SAN FRANCISCO (CN) - A federal judge tentatively approved class certification Tuesday for immigrants with temporary protected status from Nepal, Nicaragua and Honduras who claim that Secretary of Homeland Security Kristi Noem's recent orders ending the program were unlawful and motivated by racial animus.

U.S. District Judge Trina L. Thompson said in a tentative ruling from the bench that the class appears to be appropriate to certify, but the Joe Biden appointee reserved judgment on the breadth of the class.

She added that a final order would be released in seven to 14 days. 

The TPS program protects individuals from certain countries due to violence or economic duress. While those with TPS status can't be deported and can work legally in the U.S., they do not have a path to U.S. citizenship.

National TPS Alliance and individual TPS holders from Nepal, Nicaragua and Honduras sued the Trump administration on July 7, claiming Noem's actions terminating protections for the three countries violated the Administrative Procedure Act and were motivated by racial animus.

On July 31, Thompson postponed the termination of the TPS program for Nepal, Nicaragua and Honduras until Nov. 18. However, a federal appeals court stayed that ruling, greenlighting the Trump administration to go ahead with its termination of TPS status for the three countries while litigation plays out.

In a hearing over class certification, ACLU of Northern California attorney Emi MacLean argued for the plaintiffs that a nationwide class should be certified because the case raises a common question as to all proposed class members: whether the terminations of TPS for Nepal, Nicaragua and Honduras were lawful.

"There is a common answer, yes or no, for all class members," she said.

MacLean added that all the proposed class members face a similar injury of losing TPS due to the terminations and that "individual factual differences" do not challenge class certification.

The defense argued that the plaintiff's proposed class - individuals from Nepal, Nicaragua and Honduras who have been granted TPS and but are not lawful permanent residents - is overbroad. According to the government, the class should only include individuals who were directly impacted by the 2025 termination of TPS for Nepal, Nicaragua and Honduras, and not individuals who failed to register for protective status, left the country or are otherwise ineligible.

"The issue in this lawsuit is the 2025 terminations and the proposed class should be crafted in such a way that that is the issue, and not encapsulate individuals that lost or gave up TPS at another time," Department of Justice attorney Daniel Cappelletti said.

Cappelletti also argued that the proposed class includes individuals not harmed by the TPS terminations, such as those who have asylum or visa holders who are still allowed to live and work in the U.S despite losing federal protections. 

"Plaintiffs put in their class that this should not include those with lawful permanent residence. A well-crafted class would not include people who have other forms of relief," he said.

In rebuttal, Lauren Wilfong, an attorney for the plaintiffs, said that individuals with other forms of temporary relief are still harmed by the TPS terminations.

"The injury is loss of TPS itself, that is a legal injury," Wilfong said. "The fact that some members have some other form of relief does not make them uninjured by the termination of TPS. Some of these are non-permanent; they can be terminated or taken away."

As for the government's argument that a nationwide class certification could prevent other plaintiffs from suing in another court and that the class should be confined to the specific judicial district, MacLean said there are no other cases addressing this specific issue. She added that the court should err on the side of overinclusion because a narrower definition could leave out class members who were harmed.

In a statement to Courthouse News, MacLean said 60,000 Nicaraguan, Honduran and Nepali TPS holders have lost their legal status as a result of the government's actions and the stay issued by the Ninth Circuit.

"The case continues, and we will continue to fight to secure protection to the greatest extent possible," she said. 

Attorneys for the defense declined to comment. 

In a separate lawsuit, the National TPS Alliance is also challenging the Trump administration's revocation of protections for immigrants from Venezuela and Haiti.

Source: Courthouse News Service