Mullin v. Doe: How Temporary is Temporary Protected Status?
In a 6-3 decision released on June 25, 2026, the Supreme Court ruled in the consolidated cases Mullin v. Doe and Trump v. Miot that former Secretary of Homeland Security Kristi Noem’s decision to terminate Temporary Protected Status (TPS) for citizens of Haiti and Syria was constitutional. The Court reasoned that the law that created the TPS program prevented courts from reviewing former Secretary Noem’s judgment. That is, the Court held that 8 U.S.C § 1254a(b)(5)(A) barred judicial review of the plaintiff’s nonconstitutional claims. On the Haitian plaintiffs’ Equal Protection claim, the Court held that their argument that their status had been terminated because of impermissible racial discrimination was “unlikely to succeed.”
Congress created TPS in 1990 to offer short-term asylum to foreign aliens fleeing intense conflict or natural disaster in their home countries. Before the establishment of the program, the executive branch had exercised a similar authority at its own discretion and without any express guiding statute. Before TPS, aliens had 30 days to depart unless the government stepped in to defer the deadline, a date it could put off indefinitely. In 1960, the government simplified this process by creating the “Extended Voluntary Departure” program (EVD). The EVD program permitted the government to authorize deferred departure for aliens from countries that were deemed too unsafe to return to. This status would remain until the U.S. Government determined that a country was stable enough for its citizens to return to.
After critics argued that EVD lacked precise standards, the government instituted TPS. The new program maintained several of the characteristics held by its predecessor. The executive branch maintained the power to designate a country for TPS. Under the new program, this designation decision rests with the Secretary of Homeland Security. Similarly, a country’s status can be terminated only if the Secretary finds that it no longer meets the TPS requirements. Review happens every 18 months, and if the Secretary does not take action to end TPS, it is extended for six months. If the Secretary ends TPS for a country, terminations take effect at least 60 days after the notice is published. The Secretary of Homeland Security’s decision to terminate TPS is not subject to judicial review.
In order to qualify for TPS, a nation has to meet one or more of three conditions, specified under 8 U.S.C. § 1254a: (1) a nation has to be undergoing an armed conflict serious enough that, “requiring the return of [citizens] to that state would pose a serious threat to their personal safety,” (2) a natural disaster occurred which resulted in “substantial, but temporary, disruption of living conditions” that the foreign was presently unable to handle, or (3) “extraordinary and temporary” conditions exist that prevent alien nationals of a state from returning to the state in safety unless their presence in the US was “contrary to the national interest.”
Since the beginning of President Trump’s second term, the government has taken a hard stance on lengthy TPS designations. In Executive Order 14159, the President directed Cabinet Secretaries to ensure that TPS designations “are appropriately limited in scope and made for only so long as may be necessary to fulfill the textual requirements of that statute.” Since this order was signed, the Secretary of Homeland Security has terminated every TPS designation that has been due for renewal.
Syria first received TPS designation in 2012 due to the “extraordinary and temporary conditions” faced by citizens under the repressive regime of Bashar al-Assad. This status was continuously renewed until September of 2025, when Secretary Noem announced that TPS for the country would be terminated in 60 days. Noem acknowledged that the Civil War that had plagued Syria from 2011-2024 had provided a reason for maintaining the country’s TPS. However, after the fall of Assad’s government and the establishment of stable diplomatic relations between the US and the new provisional government, that circumstance no longer existed.
In light of Secretary Noem’s decision, seven Syrian citizens sued in the Southern District of New York asserting claims under the Administrative Procedure Act (APA) requesting that the removal of Syria’s TPS designation be stopped. The district court ruled in favor of the plaintiffs and granted interim relief under 5 U.S.C. § 705. The Second Circuit likewise denied the Government’s request for a stay, observing that the plaintiffs had at least one APA claim, namely, that Secretary Noem had not adequately consulted with other agencies before making her decision.
Haiti received TPS status in 2010 after a devastating earthquake killed over 100,000 people and caused massive property damage. This designation was continuously renewed until 2018 when, during President Trump’s first term, the government attempted to remove TPS status from Haiti. After court orders blocked the execution of this action, Haiti retained its status. In 2021, the need for TPS was reasserted under the Biden administration, citing gang violence, human rights abuses, and other adverse conditions. As with Syria, Secretary Noem announced in November of 2025 that TPS status would expire on February 3rd, 2026.
After the publication of this decision, five Haitian nationals sued in the District Court for D.C. to halt TPS termination. In addition to asserting similar claims under the APA, the plaintiffs further argued that the action violated their right to equal protection because the removal decision was motivated by race. The District Court granted interim relief and the First Circuit declined the government’s request to issue a stay.
On March 16th, 2026, the Supreme Court agreed to review the consolidated cases, and oral arguments were heard on April 29th.
