FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CRISTA RAMOS; CRISTINA MORALES;          No. 18-16981
BENJAMIN ZEPEDA; ORLANDO
ZEPEDA; JUAN EDUARDO AYALA                 D.C. No.
FLORES; ELSY YOLANDA FLORES DE          3:18-cv-01554-
AYALA; MARIA JOSE AYALA FLORES;              EMC
HNAIDA CENEMAT; WILNA DESTIN;
RILYA SALARY; SHERIKA BLANC;
IMARA AMPIE; MAZIN AHMED;                  OPINION
HIWAIDA ELARABI,
               Plaintiffs-Appellees,

                 v.

CHAD F. WOLF, Acting Secretary of
Homeland Security; KENNETH T.
CUCCINELLI, Senior Official
Performing the Duties of the Deputy
Secretary of Homeland Security;
U.S. DEPARTMENT OF HOMELAND
SECURITY; UNITED STATES OF
AMERICA,
              Defendants-Appellants.

      Appeal from the United States District Court
         for the Northern District of California
       Edward M. Chen, District Judge, Presiding

        Argued and Submitted August 14, 2019
         Submission Vacated August 21, 2019
2                        RAMOS V. WOLF

                Resubmitted September 4, 2020
                     Pasadena, California

                   Filed September 14, 2020

    Before: Consuelo M. Callahan, Morgan Christen, and
             Ryan D. Nelson, Circuit Judges.

                 Opinion by Judge Callahan;
               Concurrence by Judge R. Nelson;
                  Dissent by Judge Christen


                          SUMMARY *


           Immigration /Preliminary Injunction

    The panel vacated a preliminary injunction barring
implementation of decisions to terminate Temporary
Protected Status (TPS) designations of Sudan, Nicaragua,
Haiti, and El Salvador, and remanded, holding that:
(1) judicial review of Plaintiffs’ claim under the
Administrative Procedure Act (APA) is barred by 8 U.S.C.
§ 1254a(b)(5)(A); and (2) Plaintiffs failed to show a
likelihood of success, or even serious questions, on the
merits of their Equal Protection claim.

   The TPS program is a congressionally created
humanitarian program administered by the Department of
Homeland Security (DHS) that provides temporary relief to

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                      RAMOS V. WOLF                        3

nationals of designated foreign countries that have been
stricken by a natural disaster, armed conflict, or other
“extraordinary and temporary conditions in the foreign
state.” 8 U.S.C. § 1254a(b). In 2017 and 2018, Secretaries
of DHS under the Trump Administration terminated the TPS
designations of the four countries.

    Plaintiffs, who are TPS beneficiaries from these
countries and their children, challenged the terminations on
two grounds. First, Plaintiffs alleged that DHS justified the
terminations with a novel interpretation of the TPS statute
that rejected, without explanation, a decades-old agency
policy and practice of considering “intervening natural
disasters, conflicts, and other serious social and economic
problems as relevant factors when deciding whether to
continue or instead terminate a TPS designation.” Second,
Plaintiffs alleged that DHS’s new rule was motivated in
significant part by racial and national-origin animus against
“non-white and non-European immigrants,” which was
“evidenced by numerous statements made by President
Donald J. Trump and other officials.” The district court
entered a preliminary injunction barring implementation of
the termination decisions, concluding that the balance of
hardships weighed in Plaintiffs’ favor and that, under the
applicable “sliding scale” preliminary injunction standard,
Plaintiffs had established serious questions on the merits of
both their claims.

    First, the panel held that the district court abused its
discretion in issuing the preliminary injunction when it
deemed Plaintiffs’ APA claim reviewable. The panel
concluded that Plaintiffs’ claim was unreviewable in light of
8 U.S.C. § 1254a(b)(5)(A), which states: “There is no
judicial review of any determination of the [Secretary of
Homeland Security] with respect to the designation, or
4                      RAMOS V. WOLF

termination or extension of a designation, of a foreign state
under this subsection.” Considering the issue in light of
relevant    precedent,      the     panel     concluded     that
§ 1254a(b)(5)(A) precludes review of non-constitutional
claims that fundamentally attack the Secretary’s specific
TPS determinations, as well as the substance of her
discretionary analysis in reaching those determinations, but
does not bar review of a challenge to an agency “pattern or
practice” that is collateral to, and distinct from, the specific
TPS decisions and their underlying rationale.

    Applying these principles, the panel concluded that the
APA claim was not reviewable, explaining that the claim
does not challenge any agency procedure or regulation, but
rather essentially raises a substantive challenge to the
Secretary’s underlying analysis. Moreover, the panel noted
that consideration of “intervening events” in a TPS
determination is a task squarely within the agency’s “special
expertise” and “institutional competence,” and that Plaintiffs
appeared to seek direct relief from the challenged decisions,
rather than collateral relief.

    Second, the panel held that the district court abused its
discretion in concluding that Plaintiffs presented at least
serious questions on the merits of their Equal Protection
claim. The panel rejected the Government’s argument that
the court should apply the deferential rational basis review
standard applied in Trump v. Hawaii, 

(2018),
as opposed to the standard articulated in Village of Arlington
Heights v. Metropolitan Housing Development Corp., 

(1977). The panel explained that the level of
deference that courts owe to the President in his executive
decision to exclude foreign nationals who have not yet
entered the United States may be greater than the deference
to an agency in its administration of a humanitarian relief
                      RAMOS V. WOLF                          5

program established by Congress for foreign nationals who
have lawfully resided in the country for some time.

    Applying Arlington Heights, under which Plaintiffs
needed to show that racial discrimination was at least a
motivating factor for the challenged TPS terminations, the
panel concluded that Plaintiffs failed to present even serious
questions on the merits of their animus claim. The panel
explained that, while the district court’s findings that
President Trump expressed racial animus against “non-
white, non-European” immigrants, and that the White House
influenced the TPS termination decisions, were supported by
record evidence, the district court cited no evidence linking
the President’s animus to the TPS terminations—such as
evidence that the President personally sought to influence
the TPS terminations, or that any administration officials
involved in the TPS decision-making process were
themselves motivated by animus.

    Concurring, Judge R. Nelson addressed two issues
implicating separation-of-powers concerns. First, Judge
Nelson wrote that the district court erred by not waiting until
after the government produced the administrative record to
order extra-record discovery. He wrote that errors like this
are an affront to the limited waiver of sovereign immunity
under the APA, disrespect the integrity of the administrative
process, and improperly subvert the executive branch to the
judiciary. Second, Judge Nelson addressed the increasing
frequency of universal injunctions, observing that such an
injunction issued recently by a district court in New York on
Haiti’s TPS designation effectively nullified part of the
panel’s decision. He wrote that universal injunctions:
(1) result in an imbalance of power between the judicial and
the other branches of government because such injunctions
disregard the usual constraints on judicial powers by binding
6                     RAMOS V. WOLF

parties not before the court; and (2) lead to a lack of
percolation of issues among the circuits that has serious
consequences for judicial decisionmaking and breeds the
more serious problem of “forum-shopping.” Judge Nelson
wrote that courts must carefully assess not only limits on
injunctive relief, but also those under Rule 23, before
granting universal relief.

    Dissenting, Judge Christen wrote that she would affirm
the district court’s order. She wrote that the majority erred
by concluding that the panel lacked jurisdiction to review
Plaintiff’s APA claim. In her view, Plaintiffs’ claim is a
classic and reviewable collateral challenge because the
complaint plainly alleged that the Secretary violated the
APA by interpreting the TPS statute in a way that starkly
differs from previous administrations and by denying that
there had been any resulting change to the agency’s practice
of considering intervening events. Judge Christen also wrote
that Plaintiffs demonstrated a likelihood of success on the
merits of their claim, observing that the district court
identified an unambiguous and abrupt change in DHS’s
practice, and that the record includes compelling evidence
that the process DHS used resulted from the Secretaries’ new
interpretation of the TPS statute. Judge Christen also wrote
that she agreed with the majority’s decision not to reach the
issue of whether the district court prematurely ordered
discovery.

    With respect to the Equal Protection claim, Judge
Christen wrote that the doctrine of constitutional avoidance
counsels that the panel should not reach the claim at this
stage because the preliminary injunction is easily supported
by Plaintiffs’ demonstration that they will likely succeed on
their APA claim alone.
                     RAMOS V. WOLF                        7

                       COUNSEL

Gerard Sinzdak (argued), Mark B. Stern, and James Y. Xi,
Appellate Staff; Alex G. Tse, Acting United States Attorney;
and Joseph H. Hunt, Assistant Attorney General; Civil
Division, United States Department of Justice, Washington
D.C.; for Defendants-Appellants.

Ahilan T. Arulanantham (argued), Jessica Karp Bansal, and
Zoë N. McKinney, ACLU Foundation of Southern
California, Los Angeles, California; William S. Freeman,
ACLU Foundation of Northern California, San Francisco,
California; Emilou MacLean, and Caleb Soto, National Day
Laborer Organizing Network, Pasadena, California; Alycia
A. Degan, Sean A. Commons, Andrew B. Talai, Amanda
Farfel, Mohindra Rupram, and Katelyn N. Rowe, Sidley
Austin LLP, Los Angeles, California; Nicole M. Ryan and
Ryan M. Sandrock, Sidley Austin LLP, San Francisco,
California; Cory D. Szczepanik, Sidley Austin LLP, Dallas,
Texas; and Mark E. Haddad, USC Gould School of Law, Los
Angeles, California; for Plaintiffs-Appellees.

Margaret L. Carter and Daniel R. Suvor, O’Melveny &
Myers LLP, Los Angeles, California; Michael N. Feuer, City
Attorney; Kathleen Kenealy, Chief Assistant City Attorney;
Valerie L. Flores, Senior Assistant City Attorney; and
Michael J. Dundas, Deputy City Attorney; Office of the City
Attorney, Los Angeles, California; Donna R. Ziegler,
County Counsel, Office of the County Counsel, Alameda
County, Oakland, California; Donald A. Larkin, City
Attorney, Morgan Hill, California; James L. Banks, Jr., City
Attorney, Alexandria, Virginia; Zachary W. Carter,
Corporation Counsel, New York, New York; Nina Hickson,
City Attorney, Atlanta, Georgia; Jeff P.H. Cazeau, City
Attorney, North Miami, Florida; Anne L. Morgan, City
8                    RAMOS V. WOLF

Attorney, Austin, Texas; Barbara J. Parker, City Attorney,
Oakland, California; Andre M. Davis, City Solicitor,
Baltimore, Maryland; Marcel S. Pratt, City Solicitor,
Philadelphia,      Pennsylvania;     Eugene      O’Flaherty,
Corporation Counsel, Boston, Massachusetts; Tracy P.
Reeve, City Attorney, Portland, Oregon; Nancy E. Glowa,
City Solicitor, Cambridge, Massachusetts; Jeffrey Dana,
City Solicitor, Providence, Rhode Island; Cheryl Watson
Fisher, City Solicitor, Chelsea, Massachusetts; Susana
Alcala Wood, City Attorney, Sacramento, California;
Edward N. Siskel, Corporation Counsel, Chicago, Illinois;
Lyndsey M. Olson, City Attorney, Saint Paul, Minnesota;
Kristin M. Bronson, City Attorney, Denver, Colorado; Mara
W. Elliot, City Attorney, San Diego, California; Howard G.
Rifkin, Corporation Counsel, Hartford, Connecticut; Dennis
J. Herrera, City Attorney, San Francisco, California; Paul
Payer, City Solicitor, Holyoke, Massachusetts; James R.
Williams, County Counsel, County of Santa Clara, San Jose,
California; Ronald C. Lewis, City Attorney, Houston, Texas;
Lane Dilg, City Attorney, Santa Monica, California; Eleanor
M. Dilkes, City Attorney, Iowa City, Iowa; Peter S. Holmes,
City Attorney, Seattle, Washington; Jennifer Vega-Brown,
City Attorney, Las Cruces, New Mexico; Francis X. Wright,
Jr., City Solicitor, Somerville, Massachusetts; Susan Segal,
City Attorney, Minneapolis, Minnesota; Stephanie Steele,
Corporation Counsel, South Bend, Indiana; Charles J.
McKee, County Counsel, County of Monterey, Salinas,
California; Mike Rankin, City Attorney, Tucson, Arizona;
and Michael Jenkins, City Attorney, City of West
Hollywood, Manhattan Beach, California; for Amici Curiae
6 Counties and 31 Cities.

Ivy Kagan Bierman and Dimitry Krol, Loeb & Loeb LLP,
Los Angeles, California; Andrew DeVooght, Nina
Ruvinsky, and Alexandra J. Schaller, Loeb & Loeb LLP,
                     RAMOS V. WOLF                       9

Chicago, Illinois; Brian R. Socolow, Loeb & Loeb LLP,
New York, New York; Steven M. Freeman and Kimberley
Plotnik, Anti-Defamation League, New York New York; for
Amici Curiae Anti-Defamation League; Bet Tzedek;
LatinoJustice PRLDEF; National Council of Jewish
Women; OneJustice; Public Counsel; Service Employees
International Union; UnidosUS; Esperanza Immigrant
Rights Project; Union for Reform Judaism; Central
Conference of American Rabbis; Women of Reform
Judaism; Men of Reform Judaism; United Food and
Commercial Workers International Union; T’Ruah: The
Rabbinic Call for Human Rights; United Farm Workers of
America; Japanese American Citizens League; American
Federation of Teachers; and Jewish Council for Public
Affairs.

Xavier Becerra, Attorney General; Michael L. Newman,
Senior Assistant Attorney General; Christine Chuang,
Supervising Deputy Attorney General; and James F.
Zahradka II, Deputy Attorney General; California
Department of Justice, Oakland, California; Karl A. Racine,
Attorney General, District of Columbia; Maura Healey,
Attorney General, Massachusetts; William Tong, Attorney
General, Connecticut; Kathleen Jennings, Attorney General,
Delaware; Clare E. Connors, Attorney General, Hawaii;
Kwame Raoul, Attorney General, Illinois; Tom Miller,
Attorney General, Iowa; Aaron M. Frey, Attorney General,
Maine; Brian E. Frosh, Attorney General, Maryland; Dana
Nessel, Attorney General, Michigan; Keith Ellison, Attorney
General, Minnesota; Aaron D. Ford, Attorney General,
Nevada; Gurbir S. Grewal, Attorney General, New Jersey;
Hector Balderas, Attorney General, New Mexico; Letitia
James, Attorney General, New York; Joshua H. Stein,
Attorney General, North Carolina; Ellen F. Rosenblum,
Attorney General, Oregon; Peter F. Neronha, Attorney
10                  RAMOS V. WOLF

General, Rhode Island; Thomas J. Donovan Jr., Attorney
General, Vermont; Mark R. Herring, Attorney General,
Virginia; and Robert W. Ferguson, Attorney General,
Washington; for Amici Curiae States of California,
Massachusetts, Connecticut, Delaware, Hawaii, Illinois,
Iowa, Maine, Maryland, Michigan, Minnesota, Nevada,
New Jersey, New Mexico, New York, North Carolina,
Oregon, Rhode Island, Vermont, Virginia, and Washington,
and the District of Columbia.

Michael V. Mancini and John W. Shenk, Mancini Shenk
LLP, Los Angeles, California; Hiroshi Motomura, UCLA
School of Law, Los Angeles, California; Jaya Ramji-
Nogales, Temple University Beasley School of Law,
Philadelphia, Pennsylvania; and Andrew I. Schoenholtz,
Georgetown University Law Center, Washington, D.C.; for
Amici Curiae Immigration Law Scholars.
                       RAMOS V. WOLF                         11

                          OPINION

CALLAHAN, Circuit Judge:

    The Temporary Protected Status (TPS) program is a
congressionally created humanitarian program administered
by the Department of Homeland Security (DHS) that
provides temporary relief to nationals of designated foreign
countries that have been stricken by a natural disaster, armed
conflict, or other “extraordinary and temporary conditions in
the foreign state.” 8 U.S.C. § 1254a(b). In 2017 and 2018,
Secretaries of DHS under the Trump Administration
terminated the TPS designations of four countries: Sudan,
Nicaragua, Haiti, and El Salvador. Plaintiffs, who are TPS
beneficiaries from these countries and their children,
challenged the TPS termination decisions as unlawful under,
inter alia, the Administrative Procedure Act (APA),
5 U.S.C. §§ 551 et seq., and the Equal Protection Clause
(EPC) of the Fifth Amendment.

