Ninth Circuit Refuses Full-Court Rehearing in TPS Case, Upholding Ruling That Trump Administration Exceeded Its Authority Over Haiti and Venezuela

The United States Court of Appeals for the Ninth Circuit refused on March 13, 2026, to reconsider en banc its January ruling that the Trump administration had exceeded its statutory authority when it moved to strip Temporary Protected Status protections from hundreds of thousands of Haitian and Venezuelan immigrants. The decision, filed in National TPS Alliance et al. v. Noem et al., No. 25-5724, keeps intact a ruling that the administration has sought to overturn at every turn — and clears the path toward a final resolution at the Supreme Court.

The order was accompanied by four written opinions: two concurrences and two dissents. Together, these span 51 pages. They offer the most detailed window yet into the deep divisions within the federal judiciary over the legality of the administration’s TPS actions and the proper role of courts in reviewing executive immigration decisions.

An en banc rehearing means that the full court — rather than the original three-judge panel — reconsiders a case. Under the Federal Rules of Appellate Procedure, a majority of the court’s non-recused active judges must vote in favor of en banc review for it to proceed. That majority was not reached here. Judges Kim McLane Wardlaw, Salvador Mendoza Jr., and Anthony D. Johnstone — the three judges who decided the January 28, 2026, panel opinion — voted to deny the petition. The full court was advised, and a vote was requested. It failed.

The denial means the January panel ruling, designated NTPSA III in the court’s citations, remains the law of the Ninth Circuit. That ruling affirmed a September 2025 summary judgment order by U.S. District Judge Edward M. Chen of the Northern District of California. It set aside three specific actions taken by then-Secretary of Homeland Security Kristi Noem in the early weeks of the Trump administration: the vacatur of a Biden-era TPS extension for Venezuelans, the termination of Venezuela’s 2023 TPS designation, and the partial vacatur of Haiti’s 2024 TPS extension. The last action had shortened that extension from 18 months to 12 months, moving Haiti’s TPS expiration from February 3, 2026, to August 3, 2025.

The court also noted that an amended order may be filed on Friday, March 13, 2026. If so, the mandate — the formal legal instrument transferring the case back to the district court — issues immediately. If no amended order is filed by 11:59 p.m. on March 13, the mandate issues at that time.

The most contested question in the case is not whether Noem’s actions were wise or well-reasoned — it is whether federal courts have any authority to review them in the first place.

The TPS statute contains an explicit provision. It states there is “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” for TPS. 8 U.S.C. § 1254a(b)(5)(A). The government argued this language bars the courts from second-guessing any of Noem’s decisions, regardless of the theory on which they are challenged.

The three-judge majority, in its January opinion and again in the March 11 concurrence, rejected that argument. Writing for the court, Judge Wardlaw — joined by Judges Mendoza and Johnstone — held that the judicial review bar does not apply to a challenge that goes not to how the Secretary exercised her authority, but to whether she had the authority at all. That, the majority said, is a threshold “first-order question” about the scope of statutory power, and it has always been subject to judicial review. The strong presumption that administrative action is reviewable in court, they wrote, is not overcome by the TPS statute’s language, which Congress did not draft broadly enough to strip courts of jurisdiction over ultra vires — that is, beyond the power — acts.

The majority cited Supreme Court cases, McNary v. Haitian Refugee Center (1991) and Reno v. Catholic Social Services (1993), which held that judicial review bars in immigration cases do not prevent challenges to the legality of agency policies, rather than to individual decisions.

On the merits, the majority held that Secretary Noem had no authority to vacate TPS extensions already granted under prior law. The TPS statute authorizes the Secretary to extend or terminate a TPS designation, but it does not mention vacatur. The statute also requires that any termination take effect no earlier than 60 days after notice in the Federal Register. Allowing the Secretary to vacate a prior extension at will would reduce those procedural requirements to a nullity, the majority said.

The concurrence invoked a recent Supreme Court decision for support: Learning Resources v. Trump (2026), in which the Court noted that the omission of a specific power from a statute “is notable in light of the significant but specific powers Congress does go to the trouble of naming.”

Nine judges dissented from the denial of en banc rehearing. Judge Patrick Bumatay — joined by Judges Callahan, Bennett, R. Nelson, Collins, Lee, Bress, VanDyke, and Tung — filed a lengthy dissent arguing that the panel had “made up” a loophole to the judicial review bar and that the case should never have been heard by a federal court in the first place.

Judge Bumatay’s dissent called the panel’s reasoning “egregiously wrong.” In his reading, Congress used three expansively defined terms — “any,” “determination,” and “with respect to” — that together sweep in every conceivable challenge to a TPS decision, including a challenge to whether the Secretary had the statutory authority to act. He wrote that the panel held that a plaintiff can frame her challenge as going to the “scope and extent of statutory authority granted to the Secretary,” and that the judicial review bar then does not apply. Bumatay argued this creates a password any plaintiff can use to gain automatic entry into federal court, nullifying what Congress intended as a sweeping prohibition.

