Terminating TPS: A Legal Review and Path Forward for Haiti

Haitian flag painted on bricks — *Haitian flag on bricks. Photo by David Peterson on pixabay.com*

By Alex Lambert, Legal Intern, Office of Peacebuilding and Policy, Church of the Brethren

Introduction

On August 20, the first flight of deported Haitian nationals arrived at the Cap-Haitien Airport[1] after the Trump Administration terminated Temporary Protective Status (“TPS”) for Haiti.[2]

Three days later, gangs brutally murdered 47 people just outside of Haiti’s capital.[3]

The attack was just one of several episodes in a long chain of gang violence plaguing Haiti this year. According to the United Nations, violent gangs killed more than 2,300 people in the first half of 2026, displaced thousands of families[4], and left hundreds of children victims of trafficking and sexual violence.[5]

These are the reported conditions in Haiti.

These are the conditions to which Haitian nationals are sent after being deported from the United States. As this first airplane deboarded, many passengers covered their faces. Some were reportedly ashamed of their plight. Others feared gangs would perceive them as “rich Americans” and target them.[6]

For Christians striving to answer Jesus’s call to love our neighbors, this scene brings up some difficult questions: Is this right? Is this legal? Isn’t there anything we can do?

What the Law Says

The question of legality is rooted in the Immigration Act of 1990, where Congress created Temporary Protected Status (“TPS”).[7] The Act allows the Secretary of Homeland Security to designate certain countries for TPS when conditions in the country make it unsafe or unreasonable for people to return there.[8] If a country is designated for TPS, nationals of that country who are present in the United States are protected from deportation while the designation is active.[9]

The law allows the Secretary to designate a country for TPS if the country is experiencing an ongoing armed conflict[10], a natural disaster[11], or any other extraordinary and temporary conditions that make it unsafe for its nationals to return. However, even if these conditions exist, the Secretary may decide not to grant the country TPS if she determines that doing so would be “contrary to the national interest of the United States.”[12]

When a country is designated for TPS, the status is temporary—a term of six to eighteen months.[13] By law, the Secretary must periodically review the status, and determine whether to extend it, or terminate it.[14] The statute requires the Secretary to consult with the appropriate government agencies and review the conditions in the foreign state that led to the TPS designation.[15] She must then determine whether the foreign country is still eligible for TPS, under the law.[16] If the Secretary determines that conditions in the country no longer make the country eligible for TPS, the status must be terminated.[17]

Importantly, Congress established that there is no judicial review of the Secretary of Homeland Security’s designation or termination of TPS.[18]

How the Trump Administration Is Applying the Law

In November 2025 then-Secretary of Homeland Security Kristi Noem announced the termination of TPS for Haiti.[19] Claiming to have done the requisite consultation and review, Noem declared, “There are no extraordinary and temporary conditions in Haiti that prevent Haitian nationals from returning in safety.”[20]

“Moreover,” she continued, “even if the Department found that there existed conditions that were extraordinary and temporary…termination of Temporary Protected Status of Haiti is still required because it is contrary to the national interest of the United States to permit Haitian nationals…to remain temporarily in the United States.”[21]

Apparently, Noem distinguishes “concerning” conditions from “extraordinary” ones. While admitting that the violence and displacement in Haiti remain a concern to the United States, she nevertheless stated that “the United States must prioritize its national interests and permitting Haitian nationals to remain temporarily in the United States is contrary to the U.S. national interest.”[22]

“National Interest,” she argues, is a broad concept that depends on the Secretary’s expertise and discretionary judgement.[23] She suggested that the immigration system is overwhelmed and that it cannot rely on a dysfunctional Haitian government to supply required vetting and screening information to U.S. authorities.[24] She indicated that Haiti has a significantly higher rate of overstaying on visas than the global average,[25] and that there are Haitian nationals who are TPS recipients who have been the subject of administrative investigations for fraud, public safety, and national security (though nothing was said about convictions).[26] She suggested that some of the Haitians in the United States were violent gang members who had been apprehended by law enforcement for committing serious and violent crimes.”[27]

Finally, Noem suggested that ending TPS status for Haitian nationals would benefit Haiti. “Ending Temporary Protected Status for Haiti reflects a necessary and strategic vote of confidence in the new chapter Haiti is turning. The United States cannot call for bold change on the ground while signaling doubt from afar. Our immigration policy must align with our foreign policy vision of a secure, sovereign, and self-reliant Haiti and not a country that Haitian citizens continue to leave in large numbers to seek opportunities in the United States.”[28]

It isn’t hard for the cynic to doubt the good faith of these arguments. The question is whether they hold up in a court of law.