     The district court entered a preliminary injunction
barring the implementation of the termination decisions. On
appeal, the Government argues that the district court abused
its discretion in issuing the injunction because Plaintiffs have
not shown a likelihood of success on either of their claims.
We agree. Based on our reading of the TPS statute, we hold
that Plaintiffs’ APA claim is foreclosed from judicial review.
We also conclude that Plaintiffs are unable to show a
likelihood of success, or even serious questions going to the
merits of their EPC claim. Accordingly, we reverse and
vacate the preliminary injunction.
12                    RAMOS V. WOLF

                              I.

                             A.

    With the passage of the Immigration Act of 1990,
Congress created the TPS program. Pub. L. No. 101-649,
104 Stat. 4978. TPS provides temporary relief to aliens who
cannot safely return in the short term to their home nation as
a result of a natural disaster, armed conflict, or other
“extraordinary and temporary conditions in the foreign
state.” 8 U.S.C. § 1254a(b). The impetus for the
establishment of the TPS program stemmed from concerns
with the “extended voluntary departure” (EVD) process,
which was the primary mechanism by which the federal
government allowed groups of nationals to remain in the
United States for humanitarian reasons prior to TPS. See
Lynda J. Oswald, Note, Voluntary Departure: Limiting the
Attorney General’s Discretion in Immigration Matters,

. Rev. 152, 157–60 (1986).                 Because
administrations granted EVD on an ad hoc basis without
“any specific criterion or criteria,” the practice led to
arbitrary results and drew widespread criticism.

n.153 (quoting Letter from Attorney General W.F. Smith to
Representative L.J. Smith (July 19, 1983)). Beginning in
1980, Congress introduced a series of bills to address its
concerns with EVD and to provide a “more formal and
orderly mechanism” for group-based grants of humanitarian
protection. H.R. Rep. No. 100-627, at 4 (1988). These
efforts eventually culminated in the 1990 enactment of the
TPS statute, now codified in section 244 of the Immigration
and Nationality Act, or 8 U.S.C. § 1254a.
                          RAMOS V. WOLF                            13

    The TPS statute authorizes the Secretary of Homeland
Security 1 to designate foreign countries for TPS “after
consultation with appropriate agencies of the Government”
and “only if” the Secretary finds one or more of the
following criteria met:

        (A) . . . that there is an ongoing armed
        conflict within the state and, due to such
        conflict, requiring the return of aliens who are
        nationals of that state to that state (or to the
        part of the state) would pose a serious threat
        to their personal safety;

        (B) . . . that—

             (i) there has been an earthquake, flood,
             drought,      epidemic,       or      other
             environmental disaster in the state
             resulting in a substantial, but temporary,
             disruption of living conditions in the area
             affected,

             (ii) the foreign state is unable,
             temporarily, to handle adequately the
             return to the state of aliens who are
             nationals of the state, and



    1
      The statute originally provided the Attorney General with this
authority. With the Homeland Security Act of 2002 (Pub. L. No. 107-
296, 116 Stat. 2135), the former Immigration and Naturalization Service
was transferred to the Department of Homeland Security, and the
responsibility for administering the TPS was transferred from the
Attorney General to the Secretary of DHS. See 8 U.S.C. § 1103;
6 U.S.C. § 557.
14                     RAMOS V. WOLF

           (iii) the foreign state officially has
           requested designation under this
           subparagraph; or

       (C) . . . that there exist extraordinary and
       temporary conditions in the foreign state that
       prevent aliens who are nationals of the state
       from returning to the state in safety[.]

8 U.S.C. § 1254a(b).

    TPS designations last for an initial period of 6 to
18 months, effective upon notice in the Federal Register.

least 60 days before the end of a
designation period, the Secretary, “after consultation with
appropriate agencies of the Government, shall review the
conditions in the foreign state . . . and shall determine
whether the conditions for such designation under [the
statute] continue to be met.”

the
Secretary determines that a country “no longer continues to
meet the conditions for designation,” she “shall terminate the
designation.”

during this periodic
review, the Secretary does not make such a determination,
“the period of designation of the foreign state is extended”
for 6, 12, or 18 months.

TPS statute also provides that “[t]here is no judicial
review of any determination of the [Secretary] with respect
to the designation, or termination or extension of a
designation, of a foreign state under this subsection.”

   Since the inception of the TPS program, the federal
government has designated a total of 21 countries and the
                          RAMOS V. WOLF                             15

Province of Kosovo for TPS. Prior to 2017, the government
terminated twelve of those designations, including three
terminations in 2016.

    In 2017 and 2018, DHS announced the termination of
TPS designations for four countries: Sudan, Nicaragua, El
Salvador, and Haiti. During this same period, DHS also
extended the TPS designations of four other countries:
Somalia, South Sudan, Syria, and Yemen. 2 The TPS
terminations for Sudan, Nicaragua, El Salvador, and Haiti
form the basis of Plaintiffs’ claims.

    1. Sudan

    Sudan was originally designated for TPS in 1997
because of an ongoing civil war that prevented the safe
return of Sudan nationals. Designation of Sudan Under
Temporary Protected Status, 62 Fed. Reg. 59737-01, 59737
(Nov. 4. 1997). From that time until 2017, the country was
periodically extended or redesignated for TPS fifteen times
by prior administrations, based on factors such as forced
relocation, human rights abuses, famine, and denial of access
to humanitarian agencies. 3


    2
       See Extension of South Sudan for TPS, 82 Fed. Reg. 44,205-01
(Sept. 21, 2017); Extension of the Designation of Syria for TPS, 83 Fed.
Reg. 9329-02 (Mar. 5, 2018); Extension of the Designation of Yemen for
TPS, 83 Fed. Reg. 40,307-01 (Aug. 14, 2018); Extension of Designation
of Somalia for TPS, 83 Fed. Reg. 43,695 (Aug. 27, 2018).

    3
       See Extension of Designation of Sudan Under Temporary
Protected Status Program, 63 Fed. Reg. 59,337-01 (Nov. 3, 1998);
64 Fed. Reg. 61,128-01 (Nov. 9, 1999) (extension and redesignation);
65 Fed. Reg. 67,407-01 (Nov. 9, 2000); 66 Fed. Reg. 46,031-01 (Aug.
31, 2001); 67 Fed. Reg. 55,877-01 (Aug. 30, 2002); 68 Fed. Reg. 52,410-
01 (Sept. 3, 2003); 69 Fed. Reg. 60,168-01 (Oct. 7, 2004) (extension and
16                      RAMOS V. WOLF

    In October 2017, Acting Secretary Duke terminated the
TPS designation of Sudan, effective November 2, 2018.
Termination of the Designation of Sudan for TPS, 82 Fed.
Reg. 47,228-02, 47,228 (Oct. 11, 2017). The termination
notice concluded that the conflict in Sudan was now “limited
to Darfur and the Two Areas (South Kordofan and Blue Nile
states).”

“in Darfur, toward the end of
2016 and through the first half of 2017, parties to the conflict
renewed a series of time-limited unilateral cessation of
hostilities declarations, resulting in a reduction in violence
and violent rhetoric from the parties to the conflict,” and
“[t]he remaining conflict [was] limited and [did] not prevent
the return of nationals of Sudan to all regions of Sudan
without posing a serious threat to their personal safety.”

observed that “food security” had
improved “across much of Sudan” because of above-average
harvests, and even in conflict-affected areas where food
remained scarce, there had been “some improvement in
access for humanitarian actors to provide much-needed
humanitarian aid.”

Although Sudan’s human
rights record “remain[ed] extremely poor in general,” the
notice concluded that, in light of all the above factors, the
ongoing conflict and extraordinary and temporary
conditions that justified Sudan’s most recent TPS re-
designation had “sufficiently improved such that they no
longer prevent nationals of Sudan from returning in safety to
all regions” of the country.

Reg. 52,429-01 (Sept. 2, 2005); 72 Fed. Reg.
10,541-02 (Mar. 8, 2007); 73 Fed. Reg. 47,606-02 (Aug. 14, 2008);
74 Fed. Reg. 69,355-02 (Dec. 31, 2009); 76 Fed. Reg. 63,635-01
(Oct. 13, 2011); 78 Fed. Reg. 1872-01 (Jan. 9, 2013) (extension and
redesignation); 79 Fed. Reg. 52,027-01 (Sept. 2, 2014); 81 Fed. Reg.
4045-01 (Jan. 25, 2016).
                            RAMOS V. WOLF                            17

    2. Nicaragua

    Nicaragua was initially designated for TPS in 1999 as a
result of conditions caused by Hurricane Mitch. Designation
of Nicaragua Under Temporary Protected Status, 64 Fed.
Reg. 526-01, 526 (Jan. 5, 1999). Nicaragua’s designation
was then extended thirteen times by prior administrations.4
Some of the reasons cited for the extensions included “recent
droughts as well as flooding from Hurricane Michelle in
2002” and subsequent natural disasters and storms. 5

    In December 2017, the Acting Secretary terminated
Nicaragua’s TPS designation, effective January 5, 2019.
Based on DHS’s review of “conditions in Nicaragua,” the
Secretary “determined that conditions for Nicaragua’s 1999
designation for TPS on the basis of environmental disaster is
no longer met.” Termination of the Designation of
Nicaragua for TPS, 82 Fed. Reg. 59,636-01, 59,637
(Dec. 15, 2017). The termination notice stated that, by 2017,
“[r]ecovery efforts relating to Hurricane Mitch ha[d] largely
been completed” and the “social and economic conditions
affected by Hurricane Mitch ha[d] stabilized.”

that Nicaragua had “received a significant amount of
international aid to assist in its Hurricane Mitch-related

    4
      See Extension of the Designation of Nicaragua Under Temporary
Protected Status Program, 65 Fed. Reg. 30,440-01 (May 11, 2000);
66 Fed. Reg. 23,271-01 (May 8, 2001); 67 Fed. Reg. 22,454-01 (May 3,
2002); 68 Fed. Reg. 23,748-01 (May 5, 2003); 69 Fed. Reg. 64,088-01
(Nov. 3, 2004); 71 Fed. Reg. 16,333-01 (Mar. 31, 2006); 72 Fed. Reg.
29,534-01 (May 29, 2007); 73 Fed. Reg. 57,138-01 (Oct. 1, 2008);
75 Fed. Reg. 24,737-01 (May 5, 2010); 76 Fed. Reg. 68,493-01 (Nov. 4,
2011); 78 Fed. Reg. 20,128-01 (Apr. 3, 2013); 79 Fed. Reg. 62,176-01
(Oct. 16, 2014); 81 Fed. Reg. 30,325-01 (May 16, 2016).

    5
        See, e.g., 71 Fed. Reg. at 16,334; 72 Fed. Reg. at 29,535.
18                       RAMOS V. WOLF

recovery efforts,” “many reconstruction projects ha[d] now
been completed[,]” “[a]ccess to drinking water and
sanitation ha[d] improved[,]” 90% of the country had
electricity in 2017 (compared to 50% in 2007), and per-
capita GDP was higher than it had been prior to the
hurricane, reaching an all-time high in 2016.

emphasized that conditions had improved to the point
where the country attracted tourism and foreign investment.

conditions, the Acting Secretary
concluded that it was “no longer the case that Nicaragua is
unable, temporarily, to handle adequately the return of
nationals of Nicaragua.”

El Salvador

    El Salvador was designated for TPS in 2001 because of
the effects of three earthquakes that caused the displacement
of 17% of the population; the destruction of 220,000 homes,
1,696 schools, and 856 public buildings; and losses in excess
of $2.8 billion. Designation of El Salvador Under
Temporary Protected Status Program, 66 Fed. Reg. 14214-
01, 14215 (Mar. 9, 2001). Since then, El Salvador’s
designation was extended eleven times by prior
administrations. 6 The bases for these extensions included “a
subsequent drought” (2002 notice), the effects of Tropical
Storm Stan, the eruption of the Santa Ana volcano,


     6
       See Extension of the Designation of El Salvador Under the
Temporary Protected Status Program, 67 Fed. Reg. 46,000-01 (Jul. 11,
2002); 68 Fed. Reg. 42,071-01 (Jul. 16, 2003); 70 Fed. Reg. 1450-01
(Jan. 7, 2005); 71 Fed. Reg. 34,637-01 (June 15, 2006); 72 Fed. Reg.
46,649-01 (Aug. 21, 2007); 73 Fed. Reg. 57,128-01 (Oct. 1, 2008);
75 Fed. Reg. 39,556-01 (July 9, 2010); 77 Fed. Reg. 1710-02 (Jan. 11,
2012); 78 Fed. Reg. 32,418-01 (May 30, 2013); 80 Fed. Reg. 893-01
(Jan. 7, 2015); 81 Fed. Reg. 44,645-03 (July 8, 2016).
                      RAMOS V. WOLF                       19

subsequent earthquakes, and Hurricane Ida (2010 notice).

Secretary Nielsen terminated El
Salvador’s TPS designation effective September 9, 2019.
Termination of the Designation of El Salvador for
Temporary Protected Status, 83 Fed. Reg. 2654-01, 2654
(Jan. 18, 2018). Secretary Nielsen found that the “conditions
supporting El Salvador’s 2001 designation for TPS on the
basis of environmental disaster due to the damage caused by
the 2001 earthquakes are no longer met.”

The notice highlighted that recovery efforts relating to the
2001 earthquakes “ha[d] largely been completed”; that
“social and economic conditions affected by the earthquakes
have stabilized”; that El Salvador had received millions of
dollars in international aid, enabling it to complete many
reconstruction projects; and that “schools and hospitals have
been reconstructed and repaired, homes have been rebuilt,
and money has been provided for water and sanitation and
to repair damaged roads and other infrastructure.”

It also emphasized that El Salvador’s economy was
steadily improving, with GDP reaching an all-time high in
2016 and more growth expected through 2020.

noted that El Salvador had accepted almost
40,000 of its nationals who had been removed from the
United States in 2016 and 2017.

that assistance and resources for returnees are
“limited,” but that the governments of the United States and
El Salvador and international organizations “are working
cooperatively to improve security and economic
opportunities.”

Haiti

    Haiti was originally designated for TPS in 2010 after a
7.0-magnitude earthquake, which affected a third of Haiti’s
20                       RAMOS V. WOLF

population and severely impaired the country’s critical
infrastructure.     Designation of Haiti for Temporary
Protected Status, 75 Fed. Reg. 3476-02, 3477 (Jan. 21,
2010). Subsequently, Haiti’s TPS designation was extended
or redesignated five times, including once by the Trump
administration. 7 The 2012, 2014, and 2015 extensions cited
factors other than the original earthquakes, such as
subsequent “steady rains . . . which led to flooding and
contributed to a deadly cholera outbreak.” E.g., 77 Fed. Reg.
at 59944.       The 2014 extension noted the Haitian
government’s “considerable progress in improving security
and quality of life of its citizens.” 79 Fed. Reg. at 11,809.

    In May 2017, Secretary Kelly extended Haiti’s
designation for six months from its planned expiration on
July 2017 to January 2018. 82 Fed. Reg. at 23,830. The
extension notice noted that “Haiti has made significant
progress in addressing issues specific to the earthquake,”
that 96% of people living in displaced-person camps had left
those camps, and that security had improved enough for the
United Nations to announce its intention to withdraw its
peacekeeping mission in the following months.

It also encouraged beneficiaries to prepare to
return to Haiti should its TPS designation be terminated after
six months.

