign state
Second, the plaintiffs contend that the Secretary failed to “review the conditions in the foreign state . . . for which a designation is in effect under this subsection” and “determine whether the conditions for such designation under this subsection continue to be met.”
At the outset, the Court agrees with the government that the Court may not make its own determination regarding whether extraordinary and temporary conditions persist in Burma. The Court refrains from making an assessment of the conditions in Burma or from balancing the evidence presented on the record to assess the merits of the Secretary‘s determination.
The plaintiffs contend that the Secretary acted pursuant to a pattern of failing to conduct an actual review of the designated country‘s conditions as required by the statute and instead simply papering over a predetermined outcome based on opposition or outright hostility to TPS designations. The President, Vice President, and Secretary Noem all publicly discussed their objective of eliminating TPS. Compl. ¶ 85 (quoting President Trump‘s claim that TPS is “not legal” and is a “little trick“); Pls.’ Ex. 4 at 1 (quoting Vice President Vance‘s statement at a campaign event, “We‘re going to stop doing mass grants of Temporary Protected Status[.]“); Pls.’ Ex. 43 at 5 (quoting the Secretary, who stated regarding TPS that “we are getting direction on how this works from the direction of the [P]resident of the United States. And he is pausing this program to re-evaluate.“).
On the day he took office, President Trump issued Executive Order 14159, “Protecting the American People Against Invasion,” which summarized the President‘s criticism of policies of the prior administration that, in his view, “invited, administered, and oversaw an unprecedented flood of illegal immigration into the United States[,]”
Against the backdrop of this expressed hostility towards TPS, Secretary Noem has, since her confirmation, terminated TPS for each and every country that has been eligible for redesignation: Venezuela, Haiti, Afghanistan, Cameroon, Nepal, Honduras, Nicaragua, South Sudan, Ethiopia, Syria, and Somalia.5 All of the termination notices except those for Burma, Syria, and Somalia, three of the most recent terminations, cited E.O. 14159.6
The government noted at oral argument that this administration has a legitimate policy preference for keeping TPS a temporary status. That may be true, but the length of time that a country has been designated under TPS was not a distinguishing factor: TPS was terminated across the board, even though nationals of some of these nations have benefitted from TPS status for several decades and others for just a few years.
Many of these terminations have resulted in litigation, and other district courts have found that the Secretary failed to comply with the consultation and review requirements, which supports the plaintiffs’ claim of a broader, predetermined mission of terminating TPS in full. See, e.g., Nat‘l TPS All., 798 F. Supp. 3d at 1151 (“[T]he Court finds that the Secretary violated the TPS statute because she effectively made the decision to terminate [TPS for Venezuela] before consultation with any government agency” and belatedly consulted with the State Department after drafting the termination decision); CASA, 792 F. Supp. 3d at 607 (finding that the State Department was not consulted regarding termination of TPS for Cameroon, as the Secretary received no updated recommendation or memorandum, or Afghanistan, as the Secretary of State provided a recommendation letter with no supporting facts or memorandum); Transcript
Without second-guessing the Secretary‘s judgment, the Court observes that the termination notice claims vastly improved conditions relative to the most recent extension of TPS in Burma. When TPS for Burma was extended and redesignated in March 2024, the then-Secretary‘s notice described widespread violence from the coup in Burma affecting 315 of 330 townships in Burma. See 89 Fed. Reg. at 20,684 (2024). The notice described violence against civilians including airstrikes, shelling, and razing of villages, human trafficking, and dire humanitarian need. See
The defendants are correct that an administration may have policy goals and pursue those goals through the tools at its disposal. But the executive must pursue its policy goals under the governing laws. TPS may only be terminated after consultation with appropriate agencies and review of the conditions in the designated country. The termination of TPS for Burma appears to have occurred without a review of conditions in that country, much like the administration‘s termination of other TPS designations. The plaintiffs have demonstrated a likelihood of success on their contrary to law claim by presenting evidence that the defendants did not comply with the statutory requirements of consultation and review.
ii. Predetermination - arbitrary and capricious
The APA requires courts to “hold unlawful and set aside agency action, findings,
a) National interest
The plaintiffs argue that Secretary Noem‘s reliance on “national interest” to justify termination of Burma‘s TPS was arbitrary and capricious because this reliance was a “sharp departure from past practice.” Pls.’ Mem. at 27. The defendants respond that the plaintiffs’ argument implies “that national-interest determinations must remain static and that a Secretary cannot exercise her congressionally delegated authority in any manner contrary to her predecessor.” Defs.’ Resp. at 33.
