Just days before leaving the White House, then-President Joe Biden and Homeland Security Secretary Alejandro Mayorkas made a decision to shield over one million immigrants from potential deportations, extending temporary protected status (TPS) to nationals from a number of foreign countries. Now, President Donald Trump is moving to end TPS and deport hundreds of thousands of immigrants, most of whom entered the country illegally before being shielded by the Biden administration. Federal judges, however, are getting in the way.

Judge Brian Cogan of the U.S. District Court for the Eastern District of New York issued a ruling Monday barring the Trump administration from terminating TPS grants extended to over 500,000 Haitian nationals by the Biden administration. Trump’s Homeland Security Secretary, Kristi Noem, moved to vacate Haiti’s TPS designation earlier this year, prompting several Haitians in the U.S. to file a lawsuit, arguing that Noem did not have the legal authority to vacate the TPS designation. In his 23-page ruling, Cogan agreed.

The Immigration and Nationality Act (INA) stipulates, regarding TPS, that “there is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation of a foreign state under this subsection.” Cogan, however, determined that the terms of the statute governing TPS do “not prevent courts from reviewing and setting aside agency action that is procedurally deficient.” He argued, “Here, the only legislative intent evinced is the unavailability of judicial review of ‘the underlying considerations and reasonings employed by the Secretary in reach[ing] her country-specific TPS determinations.’”

According to Cogan, “Secretary Noem will still be free to make a determination about Haiti’s TPS designation; the only caveat is that she will have to make that determination based on the statutorily prescribed timeline, which sets the next available date for termination of Haiti’s TPS designation as February 3, 2026.” In other words, although the INA expressly allows the Homeland Security Secretary to terminate TPS designations, Cogan determined that Mayorkas could extend TPS designations but Noem cannot terminate those same TPS designations. “Because Secretary Noem does not have statutory or inherent authority to partially vacate a country’s TPS designation, her partial vacatur must be set aside as unlawful under the” Administrative Procedure Act (APA), the judge determined.

In comments to The Washington Stand, Lora Ries, director of the Heritage Foundation’s Border Security and Immigration Center and a former acting Deputy Chief of Staff at the Department of Homeland Security (DHS), blasted Cogan’s ruling. “No judicial review means the federal judge should summarily dismiss the plaintiffs’ case, as requested by the government, for lack of jurisdiction,” Ries said. She continued, “This is yet another example of a federal judge going outside of the judicial lane into the executive lane. Decisions regarding designations and terminations of countries for protected status properly belong with DHS and the State Department.”

Previously, Judge Edward Chen of the U.S. District Court for the District of Northern California similarly attempted to block Noem from terminating a TPS designation — this time for Venezuela. Like Cogan, Chen relied on what U.S. Solicitor General D. John Sauer classified as “supposedly reviewable collateral challenges under the Administrative Procedure Act” to block the DHS action, which Sauer argued “would eviscerate the statute’s bar on judicial review.” The U.S. Supreme Court stayed Chen’s preliminary injunction in May.

Acknowledging that his reasoning is remarkably similar to Chen’s, Cogan argued that the chief difference is that Chen issued a preliminary injunction, while Cogan has issued a court order “pursuant to 5 U.S.C. § 705, such that 8 U.S.C. § 1252(f)(1) does not apply.” This is primarily a work-around, he explained, skirting the Supreme Court’s recent landmark decision barring district courts from issuing nationwide injunctions.