In the majority opinion, Justice Alito first turned to the respondents’ APA claims that Secretary Noem had inadequately consulted the necessary authorities in making her decision. Citing part of the TPS statute, Justice Alito noted that the language of the law was clear in providing that “no judicial review of any determination of the [Secretary of Homeland Security] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.”
Justice Alito further outlined several reasons why proposed workarounds to the judicial review bar were inadequate. His reasoning principally hinged on the use of the term “determination” in the TPS language. While the respondents and lower courts argued that the bar on judicial review only extended to substantive claims and not procedural errors, Alito wrote that this term could be used to address both. By comparing this case to past rulings where judicial review was only permitted for procedural errors as the respondents had done, Alito wrote that they “read far too much” into the case law without considering the language of the TPS statute itself.
Alito then turned to the equal protection claims presented by the Haitian respondents in Mullin. The respondents’ claims largely rested on various comments made by President Trump and Secretary Noem, which, noticeably, Alito did not reproduce in his opinion. While these comments were clearly political, Alito acknowledged that they were race-neutral. Alito also pointed out that the respondents sought to classify every country whose TPS status was rejected on review as “diverse” and “non-white.” Given that the petitioners sought to paint the administration as generally antipathetic towards immigrants, Alito wrote that this argument lacked merit.
In a concurring opinion, Justice Clarence Thomas further addressed the faults with the respondents’ equal protection claims. Expanding on Alito’s reasoning, Thomas wrote that the judicial review bar not only extended to the procedural claims of the respondents but also the constitutional ones. Thomas argued that the equal protection claim was not only likely to fail but also outside the district court’s jurisdiction.
Thomas also considered the question of whether the equal protection claims of the respondents had any grounding in the Constitution and concluded that it did not. The 14th Amendment’s Equal Protection Clause, Thomas noted, applied only to the states, not the Federal Government. In response to questioning on this point, the respondents had claimed that, “the Fifth Amendment constrains the federal government in the same way that the Fourteenth Amendment controls the states.” Since the Fifth Amendment has no clear equal protection clause, Justice Thomas found this reasoning invalid. Even if the Fifth Amendment included language that would bar some level of discrimination, it would not apply to a case on immigration.
Justice Kagan, joined by Justices Jackson and Sotomayor, dissented. The first point that they addressed was whether the judicial review bar prevented courts from ruling on whether Secretary Noem had adequately gone through the steps required to revoke TPS. This, the justices observed, was a distinct question from whether Noem’s determination itself had been correct. Kagan noted that the latter and not the former issue was raised by the respondents. This procedural claim, Kagan then asserted, could be reviewed by the courts without them determining whether Secretary Noem’s final decision about TPS had been correct.
Kagan then motioned to the email conversations between Noem and the state agencies she had consulted, a procedural process required by § 1254(a). While these emails stated that there were no “foreign policy concerns” with overturning TPS for Haiti and Syria, Kagan pointed out that this was not the subject at issue. Rather, Kagan observed, “[it] could well be that terminating TPS for even an unsafe country raises no foreign policy concerns because it does not threaten US relations with any significant foreign nation…[b]ut the TPS statute mandates that [the State Department] also advise [whether] the conditions in a country…have become safe.” Kagan believed that Noem had failed to meet this procedural requirement.
Kagan further disagreed with the majority about whether Haiti’s TPS designation removal had been racially motivated, pointing to the standard set by the Supreme Court’s decision in Arlington Heights v. Metropolitan Housing Development Corp (1977). Under Arlington Heights, Kagan wrote, the Haitian respondents needed to prove that a racially “discriminatory purpose” was a “motivating factor” in the non-renewal of Haiti’s designation. As she noted, “[critically] a “motivating factor” does not mean the sole factor, or even the “dominant or primary one.” Since deciding whether a determinant is racially discriminatory is factual, the ruling of a lower court should only be overturned if it is “clearly erroneous.” In this case, she found no such error had been made by the First Circuit Court of Appeals.
In her arguments, Kagan also made direct reference to some of President Trump’s statements, observing that they were “so repellent and racially inflected that the majority declines to put them in print.” Among the comments she highlighted were the president’s remarks that Haitians “are eating the dogs…They’re eating the cats” and that “Haitians in the United States probably have AIDs.”
This decision stands to deal a devastating blow to asylum seekers who have lived for over a decade in this country. While conditions may be tolerably safe in the nations that TPS beneficiaries come from, returning to them may be dangerous for individuals who have been absent for so long. Given that Syria and Haiti officially lost TPS on July 27th, it seems unlikely that citizens from these countries will find a way to stay in the country.
Other clearly unstable countries like Ukraine and El Salvador face TPS renewals in the near future. With the Supreme Court’s decision and current trends in the administration’s policy, it is unclear whether citizens fleeing devastation in their home countries can still look to the U.S. for temporary asylum.