Judicial Review and Procedural Rights for Haitian TPS Holders

The Decade of Judicial Battles The question of who gets to challenge a TPS termination in court, and on what grounds, has been the central legal battlefield of the Trump-era TPS wars. For nearly a decade, lower courts reviewed TPS terminations under the Administrative Procedure Act, finding that the government acted arbitrarily, failed to consult other agencies, and reached preordained outcomes. Nationwide injunctions blocked terminations for Haiti, Sudan, Nicaragua, El Salvador, Venezuela, and other countries.

Then came Mullin v. Doe on June 25, 2026. In a 6-3 decision, the Supreme Court held that 8 USC 1254a(b)(5)(A) bars judicial review of all non-constitutional claims related to TPS determinations (Mullin v. Doe, slip op. at 8). APA challenges, procedural claims, even claims that the Secretary exceeded statutory authority, all foreclosed.

The only remaining avenue is constitutional claims, equal protection and due process, and the Court already signaled that the Haitian plaintiffs' equal protection claim is "unlikely to succeed" (Mullin v. Doe, slip op. at 18).

The Rise and Fall of APA Challenges In 2018, the Trump administration attempted to terminate TPS for Haiti, El Salvador, Nicaragua, Sudan, Nepal, and Honduras. The response was swift: class-action lawsuits were filed in multiple district courts, arguing that the terminations violated the APA because they were arbitrary, capricious, and failed to follow procedural requirements.

In Ramos v. Nielsen (2018), a district court blocked the terminations and issued a nationwide preliminary injunction. The court found that the plaintiffs were likely to succeed on their claim that the terminations were motivated by racial animus. In Saget v. Trump (2019), another district court found that the Haiti TPS termination was "likely motivated by racial animus" (Saget v. Trump, slip op. at 15).

But the legal foundation for these challenges was always uncertain. The TPS statute contains a judicial review bar: "Notwithstanding any other provision of law, no court shall have jurisdiction to review any decision regarding TPS" (8 USC 1254a(b)(5)(A)). The question was whether this bar applied to all claims or only to certain types of claims.

In 2020, the Ninth Circuit in Ramos v. Wolf vacated the injunction, holding that the TPS review bar was broader than the district court had found. The circuit split on the scope of the review bar set the stage for the Supreme Court's intervention in Mullin.

Mullin v. Doe: The Decision Writing for the 6-3 majority, Justice Samuel Alito held that the TPS judicial review bar covers all non-constitutional claims, including claims that the Secretary exceeded statutory authority, failed to follow procedural requirements, or acted arbitrarily and capriciously (Mullin v. Doe, slip op. at 8-12). The Court rejected the argument that the APA provided an independent basis for review.

Justice Elena Kagan dissented, joined by Justices Sotomayor and Jackson. She argued that the judicial review bar should not apply to pre-determination procedural steps, specifically the requirement that the Secretary consult with other agencies before making a TPS determination. Her dissent referenced statements by the President that were, in her words, "so repellent and racially inflected that the majority declines to put them in print" (Mullin v. Doe, Kagan dissent at 12).

The reference was to President Trump's reported statements about Haiti, including calling it a "shithole country," saying Haitians "all have AIDS," and claiming during the 2024 campaign that Haitian immigrants were eating pets.

Justice Clarence Thomas wrote separately to argue for an even more extreme position: that even constitutional claims are barred by the statute, and that noncitizens cannot sue under the Equal Protection Clause because it applies only to states. He called Bolling v. Bolling, the landmark desegregation case, "wrongly decided" (Mullin v. Doe, Thomas concurrence at 4).

The Three-Sentence Email One of the most damning facts to emerge from the TPS litigation was the government's concession in Miot v. Trump that the consultation requirement had been satisfied by a "three-sentence email exchange" between the Department of Homeland Security and other agencies. This was the sum total of the government's interagency consultation before terminating TPS for Haiti.

Judge Ana Reyes, who issued the 83-page opinion in Miot v. Trump finding it "substantially likely" that Secretary Noem's termination was preordained and based on "hostility to nonwhite immigrants," cited this as evidence of the government's failure to follow even the minimal procedural requirements set by statute (Miot v. Trump, slip op. at 42).

What Remains: Individual Defenses With class-wide APA challenges foreclosed, TPS holders facing removal must rely on individual defenses in immigration court. These include:

Asylum. TPS holders who fear persecution in Haiti can apply for asylum. But the one-year filing deadline has long passed for most Haitian TPS holders who have been in the United States for over a decade. Asylum is available only to those who can show changed circumstances that excuse the late filing.

Withholding of removal. A higher standard than asylum, requiring a clear probability of persecution. No filing deadline applies, but the standard is difficult to meet.

Convention Against Torture protection. Requires a showing that the applicant would more likely than not be tortured in Haiti. The deteriorating conditions in Haiti, with gangs controlling an estimated 90% of Port-au-Prince, may support CAT claims for some TPS holders.

