Clinic Files Amicus Brief Challenging Executive Order Terminating Temporary Protected Status
Represented by Yale Law School’s Peter Gruber Rule of Law Clinic and Kaplan & Grady LLC, a bipartisan group of 31 former senior government officials filed an amicus brief in Mullin v. Doe and Trump v. Miot, urging the Supreme Court to reject the government’s effort to terminate Temporary Protected Status (TPS) for Haiti and Syria through what the brief describes as a sham consultation process.
The 31 amici are former senior officials from the Department of Homeland Security, the Department of State, the Department of Justice, and related agencies with direct experience in the interagency process for designating, extending, and terminating TPS. Their service spans every completed administration — six in total — since the creation of the TPS program in 1990, including the first Trump administration, and encompasses former Cabinet officials, agency heads, general counsels, and senior policymakers involved in immigration, refugee, and humanitarian decision-making.
Drawing on their decades of government experience, the amici argue that Congress did not give the Executive unchecked authority to terminate TPS at will. Before ending a designation, the statute requires the Secretary of Homeland Security to: (1) meaningfully consult with appropriate agencies and (2) review current conditions in the given country. As the brief explains, “Congress intended TPS decisions to be informed by interagency expertise about country conditions, not made through a perfunctory or post hoc process.” But amici argue that is precisely what happened here: rather than undertaking the kind of bottom-up interagency review that has historically informed TPS termination decisions, the administration relied on cursory, conclusory exchanges that did not meaningfully assess country conditions.
This sham process, amici argue, was not a one-off defect but part of a broader break from longstanding statutory and historical practice. In place of the decades-long interagency process through which DHS, the State Department, and other agencies gathered and analyzed detailed, on-the-ground information, the government’s recent TPS termination processes for a dozen countries rested on thin email exchanges that did not address country conditions at all, according to the brief. Because the administration failed to follow the consultative process Congress required here and in other recent TPS cases, amici argue that the government is not entitled to any presumption of regularity. As the brief puts it, “there is no evidentiary gap for the presumption to bridge; here instead the facts show a chasm between what the statute demands and the process that occurred.” In amici’s view, courts owe no deference to a process that appears post hoc, conclusory, and radically inconsistent with decades of executive practice.
Amici conclude that “[t]he text, statutory background, and longstanding agency implementation of the TPS statute establish that Congress required that the DHS Secretary meaningfully consult with other agencies, especially the State Department, about real-time country conditions as a means of ensuring that TPS decisions would be based on evidence and statutory requirements, not politics or unfettered discretion.”
“This was a humbling opportunity to defend two vulnerable communities under assault,” explained Elizabeth Bailey ’27, a student team leader on the brief. “The experience was as educationally rewarding as it was personally fulfilling.”
“The opportunity to work on a brief of this magnitude has a special resonance for me,” added Harry Senay Seavey ’27, another student team leader on the brief. “I took ‘Procedure’ with Professor Koh last year, and there we learned about the importance of legal process from his first-hand perspective in litigating Sale v. Haitian Centers Council, Inc. before the Supreme Court in 1993. Three decades later, Yale Law School students are back at the Supreme Court defending Haitian refugees once again, and I’m honored to be a part of that legacy.”
Amici are represented by the Peter Gruber Rule of Law Clinic at Yale Law School and cooperating attorney Jed Glickstein ’13 of Kaplan & Grady LLC. Founded in 2016, the Peter Gruber Rule of Law Clinic addresses threats to the rule of law in the United States and around the world. The clinic was founded by Sterling Professor of International Law and former Dean Harold Hongju Koh and William O. Douglas Clinical Professor of Law Michael Wishnie ’93. The Clinic is now led by Koh (an amicus on this brief), Aharon Barak Distinguished Rule of Law Fellow Bruce C. Swartz ’79, Peter Gruber Rule of Law Fellow Sonia Mittal ’13, and Cooperating Attorney Mary Hahn ’01, as well as Visiting Lecturers in Law Eugene Fidell, Margaret Donovan, and Justin Cole ’23.
Current Yale Law students and clinic members who worked on the brief include Elizabeth Bailey ’27, Elena Crespo ’28, Ananya Agustin Malhotra ’27, Galia Newberger ’28, Harry Senay Seavey ’27, and Jorge Rosa Vidal ’28.