“[A]gencies are free to change their existing policies as long as they provide a reasoned explanation for the change[.]” FDA v. Wages & White Lion Invs., L.L.C., 604 U.S. 542, 568 (2025) (quoting Encino Motorcars, LLC v. Navarro, 579 U.S. 211, 221
The defendants point to the portion of the TPS statute governing initial determinations and two prior TPS notices in support of their argument that consideration of national interest when performing periodic TPS reviews is not contrary to past DHS policy. Neither the statute nor the prior notices support the defendants’ position. The TPS provision relevant to periodic reviews requires a consideration of conditions in the foreign nation under review.
Secretary Noem‘s reliance on national interest to justify recent TPS terminations deviated from past agency policy. The defendants point to no prior TPS terminations that relied on national interest in this way. And DHS did not explain why it changed its previous policy to now rely on the national interest of the United States as the
Furthermore, the plaintiffs argue that Secretary Noem‘s decision was arbitrary and capricious because she offered no explanation for how visa overstays or the President‘s ban on entry by Burmese nationals are rationally connected to the decision to terminate TPS. The plaintiffs note that TPS holders legally live and work in the United States. The defendants’ only response to this argument is that “the Secretary reasonably considered the current administration‘s domestic and foreign policies and priorities in making the requisite national interest determination (such as accounting for national security concerns, visa overstays, and instances of fraud).” Defs.’ Resp. at 33.
Although “[t]he scope of review . . . is narrow and a court is not to substitute its judgment for that of the agency,” “the agency must . . . articulate a satisfactory explanation for its action including a ‘rational connection between the facts found and the choice made.‘” State Farm, 463 U.S. at 43 (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). As discussed, the TPS statute requires the Secretary to consider whether the grant of TPS to foreign nationals from a certain nation is contrary to the national interest of the United States in conjunction with the conditions in the foreign state. Visa overstay data concerns foreign nationals from a particular country who remain in the country without legal status. But TPS holders have legal status. Visa overstay data thus has no bearing on TPS holders at all. The Secretary did not, and could not, explain how visa overstay data that has no relevance to TPS holders is rationally connected to the decision to terminate Burma‘s TPS designation.
The same is true for the Secretary‘s reliance on the President‘s ban on the entry
For these reasons, the plaintiffs are likely to succeed on their claim that Secretary Noem‘s reliance on national interest to justify TPS terminations was arbitrary and capricious.
b) Pretext and political influence
The plaintiffs argue that the Secretary‘s termination was arbitrary and capricious because it was prompted by the President‘s “directive to terminate TPS to advance his own anti-immigrant agenda, without regard for the country conditions considerations required by statute.” Pls.’ Mem. at 27. Again, the Court has jurisdiction over this claim because it challenges the broader pattern of Secretary Noem‘s allegedly pretextual TPS terminations rather than the individual decision to terminate TPS for Burma.
