BHATTARAI v. NIELSEN: FREQUENTLY ASKED QUESTIONS
Note: This FAQ is meant to provide general information, not legal advice.
What is the Bhattarai case?
In February 2019, TPS holders from Honduras and Nepal and certain of their U.S. citizen children filed a lawsuit against the government (Bhattarai v. Nielsen). They argued that the TPS terminations for their countries were illegal. They made similar claims as the TPS holders in another case, Ramos v. Nielsen, which addressed TPS for Sudan, Nicaragua, Haiti, and El Salvador. For example, the Bhattarai plaintiffs argued that, in terminating TPS, the government did not follow the Administrative Procedure Act (“APA”) and acted out of racism in violation of the guarantee of equal protection under the U.S. constitution, among other claims. In Ramos, the court found substantial evidence supporting plaintiffs’ APA and equal protection claims and ordered the government to keep TPS in place for Sudan, Nicaragua, Haiti, and El Salvador until the case could be finally decided. The Ramos order is currently on appeal, and will likely be heard this summer.
On March 12, 2019, the parties to the Bhattarai case—that is, the TPS holders from Nepal, Honduras and the government—filed a joint stipulation, or agreement, asking the Court to temporarily halt the termination of TPS for Honduras and Nepal and pause further proceedings in Bhattarai until the Ramos appeal is decided.
I’m a TPS holder from Honduras or Nepal and I want to know:
How does the March 12, 2019 agreement affect my TPS status and work authorization?
- As long as you continue to meet the individual eligibility requirements for TPS (e.g. continuous presence in the US, no felony convictions, no convictions for two or more misdemeanors), your TPS status and work authorization will remain in effect until the Ramos appeal is decided.
- The Department of Homeland Security will announce a nine-month automatic extension of TPS status and work authorization for TPS holders from Nepal in the Federal Register around May 10, 2019, which is approximately 45 days before June 24, 2019, the previously announced termination date for Nepal.
- If the Ramos order is still in effect, the Department of Homeland Security will announce a nine-month automatic extension of TPS status and work authorization for TPS holders from Honduras around November 21, 2019, which is approximately 45 days before January 5, 2020, the previously announced termination date for Honduras.
- Similar extensions will be announced every nine months for Nepal and Honduras, respectively, as long as the Ramos appeal continues, unless the appeals court makes a decision in Ramos that suggests the terminations of TPS for Nepal and Honduras should be treated differently than the terminations for the Ramos countries.
- You will not have to file anything or pay for these extensions. They will be automatic.
When will the Ramos appeal be decided?
A hearing on the Ramos appeal has not been scheduled yet. It is expected this summer. A decision could come any time after that. If neither side requests further review, the appeal ends there. Alternatively, the losing side in the appeal can ask the Ninth Circuit to rehear the case en banc (i.e. with a larger group of judges) or can ask the Supreme Court to hear the case. If that happens, the appeal continues until the Ninth Circuit and/or Supreme Court either refuse to hear the case or agree to hear it and issue a final decision. While there is no set timeline, this process could take up to two years. As long as an appeal of the Ramos case is pending, the government will not terminate TPS status for Nepal, Honduras, Sudan, Nicaragua, Haiti, and El Salvador.
What happens if the Ramos order is reversed?
If the Ramos order is reversed, the government could end TPS for Nepal and Honduras. But it has to give TPS holders at least 120 days from the “effective date” of the appeals court’s decision before it does. The “effective date” is at least 52 days after the appeals court announces its decision (or potentially longer, if either side asks for additional review).
That means if the Ramos order is reversed, TPS holders will keep their TPS status and employment authorization for at least approximately six months (120 days + 52 days) from the date the reversal is announced.
If the appeals court’s decision in Ramos leaves open any possibility that the Bhattarai plaintiffs could still win their case, the Bhattarai case could be reopened in district court and plaintiffs could potentially ask for a new order preventing the government from ending TPS for Nepal or Honduras.
What happens if the Ramos order is upheld?
If the Ramos order is upheld, the Bhattarai litigation can resume in the district court. The government would have to keep TPS in place for Honduras and Nepal for approximately six months after a decision upholding the Ramos order. During that time, the Bhattarai plaintiffs could ask the court for a new order extending protections for TPS holders from Honduras and Nepal until the Bhattarai litigation is over.
What happens if the Ramos order is upheld but the appeals court says something that suggests the terminations of TPS for Nepal or Honduras should be treated differently?
If the appeals court’s decision suggests that the terminations of TPS for Nepal and Honduras should be treated differently from the terminations of TPS for the Ramos countries, the government has reserved the right to ask the court to cancel the March 12, 2019 agreement. If that happens, TPS holders would keep their TPS status for at least 180 days from the date the court orders the agreement is cancelled. On the other hand, if the appeals court’s decision in Ramos leaves open any possibility that Bhattarai plaintiffs could still win their case, the Bhattarai plaintiffs could potentially ask the court for a new order preventing the government from enforcing the TPS terminations for Nepal or Honduras.
Can the Bhattarai case win permanent status for TPS holders from Honduras and Nepal?
No. Only Congress can provide permanent status for TPS holders. The litigation can preserve TPS temporarily while the courts decide the case. But ultimately, the only relief the court can give is an order stopping the government from enforcing the previously announced terminations. The court cannot stop the government from terminating TPS again (provided the government follows the law in doing so). Nor can it make the government give permanent status to TPS holders.