Acting Secretary Duke terminated
Haiti’s TPS designation with an effective date of July 22,
2019, stating that DHS, in consultation with other federal
agencies, had “determined . . . that the conditions for Haiti’s

     7
      See Extension of the Designation of Haiti for Temporary Protected
Status, 76 Fed. Reg. 29000-01 (May 19, 2011); 77 Fed. Reg. 59943-01
(Oct. 1, 2012); 79 Fed. Reg. 11,808-01 (Mar. 3, 2014); 80 Fed. Reg.
51,582 (Aug. 25, 2015); 82 Fed. Reg. 23,830-01 (May 24, 2017).
                        RAMOS V. WOLF                            21

designation for TPS—on the basis of ‘extraordinary and
temporary conditions’ relating to the 2010 earthquake that
prevented Haitian nationals from returning safely—are no
longer met.” Termination of the Designation of Haiti for
Temporary Protected Status, 83 Fed. Reg. 2648-01, 2650
(Jan. 18, 2018). The notice stated that Haiti “has made
progress recovering from the 2010 earthquake and
subsequent effects that formed the basis for its designation,”
noting that: Haiti had closed 98% of the displaced-person
sites; only approximately 38,000 of the estimated two
million Haitians who lost their homes in the earthquake were
still living in camps as of June 2017; the United Nations had
withdrawn its peacekeeping mission in October 2017; the
country had completed a presidential election in February
2017; its Supreme Court was again operational; the country
was in the process of rebuilding government infrastructure
destroyed by the earthquake and had experienced continuing
growth of its GDP since the earthquake.

stated that although Haiti had grappled with a cholera
epidemic that began after the earthquake, cholera was at its
lowest level since the earthquake occurred.

    In March 2018, Plaintiffs filed a putative class action
challenging the decisions to terminate the TPS status of
Sudan, Nicaragua, Haiti, and El Salvador, on the grounds
that (1) the Secretary’s actions violated the APA by
departing from prior practice without an adequate
explanation and (2) the decisions were motivated by
discriminatory animus in violation of Fifth Amendment
equal protection principles. 8 According to Plaintiffs, DHS

    8
      Plaintiffs’ original complaint also raised two substantive due
process claims that are not at issue in this appeal.
22                    RAMOS V. WOLF

justified its TPS terminations with “a novel interpretation of
the TPS statute” that rejected without explanation a
“decades-old” agency policy and practice of considering
“intervening natural disasters, conflicts, and other serious
social and economic problems as relevant factors when
deciding whether to continue or instead terminate a TPS
designation.” Plaintiffs alleged that DHS’s new rule for
making TPS determinations “was motivated in significant
part by racial and national-origin animus” against “non-
white and non-European immigrants,” which was
“evidenced by numerous statements made by President
Donald J. Trump and other officials in his administration.”
Plaintiffs sought declaratory and injunctive relief regarding
the four challenged TPS terminations.

    The Government moved to dismiss, arguing that judicial
review of Plaintiffs’ claims was barred by 8 U.S.C.
§ 1254a(b)(5)(A) and that in any event, the claims failed as
a matter of law. After a hearing, the district court denied the
motion. The district court held that the statutory bar on
judicial review of TPS decisions did not apply to Plaintiffs’
claims because the provision did not bar either challenges to
general collateral practices or colorable constitutional
claims. As to the merits of the claims that the Government
sought to dismiss, the district court concluded that Plaintiffs
had plausibly alleged both APA and EPC claims.

    After the court’s denial of the motion to dismiss,
Plaintiffs proceeded to conduct limited discovery, which
eventually led to several court rulings compelling production
by the Government. The court ordered the Government to
produce the administrative record for the four termination
decisions and further held that “[d]eliberative material that
was relied upon directly or indirectly [by the Secretaries] is
presumptively part of the administrative record.” In
                      RAMOS V. WOLF                        23

subsequent rulings, the district court largely rejected the
government’s invocation of the deliberative process
privilege to shield certain documents. The government
produced thousands of documents, including a significant
number of drafts, emails, and other deliberative materials.

                             D.

    In August 2018, Plaintiffs moved for a preliminary
injunction to enjoin the Government “from engaging in,
committing, or performing implementation and/or
enforcement of the decisions to terminate” TPS for the four
countries at issue pending resolution of the case on the
merits. After another hearing, the district court granted the
preliminary injunction.

    Regarding the first three factors of the preliminary
injunction test, the court concluded that the balance of
hardships tips “decidedly in Plaintiffs’ favor.” Accordingly,
to satisfy the final factor of likelihood of success on the
merits under the Ninth Circuit’s “sliding scale” preliminary
injunction standard, the district court noted that Plaintiffs
“need only show serious questions on the merits have been
raised in order to obtain preliminary injunctive relief.”

    On Plaintiffs’ APA claim, the district court found that a
“wealth of record evidence” supported their assertion that
DHS had made an unexplained change in its approach to
evaluating TPS designations. According to the court, “DHS
made a deliberate choice to base the TPS decision solely on
whether the originating conditions or conditions directly
related thereto persisted, regardless of other current
conditions no matter how bad, and that this was a clear
departure from prior administration practice” that the
Secretaries failed to explain. The district court compared the
TPS designation notices issued by prior administrations with
24                         RAMOS V. WOLF

the ones issued under the Trump administration, and also
relied heavily on testimony and decision memoranda from
Leon Rodriguez, a former U.S. Citizenship and Immigration
Services (USCIS) director, regarding past policy and
practices. 9 It also cited various public statements by former
Secretaries and other officials, internal agency emails and
communications, and the TPS decision memoranda, all of
which indicated or expressed the agency position that TPS
extensions would be made based only on country conditions
related to the originating event, rather than intervening
country conditions.

    With respect to the equal protection claim, the court also
held that Plaintiffs “provided sufficient evidence to raise
serious questions as to whether a discriminatory purpose was
a motivating factor in the decisions to terminate the TPS
designations” based on (1) evidence that the DHS
Secretaries were influenced by President Trump and/or the
White House in their TPS decision-making, and (2) evidence
that President Trump had expressed animus against non-
white, non-European immigrants. Applying the standard
from Village of Arlington Heights v. Metropolitan Housing

     9
      Rodriguez stated in a declaration that, both before and during his
tenure at USCIS, there was no agency policy or practice that precluded
“consideration of the full range of current country conditions” in
assessing whether a TPS designation should be terminated or extended.
“Rather, USCIS had broad discretion to consider current conditions in
the subject country. Intervening factors arising after a country’s original
TPS designation, such as subsequent natural disasters, issues of
governance, housing, health care, poverty, crime, general security, and
other humanitarian considerations were considered relevant to
determining whether a country continued to meet the conditions for
continuing TPS designation. This was true regardless of whether those
intervening factors had any connection to the event that formed the basis
for the original designation or to the country’s recovery from that
originating event.”
                          RAMOS V. WOLF                              25

Development Corp., 

(1977), 10 the court found
that, even if Acting Secretary Duke or Secretary Nielsen did
not personally harbor discriminatory animus, their actions
could rise to an equal protection violation if they were
influenced or manipulated by President Trump’s alleged
animus.

   In finding “that the White House was putting pressure on
DHS to end TPS,” and “did, in fact, have influence on the
TPS decisions,” the district court cited:

         testimony from James Nealon, a former Assistant
         Secretary for International Affairs under the Trump
         administration (and a former ambassador to
         Honduras):

         o that “the White House was keenly interested in
           the [DHS] Secretary’s decisions related to TPS”;

         o that Stephen Miller, “an important [senior]
           adviser to the President and the White House,”
           “frequently” reached out to Chad Wolf, the DHS
           Chief of Staff, about TPS, as well as Gene
           Hamilton, the Senior Counselor to the DHS
           Secretary; and




    10
        The district court rejected the Government’s contention that
Arlington Heights did not provide the proper legal standard in light of
Trump v. Hawaii, 

(2018), concluding that the latter case
was inapplicable because the decisions to terminate TPS did not rest on
the same national security or foreign policy concerns. The district court
alternative concluded that, even under Trump v. Hawaii, Plaintiffs had
raised “serious questions” as to the merits of their EPC claim.
26                 RAMOS V. WOLF

     o that, on more than one occasion, Mr. Hamilton
       stated that “Mr. Miller favored the termination of
       TPS.”

     actions and communications surrounding a White
     House Principals Meeting held to discuss the TPS
     designations (whose attendees included White House
     officials such as Chief of Staff Kelly, then-Principal
     Deputy Chief of Staff Nielsen, and Press Secretary
     Sanders), which include:

     o a memo distributed by the White House National
       Security Council (NSC) in advance of the
       meeting recommending that the TPS
       designations be terminated and that Congress be
       engaged “to pass a comprehensive immigration
       reform to include a merit-based entry system,”
       which was given to Acting Secretary Duke;

     o a subsequent conversation between Chief of Staff
       Kelly with Acting Secretary Duke about the TPS
       designations for the Central American countries;
       and

     o Acting Secretary Duke’s termination of the TPS
       designation for Nicaragua soon after the meeting.

     a November 2017 email from Acting Secretary Duke
     to Chief of Staff Kelly, in which she reported on her
     decision to terminate TPS for Nicaragua and
     temporarily extend for Honduras, and stated that:

     o “[t]hese decisions along with the public
       statements will send a clear signal that TPS in
       general is coming to a close. I believe it is
                      RAMOS V. WOLF                         27

           consistent with the President’s position on
           immigration . . . .”; and

       o “this decision is really just a difference in
         strategy to get to the President’s objectives.”

       a subsequent email from Acting Secretary Duke to
       Chief of Staff Kelly noting that Tom Bossert of the
       NSC had “informed [her] of a strategy [she] was not
       previously aware of” and she had now “incorporated
       this new information into [her] final decision.”

       a draft TPS decision memo by Acting Secretary
       Duke stating, “The TPS program must end for these
       countries soon . . . . [¶] This conclusion is the result
       of an America first view of the TPS decision.”

    In finding that President Trump harbored “an animus
against non-white, non-European aliens,” the district court
cited the following comments made by President Trump,
both before and after his election:

       In June 2015, before his election to office, Mr.
       Trump announced that he was running for President
       and delivered remarks characterizing Mexican
       immigrants as drug dealers or users, criminals, and
       rapists.

       In December 2015, while still a campaign candidate,
       he called for ‘a total and complete shutdown of
       Muslims entering the United States.’”

       In June 2017, President Trump stated that “15,000
       recent immigrants from Haiti ‘all have AIDS’ and
       that 40,000 Nigerians, once seeing the United States,
       would never ‘go back to their huts’ in Africa.”
28                   RAMOS V. WOLF

       On January 11, 2018, during a meeting with
       lawmakers where immigrants from Haiti, El
       Salvador, and African countries were discussed,
       including with respect to TPS designations that had
       been terminated, President Trump asked: “‘Why are
       we having all these people from shithole countries
       come here?’ [He] then suggested that the United
       States should instead bring more people from
       countries such as Norway,” which has a
       predominantly white population. He also told
       lawmakers that immigrants from Haiti “must be left
       out of any deal.”

       In February 2018, President Trump gave a speech at
       the annual Conservative Political Action Conference
       where he used MS-13—a gang with members having
       ties to Mexico and Central America—to disparage
       immigrants, indicating that that they are criminals
       and comparing them to snakes.

       In July 2018, President Trump told European leaders
       that “they ‘better watch themselves’ because a wave
       of immigration of ‘changing the culture’ of their
       countries,’” which he characterized as being “‘a very
       negative thing for Europe.’”

    The district court also found that a review of the
Arlington Heights factors provided “circumstantial evidence
of race being a motivating factor” in the challenged TPS
terminations. Of note, the district court found that “the
sequence of events leading up to the challenged decisions”
were “irregular and suggestive of a pre-determined outcome
not based on an objective assessment,” given the record
evidence of, “after receiving Decision Memos from career
DHS employees, higher-level DHS employees—i.e., the
                          RAMOS V. WOLF                               29

political appointees—‘repackaging’ the memos in order to
get to the President/White House’s desired result of
terminating TPS.” The court found that this “was especially
apparent with respect to the process on Sudan,” and that a
similar “repackaging” process also occurred “for the
decisions on Honduras, Nicaragua, and El Salvador.” The
district court also found significant the acknowledgement
from Acting Secretary Duke that “terminations of TPS
designations were ‘a strong break with past practice’” but
“consistent with the President’s position on immigration”
and “the result of an America first view of the TPS decision.”
Based on the above, the district court concluded that the
evidence submitted by Plaintiffs raised serious questions on
the merits of the Equal Protection Claim.”

    The district court enjoined the Government “from
engaging in, committing, or performing . . . implementation
and/or enforcement of the decisions to terminate TPS for
Sudan, Haiti, El Salvador, and Nicaragua pending a
resolution of this case on the merits.” In addition, it ordered
the Government to “take all administrative actions needed to
preserve the status quo pending completion of discovery and
a ruling on the merits . . . .” After the Government filed its
notice of appeal to this court, the district court, pursuant to
the parties’ request, entered an order staying further
proceedings pending appellate review of the preliminary
injunction. 11




    11
        Under that order, the Government stipulated that the TPS
designations for Sudan, Nicaragua, Haiti, and El Salvador will remain in
effect on a nationwide basis until the later of (a) 120 days following the
issuance of any mandate to the district court reversing the injunction or
(b) the Secretary’s previously announced termination date.
30                     RAMOS V. WOLF

                              II.

    “[The] purpose of a preliminary injunction . . . is to
preserve the status quo and the rights of the parties until a
final judgment issues in the cause.” U.S. Philips Corp. v.
KBC Bank N.V., 

, 1094 (9th Cir. 2010). “A
preliminary injunction . . . is not a preliminary adjudication
on the merits but rather a device for preserving the status quo
and preventing the irreparable loss of rights before
judgment.” Sierra On-Line, Inc. v. Phx. Software, Inc.,

, 1422 (9th Cir. 1984). “A party seeking a
preliminary injunction must meet one of two variants of the
same standard.” All. for the Wild Rockies v. Pena, 

, 1217 (9th Cir. 2017). Under the original standard,
plaintiffs seeking a preliminary injunction must establish
that: (1) they are likely to succeed on the merits; (2) they are
likely to suffer irreparable harm in the absence of
preliminary relief; (3) the balance of equities tips in their
favor; and (4) an injunction is in the public interest. Winter
v. Nat. Res. Def. Council, Inc., 

, 20 (2008). The
Ninth Circuit employs an alternative “serious questions”
standard, also known as the “sliding scale” variant of the
Winter standard, which we have upheld as a viable test even
after Winter. All. for the Wild Rockies v. Cottrell, 

, 1134 (9th Cir. 2011) (concluding that “the ‘serious
questions’ version of the sliding scale test for preliminary
injunctions remains viable after the Supreme Court’s
decision in Winter”). Under this alternate standard, we
weigh the preliminary injunction factors “on a sliding scale,
such that where there are only ‘serious questions going to the
merits’—that is, less than a ‘likelihood of success’ on the
merits—a preliminary injunction may still issue so long as
‘the balance of hardships tips sharply in the plaintiff’s favor’
and the other two factors are satisfied.” Short v. Brown,

, 675 (9th Cir. 2018) (citations omitted).
                       RAMOS V. WOLF                         31

    On appeal, the Government’s arguments focus only on
Plaintiffs’ likelihood of success on the merits, arguing that
Plaintiffs fail to meet this prong of the preliminary injunction
standard because (1) their APA claim is not reviewable
under the TPS statute, but even if it were, the claim would
fail on the merits, and (2) their EPC likewise fails, even
under the “serious questions” standard. We address each of
these issues in turn. We review for an abuse of discretion
the district court’s decision to grant a preliminary injunction.
GoTo.com, Inc. v. Walt Disney Co., 

, 1204
(9th Cir. 2000). Within this inquiry, we review the district
court’s legal conclusions de novo and its factual findings for
clear error. Hernandez v. Sessions, 

, 987 (9th
Cir. 2017).

                              III.

                              A.

    We consider first whether Plaintiffs’ claims are
reviewable in light of 8 U.S.C. § 1254a(b)(5)(A), which
states: “There is no judicial review of any determination of
the [Secretary of Homeland Security] with respect to the
designation, or termination or extension of a designation, of
a foreign state under this subsection.” To answer this
question, we must first determine the type of claims that this
provision precludes from judicial review, and then determine
whether Plaintiffs’ particular claims fall within the scope of
this statutory bar.