The Bumatay dissent also pointed to what it called “strong hints from the Supreme Court” that the Ninth Circuit has gotten this wrong: the Supreme Court had twice intervened in this very case by granting emergency stays that the Ninth Circuit had denied — once in May 2025 and once in October 2025 — without any explanation as to why. Those silent stay orders, Bumatay wrote, suggest the Court believes the government is likely to prevail.

Judge R. Nelson filed a separate dissent raising two additional points. First, he said the panel gave universal relief—including to all TPS holders, not just the named plaintiffs—without fully analyzing whether the “set aside” language of the federal Administrative Procedure Act (APA) actually allows such broad remedies. (The “set aside” language refers to the court’s power to cancel or overturn agency actions if found unlawful.) The Supreme Court had left this question unresolved in Trump v. CASA, Inc. (2025). Second, he argued the majority concurrence was not binding precedent (an official rule for future cases) because it addressed issues the unanimous panel had specifically chosen not to decide.

Judges Mendoza and Wardlaw also filed a concurrence in the denial of en banc rehearing, responding specifically to Judge Nelson’s dissent on the merits of the APA analysis.

At the heart of this exchange is Noem’s public statements about Venezuelan TPS holders. In a February 2, 2025, interview on NBC’s Meet the Press, Noem stated that Venezuelan TPS holders were members of Tren de Aragua, that Venezuela had “purposely emptied out their prisons, emptied out their mental health facilities and sent them to the United States,” and that ending TPS was about removing protections from “criminals.” Judges Mendoza and Wardlaw pointed to these statements as evidence that the agency’s stated rationale — administrative confusion from a prior extension — was pretextual and that discriminatory animus was the actual driving motive.

Judge Nelson objected to this analysis, arguing that the concurrence improperly used Noem’s extra-record statements to disregard the agency’s valid administrative rationale without meeting the high threshold the Supreme Court set in Department of Commerce v. New York (2019) for consulting evidence outside the formal administrative record.

Judges Mendoza and Wardlaw rejected that framing. The Administrative Procedure Act, they wrote, does not require courts to “shut their eyes and ears to unreasoned and pretextual explanations.” They accused Judge Nelson of preferring “a rule of deliberate blindness to decisions even when driven by racism and national origin animus” — a rule they declined to adopt.

The majority’s concurrence by Judge Wardlaw did not confine itself to legal analysis. It catalogued what it described as the real-world consequences of allowing TPS terminations to proceed during litigation. In a lengthy footnote, the opinion cited multiple cases decided in 2026 involving Venezuelan TPS holders who were arrested, detained under harsh conditions, and, in some cases, deported despite the very court orders supposed to protect them.

Among the examples cited: a Venezuelan TPS holder, Colina-Rojas, who was arrested during Operation Metro Surge in December 2025, had her nose broken by ICE agents during the arrest, and was detained for more than two months before a federal court in Kentucky ruled her detention unlawful. Another Venezuelan TPS holder, Segundo Sangronis, was arrested at a routine ICE check-in appointment in Michigan in September 2025 — months before his TPS actually expired — and spent five months in custody before a court ruled his detention unlawful. A third, Quintero, was arrested in New York two weeks after her TPS expired, suffers from diabetic kidney disease, and remained in custody as of the date of the opinion.

The majority concluded its concurrence with a sentence that read as both a legal statement and a moral declaration: “Our duty is to say what the law requires and not to look away from the devastating consequences when the law is ignored. That is precisely what we have done here.”

The case is now positioned for the Supreme Court. The government must either seek a writ of certiorari — asking the Supreme Court to take the case — or accept the Ninth Circuit’s ruling as final. Given that the Supreme Court has twice intervened on the government’s behalf in this case through emergency stay orders, and given that the government has already filed a separate emergency application in the related Haiti case, Trump v. Miot, as recently as March 11, 2026, a certiorari petition is widely expected.

The en banc denial also coincides with the ongoing legal proceedings over Haitian TPS in the D.C. Circuit and the Supreme Court. The January 28, 2026, Ninth Circuit panel opinion that this order leaves standing had addressed the Haiti partial vacatur — Noem’s February 24, 2025, decision shortening Haiti’s extension from 18 months to 12 months. While the dissenters noted that the 2024 Haiti extension had technically expired by February 3, 2026, making that portion of the case arguably moot, the broader legal principles established by NTPSA III continue to govern the field and directly inform how courts across the country are adjudicating the wave of TPS termination challenges filed in 2025 and 2026.

For the more than one million people — from Haiti, Venezuela, Honduras, Nicaragua, Ethiopia, Burma, South Sudan, Syria, and other countries — whose TPS protections have been challenged or terminated by the Trump administration, the Ninth Circuit’s refusal to rehear National TPS Alliance v. Noem represents one more judicial affirmation that the administration’s methods, if not its ultimate authority, have exceeded what the law permits.