The defendants assert that political influence has a role in agency decision making, citing the Supreme Court‘s subsequent decision in Department of Commerce v. New York, 588 U.S. 752 (2019). In that case, the Supreme Court assessed the role of political influence and pretext in the Secretary of Commerce‘s decision to “reinstate a question about citizenship on the 2020 census questionnaire.” Id. at 758. The
The Supreme Court affirmed. Id. It explained that “a court may not reject an agency‘s stated reasons for acting simply because the agency might also have had other unstated reasons. . . . a court may not set aside an agency‘s policymaking decision solely because it might have been influenced by political considerations or prompted by an Administration‘s priorities.” Id. at 781. Still, the APA requires an agency to “‘disclose the basis’ of its action.” Id. at 780 (quoting Burlington Truck Lines, 371 U.S. at 167-169 (internal quotation marks omitted). The unusually extensive record “showed that the Secretary was determined to reinstate a citizenship question from the time he entered office; instructed his staff to make it happen; waited while Commerce officials explored whether another agency would request census-based citizenship data; subsequently contacted the Attorney General himself to ask if DOJ would make the request; and adopted the Voting Rights Act rationale late in the process.” Id. at 782-83. Although agencies may develop a legal basis to pursue preferred policies, the Court observed that the Secretary “initially attempted to elicit requests for citizenship data from the Department of Homeland Security and DOJ‘s Executive Office for Immigration Review, neither of which is responsible for enforcing the VRA” and later “contrived” the “VRA enforcement rationale” despite a “lack of interest on DOJ‘s part” in order to
Under Department of Commerce, an agency may pursue a President‘s political goals but remains bound by the APA‘s requirement that an agency disclose a “genuine justification[]” for an action. Id. at 785. “The reasoned explanation requirement of administrative law, after all, is meant to ensure that agencies offer genuine justifications for important decisions, reasons that can be scrutinized by courts and the interested public. Accepting contrived reasons would defeat the purpose of the enterprise.” Id. at 785.9
In evaluating a claim of pretext, “a court is ordinarily limited to evaluating the agency‘s contemporaneous explanation in light of the existing administrative record.” Id. at 780. Still, the limited record before the Court suggests that the Secretary‘s notice presented contrived reasons for the termination. As explained above, the Secretary did
Without input from country experts at the State Department, the Secretary apparently determined that conditions in Burma had rapidly improved since TPS for Burma was extended in March 2024 and since her own agency‘s June 2025 report of widespread violence against civilians in nearly every region of Burma. See AR at 115. She issued a notice citing several sources supporting her conclusion but also relying on facts irrelevant to whether “extraordinary and temporary” circumstances persist in Burma, such as data about ICE removals to Burma and visa overstay rates by Burmese nationals.
This, of course, is only a preliminary determination (as typically is the case in the preliminary injunction context) given the state of the record at this point and the brief period afforded to the Court to review the record. The record in Department of Commerce included a trial and extra-record discovery, including depositions of the Secretary of Commerce and a DOJ official, which provided an unusual window into the Secretary‘s state of mind. See Dep‘t of Comm., 588 U.S. at 765. In Saget v. Trump, the court held that the termination of TPS for Haiti during the first Trump administration was arbitrary and capricious because of improper political influence. Saget, 375 F. Supp. 3d at 360. After a trial, the record showed meetings between White House officials and the Secretary to “coordinate the conditions and process for terminating temporary protected status” and specific directives from the Attorney General and Chief of Staff to the Secretary to terminate TPS for Haiti. Id. (record citations omitted). Other cases included circumstantial evidence of pretext. In a case challenging the vacatur and termination of TPS for Venezuela, the court found that the agency began drafting the termination decision for Venezuela before the vacatur decision was finalized and within days of the new administration, with no time for consultation with agencies or an internal evaluation. See Nat‘l TPS All., 798 F. Supp. 3d at 1150-51.
Unlike Saget and Department of Commerce, the Court has not had the benefit of a trial to develop the record. And unlike National TPS Alliance, the record here technically shows some interagency communication regarding the termination several
If the Court additionally examined the extra-record evidence of the Secretary and the administration‘s animus towards TPS, see, e.g., E.O. 14159, as well as the trend of TPS terminations similarly lacking in consultation with appropriate agencies, the claim of pretext would be much stronger. It is difficult to imagine that every one of the twelve countries around the world whose TPS designation has come up for review has resolved the “extraordinary and temporary” conditions—including civil wars, damage from natural disasters, food shortages, lack of clean water, and public health failures—underlying each designation. But the Court need not consult extra-record evidence to
iii. Change in position
The plaintiffs next allege that DHS‘s decision not to afford an orderly transition period for TPS holders from Burma to arrange their affairs was arbitrary and capricious because it departed from decades of past practice. In assessing whether an agency‘s change in position is arbitrary and capricious, a court must ask “whether an agency changed existing policy” and whether the agency “‘display[ed] awareness that it is changing position’ and offer[ed] ‘good reasons for the new policy[.]‘” Wages & White Lion, 604 U.S. at 569-70 (quoting Fox Television Stations, Inc., 556 U.S. at 515). Although the agency is not required to prove that the reasons for the new policy are stronger than the reasons underlying its previous policy, it must “be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.” Id. (quoting Encino, 579 U.S. at 221-222) (internal quotation marks omitted).