   1. Scope of Section 1254a

    In construing the scope of any jurisdictional statute, we
are guided by the well-established presumption in favor of
judicial review over colorable constitutional claims, see
Webster v. Doe, 

, 603 (1988) (“[W]here
32                    RAMOS V. WOLF

Congress intends to preclude judicial review of
constitutional claims its intent to do so must be clear.”), as
well as over challenges to agency actions, see Dep’t of
Homeland Sec. v. Regents of the Univ. of Cal., 

, 1905 (2020) (beginning its reviewability analysis with
the APA’s “basic presumption of judicial review [for] one
‘suffering legal wrong because of agency action’” (quoting
Abbott Labs. v. Gardner, 

, 140 (1967))); Love
v. Thomas, 

, 1356 (9th Cir. 1988) (“The courts
have long recognized . . . a presumption in favor of judicial
review of administrative actions.”). “This presumption, like
all presumptions used in interpreting statutes, may be
overcome by specific language or specific legislative history
that is a reliable indicator of congressional intent.” Block v.
Cmty. Nutrition Inst., 

, 349 (1984); see also
Abbott 

(“[O]nly upon a showing of
‘clear and convincing evidence’ of a contrary legislative
intent should the courts restrict access to judicial review.”
(citation omitted)).

    Keeping these principles in mind, we turn first to the text
of the statute. See Los Angeles Lakers, Inc. v. Fed. Ins. Co.,

, 802 (9th Cir. 2017) (“[W]e start, as we must,
with the text of the statute.”). Section 1254a(b)(5)(A)
precludes review of “any determination . . . with respect to
the designation, or termination or extension of a designation,
of a foreign state under this subsection.” 8 U.S.C.
§ 1254a(b)(5)(A). The statute does not define the phrase
“any determination” except to use it in immediate reference
to “the designation . . . of a foreign state” for TPS. However,
the Supreme Court has placed significance on the term
“determination” in its analysis of a similar judicial review
bar provision in the Immigration Reform and Control Act of
the 1986 (“Reform Act”), which states: “There shall be no
administrative or judicial review of a determination
                      RAMOS V. WOLF                         33

respecting an application for adjustment of status” under the
Reform Act’s Special Agricultural Workers (“SAW”)
amnesty program. McNary v. Haitian Refugee Center, Inc.,

, 486 n.6 (1991) (quoting 8 U.S.C.
§ 1160(e)(1)). According to the Court in McNary, the
“critical words” in that statute “describe the provision as
referring only to review ‘of a determination respecting an
application’ for SAW status,” and “[s]ignificantly, the
reference to ‘a determination’ describes a single act rather
than a group of decisions or a practice or procedure
employed in making decisions.” 

–
92 (emphasis in original). When read in the context of the
surrounding statutory provisions, the Court concluded that
this judicial review bar precluded only “direct review of
individual denials of SAW status, rather than . . . general
collateral challenges to unconstitutional practices and
policies used by the agency in processing applications.”

    Two years later, the Court reached the same conclusion
in the context of another statutory provision that limited
review over “determination[s] respecting . . . application[s]
for adjustment of status.” See Reno v. Catholic Soc. Servs.,
Inc., 

, 53 (1993) (“CSS”) (analyzing 8 U.S.C.
§ 1255a(f)). Applying McNary, the Court found that the
“language setting the limits of the jurisdictional bar
‘describes the denial of an individual application.’”

(quotation omitted). Consequently, the Court concluded that
“an action challenging the legality of a regulation without
referring to or relying on the denial of any individual
application” was not barred from judicial review under the
statute.

.
   The textual similarities between section 1254a(b)(5)(A)
and the provisions at issue in McNary and CSS, see 8 U.S.C.
34                    RAMOS V. WOLF

§ 1160(e)(1), § 1255a(f), provide us an important starting
point for understanding the scope of the TPS statute’s
judicial review bar. Specifically, like the provisions in
McNary and CSS, section 1254a(b)(5)(A)’s reference to
“determination” limits the scope of the provision to
individual decisions regarding the designation of a foreign
country for TPS. Thus, the provision generally precludes
direct review of the Secretary’s country-specific TPS
determinations, but does not bar review of “general
collateral challenges to unconstitutional practices and
policies used by the agency” in reaching those
determinations. 
McNary, 498 U.S. at 492
.

    Our view of the limits of section 1254a(b)(5)(A) is
further solidified when we compare it with the language of
other statutory provisions by which Congress has barred a
greater scope of claims from judicial review. See
 id. at 494
(“[H]ad Congress intended the limited review provisions . . .
to encompass challenges to INS procedures and practices, it
could easily have used broader statutory language.”). For
instance, in Gebhardt v. Nielsen, 
879 F.3d 980 
(9th Cir.
2018), we considered a pair of jurisdictional provisions that
insulated from review the Secretary’s “no-risk”
determinations under the Adam Walsh Act in adjudicating I-
130 petitions.
 

. 
The first provision barred judicial
review of any “decision or action . . . the authority for which
is specified [as falling under] the discretion of the Attorney
General or the Secretary of Homeland Security,” 8 U.S.C.
§ 1252(a)(2)(B)(ii), and the second granted “the Secretary
‘sole and unreviewable discretion’ in making ‘no-risk’
determinations” under the Adam Walsh Act, 
Gebhardt,
879 F.3d at 984 
(citing 8 U.S.C. § 1154(a)(1)(A)(viii)(I)).
We found that the language of these “provisions clearly
demonstrate Congress’ intent to prevent us from reviewing
how the Secretary exercises his or her ‘sole and
                       RAMOS V. WOLF                         35

unreviewable discretion’ to make ‘no risk’ determinations.”

Id. Accordingly, we held 
that we lacked jurisdiction to
review the claims raised in that case “because each one
challenges how the Secretary exercises—or has exercised—
his or her ‘sole and unreviewable discretion’ to adjudicate I-
130 petitions.”
 Id. at 987.
    Unlike the provisions in Gebhardt, section
1254a(b)(5)(A) does not expressly grant the Secretary “sole
and unreviewable” discretion in her TPS decision-making or
even refer to the discretionary nature of the Secretary’s TPS
determinations. In fact, the statute sets forth at least some
limitations on the Secretary’s discretion to make TPS
decisions. For instance, it specifies the three situations under
which the Secretary may designate a country for TPS,
8 U.S.C. § 1254a(b)(1), and imposes a number of procedural
requirements—such as interagency consultation and a
periodic review process under which the Secretary “shall”
consider “conditions in the foreign state” and “determine
whether the conditions [for TPS designation] continue to be
met.” 8 U.S.C. § 1254a(b)(1), (b)(3). Thus, unlike decisions
in which Congress has expressly granted the Secretary “sole
and unreviewable discretion,” the Secretary’s discretion to
make TPS determinations is not wholly unfettered. The fact
that Congress enacted the TPS statute to curb and control the
executive’s previously unconstrained discretion under the
EVD process also supports this conclusion.

     We therefore find significant that section 1254a(b)(5)(A)
is textually more akin to the judicial review bar provisions
in McNary and CSS than those in Gebhardt. At the same
time, we recognize that the judicial review bar in the TPS
statute is not entirely identical to those in McNary and CSS.
Although these provisions may be similar in their use of the
term “determination,” the TPS statute otherwise differs in
36                     RAMOS V. WOLF

both text and context. In effect, while McNary and CSS may
help us understand that section 1254a(b)(5)(A) bars judicial
review of the Secretary’s country-specific TPS
determinations, it sheds little light as to what precisely
constitutes such an unreviewable TPS determination. For
that, we must look to the rest of the TPS statute.

    Under section 1254a, the Secretary’s discretion to make
TPS determinations, while not without check, is
undoubtedly broad and unique in nature. To begin, the
authority to designate a foreign country for TPS is vested
solely with the Secretary “after consultation with the
appropriate agencies of the Government.” 8 U.S.C.
§ 1254a(b)(1). And when it comes to designating a country
for TPS, the Secretary “may” do so if she finds that the
country has been stricken by a natural disaster, armed
conflict, or other “extraordinary and temporary conditions in
the foreign state.” 8 U.S.C. § 1254a(b). The word “may”
indicates that, even if the Secretary finds one of these three
requisite criteria is met, she retains the discretion not to
designate a country for TPS. In contrast, once a country has
been designated for TPS, the Secretary “shall” periodically
review the country conditions and “shall” terminate TPS if
she finds the requisite criteria are no longer met. These
provisions, taken together, indicate a legislative intent to
limit the designation, redesignation, and extension of TPS by
requiring both periodic review as well as termination when
those conditions are no longer met. Thus, to the extent the
TPS statute places constraints on the Secretary’s discretion,
it does so in favor of limiting unwarranted designations or
extensions of TPS.

    Moreover, designations of TPS directly concern the
status of “any foreign state (or any part of such foreign
state)”, see
 id., rather than that 
of any individual, even if such
                      RAMOS V. WOLF                         37

designation ultimately benefits individual nationals of the
designated foreign states. In that regard, a Secretary’s TPS
determination under section 1254a is quite unlike an agency
“determination respecting an application for adjustment of
status” under the immigration relief programs that the Court
considered in McNary and CSS. Here, the TPS statute does
not provide any formal avenue or administrative process for
foreign citizens to “apply” for TPS designation of their
countries. Rather, the decision to designate any foreign
country for TPS begins and ends with the Secretary, so long
as certain limited statutory criteria are met. This makes
perfect sense, given that the TPS program was intended to
provide a substitute for EVD under which the executive
branch, subject to some legislative control, could continue to
exercise its discretionary power to grant humanitarian relief
to citizens of foreign countries on a nation-state level.

    The TPS statute also does not dictate any substantive
guidelines or restrictions on the manner by which the
Secretary may reach her TPS determinations, other than
setting forth the three possible findings that the Secretary
must make before designating a country for TPS. See
8 U.S.C. § 1254a(b)(1). Nor does the statute set forth or
define the “conditions in the foreign state” that the Secretary
must consider in her periodic review, or how she should
weigh these conditions. See
 id. § 1254a(b)(1). Read 
in the
context of these provisions, section 1254a(b)(5)(A) makes
clear that the Secretary’s discretion to consider and weigh
various conditions in a foreign country in reaching her TPS
determinations is not only broad, but unreviewable. In other
words, the statute not only sets forth very few legal
parameters on what the Secretary must consider in
designating, extending, or terminating TPS for a foreign
country, but also expressly bars judicial review over these
determinations. Logically then, section 1254a(b)(5)(A)
38                    RAMOS V. WOLF

generally precludes courts from inquiring into the
underlying considerations and reasoning employed by the
Secretary in reaching her country-specific TPS
determinations.

    In short, the TPS statute precludes review of non-
constitutional claims that fundamentally attack the
Secretary’s specific TPS determinations, as well as the
substance of her discretionary analysis in reaching those
determinations. But, as McNary instructs us, where a court
“lacks jurisdiction over a challenge to the agency’s ‘actions’
or ‘conduct’ ‘in adjudicating a specific individual claim,’” it
may still have “jurisdiction over ‘a broad challenge’ to the
agency’s ‘procedures’ or ‘practices.’” City of Rialto v. W.
Coast Loading Corp., 
581 F.3d 865
, 875 (9th Cir. 2009)
(quoting Mace v. Skinner, 
34 F.3d 854
, 858–59 (9th Cir.
1994)). To the extent a claim purports to challenge an
agency “pattern or practice” rather than a specific TPS
determination, we may review it only if the challenged
“pattern or practice” is indeed collateral to, and distinct
from, the specific TPS decisions and their underlying
rationale, which the statute shields from judicial scrutiny.

    The scope of section 1254a’s bar on judicial review does
not change even in the context of the APA, which codifies
the “basic presumption of judicial review” over agency
action. Abbott 
Labs., 387 U.S. at 140
. Indeed, the APA by
its own provisions does not apply where “statutes preclude
judicial review” or where the “agency action” challenged is
“committed to agency discretion by law.” 5 U.S.C.
§ 701(a)(1), (2). Accordingly, where a claim challenges an
agency action over which the TPS statute precludes judicial
review, or which the TPS statute has committed to agency
discretion, the APA cannot be invoked as an independent
basis for affording judicial review. For instance, an
                       RAMOS V. WOLF                         39

allegation that the Secretary reached certain TPS
determinations in an “arbitrary and capricious” manner
would not be reviewable under section 1254a. Although
such a claim raises a cognizable violation of the APA, it also
directly attacks the Secretary’s specific TPS determinations,
rather than a broad agency pattern or practice, and is thereby
shielded from judicial review by the TPS statute. With these
principles in mind, we turn next to whether Plaintiffs’ APA
claim qualifies as a reviewable challenge to a collateral
agency practice or policy under the TPS statute.

   2. Plaintiffs’ APA Claim

    In assessing whether Plaintiffs’ APA claim raises a
reviewable challenge to a collateral agency “pattern or
practice” rather than a challenge to specific TPS
determinations barred by section 1254a, we are guided by
several considerations. One “guiding principle” from
McNary and CSS is “whether the claim challenges a
procedure or policy that is collateral to an alien’s substantive
eligibility, for which the administrative record is insufficient
to provide a basis for meaningful judicial review.” City of
Rialto, 581 F.3d at 874 
(quotations and internal marks
omitted). We have also emphasized the distinction between
procedural challenges and substantive ones, and between
claims seeking collateral relief and those seeking direct relief
from an agency decision, finding that the former types of
claims may be reviewable under McNary while the latter
usually are not. See City of 
Rialto, 581 F.3d at 875
(discussing Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala,
80 F.3d 379
, 386 (9th Cir. 1996)). Likewise, we have stated
that claims “like those asserted in McNary” are reviewable
when: (1) they are “not based on the merits of [a plaintiff’s]
individual situation, but constitute a broad challenge to
allegedly unconstitutional [agency] practices”; (2) “the
40                     RAMOS V. WOLF

administrative record for a single [decision] would have little
relevance”; and (3) the court’s “examination is neither
peculiarly within the agency’s ‘special expertise’ nor an
integral part of its ‘institutional competence.’” 
Mace,
34 F.3d at 859
.

    Our cases demonstrate that the nature and scope of a
particular claim, the type of agency action that it challenges,
and the type of relief sought are all important factors to
consider in determining whether the claim is indeed a
reviewable McNary-like claim. Applied to Plaintiffs’ APA
claim as alleged in their original complaint, many of these
factors lean in favor of concluding that the claim is not
reviewable. For one, Plaintiffs’ APA claim does not
challenge any agency procedure or regulation. “True
procedural challenges confront an agency’s methods or
procedures and do not depend on the facts of any given
individual agency action.” City of 
Rialto, 581 F.3d at 876
.
In alleging that the Secretary has violated the APA by no
longer considering intervening events in the TPS
terminations at issue, Plaintiffs essentially raise a
substantive challenge to the Secretary’s underlying analysis
in reaching those specific decisions. Their claim also largely
depends on a review and comparison of the substantive
merits of the Secretary’s specific TPS terminations, which is
generally barred by section 1254a.            Moreover, the
consideration of “intervening events” in a TPS
determination is a task squarely within the agency’s “special
expertise” and “institutional competence” and which section
1254a commits to the Secretary’s discretion. And insofar as
Plaintiffs’ request declaratory and injunctive relief in setting
aside the TPS terminations, they appear to seek direct relief
from the challenged decisions, rather than collateral relief
from an allegedly unlawful agency practice.
                       RAMOS V. WOLF                          41

    Plaintiffs, however, insist that their APA claim does not
challenge the specific TPS determinations, but “goes to the
agency’s underlying practice” and does not “seek to
establish that a particular country must remain designated[.]”
They characterize their APA claim as a challenge to an
“arbitrary and capricious” change in a broad agency practice:
specifically, they allege that the agency, without
explanation, adopted a new practice of refusing to consider
intervening events in its TPS extension determinations, and
that this practice is unlawful under the APA. Despite this
characterization, we find that Plaintiffs’ claim is not
reviewable under section 1254a. As we have reiterated
several times before, “the phrase ‘pattern and practice’ is not
an automatic shortcut to federal court jurisdiction.”
Gebhardt, 879 F.3d at 987 
(citing City of Rialto v. W. Coast
Loading 
Corp., 581 F.3d at 872
). In other words, Plaintiffs
cannot obtain judicial review over what is essentially an
unreviewable challenge to specific TPS terminations by
simply couching their claim as a collateral “pattern or
practice” challenge.         “No matter how a plaintiff
characterizes an argument, we can review a claim in this
context only if it challenges a genuinely collateral action.”