Cancellation of removal. Available to non-LPRs who have been continuously present in the United States for ten years, have good moral character, and can show that removal would cause exceptional and extremely unusual hardship to a U.S. citizen spouse, parent, or child. Only 4,000 grants are available nationally each year.

Habeas corpus. Federal courts have jurisdiction to hear habeas corpus challenges to detention, even for noncitizens. Over 800 habeas corpus cases have been filed since January 2025, many involving former TPS holders (Just Security Immigration Habeas Tracker).

The Right to Counsel Under 8 USC 1229a(b)(4)(A), noncitizens in removal proceedings have the statutory right to be represented by counsel at no expense to the government. But there is no right to government-funded counsel. Over 70% of detained immigrants proceed without counsel. For those who are not detained, the number is lower but still substantial (Vera Institute, 2026).

The representation rate in immigration court in 2024 was 47%, meaning that over half of all noncitizens in removal proceedings face the government's lawyers alone. For Haitians, the rate may be lower.

PROVEN: The Access to Justice Gap Pattern: The narrowing of judicial review for TPS holders follows a pattern observed across immigration law: Congress and the courts have steadily reduced the availability of federal court review for immigration decisions, leaving noncitizens with fewer and fewer options to challenge government action.

Reach: The Mullin decision affects all 350,000 to 500,000 Haitian TPS holders nationally, as well as TPS holders from Syria and other countries whose terminations were challenged in the same litigation.

Observability: The impact of Mullin will be observable in the number of TPS-related lawsuits filed, the rate of success in those suits, and the number of TPS holders who are removed.

Vulnerability: TPS holders are uniquely vulnerable because they have lost the ability to challenge the government's action in court. No other group of noncitizens has had its principal avenue of judicial relief so thoroughly foreclosed.

Economic Impact: The loss of judicial review means that TPS holders cannot challenge the legality of their termination, even if the government violated the law in making the decision. The economic consequences of a potentially illegal termination cannot be remedied.

Neglected: The elimination of judicial review for TPS holders has received almost no attention outside of legal circles. Most Americans do not know that the government can now terminate TPS without any meaningful court review.

Fun Facts The Three-Sentence Email The government's consultation with other agencies before terminating Haiti's TPS consisted of a three-sentence email exchange. This was conceded in court. The Footnote That Saved Nothing Footnote 4 of Sanchez v. Mayorkas left the door open for I-512T travel as a path to admission. Mullin slammed the door shut on challenges to the termination itself. 800 Habeas Cases Over 800 habeas corpus cases have been filed since January 2025, many by former TPS holders challenging their detention. The Thomas Concurrence Justice Thomas argued that even equal protection claims are barred and that noncitizens cannot sue under the Equal Protection Clause. Pro Se Defense Over 70% of detained immigrants proceed without counsel. Most Haitian TPS holders facing removal will have to represent themselves. Key Statistics 6-3 Mullin v. Doe vote 9-0 Sanchez v. Mayorkas vote 13 Countries whose TPS was terminated 800+ Habeas cases since Jan 2025 70% Detained immigrants without counsel 47% All immigrants without counsel 4,000/yr Cap on cancellation of removal 3 Supreme Court emergency TPS stays Why This Matters Judicial review is the cornerstone of the rule of law. When the government makes a decision that affects the lives of hundreds of thousands of people, those affected should have the right to challenge that decision in court. Mullin v. Doe eliminated that right for TPS holders. The government can now terminate TPS based on any rationale, or no rationale at all, and no court can review the decision. The only remaining check is the political process, and for a community with limited political power, that check is insufficient.

Works Cited 8 USC 1254a(b)(5)(A). "Judicial Review Bar." Legal Information Institute, www.law.cornell.edu/uscode/text/8/1254a.

Just Security. "Immigration Habeas Tracker." Just Security, 2026, www.justsecurity.org/133928/immigration-habeas-tracker.

Miot v. Trump, No. 25-cv-2471 (D.D.C. Feb. 2, 2026).

Mullin v. Doe, No. 25-1083 (U.S. June 25, 2026).

NIPNLG. "From Protected Status to Facing Removal." National Immigration Project, 21 July 2026, nipnlg.org/sites/default/files/2026-07/Possible-Options-Populations-Losing-TPS.pdf.

Ramos v. Wolf, 975 F.3d 872 (9th Cir. 2020).

Vera Institute of Justice. "Immigrants Facing Deportation Need Lawyers. Congress and States Can Help." Vera, 24 July 2026, www.vera.org/news/immigrants-facing-deportation-need-lawyers-congress-and-states-can-help.

© 2026. Published for informational purposes. Every claim supported by sources cited above. This content does not constitute legal support cited above. This content does not constitute legal advice.