Under the TPS statute, when the Secretary terminates a designation by publishing notice in the Federal Register, termination “shall not be effective earlier than sixty days after the date the notice is published or, if later, the expiration of the most recent previous extension.”
For the past twenty years, DHS has provided an orderly transition period of at least six months in twelve TPS terminations. Pls.’ Ex. 2. Between 2017 and January 20, 2025, the agency provided for termination periods of twelve or eighteen months in each of its six TPS terminations. See id. Prior to 2025, TPS designations had been terminated without an orderly transition period only four times, most recently in 2003. See id. Since taking office, the current administration has terminated TPS for twelve nations and has not provided for orderly transition periods. The plaintiffs challenge the lack of an orderly transition period following the termination of TPS for Burma, one instance of this recent pattern. The Court has jurisdiction to consider this claim because the orderly transition period issue appears to relate to an agency policy that is “collateral” to the individual termination decision or, if not collateral, part of a pattern or practice demonstrating the agency‘s change in position. See McNary, 498 U.S. at 498.
The defendants do not respond to this claim at all. But the plaintiffs must demonstrate a likelihood of success to prevail, which requires the Court to assess the scope of the change-in-position doctrine. The Supreme Court recently faced a case where “[t]he parties assume[d] that the change-in-position doctrine applie[d] when an agency abandons a position it first articulated in a nonbinding guidance document.” Wages & White Lion, 604 U.S. at 569 n.5. The Court did not address the scope of the doctrine because it was not contested, but it expounded briefly:
We have traditionally applied the change-in-position doctrine when an agency shifts from a position expressed in a more formal setting. See, e.g., FCC v. Fox Television Stations, Inc., 556 U.S. 502, 517 (2009). True, we have on at least one occasion applied the doctrine when an agency altered a position first stated in a policy statement. See Department of Homeland Security v. Regents of Univ. of Cal., 591 U.S. 1, 30 (2020). But as we explained in that case, the policy statement instituted “a standardized review process” that “effectively” resembled adjudication. Id., at 18.
Courts have divided in their reading of Wages & White Lion. Some courts understand it to limit the change-in-position doctrine to policies “set forth in some formal manner, such as a regulation, a guidance memorandum[,] or an agency enforcement action.” Transcript of Oral Argument at 26, Dahlia Doe v. Noem (Pls.’ Ex. 38) (holding that the practice of providing orderly transition periods under the TPS statute did not qualify as a policy triggering the change-in-position doctrine) (quoting New York v. Trump, 778 F. Supp. 3d 578, 596 (S.D.N.Y. 2025)). Other courts continue to apply the change-in-position doctrine to longstanding agency practices, including the practice of providing for orderly transition periods. See Nat‘l TPS All. v. Noem, 798 F. Supp. 3d 1008, 1030-31 (N.D. Cal. 2025) (holding that plaintiffs identified a policy of six month orderly transition periods after the termination of TPS and that the Secretary failed to acknowledge its shift from prior practice or sufficiently explain the change); see also Saget, 375 F. Supp. 3d at 355 (explaining prior to Wages & White Lion that the change-in-position doctrine “is not limited to formal rules or official policies and applies equally to practices implied from agency conduct“); Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1108-09 (N.D. Cal. 2018) (same).