Id.

    Our analysis of 
section 1254a dictates that a claim
challenging the Secretary’s failure to “consider intervening
events”—or even her failure to adequately explain why the
agency is no longer considering intervening events when it
did so in the past—is essentially an attack on the substantive
considerations underlying the Secretary’s specific TPS
determinations, over which the statute prohibits judicial
review. Nothing in the language of the TPS statute requires
the Secretary to consider intervening events prior to
terminating TPS, or to explain her failure to do so. In fact,
the statute is entirely silent as to the specific types of events
42                     RAMOS V. WOLF

or factors the Secretary must consider in reaching her TPS
determinations. As far as the TPS statute is concerned, the
decision whether to consider intervening events when
making TPS determinations appears to be fully within the
Secretary’s discretion. Thus, even presuming that DHS
adopted a new practice of refusing to consider intervening
events, as Plaintiffs allege, the TPS statute provides no legal
basis to challenge such an action.

    Instead, the alleged illegality of the agency action here is
based solely on the APA and its requirement that agencies
not “arbitrarily and capriciously” depart from past practice.
See 5 U.S.C. § 706(2)(A); F.C.C. v. Fox Television Stations,
Inc., 
556 U.S. 502
, 513–14 (2009). To review Plaintiffs’
claim, we must accept that—even though the TPS statute
affords the Secretary full discretion as to whether she
considers intervening events (or any other factors) when
making her TPS determinations—the APA’s prohibition on
“arbitrary and capricious” changes in practice may
nonetheless require her to consider intervening events if
prior Secretaries did so before her, and to explain herself if
she chooses to depart from this “practice.” We must also
presuppose that—even though section 1254a precludes us
from reviewing the Secretary’s TPS determinations and her
underlying considerations—the APA may independently
form the basis of a justiciable challenge and thereby allow
such a claim to elude the statute’s judicial review bar. This
cannot be so. As we have noted, the APA cannot be used as
the sole basis for conferring justiciability over what would
otherwise be unreviewable claim. To conclude otherwise
would render section 1254a(b)(5)(A) virtually meaningless
and would contradict the APA’s express language on the
limits of the statute’s applicability. See 5 U.S.C. § 701(a)
(“This chapter applies . . . except to the extent that—
(1) statutes preclude judicial review; or (2) agency action is
                           RAMOS V. WOLF                                 43

committed to agency discretion by law.”). Because
Plaintiffs’ APA claim alleges an “arbitrary and capricious”
change in agency practice that is otherwise committed to the
Secretary’s discretion under the TPS statute and, at its core,
challenges only the Secretary’s specific TPS determinations,
we find that it is unreviewable.

    The dissent criticizes our application of the City of Rialto
factors to Plaintiffs’ APA claim, even asserting that we
“dismiss[] one of City of Rialto’s guiding principles” in our
analysis. 12 We think the dissent’s criticisms ultimately miss
the point in a few respects. For one, the dissent seems to
conceive the City of Rialto factors as providing a strict
mechanical test for reviewing McNary-type claims. But this
is a misconception. Our court has, in fact, employed a fluid
range of considerations in assessing the reviewability of a
McNary-type claim, which we even recognize in our lengthy
discussion of these considerations in City of Rialto. Not
every factor that we discussed in City of Rialto will bear the
same weight in every case because not every claim or
statutory context is the same.

    Under McNary and its progeny, a statutory jurisdictional
bar that is limited to specific agency “determinations” does
not bar challenges to agency “patterns or practices” that are
collateral to those individual decisions. But the question of
what constitutes an unreviewable agency action, as opposed
to a reviewable collateral one, is largely defined by the
precise statute at issue. As we have already noted, the

    12
       In City of Rialto, we identified “two ‘guiding principles,’” the first
of which we have already discussed, and the second of which is “whether
Plaintiffs’ claim is 
ripe.” 581 F.3d at 875 
(citation omitted). Because
the ripeness of Plaintiffs’ claim in this case is neither in dispute nor
significant to our analysis, we did not need to address it at length.
44                     RAMOS V. WOLF

statutory judicial review bar in the TPS statute is different in
several respects from the Reform Act provisions considered
in McNary and CSS, as it is from other statutory provisions
that limit judicial review over agency decisions on individual
applications for relief.

    In the same vein, the dissent’s point regarding the
unavailability of another forum for Plaintiffs’ APA claim
overlooks the unique statutory context of this case. We fully
recognize that Plaintiffs cannot raise their APA challenge in
another forum or at a different stage in the proceedings. But
that is precisely what Congress intended under the TPS
statute. The statute not only bars from judicial review APA
challenges to specific TPS determinations, but more broadly,
it provides no administrative avenue whatsoever for
individual aliens, or foreign states, to apply for TPS
designation. In light of this critical distinction between the
TPS statute and the provisions in McNary, CSS, and many
other immigration statutes, we do not find the lack of an
alternative review forum particularly critical to our analysis.

    Finally, we decline to adopt the dissent’s reconstruction
of Plaintiffs’ APA claim as a challenge to an agency
interpretation of the TPS statute. In general, a claim that an
agency has adopted an erroneous interpretation of a
governing statute would be reviewable under McNary,
particularly because the court’s resolution of these sort of
challenges turns on a review of the law itself, rather than a
review of the merits of any specific agency determinations.
Plaintiffs, however, do not squarely raise such a claim.
Although they loosely assert that “DHS adopted a novel
interpretation of the TPS statute” by taking the position of
no longer considering intervening events, the facts and
arguments they raise pertain almost exclusively to the
alleged change in agency practice, rather than any official
                      RAMOS V. WOLF                         45

DHS interpretation of the statute. As the dissent even
highlights, the only facts from the complaint specifically
alleging a novel interpretation include several sentences
from oral testimony by then-Secretary Nielsen totaling over
four and a half hours in front of a Congressional
subcommittee, a similar excerpt from testimony by then-
Secretary Kelly lasting over two hours, and an informal
internal briefing paper prepared for a meeting attended by
acting Secretary Duke. Plaintiffs’ focus throughout on the
alleged change in agency practice dwarf the cursory
allegations of a novel interpretation. A bare assertion that
DHS adopted a novel interpretation is insufficient to achieve
judicial review given our analysis of the statute and its grant
of wide discretion for TPS determinations.

    We elect to address Plaintiffs’ APA claim as they present
it—a challenge to the agency’s new and unexplained
practice of refusing to consider intervening events in its TPS
decisions. Because such a claim fundamentally attacks the
Secretary’s specific TPS determinations, we find that it is
barred from review by section 1254a. Given that Plaintiffs
may not raise their APA claim as a matter of law, the claim
cannot serve as a basis for the preliminary injunction and we
need not consider its likelihood of success on the merits.

                              B.

    The remaining issue is whether Plaintiffs have raised
serious questions to the merits of their EPC claim so as to
warrant the issuance of the preliminary injunction.

   1. Applicable Legal Standard for Plaintiffs’ EPC Claim

   The Government argues that, in light of Trump v.
Hawaii, the district court erred by applying the standard
from Arlington Heights to Plaintiffs’ EPC claim. In Trump
46                    RAMOS V. WOLF

v. Hawaii, the Supreme Court applied the rational basis
review standard in upholding an executive order suspending
the entry of aliens into the United States against an EPC
challenge based on alleged animus by the President. The
Court prefaced its reliance on the deferential standard with a
discussion of cases that “recognized that the admission and
exclusion of foreign nationals is a ‘fundamental sovereign
attribute exercised by the Government’s political
departments largely immune from judicial control.’” 
Trump,
138 S. Ct. at 2418 
(citing Fiallo v. Bell, 
430 U.S. 787
, 792
(1977)). Thus, the deferential standard of review applied in
Trump v. Hawaii turned primarily on the Court’s recognition
of the fundamental authority of the executive branch to
manage our nation’s foreign policy and national security
affairs without judicial interference. See
 id. at 2419 
(“The
upshot of our cases in this context is clear: ‘Any rule of
constitutional law that would inhibit the flexibility’ of the
President ‘to respond to changing world conditions should
be adopted only with the greatest caution,’ and our inquiry
into matters of entry and national security is highly
constrained.” (citation omitted)).

    Here, the executive’s administration of the TPS program,
which provides widescale, nationality-based humanitarian
harbor for foreign citizens, also involves foreign policy and
national security implications, albeit to a lesser extent than
the executive order suspending the entry of foreign nationals
in Trump v. Hawaii.             The former involves the
implementation of a congressionally created program
subject to certain statutory guidelines, while the latter falls
squarely in the core realm of executive power to make
foreign policy decisions. As the Supreme Court has
recognized, “[t]he distinction between an alien who has
effected an entry into the United States and one who has
never entered runs throughout immigration law.” Zadvydas
                      RAMOS V. WOLF                         47

v. Davis, 
533 U.S. 678
, 693 (2001). Accordingly, the level
of deference that courts owe to the President in his executive
decision to exclude foreign nationals who have not yet
entered the United States may be greater than the deference
to an agency in its administration of a humanitarian relief
program established by Congress for foreign nationals who
have lawfully resided in the United States for some time.

    For similar reasons, we declined to apply the Trump v.
Hawaii standard in favor of the Arlington Heights standard
in our review of an equal protection challenge to the
administration’s rescission of the Deferred Action for
Childhood Arrivals (DACA) program. See Regents of the
Univ. of Cal. v. DHS, 
908 F.3d 476
, 519–20 (9th Cir. 2018),
rev’d in part, vacated in part, 
140 S. Ct. 1891 
(2020)
(distinguishing Trump v. Hawaii “in several potentially
important respects, including the physical location of the
plaintiffs within the geographic United States, the lack of
national security justification for the challenged government
action, and the nature of the constitutional claim raised.”
(citation omitted)). The Supreme Court, in its review of the
same EPC claim on appeal, also applied the Arlington
Heights standard. See 
Regents, 140 S. Ct. at 1915
–16.
Given the similarities between the EPC claim in this case and
Regents, we reject the Government’s contention that Trump
v. Hawaii’s standard of review should apply in this case. We
therefore review Plaintiffs’ likelihood of success on their
EPC claim under the Arlington Heights standard.

   2. Merits of the EPC Claim

    Under Arlington Heights, “[p]roof of racially
discriminatory intent or purpose is required to show a
violation of the Equal Protection 
Clause.” 429 U.S. at 265
.
However, a plaintiff asserting an equal protection claim need
not “prove that the challenged action rested solely on racially
48                    RAMOS V. WOLF

discriminatory purposes” or even that racial discrimination
was “the ‘dominant’ or ‘primary’” purpose.
 Id. Rather,
Plaintiffs need 
only show that racial discrimination was at
least “a motivating factor” for the challenged TPS
terminations in order to prevail on their equal protection
claim.
 Id. at 265–66 
(“When there is a proof that a
discriminatory purpose has been a motivating factor in the
decision, th[e] judicial deference [that courts normally afford
legislators and administrators] is no longer justified.”).
“Determining whether invidious discriminatory purpose was
a motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be
available.”
 Id. at 266. 
Factors to consider in this inquiry
include: the “impact of the official action” and whether it
“‘bears more heavily on one race than another’”; the
“historical background of the decision” and whether it
“reveals a series of official actions taken for invidious
purposes”; the “specific sequence of events leading up the
challenged decision” and whether it departs procedurally or
substantively from normal practice; and the “legislative or
administrative history” and what it reveals about the purpose
of the official action.
 Id. at 266–68 
(citations omitted).

    Applying this standard, we conclude that Plaintiffs fail
to present even “serious questions” on the merits of their
claim that the Secretaries’ TPS terminations were
improperly influenced by the President’s “animus against
non-white, non-European immigrants.” The Supreme Court
recently rejected a similar equal protection claim in Regents
that the administration’s decision to rescind DACA was
motivated by racial animus under Arlington Heights. There,
the Court held that none of the points raised by the
plaintiffs—i.e., the “disparate impact of the rescission on
Latinos from Mexico,” “the unusual history behind the
rescission,” and “pre- and post-election statements by
                      RAMOS V. WOLF                       49

President Trump”—“either singly or in concert, establishes
a plausible equal protection claim.”
 Id.

    Here, Plaintiffs’ EPC 
claim fails predominantly due to
the glaring lack of evidence tying the President’s alleged
discriminatory intent to the specific TPS terminations—such
as evidence that the President personally sought to influence
the TPS terminations, or that any administration officials
involved in the TPS decision-making process were
themselves motivated by animus against “non-white, non-
European” countries. While the district court’s findings that
President Trump expressed racial animus against “non-
white, non-European” immigrants, and that the White House
influenced the TPS termination decisions, are supported by
record evidence, the district court cites no evidence linking
the President’s animus to the TPS terminations. Rather, the
district court makes this leap by relying on what appears to
be a “cat’s paw” theory of liability—wherein the
discriminatory motive of one governmental actor may be
coupled with the act of another to impose liability on the
government. We doubt that the “cat’s paw” doctrine of
employer liability in discrimination cases can be transposed
to this particular context. See Staub v. Proctor Hosp.,
562 U.S. 411
, 418 (2011) (noting that, while “the answer is
not so clear,” one agency law treatise “suggests that the
malicious mental state of one agent cannot generally be
combined with the harmful action of another agent to hold
the principal liable for a tort that requires both.” (citing
Restatement (Second) of Agency § 275, Illustration 4
(1957)). Plaintiffs argue that this court has employed the
“cat’s paw” doctrine in several employment discrimination
cases involving government actors, but do not provide any
case where such a theory of liability has been extended to
governmental decisions in the foreign policy and national
security realm.
50                    RAMOS V. WOLF

    Moreover, while the record contains substantial evidence
that White House officials sought to influence the
Secretaries’ TPS decisions, and that the Secretaries sought
and acted to conform their TPS decisions to the President’s
immigration policy, we find these facts neither unusual nor
improper. It is expected—perhaps even critical to the
functioning of government—for executive officials to
conform their decisions to the administration’s policies. The
mere fact that the White House exerted pressure on the
Secretaries’ TPS decisions does not in itself support the
conclusion that the President’s alleged racial animus was a
motivating factor in the TPS decisions.

    Nor do we find that an inference of racial animus behind
the TPS terminations is any stronger when the evidence of
White House pressure on DHS is joined by evidence of the
President’s expressed animus towards “non-white, non-
European” countries and ethnicities. While we do not
condone the offensive and disparaging nature of the
President’s remarks, we find it instructive that these
statements occurred primarily in contexts removed from and
unrelated to TPS policy or decisions. See 
Regents, 140 S. Ct.
at 1916 
(finding that the “President’s critical statements
about Latinos,” which were “remote in time and made in
unrelated contexts . . . do not qualify as ‘contemporary
statements’ probative of the decision at issue.”). Here, the
only “contemporary statement” might be the President’s
comments at the January 11, 2018 meeting with lawmakers,
during which TPS terminations were discussed; however,
the influence of these remarks on the actual decisions to
terminate TPS is belied by the fact that the meeting occurred
three days after the TPS termination notices for Haiti and El
Salvador issued. Without evidence that the President’s
statements played any role in the TPS decision-making
process, the statements alone do not demonstrate that the
                      RAMOS V. WOLF                         51

President’s purported racial animus was a motivating factor
for the TPS terminations. See Mendiola-Martinez v. Arpaio,
836 F.3d 1239
, 1261 (9th Cir. 2016) (holding that “offensive
quotes about Mexican nationals attributed to Sherriff
Arpaio” that did “not mention” the policy in question did not
“lead to any inference” that the policy “was promulgated to
discriminate against Mexican nationals”).

