Attorneys defending Temporary Protected Status for immigrants from more than a dozen nations have landed on an argument almost nobody raised a year ago: the Department of Homeland Security was never legally handed the authority to end TPS designations at all. The theory now appears in amended complaints moving through several federal district courts, as advocacy groups hunt for fresh legal ground after the Supreme Court shut down the approach they'd relied on for years.
A Reorganization From 2002 Comes Back Into Focus
When Congress created TPS in 1990, it placed the attorney general in charge of deciding which countries qualify for protection. That changed, at least in practice, once the Homeland Security Act of 2002 folded a wide swath of immigration functions into the newly built Department of Homeland Security following the September 11 attacks. For more than twenty years afterward, the DHS secretary was simply assumed to hold final say over TPS.
Lawyers representing TPS holders from Burma, Ethiopia, South Sudan, Yemen and Syria are now testing that assumption. After digging into the legislative record behind the 2002 law, they argue Congress never actually wrote in a transfer of TPS authority to the secretary — meaning terminations ordered under the Trump administration were invalid from the moment they were signed. "DHS didn't have authority to terminate these TPS designations in the first place," said Niji Jain, legal director at the Asian American Legal Defense and Education Fund and counsel on the Burma and Yemen cases. Nargis Aslami, a legal fellow at Muslim Advocates representing plaintiffs in related suits, framed the distinction this way: "we're challenging determinations made by the DHS secretary, not the attorney general," which she said keeps the claim outside the reach of the statute's usual bar on judicial review. A related amended complaint covering Somali TPS holders is expected shortly.
Why the Old Playbook Stopped Working
This shift traces back to a June 25 Supreme Court decision, Mullin v. Doe, which found by a 6–3 margin that a provision of immigration law bars courts from second-guessing most TPS decisions on procedural grounds. That ruling cleared the way for the administration to finish ending protections for Haitian and Syrian nationals, and Yemen's designation lapsed less than a month later. Notably, the case bears the name of Markwayne Mullin because he had by then succeeded Kristi Noem as DHS secretary — a leadership change in March 2026 that also explains why some of the district-court lawsuits described here are now captioned against Mullin rather than Noem, even though Noem made the original termination decisions.
With procedural challenges largely closed off, plaintiffs' attorneys needed a theory that didn't depend on second-guessing how the secretary weighed conditions abroad, but instead questioned whether she ever had the power to make that call. Ohio State University law professor César Cuauhtémoc García Hernández called the pivot a fallback rather than a first resort, noting that a legal team's opening argument is typically just "what you think of as your best and most obvious approach" — not necessarily the one most likely to prevail. He added that the 2002 restructuring was disorganized enough that nobody had reason to scrutinize this particular gap until the more familiar arguments ran out of road.
The Justice Department Calls the Theory a Non-Starter
Government attorneys reject the argument entirely. In a July 27 filing before a judge in the Northern District of Illinois, the Justice Department pointed out that every court to weigh in on the question over the past two decades has recognized DHS's authority over TPS, arguing that this unbroken record reflects "a contemporaneous and long-standing administrative construction of the transfer." DHS did not respond to a request for comment tied to the underlying litigation.
Running alongside the authority argument is a Fifth Amendment claim: that revoking work permits and deportation protections without following the review process Congress required amounts to arbitrary government action against a protected liberty interest. Attorneys for Burmese TPS holders told a federal judge that these protections "are liberty and property interests that trigger procedural safeguards under the Constitution," according to court papers reported by CNN. The Justice Department has characterized the due-process theory as a repackaged version of arguments the Supreme Court already rejected.
Chicago Offers the First Real Test
A hearing on preliminary relief in the Burma case was held August 4 before U.S. District Judge Matthew Kennelly in Chicago, and a ruling is expected around August 7 — making it the first real signal of how receptive federal judges will be to the authority theory. Kennelly has already kept Burmese TPS protections in place while the new claims proceed. Two Massachusetts judges have issued similar holding patterns in their own, separate cases: Brian Murphy for Ethiopian TPS holders and Patti Saris for South Sudanese TPS holders. None of the three has tipped their hand on how they're likely to rule once they reach the merits.
The Numbers Behind the Fight
Roughly 1.3 million people across 17 countries held TPS when the Trump administration took office in early 2025. That number has fallen to just under 300,000 as of mid-2026, as designations for Haiti, Venezuela, Honduras and other countries were wound down. The Burma case illustrates how these counts shift: the National Immigration Forum initially sized the affected population at about 3,670 people when DHS announced its plan in November 2025, and that same population had grown to nearly 4,000 by the time the termination took effect, as more Burmese nationals confirmed their enrollment. For those still covered, the stakes are immediate — work permits and deportation protections are currently expiring on a rolling, court-supervised basis, with several deadlines already passed in early August. Jain said many of the people her organization represents have built careers and families on the expectation that their status would hold, describing a group that includes cancer researchers and pilots for whom even a few more weeks would matter enormously.