Legal Challenges and What the Supreme Court Has Said

Plaintiffs challenged Noem’s actions in court, arguing that the termination of TPS for Haiti was predetermined and motivated by racial animus, rather than the result of careful consultation with pertinent government agencies.[29] Although the statute prevents courts from reviewing the Secretary’s ultimate determination, plaintiffs argued that courts could still review whether she followed the process required by law in reaching it. Specifically, plaintiffs claimed that Secretary Noem had not followed the statutory requirements for consulting with other government agencies and had acted “arbitrarily and capriciously” by ignoring evidence of Haiti’s true country conditions.[30] The plaintiffs also argued that the termination was unconstitutional under the Equal Protections Clause, citing statements made by Trump and Noem that suggested that Haiti’s TPS designation was terminated because its population is Black.[31]

The Supreme Court addressed these claims, and a 6–3 majority held that, under the statute, the Secretary’s TPS determinations are not subject to judicial review. They stated that “determination” is a broad term encompassing the methods and means by which the Secretary consults with other government agencies and reaches her final decision.[32] “Determination,” they said, can either be a synonym for “decision” or a word used to “describe the chain of events leading up to a decision.”[33]

Under this reasoning, anything that the Secretary did in relation to coming to a final decision—including how in depth and good faith her consultations and considerations were—was part of her “determination,” and thus unreviewable by the courts.

The majority also rejected the Equal Protection argument by stating that President Trump and Secretary Noem’s statements were not “overtly racial,” and all could be explained by race-neutral reasoning.

The dissenting justices disagreed—arguing that the process for consultation and consideration was judicially reviewable. Further the dissent argued that it was racially motivated, by claiming that the statements made by the President were “so repellent and racially inflected that the majority declines to put them in print.”

Ultimately, the majority’s opinion becomes the law: Secretary Noem’s final decision, and all that led to it, stands—and cannot be overturned by the courts.

What Is Left To Be Done

You may wonder, if such a situation cannot be challenged in the courts, can anything else be done? With no hope of help from the Executive or Judicial branches, relief for these Haitian nationals must come about legislatively.

Congress, by design, moves slowly and with great resistance. But Congress also responds to the social climate of the day. With enough voices calling for change and action on this issue, the needle can move.

Senator Edward Markey (D-MA) is sponsoring a bill (S. 4814) that would require the Secretary of Homeland Security to designate Haiti for TPS through early 2029.[34] Calling your legislators in support of this bill, and adding your voice to the conversation, will help determine the social climate in the nation for this issue.

In addition to supporting S. 4814, concerned citizens can insist that Congress pass general immigration reform to meet the needs of our current global environment. Though changes in migration and global displacement have been dramatic, the basic statutory framework governing the immigration system remains largely unchanged since it was built three decades ago. Increasing the swell of voices calling for immigration reform is a necessary step to bringing about this important change.

[1] The main international Airport in Port-au-Prince, Haiti’s capital, is considered too dangerous for these flights, because of gang violence. Associated Press, U.S. Deports More than 100 People to Haiti as Gang Violence Persists, NBC News (Sept. 4, 2026, 4:22 AM), https://www.nbcnews.com/news/us-news/us-deports-100-people-haiti-gang-violence-persists-rcna596054.

[2] Laura Romero, Luke Barr & Aicha El Hammar Castano, Trump Admin Sends 1st Deportation Flight to Haiti Since Ending Temporary Protected Status, ABC News (Aug. 20, 2026, 8:34 PM), https://abcnews.com/Politics/trump-admin-sends-1st-deportation-flight-haiti-ending/story?id=135820753.

[3] Frances Robles & André Paultre, Dozens Killed in Haiti Massacre, Officials Say, N.Y. Times (Aug. 25, 2026), https://www.nytimes.com/2026/08/25/world/americas/haiti-massacre-kenscoff.html.

[4] Id.

[5] U.N. Off. On Drugs & Crime, Report of the United Nations Office on Drugs and Crime, ¶ 23,U.N. Doc. S/2026/578 (July 14, 2026).

[6] Nathalye Cotrino, “They Will Kill Me”: Haitian Deportees from U.S. Face Fear, Uncertainty, Just Security (Sept. 16, 2026), https://www.justsecurity.org/157194/haitian-deportees-face-fear-uncertainty/.

[7] 8 U.S.C. § 1254a (1990).

[8] Id. (Note that the text of 8 U.S.C. § 1254a still refers to the “Attorney General” even though this authority was given to the Secretary of Homeland Security per the Homeland Security Act of 2002).

[9] Id. at (a)(1)(A).

[10] Id. at (b)(1)(A).

[11] Id. at (b)(1)(B).

[12] Id. at (b)(1)(C).

[13] Id. at (b)(2).

[14] Id. at (b)(3).

[15] Id. at (b)(3)(A).

[16] Id.

[17] Id. at (b)(3)(B).

[18] Id. at (b)(5)(A).

[19] Termination of the Designation of Haiti for Temporary Protected Status, 90 Fed. Reg. 54733 (Nov. 28, 2025).

[20] Id. at 54735.