    As Arlington Heights instructs us, circumstantial
evidence may be sufficient to prove a discriminatory intent
claim. Even so, we find that the circumstantial evidence here
do not help Plaintiffs much. First, there is no indication that
the impact of the TPS terminations bear more heavily on
“non-white, non-European” countries. The district court
concluded otherwise by finding that “it affects those
populations exclusively.” While the four countries at issue
in this case are “non-European” with predominantly “non-
white” populations, the same is true for the four other
countries whose TPS designations were extended by the
Trump Administration during the same period. In fact,
virtually every country that has been designated for TPS
since its inception has been “non-European” (with the
exception of Bosnia and the Province of Kosovo) and most
have majority “non-white” populations. Under the district
court’s logic, almost any TPS termination in the history of
the program would bear “more heavily” on “non-white, non-
European” populations and thereby give rise to a potential
equal protection claim. This cannot be the case, as the
Supreme Court recently pointed out in rejecting the disparate
impact argument in 
Regents. 140 S. Ct. at 1915 
(“[B]ecause
Latinos make up a large share of the unauthorized alien
population, one would expect them to make up an outsized
share of recipients of any cross-cutting immigration relief
program. Were this fact sufficient to state a claim, virtually
52                    RAMOS V. WOLF

any generally applicable immigration policy could be
challenged on equal protection grounds.”).

     Nor does the historical background of the TPS
terminations reveal “a series of official actions taken for
invidious purposes” or otherwise indicate a racially
discriminatory purpose behind the TPS terminations. The
district court found that the specific sequence of events
leading up to the TPS terminations were “irregular and
suggestive of a predetermined outcome not based on an
objective assessment,” particularly based on the
“repackaging” of the decision memos by higher-level DHS
employees. But even accepting that the agency made its
decisions with a predetermined objective to terminate TPS,
there is still no evidentiary support for the conclusion that
this overarching goal was motivated by racial animus.
Instead, the record indicates that any desire to terminate TPS
was motivated by the administration’s immigration policy,
with its emphasis on a “merit-based entry” system, its focus
on America’s economic and national security interests, and
its view on the limitations of TPS and the program’s seeming
overextension by prior administrations. As to the evidence
that higher agency officials “repackaged” the TPS decision
memoranda and overruled the recommendations of lower-
level employees, this seems to be a commonplace aspect of
how agencies often operate that, without more, does not
demonstrate discriminatory animus. See Wisconsin v. City
of New York, 
517 U.S. 1
, 23 (1996) (“[T]he mere fact that
the Secretary’s decision overruled the views of some of his
subordinates is by itself of no moment in any judicial review
of his decision.”); St. Marks Place Hous. Co. v. HUD,
610 F.3d 75
, 83 (D.C. Cir. 2010) (noting that the
“[S]ecretary, like all agency heads, usually makes decisions
after consulting subordinates, and those subordinates often
have different views”).
                      RAMOS V. WOLF                         53

    In sum, Plaintiffs fail in their burden of showing a
likelihood of success, or even serious questions, on the
merits of their claim that racial animus toward “non-white,
non-European” populations was a motivating factor in the
TPS terminations.

                             IV.

    We hold that the district court abused its discretion in
issuing the preliminary injunction on two grounds. First, the
district court committed legal error when it deemed
Plaintiffs’ APA claim reviewable, despite 8 U.S.C.
§ 1254a’s bar to judicial review of challenges to the
Secretary’s TPS determinations. Plaintiffs assert, and the
district court accepted, that their claim is reviewable because
they challenge only the agency’s new practice of refusing to
consider “intervening events” in its TPS extension
determinations. However, under the TPS statute, the
Secretary possesses full and unreviewable discretion as to
whether to consider intervening events in making a TPS
determination. Plaintiffs’ attempt to rely on the APA to
invoke justiciability over what would otherwise be an
unreviewable challenge to specific TPS determinations,
constitutes an impermissible circumvention of 8 U.S.C.
§ 1254a(b)(5)(A). Accordingly, the district court did not
have jurisdiction to review Plaintiffs’ APA claim.

    Second, the district court also abused its discretion in
concluding that Plaintiffs present at least serious questions
going to the merits of their EPC claim. The district court
found that the DHS Secretaries were influenced by President
Trump and/or the White House in their TPS decision-
making, and that President Trump had expressed animus
against non-white, non-European immigrants. However,
without any evidence linking them, these two factual
findings alone cannot support a finding of discriminatory
54                    RAMOS V. WOLF

purpose for the TPS terminations. Based on our review of
the evidence, we find that Plaintiffs do not meet their burden
of showing a likelihood of success, or even serious
questions, on the merits of their EPC claim.

   Therefore, we VACATE the preliminary injunction and
remand to the district court for further proceedings.



R. NELSON, Circuit Judge, concurring:

    The executive action at issue affects at least 300,000
immigrants and their families—probably more—many of
whom have lived in this country for years, if not decades.
Each of them has, undoubtedly, contributed to the United
States in meaningful ways, culturally, economically, and
otherwise. As just one example, Plaintiff Ebtihal Abdalla
and her husband are TPS beneficiaries from Sudan who have
lived in the United States since the late 1990s and have three
children. There is no question that these individuals deserve
our sympathy. And they may well warrant legislative
protection. City & Cty. of San Francisco v. USCIS, 
944 F.3d
773
, 809 (9th Cir. 2019) (“By constitutional design, the
branch that is qualified to establish immigration policy and
check any excesses in the implementation of that policy is
Congress.”) (Bybee, J., concurring).

    But that does not dictate the outcome of this case. Our
sole responsibility as Article III judges is narrow—“to say
what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch)
137, 177 (1803) (emphasis added). And here, the most
salient human components of this case do not answer that
question. But the law does. Plaintiffs’ APA procedural
                           RAMOS V. WOLF                                 55

claim is not reviewable 1 and there are no serious questions
going to the merits of Plaintiffs’ equal protection claim. I
concur in the panel’s holding, which does not opine on the
moral equities or the merits of President Trump’s political
statements.

    I write separately, however, to address two additional
errors by the district court, both implicating separation-of-
powers concerns: the scope of the administrative record in
cases challenging agency action and the advent of the so-
called “nationwide” or “universal” injunction.

                                     I

    First, the scope of the administrative record. Proper
consideration of the administrative record has become a
stumbling block for district courts and even some appellate
courts in recent years. It is a fundamental issue, and vitally
important to APA review. After all, under the APA, the
United States waives sovereign immunity. 5 U.S.C. § 702.
But that waiver—which “must be construed strictly in favor
of the sovereign and not enlarged beyond what the language
requires,” United States v. Nordic Vill., Inc., 
503 U.S. 30
, 34
(1992) (internal quotation marks and alterations omitted)—
is subject to certain limitations, one of which is the APA’s
record-review requirement. 5 U.S.C § 706. As such, the
record-review requirement is not just a meaningless



    1
      I express no view on the merits of Plaintiffs’ APA procedural claim
because we lack jurisdiction to decide that claim. Righthaven LLC v.
Hoehn, 
716 F.3d 1166
, 1173 (9th Cir. 2013) (holding it “not appropriate”
to resolve the merits in the alternative); see also Steel Co. v. Citizens for
a Better Env’t, 
523 U.S. 83
, 101 (1998) (rejecting concept of assuming
“hypothetical jurisdiction” to rule on the merits).
56                   RAMOS V. WOLF

procedural hurdle to overcome, but a fundamental
constitutional protection to government agency action.

    Under that requirement, a court’s review of agency
action is typically “based on the record the agency presents
to the reviewing court.” Fla. Power & Light Co. v. Lorion,
470 U.S. 729
, 743–44 (1985). This principle “reflects the
recognition that further judicial inquiry into executive
motivation represents a substantial intrusion into the
workings of another branch of Government and should
normally be avoided.” Dep’t of Commerce v. New York,
139 S. Ct. 2551
, 2573 (2019) (internal quotation marks
omitted).     In other words, the APA’s record-review
limitation reflects a desire to avoid interfering with the
decisionmaking process of a co-equal branch of government.

Id.

    Despite these separation-of-powers 
considerations, the
general rule is not absolute. Extra-record discovery may be
permitted “in limited circumstances.” Great Basin Mine
Watch v. Hankins, 
456 F.3d 955
, 975 (9th Cir. 2006)
(internal quotation marks omitted).          These limited
circumstances may include, for example, when there has
been a “strong showing of bad faith or improper behavior,”
Citizens to Preserve Overton Park, Inc. v. Volpe, 
401 U.S.
402
, 420 (1971), or “[w]hen it appears the agency has relied
on documents or materials not included in the record,”
Portland Audubon Soc’y v. Endangered Species Comm.,
984 F.2d 1534
, 1548 (9th Cir. 1993).

    But as the Supreme Court recently reiterated in
Department of Commerce, any such extra-record discovery
should only be ordered after the government produces the
administrative record. In Department of Commerce, the
plaintiffs brought APA and equal protection challenges to
the Secretary of Commerce’s decision to add a citizenship
                      RAMOS V. WOLF                        57

question to the 2020 
census. 139 S. Ct. at 2562
–64. After
briefing on a motion to dismiss, the administrative record
was still not complete.
 Id. at 2563–64. 
As a result, the
district court ordered the government to complete the
administrative record.
 Id. at 2564. 
But it also went a step
further, ordering extra-record discovery in the same hearing.

Id. The Supreme Court 
held—and eight Justices who
reached the question agreed—that the district court abused
its discretion in “order[ing] extra-record discovery when it
did.”
 Id. at 2574; 
id. at 2580 
(Thomas, J., concurring in part
and dissenting in part) (noting that “all Members of the Court
who reach the question agree that the District Court abused
its discretion in ordering extra-record discovery” when it
did). “At that time, the most that was warranted was the
order to complete the administrative record.”
 Id. at 2574.
    The district court committed that same legal error here,
albeit prior to the Supreme Court’s clear directive in
Department of Commerce. The district court ordered
additional discovery at the same time it ordered the
government to complete the administrative record—that is,
before it could even determine whether any exception to the
APA’s record-review requirement applied. In addition, it
ordered that some of the discovery be turned over before the
deadline to produce the administrative record. The district
court then compounded this error by relying on what both
parties recognize as significant extra-record evidence in
assessing Plaintiffs’ APA procedural claim, including
internal emails, a declaration from a former USCIS official,
congressional testimony, and press call minutes, among
other things.

   Whether the district court could have eventually justified
ordering extra-record discovery under an exception to the
APA’s record-review requirement, like the district court did
58                       RAMOS V. WOLF

in Department of Commerce, is beside the point. At the time
the district court ordered discovery—before the
administrative record was even complete—the district court
could not make such a determination. The district court
therefore abused its discretion in “order[ing] extra-record
discovery when it did.” Dep’t of 
Commerce, 139 S. Ct.
at 2574
.

    It is true that a majority of the Supreme Court looked to
improperly ordered extra-record evidence to vacate the
Secretary of Commerce’s decision under the APA.
 Id. But
those were 
“unusual circumstances” in which the “sole
stated reason” for agency action “seem[ed] to have been
contrived.”
 Id. at 2575–76. 
Put differently, there was a
“disconnect between the decision made and the explanation
given” because the explanation given actually “played an
insignificant role in the decisionmaking process.”
 Id.
at 2574–75. 
Here, there may well be “stated and unstated
reasons” for the decision, as is true in “a typical case,”
 id.
at 2575, 
but nothing brings this within the realm of the
“unusual circumstances” of Department of Commerce
, id.
at 2576. 2
    Ultimately, the government made a strategic decision not
to contest the district court’s erroneous discovery ruling via
a mandamus petition. But the government should not be
forced to seek extraordinary mandamus relief to correct such
fundamental APA errors. E.g., In re United States, 
875 F.3d
1200
, 1205 (9th Cir. 2017), vacated, 
138 S. Ct. 443
, 444–45
(2017) (mem.) (vacating an opinion that upheld a district

     2
      My dissenting colleague does not dispute that the district court
erred under Department of Commerce in ordering discovery before the
administrative record was filed or that the district court relied on
documents outside the administrative record. Dissent at 102–104.
                         RAMOS V. WOLF                             59

court’s grant of extra-record discovery in an APA case).
Whether extra-record discovery may be available for APA
claims can only be decided by applying the well-established
rules for making such a decision.

    Fundamental errors like this are an affront to the United
States’ limited waiver of sovereign immunity under the
APA. 5 U.S.C. §§ 702, 706. Such errors also disrespect “the
integrity of the administrative process.” United States v.
Morgan, 
313 U.S. 409
, 422 (1941).                 True, “the
administrative process” “pursues somewhat different ways
from those of courts.”
 Id. But “they are 
to be deemed
collaborative instrumentalities of justice and the appropriate
independence of each should be respected by the other.”
 Id.
Just as we 
would not probe the mental processes of a judge,
we cannot probe further into agency action without first
assessing whether the law would allow such probing. Our
co-equal branch of government must be allowed to do its
job—subject to the proper mechanisms for judicial review.
Any other approach subverts the executive branch to the
judiciary, a result precluded by the legislative branch’s
enactment of the APA.

                                 II

     On to the scope of relief. Today, we vacate the district
court’s injunction. Majority Op. at 54. Still, even if we had
upheld the injunction, the district court erred in granting an
injunction that could be construed to apply universally—that
is, to all individuals regardless whether they were a party to
the case. 3 That is because the district court never specifically


    3
      The term “universal” rather than “nationwide” injunction is more
“precise,” Trump v. Hawaii, 
138 S. Ct. 2392
, 2425 n.1 (2018) (Thomas,
60                       RAMOS V. WOLF

addressed “whether a nationwide injunction [was] necessary
to remedy [the] alleged harm.” E. Bay Sanctuary Covenant
v. Barr, 
934 F.3d 1026
, 1029 (9th Cir. 2019). The answer
here would be no. So even if we were to uphold the
preliminary injunction, it would have to be substantially
narrowed to be no broader than necessary to give Plaintiffs
complete relief. See Califano v. Yamasaki, 
442 U.S. 682
,
702 (1979).

     But a bigger problem looms. “Nothing we say or do in
today’s decision has any practical effect” on the
government’s ability to carry out its planned revocation of
Haiti’s TPS designation, even within our jurisdiction.
California v. U.S. Dep’t of Health & Human Servs., 
941 F.3d
410
, 432 (9th Cir. 2019) (Kleinfeld, J., dissenting). That is
because a judge in the Eastern District of New York has also
preliminarily enjoined the government’s ability to carry out
its plans—on a universal basis—as to the decision to revoke
Haiti’s TPS designation. Saget v. Trump, 
375 F. Supp. 3d
280
, 378 (E.D.N.Y. 2019). It is a strange rule indeed that
would allow a district court in New York to effectively
nullify our panel opinion today, even partially. Judicial
comity alone—separate from inherent limitations on a
court’s injunctive authority—suggest a different outcome.
United States v. AMC Entm’t, Inc., 
549 F.3d 760
, 770 (9th
Cir. 2008) (“Courts ordinarily should not award injunctive
relief that would cause substantial interference with another
court’s sovereignty.”)

    This previously rare situation has occurred with
increasing frequency since the advent of the universal
injunction. In the case involving military service for

J., concurring), because it refers to who is protected and bound by the
injunction—in this context, everyone, including nonparties.
                       RAMOS V. WOLF                          61

transgender individuals, for example, the D.C. Circuit
vacated one universal injunction. Doe 2 v. Shanahan, 755 F.
App’x 19, 23–24 (2019). But that vacatur had no effect
because other district courts had also granted universal
injunctions. Stockman v. Trump, 
2017 WL 9732572
, at *16
(C.D. Cal. Dec. 22, 2017); Karnoski v. Trump, 
2017 WL
6311305
, at *10 (W.D. Wash. Dec. 11, 2017).