The Court will apply the change-in-position doctrine to the plaintiffs’ claims because the Supreme Court‘s footnote in Wages & White Lion did not definitively foreclose requiring agencies to provide reasons when they change unwritten but longstanding practices generating significant reliance interests. In addition to
Turning to the merits, the plaintiffs have sufficiently shown a change in policy. For the past twenty years, DHS provided TPS holders with an orderly transition period of between six and eighteen months after a termination. See Pl.‘s Mot., Ex. 2. Since Secretary Noem took office, however, no such orderly transition period has been provided, so TPS holders have been given only sixty days to leave the country or secure another status to remain. The Secretary did not “display awareness” of the change in position. Wages & White Lion, 604 U.S. at 570 (cleaned up). The Secretary‘s notice recognized that
The notice also failed to “offer good reasons for the new policy.” Wages & White Lion, 604 U.S. at 570 (cleaned up). The notice explained that “[t]he Secretary has determined in her discretion that a 60-day transition period is sufficient and warranted here given the Secretary‘s finding that continuing to permit the Burmese nationals to remain temporarily in the United States is contrary to the U.S. national interest.”
The plaintiffs have shown a likelihood of success on the arbitrary and capricious claim based on the change-in-position doctrine.
b. Fifth Amendment claim
The plaintiffs argue that the defendants’ decision to terminate TPS for Burma and other nonwhite, non-European countries violates their equal protection rights because it was motivated by racial and national origin animus. The defendants respond that Secretary Noem‘s determination was supported by “reasoned, facially sufficient explanations.” Defs.’ Resp. at 43. Based on the Court‘s conclusion that the plaintiffs are likely to succeed on their APA claims, it need not address the merits of their Fifth Amendment claim at this time.
2. Irreparable harm
“To say that an injury is irreparable means that the methods of repair (remedies at law) are inadequate.” Fleet Wholesale Supply Co. v. Remington Arms Co., 846 F.2d 1095, 1098 (7th Cir. 1988). And a remedy at law is inadequate if “it is not practicable to calculate damages to remedy” the kind of harm that the plaintiff has suffered. Foodcomm Int‘l v. Barry, 328 F.3d 300, 304 (7th Cir. 2003).
Without preliminary relief, the plaintiffs would be immediately subject to arrest and detention pending deportation. The plaintiffs also assert that the termination of Burma‘s TPS will “trigger the loss of Plaintiffs’ lawful status to reside in the United States, and with it, their permission to work, their livelihoods, and ability to pursue longheld professions.” Pls.’ Mem. at 27.
The government contends that the plaintiffs’ concerns of removal and detention are hypothetical. The Court disagrees. Given the government‘s recent change in position to require mandatory detention of any noncitizen in removal proceedings, the risk of detention—and thus loss of liberty—is particularly acute. See, e.g., Garcia Pacheco v. Olson, No. 25 C 13405, 2025 WL 3281850, at *2 (N.D. Ill. Nov. 25, 2025) (Kennelly, J.); Garcia Rios v. Noem, No. 25 C 13180, 2025 WL 3124173, *3 (N.D. Ill. Nov. 7, 2025). The government also asserts that the plaintiffs are free to challenge their detention through habeas corpus. Even if true, seeking such relief would require a race to the courthouse and an unknown amount of time spent in detention until the habeas corpus petition is resolved.
The government next contends that the plaintiffs could seek other relief from deportation through the immigration process. The declarations show the flaw in this argument. Multiple plaintiffs assert genuine fear of the harm they would face if forced to return to Burma, but there is no indication that applications for any relief through the immigration system will be processed. Pls.’ Exs. 55 ¶¶ 15-23, 56 ¶¶ 12, 15, 58 ¶ 8; see also USCIS, PM-602-0192, Hold and Review of all Pending Asylum Applications and all USCIS Benefit Applications Filed by Aliens from High-Risk Countries, at 1 (Dec. 2, 2025) (placing a hold on asylum and immigration benefit requests for individuals from Burma). Additionally, in the sixty-day notice period, the plaintiffs are unlikely to have secured relief in an immigration system that adjudicates cases in years, not days or weeks.
