The Egregious Haitian-Immigration Decision

National Review Online

Thursday, February 05, 2026

 

Judge Ana C. Reyes, of the U.S. District Court for D.C., has apparently decided that she would very much like to be the secretary of the Department of Homeland Security. In a long and hyperbolic decision, written more for those in the cheap seats than to be taken seriously at the Supreme Court, Reyes ruled that the Trump administration may not, for now, terminate Haiti’s long-held temporary protected status. Judge Reyes based this decision on two far-fetched determinations: first, that DHS’s recission violated the procedural requirements of the statute; second, that the manner in which the decision was made violated the Fifth Amendment. Neither of these conclusions passes the smell test.

 

Notably, the statute in question sets a high bar for judicial review. Not only does it make clear that temporary protected status is a discretionary act of clemency that, as its name implies, is supposed to be “temporary,” but it explicitly forbids the judiciary from weighing in on the substantive matters at hand. “There is no judicial review,” the law confirms, “of any determination of the Attorney General with respect to the designation, or termination or extension of a designation.” That being so, the only question that can be assessed by a judge is whether the Ts were crossed and the Is were dotted. That is almost certainly why the Supreme Court last May stayed the similar order of a district judge in San Francisco, who sought to enjoin DHS Secretary Kristi Noem from stripping the TPS granted to hundreds of thousands of Venezuelans by the Biden administration; the justices’ reasoning was not explained in their one-line order, but they did curtly reaffirm the stay in October after the judge defiantly sought to reinstate the Venezuelans’ TPS.

 

According to the statute’s plain terms, the executive is obliged to render its decision legally effective by publishing a “notice in the Federal Register of the determination” and waiting “60 days after the date the notice is published” before it begins executing the new rule.

 

Annoyingly for Judge Reyes, the Trump administration did just that. Indeed, as Reyes notes in her opinion, “Secretary Noem then issued a decision, published on November 28, 2025, to terminate Haiti’s TPS designation as of February 3, 2026. See 90 Fed. Reg. at 54733.” Legally, this should have been the end of the story. As the law required, the executive had made its nonjusticiable determination, and it had complied with the niceties of contemporary administrative law.

 

But Judge Reyes had a clever trick up her sleeve: namely, the reclassification of policy objections as procedural inadequacies. All told, Reyes offers five such objections. She claims that, because the Trump administration’s DHS has rescinded a TPS each time it has looked into it, its conclusion was preordained. (One wonders whether Reyes would apply this logic to her own, unidirectional rulings.) She proposes that the DHS secretary did not spend enough time consulting other agencies before she made her decision. She disagrees with DHS’s characterization of the conditions in Haiti as “concerning” and provides her own descriptions in lieu. She dissents from DHS’s evaluation of the “national interest” issues at stake. And she argues that DHS’s assessment of the economic questions is wrong, because Haitians here under TPS pay taxes. Naturally, all five of these critiques are substantive, not procedural, and are thus not within Reyes’s rightful remit under the law.

 

On a roll, Reyes then shows off her mind-reading abilities, contending that the Trump administration is guilty of violating the Fifth Amendment because it has an ugly heart. The “plaintiffs charge that Secretary Noem preordained her termination decision and did so because of hostility to nonwhite immigrants,” she writes. “This seems substantially likely.” She therefore decides that DHS’s decision must be stayed pending appeal. Like many rulings that turn on motivations rather than powers, this is a one-way ratchet designed to disempower Republicans without limiting the use of the same powers by Democrats, especially given that nobody would have legal standing to challenge a DHS secretary who preordained all extension decisions out of a solicitude for some shades of immigrant.

 

This, of course, is all rather silly. The unequivocal presumption undergirding the TPS system is that those with temporary status have it temporarily and will be returned home, rather than stay indefinitely. For a judge to decide that the execution of this presumption is arbitrary and capricious defies belief. In effect, Judge Reyes is attempting to recalibrate the system in such a way as to ensure that the federal government may let in anyone it wishes without oversight but only remove those same figures after having run an impossible gauntlet. Until her decision is reversed, she will get away with this ploy, but this is no way to run a republic, and, as the Supreme Court will undoubtedly soon confirm, her outrageous conduct is not synonymous with the majesty of the law.