    This scenario results in a balance of power between the
executive and legislative branches and the judicial branch
that is, in my view, more than slightly off kilter. The
judiciary, for its part, now regularly issues rulings that
govern parties not directly before the court, in disregard of
usual constraints on judicial power. See 
Trump, 138 S. Ct.
at 2425
–29 (Thomas, J., concurring); Rodgers v. Bryant,
942 F.3d 451
, 460–62 (8th Cir. 2019) (Stras, J., concurring
in part and dissenting in part) (explaining “party-centered”
original “understanding of injunctions”). In doing so, it can
halt an entire executive policy or Congressional mandate
with one stroke of the judicial pen, without Congressional
authority to do so. Cf. 42 U.S.C. § 7607(b)(1) (mandating
that certain challenges to “nationally applicable” rules be
filed in the D.C. Circuit).

     And the executive and legislative branches, for their part,
can do little about it. Generally, the government can take
advantage of the “non-acquiescence doctrine, under which
[it] may . . . relitigate issues in multiple circuits.” Nat’l
Mining Ass’n v. U.S. Army Corps of Eng’rs, 
145 F.3d 1399
,
1409 (D.C. Cir. 1998). Now, however, the government must
halt enforcement of its objectives and policies even if it bats
.999 in court. If one out of 100 district court judges is willing
to declare a statute, rule, or regulation invalid and enjoin its
enforcement, the other nine—or even 99—at bats before the
judiciary have no effect. Dep’t of Homeland Sec. v. New
62                     RAMOS V. WOLF

York, 
140 S. Ct. 599
, 601 (2020) (mem.) (Gorsuch, J.,
concurring). This scenario, of course, forces the government
to repeatedly seek urgent review before the Supreme Court,
resulting in an oft-repeated “familiar pattern.” Wolf v. Cook
Cty., 
140 S. Ct. 681
, 681 (2020) (mem.) (Sotomayor, J.,
dissenting).

    The effect of all of this is that there is no time for issues
to percolate among the circuits before Supreme Court
review. California v. Azar, 
911 F.3d 558
, 583 (9th Cir.
2018). Take, for example, Texas v. United States, which was
the only case to address the viability of President Obama’s
“Deferred Action for Parents of Americans and Lawful
Permanent Residents” before the issue was decided by an
equally divided Supreme Court. 
86 F. Supp. 3d 591 
(S.D.
Tex.), aff’d, 
809 F.3d 134 
(5th Cir. 2015), aff’d, 
136 S. Ct.
2271 
(2016) (mem.). Or, consider the two cases addressing
President Trump’s so-called “travel ban,” which were
quickly decided on parallel tracks, without further analysis
from other circuits, before the Supreme Court stepped in.
Int’l Refugee Assistance Project v. Trump, 
883 F.3d 233 
(4th
Cir. 2018); Hawaii v. Trump, 
878 F.3d 662 
(9th Cir. 2017).

    These cases “involve[d] important or difficult questions
of law” that would undoubtedly “benefit from development
in different factual contexts and in multiples decisions by the
various courts of appeal.” Los Angeles Haven Hospice, Inc.
v. Sebelius, 
638 F.3d 644
, 664 (9th Cir. 2011). That is how
our judicial system is designed to work, by allowing lower
courts to reach conflicting interpretations of federal law
unless and until the Supreme Court resolves those conflicts.
Yet very little percolation on these important questions is
happening.

    This lack of percolation has serious consequences for
judicial decisionmaking. And it breeds another, more
                         RAMOS V. WOLF                             63

serious problem—that of “forum shopping.” 
Azar, 911 F.3d
at 583
. When one judge can halt the implementation of a
policy nationwide, the natural inclination is to “shop ‘til the
statute, [regulation, or executive order] drops.” Samuel L.
Bray, Multiple Chancellors: Reforming the National
Injunction, 131 Harv. L. Rev. 417, 460 (2017). That is what
has repeatedly happened of late. E.g., Regents of Univ. of
Cal. v. U.S. Dep’t of Homeland Sec., 
279 F. Supp. 3d 1011
(N.D. Cal. 2018); County of Santa Clara v. Trump, 250 F.
Supp. 3d 497, 539 (N.D. Cal. 2017); 
Saget, 375 F. Supp. 3d
at 378
. This type of litigation conduct, in turn, undermines
public confidence in the judiciary and “hinders the equitable
administration of laws.” 
Azar, 911 F.3d at 583
.

    This Court has already offered some solutions to the
myriad problems caused by universal injunctions. We have
limited the scope of injunctive relief to “the geographical
boundaries of the Ninth Circuit.” Innovation Law Lab v.
Wolf, 
951 F.3d 986
, 990 (9th Cir. 2020) We have also
declined to issue a universal injunction because “several
other courts of appeals [were] currently reviewing decisions
of other district courts” on the same issue. Haven 
Hospice,
638 F.3d at 665
.

    But these approaches are largely prudential. Any more
lasting fix—absent resolution by the Supreme Court 4 or
Congress—will only come by returning universal
injunctions to their proper status as the exception rather than
the rule. Our caselaw repeatedly recognizes that universal
injunctions are warranted only in “exceptional cases.” City
& Cty. of San Francisco v. Trump, 
897 F.3d 1225
, 1244 (9th

    4
      The Supreme Court recently declined to address the propriety of
universal injunctions in Department of Homeland Security v. Regents of
the University of California, 
140 S. Ct. 1891
, 1916 n.7 (2020).
64                         RAMOS V. WOLF

Cir. 2018). Yet many district courts have done just the
opposite, “treat[ing] this exceptional mechanism as a new
normal,” granting—and affirming—universal injunctions
“reflexively.” Cf. Barr v. E. Bay Sanctuary Covenant,
140 S. Ct. 3
, 6 (2019) (mem.) (Sotomayor, J., dissenting).
This reflexive reaction should be eliminated by recognizing
the requirement that universal relief is warranted only when
“necessary to give Plaintiffs a full expression of their rights.”
Trump, 878 F.3d at 701
, rev’d on other 
grounds, 138 S. Ct.
at 2393
.

    To do so, we must first abandon factors that have nothing
to do with that requirement. For example, our cases
frequently cite a need for uniformity in the law as a reason
to uphold a universal injunction. E.g., Regents of the Univ.
of Cal. v. U.S. Dep’t of Homeland Sec., 
908 F.3d 476
, 511
(9th Cir. 2018), rev’d in part, vacated in 
part, 140 S. Ct.
at 1916
. But disuniformity in the law has nothing to do with
the plaintiff’s rights. Nor is it a convincing justification for
a universal injunction. Temporary disuniformity in federal
law is an intentional feature of our constitutional system.
That is how issues percolate in the lower courts until they
can be decided by the Supreme Court. So any “interim
uncertainty about a rule’s final fate” does not justify granting
relief to parties not before the court. Dep’t of Homeland
Sec., 140 S. Ct. at 600 
(Gorsuch, J., concurring). 5 There is

     5
       We have also justified universal injunctions on the ground that a
more limited injunction would “needlessly complicate” immigration
enforcement. E. Bay Sanctuary Covenant v. Trump, 
950 F.3d 1242
, 1284
(9th Cir. 2020). This justification also has nothing to do with giving full
relief to plaintiffs. What’s more, “it is the Executive Branch, not the
courts, that [is] charged with enforcing the immigration laws.” Doe #1
v. Trump, 
957 F.3d 1050
, 1097 (Bress, J., dissenting). Any decision by
the judicial branch about the best way to enforce immigration law is “far
outside our role and competence” and a severe overreach.
 Id.
                       RAMOS V. WOLF 
                         65

nothing inherently problematic about agency action being
implemented differently in different areas of the country.
See
 id.

    Another common justification 
for universal injunctions
in these types of cases—that APA claims can lead to
universal vacatur of a rule or action if they are arbitrary or
capricious, e.g., 
Regents, 908 F.3d at 511
—also has nothing
to do with the scope of relief “necessary to give Plaintiffs a
full expression of their rights.” 
Trump, 878 F.3d at 701
,
rev’d on other 
grounds, 138 S. Ct. at 2393
. And just because
agency action can be vacated after a trial on the merits does
not mean such action need be—or even should be—
preliminarily enjoined on a universal basis. See E. Bay
Sanctuary Covenant v. Barr, -- F. 3d --, 
2020 WL 3637585
,
at *24 (9th Cir. July 6, 2020) (Miller, J., concurring in part
and dissenting in part) (“[W]e have not construed section
706 to require vacatur in every case in which an agency
action is determined to be unlawful.”). The costs of doing
so—including no percolation, forum shopping, and
emergency appeals—are too high to justify such
extraordinary relief.

    Once these erroneous justifications are stripped out,
universal injunctions should become much rarer. This case
is illustrative. A universal injunction would not be
warranted here. Had we upheld the injunction, we could
have limited the scope of it to the individual Plaintiffs in this
case while still giving them full relief. See City & Cty. of
San Francisco v. Barr, -- F.3d --, 
2020 WL 3957184
, at *10
(9th Cir. July 13, 2020) (“Accordingly, we vacate the
nationwide reach of the permanent injunction and limit its
reach to California’s geographical boundaries.”); 
Azar,
911 F.3d at 584 
(narrowing injunction to apply only to
plaintiff states because doing so still “would provide
66                        RAMOS V. WOLF

complete relief to them”); Haven 
Hospice, 638 F.3d at 665
(vacating the nationwide portion of an injunction barring
enforcement of a regulation because an injunction limited to
the plaintiff “would have afforded the plaintiff complete
relief”). 6

    That Plaintiffs seek relief on behalf of a putative class
does not change that conclusion. “[I]n the absence of class
certification, [a] preliminary injunction may properly cover
only the named plaintiffs.” Nat’l Ctr. for Immigrants Rights,
Inc. v. INS, 
743 F.2d 1365
, 1371 (9th Cir. 1984). Here, no
class has been certified. So putative class members can only
benefit from injunctive relief incidentally—not by design.
Easyriders Freedom F.I.G.H.T. v. Hannigan, 
92 F.3d 1486
,
1501–02 (9th Cir. 1996) (upholding injunction “extending
benefit or protection to persons other than prevailing parties
in the lawsuit” because the benefit was incidental to a
properly tailored injunction).

     To be sure, litigation involving certified class actions
may minimize some of the problems presented by universal
injunctions. For example, in a certified class action, the
government would not be the only party unable to re-litigate
its position in multiple courts. City of Chicago v. Sessions,
888 F.3d 272
, 298 (7th Cir. 2018) (Manion, J., concurring in
part and dissenting in part). That is so because any rulings
by a court after certification would bind not only the

     6
       My dissenting colleague suggests a universal injunction would be
proper here because revoking a TPS designation is a “single decision on
a nationwide policy” that does not involve “case-by-case enforcement.”
Dissent at 103 n.12. But this ignores the key question for injunctive
relief: whether a more limited injunction would have afforded Plaintiffs
complete relief. Regardless, there is no dispute that the district court
erred under our precedent by not explaining the need for a universal
injunction. See 
Trump, 897 F.3d at 1244
–45.
                       RAMOS V. WOLF                         67

government, but also all class members who did not opt out.
See Crawford v. Honig, 
37 F.3d 485
, 487 n.2 (9th Cir. 1994).
But the percolation problem and its effect on judicial
decisionmaking would continue. See United States v.
Mendoza, 
464 U.S. 154
, 160 (1984) (binding government to
ruling in one case “would substantially thwart the
development of important questions of law by freezing the
first final decision rendered on a particular legal issue”). To
avoid nationwide class actions becoming a substitute for
universal injunctions and leaving many of these same
problems unsolved, courts must carefully assess not only
limits on injunctive relief, but also those under Rule 23,
before granting universal relief. Doe 
#1, 957 F.3d at 1096
(Bress, J., dissenting).



CHRISTEN, Circuit Judge, dissenting:

    In 2017 and 2018, the Secretary of Homeland Security
terminated the Temporary Protected Status (TPS)
designations for Sudan, Haiti, El Salvador, and Nicaragua.
In doing so, the Secretary decided that the TPS statute,
8 U.S.C. § 1254a, did not allow her the discretion to consider
intervening events that occurred in these countries after they
were designated for TPS. The Secretary’s new statutory
interpretation resulted in a practice that sharply differed from
the way the TPS statute was applied by previous
administrations.

    Because my colleagues insist the complaint seeks
judicial reconsideration of the Secretary’s four TPS
termination decisions, they conclude the district court lacked
jurisdiction to hear plaintiffs’ Administrative Procedure Act
(APA) claim. But their premise is incorrect. The complaint
plainly alleges that the Secretary of Homeland Security
68                    RAMOS V. WOLF

violated the APA by interpreting the TPS statute in a way
that starkly differs from previous administrations, and
denying that there had been any resulting change to the
agency’s practice of considering intervening events.
Plaintiffs’ claim is a classic collateral challenge.

    The TPS statute’s judicial review bar prevents courts
from second-guessing the Secretary’s decisions to grant,
extend, or terminate TPS, but that provision has no bearing
on plaintiffs’ collateral challenge to the Secretary’s new
practice of ignoring intervening events when making TPS
determinations. The complaint challenges the process used
to make TPS termination decisions, not the decisions
themselves. Plaintiffs did not ask the district court to
reweigh the factors the Secretary considered when she
terminated TPS for these four foreign states, nor did they
seek a ruling that Sudan, Haiti, El Salvador, and Nicaragua
are entitled to TPS designations. In fact, even if plaintiffs
ultimately prevail on their APA claim and the decisions are
reconsidered, the Secretary could still decide to terminate
these country designations.

    Plaintiffs demonstrated a likelihood of success on the
merits of their APA claim. Though the government denies
that it changed any policy or practice, the district court
identified an unambiguous and abrupt change in DHS’s
practice, and the record includes compelling evidence—
including     the   Secretaries’     frank   party-opponent
admissions—that the process DHS used resulted from the
Secretaries’ new interpretation of the TPS statute.

    The district court also decided that plaintiffs
demonstrated serious questions going to the merits of their
Equal Protection claim. This part of the district court’s order
catalogued a long list of evidence of racial animus and
concluded that internal agency documents raised serious
                       RAMOS V. WOLF                         69

questions about whether the terminations were motivated, at
least in part, by racial animus. See Vill. of Arlington Heights
v. Metro. Hous. Dev. Corp., 
429 U.S. 252
, 265–66 (1977).
The court found that the Secretary’s decisions were the result
of an irregular process and “suggestive of a pre-determined
outcome not based on an objective assessment.” The
majority itemizes the same list of profoundly denigrating
statements, but finds a lack of evidence tying them to the
TPS terminations. In my view, the doctrine of constitutional
avoidance counsels that we should not reach the Equal
Protection claim at this stage because the preliminary
injunction is easily supported by plaintiffs’ demonstration
that they will likely succeed on their APA claim alone.

    Our task on appeal is limited to deciding whether the
district court abused its discretion when it granted
preliminary injunctive relief. Unquestionably, it did not.
Plaintiffs’ APA claim is collateral to the Secretary’s merits
decisions, and we owe significant deference to the district
court’s order granting preliminary injunctive relief.
Accordingly, I would affirm the district court’s well-
reasoned decision.

                              A.

    This case is not about allowing noncitizens to cross our
borders. Plaintiffs are U.S. citizen children, their non-citizen
parents, and other non-citizens who are already in the United
States legally. They have lived in this country lawfully for
many years, some for more than twenty years. Plaintiffs
filed a putative class action challenging the Department of
Homeland Security’s (DHS) new interpretation of the TPS
statute and the resulting change to the practice used to decide
whether to terminate or extend the TPS designations for
Sudan, Haiti, El Salvador, and Nicaragua.
70                       RAMOS V. WOLF

    TPS is a form of humanitarian immigration relief that
allows individuals from “designated” countries to live and
work lawfully in the United States when they cannot return
safely to their country of origin due to armed conflict, natural
disaster, or other extraordinary and temporary
circumstances. See 8 U.S.C. § 1254a. Once a country
receives a TPS designation, nationals of that country who are
already lawfully present in the United States may apply for
individual temporary protected status. 1
 Id. § 1254a(a)(1).
Individual 
TPS status is only available to foreign nationals
who: (1) have been continuously physically present in the
United States since the date of their home country’s most
recent TPS designation; (2) have continuously resided in the
United States from a date identified by the Secretary; and
(3) are otherwise admissible as immigrants.
 Id. § 1254a(c).
A 
non-citizen granted TPS receives authorization to work in
the United States and protection against removal while their
home country has a TPS designation.
 Id. § 1254a(a)(1).

