Legal battles over migrant protections for Venezuelans and others will test whether racially charged rhetoric from the Trump administration undermines the lawfulness of its immigration policies.
Multiple lawsuits challenge the recent terminations of Temporary Protected Status for Venezuelans and Haitians—as well as reported cancellations for Afghans and Cameroonians—claiming racial animus by Trump and his officials amid other violations. The president over several years has equated immigrants to “criminals” or “terrorists” who are “poisoning the blood of our country,” according to court filings.
“And we have to live with these animals, but we’re not going to live with them for long, you watch,” Trump said in a Colorado campaign speech last year cited by a court order.
That growing record of racially offensive remarks makes the administration’s TPS terminations vulnerable to constitutional equal protection claims—more so than under Trump’s first term, legal scholars and attorneys said. Some lawsuits also point to alleged US favoritism toward predominantly white immigrants, such as Afrikaners from South Africa, to support their claims.
“The racism here is very closely tied to the actual decision in question,” said Ahilan Arulanantham, a University of California, Los Angeles law professor representing plaintiffs challenging the canceled protections.
Trump’s Homeland Security Department has asked the US Supreme Court to step into the fray. It’s seeking a stay of a San Francisco federal judge’s order preserving TPS protections for 350,000 Venezuelans while an appeal proceeds.
“Acting on the basis of a negative group stereotype and generalizing such stereotype to the entire group is the classic example of racism,” Judge Edward M. Chen found.
Shrinking TPS is part of a broader DHS attack on temporary programs that will add to the ranks of unauthorized immigrants in the country. It would also threaten workforces that rely on TPS recipients to fill critical roles.
National Security
The TPS program allows immigrants from designated countries without lawful status to stay and work in the US for up to 18 months when DHS determines conditions in their home countries make it unsafe to return. Many recipients have lived here for decades, with that population growing dramatically under the Biden administration.
In January, DHS Secretary Kristi Noem scrapped a Biden TPS extension for Venezuela, linking recipients to the Tren de Aragua gang. DHS later announced the protections would end in April, citing national security justifications.
Ensuing lawsuits, including one filed by the National TPS Alliance in the Northern District of California, alleged that Noem’s statements showed evidence of racial animus.
The administration denied any discrimination and doubled down on national security objectives. That argument fell flat with Chen, an Obama appointee, whose March 31 order restored protections through at least April 2026. He found evidence that the termination was arbitrary and motivated by racial animus.
Chen’s order laid out “a blueprint” for other courts, said Jayesh Rathod, a professor at American University’s Washington College of Law.
“It shows that just throwing the words national security around doesn’t necessarily make an issue a national security concern,” he said.
Direct Nexus
The animus arguments tread familiar ground from Trump’s first term over TPS cancellations for Haiti, El Salvador, and other countries.
Immigrant advocates linked Trump’s 2018 comments calling Haiti and African nations “shithole countries” to the TPS terminations, leading Chen to issue a preliminary injunction that year.
A US Court of Appeals for the Ninth Circuit panel reversed that order, finding an insufficient link between Trump’s comments and DHS actions. The full appeals court later vacated the panel’s decision.
In current litigation over the Venezuela TPS terminations, the government argued that courts should apply the rational basis test employed by the Supreme Court in 2018’s Trump v. Hawaii, which upheld a travel ban on mostly Muslim-majority countries. Rational basis allows a government action to pass constitutional muster if it has a rational justification on its face.
Chen’s March order instead used the strict scrutiny standard set forth in Village of Arlington Heights v. Metropolitan Housing Development Corp., which requires proof of racially discriminatory intent for equal protection claims.
There was enough evidence of animus by Noem to meet that standard, he found, including a 2024 social media post in which she claimed Venezuela “emptied their prisons and sent criminals to America.”
“There is also evidence of discriminatory animus by President Trump and that his intent and actions bore a direct nexus to the actions taken by Secretary Noem,” he added.
The Trump administration could argue those statements only described some—not all—Venezuelans, said George Fishman, senior legal fellow at the Center for Immigration Studies, a think tank that advocates for restricting immigration.
And while the TPS statute offers no mechanism for ending protections outside the standard review process, he said, it’s not clear strict scrutiny is the framework that should apply.
“If the Trump v. Hawaii standard applies to this case, the racial animus claim is not going to survive the Supreme Court,” Fishman said.
Looming Terminations
While the Supreme Court hasn’t yet decided whether to stay Chen’s order, oral arguments are scheduled for July at the Ninth Circuit.
Deadlines are fast approaching, meanwhile, for renewal decisions on a number of other countries. DHS reportedly plans to end protections for Afghan and Cameroonian recipients. A lawsuit filed in the District of Maryland this week challenged those as yet unannounced terminations.
Adopting the rational basis standard could block other equal protection challenges in TPS litigation, limiting plaintiffs to sue on procedural grounds.
Chen applied strict scrutiny in part because, unlike the travel ban case, TPS litigation involves immigrants in the US. That standard should also apply because the program is governed by statute, and Noem’s early termination of protections departed from existing practices, said Haiyun Damon-Feng, an associate law professor at Cardozo School of Law.
“You don’t get to take advantage of this heightened level of scrutiny if you don’t show the racial animus motivating the conduct,” she said. “The racial animus around these policies is facially pretty clear.”
The case is National TPS Alliance v. Noem, N.D. Cal., No. 3:25-cv-01766.
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