The government argues that the plaintiffs’ declarations do not “move the needle here” because they waited nearly four weeks before moving for preliminary relief. Defs.’ Resp. at 49. But the plaintiffs provide examples of significant hardships beyond the threat of removal and detention that far outweigh any short delay in moving for preliminary relief. For example, the plaintiffs would no longer be eligible to work or renew their driver‘s licenses. Pls.’ Exs. 57 ¶ 11, 58 ¶ 13. For some, the loss of their
Given the Court‘s finding that plaintiffs have shown a likelihood of success on their APA claims and will suffer numerous irreparable harms based on the government‘s action, the plaintiffs have shown that remedies at law are inadequate.
3. Balancing of the harms & public interest
The plaintiffs argue that the irreparable harm they will experience absent postponement of the agency action far outweighs any potential harm to the government. The government relies heavily on “national interest” and “national security” when arguing that the public interest weighs against postponement of the agency action. But the government has presented no evidence supporting the proposition that Burmese TPS holders provide a “national interest” or “national security” risk. Instead, the government relies on broad assertions of visa overstays, the ban of incoming foreign nationals from Burma, and unsupported allegations of fraud on the immigration system. As the Court has discussed, however, none of these assertions relate to Burmese
The Court has concluded that the plaintiffs are likely to succeed on their APA claims, and “[t]he public interest is served when administrative agencies comply with their obligations under the APA.” N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 21 (D.D.C. 2009). Furthermore, “there is a public interest in preventing aliens from being wrongfully removed, particularly to countries where they are likely to face substantial harm.” Nken, 556 U.S. at 436. As discussed, without preliminary relief, the plaintiffs will immediately face detention and removal. Several of the plaintiffs also present facially legitimate fears of detention and other substantial harms if removed to Burma. Pls.’ Exs. 55 ¶¶ 18-19, 57 ¶ 13, 59 ¶ 11-12, 60 ¶ 10-12.
For these reasons, the balance of harms and public interest weighs in favor of postponing the agency action.
C. Scope of relief
The government‘s final argument is that any relief must be narrowly tailored to the plaintiffs in this case in light of the Supreme Court‘s decision in Trump v. CASA, Inc., 606 U.S. 831 (2025). In that case, the Court held that so-called universal injunctions—injunctions that restrain enforcement against everyone, not just the plaintiffs in the case—exceeded federal courts’ equitable authority under the Judiciary Act. Id. at 847. The government asserts that “[t]hose limitations on courts’ equitable authority apply just as squarely to § 705 relief as to preliminary injunctions.” Defs.’ Resp. at 39.
That is far from clear. The decision in CASA was rooted in a historical analysis of the equitable authority that federal courts inherited under the Judiciary Act of 1789. See
Considering that “distinct question,” this Court disagrees with the government‘s claim that limitations on universal injunctions apply just as squarely to relief under the APA. The text of APA section 706—titled “Scope of review“—provides that a “reviewing court shall . . . hold unlawful and set aside agency action, findings, and conclusions” found to be arbitrary and capricious or contrary to law.
APA section 705, which the plaintiffs in this case invoke, relates to interim relief. That provision states that “a reviewing court[] may issue all necessary and appropriate process to postpone the effective date of an agency action or to preserve status or rights pending conclusion of the review proceedings.”
These provisions of the APA thus differ from the Judiciary Act of 1789 because they evince Congress‘s intent to depart from the background equitable principle of limiting relief to the specific plaintiffs in a case. See Corner Post, 603 U.S. at 838 (Kavanaugh, J., concurring). That has been the “longstanding consensus” since the APA‘s enactment. See Id. at 842-43. And though that consensus has recently come under scrutiny, see, e.g., United States v. Texas, 599 U.S. 670, 695-704 (Gorsuch, J., concurring), neither the Supreme Court nor the Seventh Circuit has departed from the longstanding view that the APA authorizes courts to act against agency action directly. The Court thus continues to adhere to that view and the text of the APA.
Conclusion
For the reasons stated above, the Court grants the plaintiffs’ motion for postponement of agency action [dkt. no. 15] and will separately enter an order embodying the relief the Court is ordering. The Court sets the case for a telephonic status hearing on February 6, 2026 at 9:15 a.m., using call-in number 650-479-3207, access code 2305-915-8729.
Date: January 23, 2026
MATTHEW F. KENNELLY
United States District Judge