    Congress 
created the TPS program in 1990 to establish
formal criteria and procedures to replace Extended
Voluntary Departure (EVD), a practice the executive branch
had used for decades to provide similar relief on an ad hoc
basis. Although some countries’ TPS designations last for
short periods, other countries’ designations have lasted for
many years, including the four in this case. El Salvador has
been designated since 2001, Nicaragua has been designated
since 1999, Sudan has been designated since 1997, and Haiti
has been designated since 2010.



     1
     The TPS program also applies to noncitizens without nationality if
they “last habitually resided” in the designated state. 8 U.S.C.
§ 1254a(a)(1).
                          RAMOS V. WOLF                               71

    The district court recognized that if the subject countries’
TPS designations are terminated, over 200,000 U.S. citizen
children will face the prospect of leaving the only home they
have ever known, or growing up without one or both of their
parents. In addition, some 300,000 non-citizens face the loss
of their homes, jobs, careers, and communities.

    The complaint alleges that when previous
administrations decided whether to extend or terminate a
foreign state’s TPS designation, the Secretary regularly
considered intervening circumstances such as natural
disasters and social or economic crises that occurred after the
country was designated for TPS. For example, plaintiffs
assert that Haiti received a TPS designation after a
7.0 magnitude earthquake in 2010, and that when Haiti’s
TPS status was extended most recently, the Secretary
considered “crime, poverty, unemployment, lack of
adequate social services, and successive health and
environmental disasters, including destruction caused by
Hurricane Matthew.” The complaint also alleges that
although “no relevant statute or regulation has changed in
the intervening decades,” DHS now takes the position that
intervening events cannot be considered. According to the
complaint, the Secretaries adopted a novel interpretation of
the TPS statute, and concluded that they lacked the statutory
authority to consider intervening events. This change was
adopted “without a formal announcement to disclose its
rationale for making a dramatic change to a decades-old
policy.” 2


    2
       Secretary John Kelly served as the administration’s first Secretary
for DHS, but the four TPS terminations decisions were made by Acting
Secretary Elaine Duke and Secretary Kirstjen Nielsen. For the sake of
clarity, I refer to a singular Secretary except where relevant.
72                        RAMOS V. WOLF

    The district court ruled that it had jurisdiction to consider
plaintiffs’ claims, that plaintiffs demonstrated a likelihood of
success on their APA claim and serious questions going to
the merits of their Equal Protection claim, and it entered a
preliminary injunction to preserve the status quo while the
parties’ dispute is litigated. Three of the district court’s four
Winter findings are uncontested. 3 The only Winter factor
challenged on appeal is whether the district court erred by
finding that plaintiffs sufficiently demonstrated they will
succeed on the merits of their claims.

                                    i.

    We begin with the strong presumption favoring judicial
review of agency action. See, e.g., Dep’t of Homeland Sec.
v. Regents of the Univ. of Cal., 
140 S. Ct. 1891
, 1905 (2020);
Columbia Riverkeeper v. United States Coast Guard,
761 F.3d 1084
, 1091 (9th Cir. 2014). Yet the majority
decides the district court lacked jurisdiction to consider
plaintiffs’ APA claim. The text of the TPS statute certainly
does not overcome the presumption of reviewability.
Indeed, the judicial review bar in the TPS statute mirrors the
review bars at issue in McNary v. Haitian Refugee Center,
Inc., 
498 U.S. 479 
(1991), and Reno v. Catholic Social
Services, 
509 U.S. 43 
(1993) (Catholic Social Services), and
the Supreme Court has already ruled that this statutory
language does not bar collateral challenges. Though the
majority does not contest this part of the analysis, a brief
recap of McNary and Catholic Social Services is important

     3
      Plaintiffs seeking a preliminary injunction must establish that they
are “likely to succeed on the merits, that [they are] likely to suffer
irreparable harm in the absence of preliminary relief, that the balance of
equities tips in [their] favor, and that an injunction is in the public
interest.” Winter v. Nat. Res. Def. Council, 
555 U.S. 7
, 20 (2008).
                     RAMOS V. WOLF                       73

to illustrate why the majority’s ultimate conclusion is
incorrect.

    McNary involved Special Agricultural Worker (SAW)
status, an amnesty program codified in the Immigration and
Nationality Act at 8 U.S.C. § 
1160. 498 U.S. at 483
. Much
like TPS, SAW status allows work authorization for certain
non-citizens and temporary protection from removal.
 Id. at
490. 
The McNary plaintiffs claimed that the SAW interview
process was arbitrary and violated their due process rights
because, among other things, applicants were not given
notice of adverse evidence or allowed an opportunity to
respond to it.
 Id. at 487–88. 
The McNary plaintiffs’
challenge was not to the merits of the agency’s SAW
decisions; they challenged the process the agency used to
make the decisions.
 Id. at 491–92. 
Nevertheless, the
government argued that the judicial review bar in the SAW
statute required dismissal of the claim.
 Id. The Supreme
Court 
disagreed.

    McNary is critical to the subject appeal because the SAW
statute’s judicial review bar mirrors the one in the TPS
statute.
 Id. at 486 
n.6. The SAW provision reads:

       There shall be no administrative or judicial
       review of a determination respecting an
       application for adjustment of status under this
       section except in accordance with this
       subsection.

8 U.S.C. § 1160(e)(1) (emphasis added). The Supreme
Court reasoned that the SAW statute’s “reference to ‘a
determination’ describes a single act rather than a group of
decisions or a practice or procedure employed in making
decisions.”
 Id. at 492. 
The Court concluded the statutory
bar did not preclude plaintiffs’ collateral challenge to the
74                       RAMOS V. WOLF

practice or procedure used to make the SAW determinations.

Id. In Catholic Social 
Services, the Supreme Court
addressed another judicial review bar in the INA,
§ 1255a(f)(1), and reached the same result. 
4 509 U.S. at 55
–
56. The judicial review bar in the TPS statute includes the
critical language at issue in McNary and Catholic Social
Services:

         There is no judicial review of any
         determination of the [Secretary] with respect
         to the designation, or termination or
         extension of a designation, of a foreign state
         under [the TPS statute].

8 U.S.C. § 1254a(b)(5)(A) (emphasis added). McNary and
Catholic Social Services leave no doubt that the TPS statute
bars direct review of the Secretary’s TPS determinations, but
not the policies or practices used to make them.

    The government’s contrary argument relies on Gebhardt
v. Nielsen, 
879 F.3d 980 
(9th Cir. 2018), a case in which we
considered the Adam Walsh Child Protection and Safety
Act.
 Id. at 984 
(citing 8 U.S.C. § 1154(a)(1)(A)(viii)(I)).
The INA allows United States citizens to submit I-130
petitions for noncitizen relatives to lawfully enter or remain
in the United States. See 8 U.S.C. § 1154(a)(1)(A)(i). The
Adam Walsh Act created an exception to that provision to
prevent citizens who had been convicted of specified crimes
against minors from submitting I-130 petitions, unless the

     4
      The statutory provision in Catholic Social Services read, “There
shall be no administrative or judicial review of a determination
respecting an application for adjustment of status under this section
except in accordance with this subsection.” 8 U.S.C. § 1255a(f)(1)
(emphasis added).
                          RAMOS V. WOLF                               75

Secretary of Homeland Security, in her “sole and
unreviewable discretion,” determined that the citizen posed
“no risk” to the subject of the petition. 
Gebhardt, 879 F.3d
at 984
. The judicial review bar in the Adam Walsh Act is
demonstrably stronger and broader than the one in § 1254a.
See, e.g., Bremer v. Johnson, 
834 F.3d 925
, 931 (8th Cir.
2016) (comparing the judicial review bar in the Adam Walsh
Act with the statute at issue in McNary and noting, among
other differences, that “[a] grant of ‘sole’ discretion [in the
Adam Walsh Act] is among the strongest known to the
law”). By contrast, as the majority itself explains, the TPS
program was created to rein in the unfettered discretion the
executive branch previously exercised through the EVD
program. 5 See Amici Curiae Immigration Law Scholars Br.
at 2–5. 6 The government’s reliance on Gebhardt is sorely
misplaced. The judicial review bar in the TPS statute,
§ 1254a(b)(5)(A), contains the same operative phrase used
in the statutes described in McNary and Catholic Social
Services, and those cases, not Gebhardt, control the outcome
of this appeal. See 
McNary, 498 U.S. at 494 
(“[H]ad
Congress intended the limited review provisions . . . to


    5
      The parties agree that TPS designations are made by the Secretary
of Homeland Security, and that the Secretary’s discretion is not
unfettered. The statute requires the Secretary to consult “with
appropriate agencies of the Government.” See 8 U.S.C. 1254a(b)(1).
The Secretary receives a Country Conditions Memo and Decision Memo
from at least two different divisions within United States Citizenship and
Immigration Services (USCIS). The Decision Memo contains a
recommendation to grant, extend, or terminate a TPS designation. The
State Department also provides input, including country conditions and
recommendations, and the statute allows the Secretary to receive input
from other governmental sources.
    6
      Citing H.R. Rep. No. 100-627, 100th Cong., 2d Sess. at 4, 6 (1988);
136 Cong. Rec. (House) 8686–8687.
76                    RAMOS V. WOLF

encompass challenges to [DHS] procedures and practices, it
could easily have used broader statutory language.”).

    Up to this point, the majority’s analysis does not differ
from this dissent. It agrees we must begin with a
presumption of reviewability; it does not deny the holdings
of McNary or Catholic Social Services; and it agrees that the
Adam Walsh Act does not support the government’s position
because the outcome in that case depended on a statute vastly
more restrictive of judicial review than the one at issue here.
Boxed in, the majority circles back and strains to find reason
to give the phrase “a determination” different meaning in the
TPS statute. The majority’s efforts are in vain. The
Supreme Court ruled that the phrase does not bar collateral
challenges: “‘a determination’ describes a single act,” the
Supreme Court explained, “rather than a group of decisions
or a practice or procedure employed in making decisions.”
McNary, 498 U.S. at 492 
(emphasis added). The judicial
review bars in these statutes do not foreclose collateral
challenges.

    Yet the majority forges on. At pages 36–38, it advances
an argument not made by the government, and conjures from
whole cloth a new meaning for the phrase “a determination.”
This part of the opinion includes the undisputed observation
that TPS designation decisions are the Secretary’s to make,
and devotes considerable effort to explaining that the TPS
statute was clearly intended to limit the discretion exercised
by the executive under the now-replaced EVD program. The
opinion goes on to argue the uncontested point that the TPS
statute still affords the Secretary considerable discretion to
decide what factors to consider, and how to weigh them,
when making TPS determinations.

    Plaintiffs do not dispute that the judicial review bar in
the TPS statute prevents courts from second-guessing the
                      RAMOS V. WOLF                        77

Secretary’s TPS determinations, but there is no way to
stretch “a determination” so that it bars consideration of
plaintiffs’ APA claim. One need not look past the statute’s
text to discern the types of “determinations” that may not be
reviewed by the court:

       There is no judicial review of any
       determination of the [Secretary] with respect
       to the designation, or termination or
       extension of a designation, of a foreign state
       under this subsection.

8 U.S.C. § 1254a(b)(5)(A) (emphasis added). The majority
claims the McNary rule emanated from the context of
surrounding statutory provisions. But the decision shows
otherwise. The Supreme Court’s decision hinged upon
“Congress’ choice of statutory language,” not the statute’s
overall context. 
McNary, 498 U.S. at 494
. After the
Supreme Court’s interpretation of the judicial review bars in
the INS provisions at issue in McNary and Catholic Social
Services, it is clear the Secretary’s TPS merits decisions are
unreviewable; collateral challenges to those decisions are
not.

                             ii.

    Because the TPS statute bars review of TPS
determinations only, not collateral challenges, the question
is whether plaintiffs’ APA claim is collateral. Our case law
clearly delineates the factors we consider to distinguish
between direct challenges to agency action and collateral
challenges to agency action. All of them weigh in favor of
the conclusion the complaint makes obvious: the nature of
plaintiffs’ APA claim is collateral to the Secretary’s TPS
determinations, and thus it is plainly reviewable.
78                     RAMOS V. WOLF

     In City of Rialto v. West Coast Loading Corp., we
“distilled two ‘guiding principles’” from our case law to
differentiate between direct and collateral challenges.
581 F.3d 865
, 874 (9th Cir. 2009) (quoting Ortiz v.
Meissner, 
179 F.3d 718
, 721–22 (9th Cir. 1999)). First, we
ask “whether the claim challenges a ‘procedure or policy that
is collateral to an alien’s substantive eligibility,’ for which
‘the administrative record is insufficient to provide a basis
for meaningful judicial review.’”
 Id. (quoting Proyecto San
Pablo v. INS, 
189 F.3d 1130
, 1138 (9th Cir. 1999)). This
first principle highlights the central importance of
meaningful judicial review of agency action, and examines
whether the plaintiff’s claims can be effectively advanced in
another forum or stage in the proceedings. Id.; see also
Naranjo-Aguilera v. INS, 
30 F.3d 1106
, 1114 (9th Cir.
1994). City of Rialto’s second factor requires that we look
to whether the plaintiff’s claims satisfy all of the traditional
elements of justiciability; i.e., whether plaintiffs can show
that their claims are ripe, that they have standing, and that
they exhausted their administrative remedies by taking the
steps available to them before the agency blocked their path.
City of 
Rialto, 581 F.3d at 874 
(citing Catholic Social
Services, 509 U.S. at 56
). Here, the government does not
contest the court’s jurisdiction based on ripeness, standing,
or administrative exhaustion grounds.

    As in McNary and Catholic Social Services, plaintiffs’
APA claim is not based on their own substantive eligibility
for a statutory benefit, or even on the merits of the TPS
designations for Haiti, Sudan, El Salvador, and Nicaragua.
Plaintiffs challenge the sudden shift in the Secretary’s
statutory interpretation and the Secretary’s changed practice
used to make TPS determinations. As the district court
specifically recognized, if plaintiffs are successful, the
Secretary will “not be compelled to extend each country’s
                      RAMOS V. WOLF                         79

TPS designation.” Instead, the Secretary will have the
opportunity to reconsider the four TPS country designations
with the discretion to take into account intervening events.
Individual Haitians, Sudanese, Salvadorans, and
Nicaraguans will still be required to qualify for TPS status
pursuant to § 1254a(c). The Secretary may reach the same
result if she considers intervening events; plaintiffs do not
dispute that these determinations are the Secretary’s to
make. See, e.g., Immigrant Assistance Project of the L.A.
Cty. Fed’n of Labor v. INS, 
306 F.3d 842
, 863 (9th Cir. 2002)
(deeming plaintiffs’ challenge collateral where the relief the
district court granted compelled the agency to use a
particular procedure, not to reach a particular outcome).

    City of Rialto also directs us to consider whether a claim
necessarily requires looking beyond the administrative
record. 581 F.3d at 874
. Plaintiffs’ claim does. The central
allegation in plaintiffs’ APA claim is that DHS arbitrarily
changed a practice that had been followed by several
administrations. Because DHS continues to deny that any
change occurred, the district court looked to previous TPS
designation decisions and compared the criteria used in them
to the criteria applied when the Secretary terminated the TPS
designations for Sudan, Haiti, El Salvador, and Nicaragua.
An examination of the administrative records for these four
TPS decisions would have allowed the district court to
determine what factors the Secretary considered, but it was
necessary to compare those factors to records for prior TPS
decisions in order to discern whether the agency’s treatment
of intervening events had changed over time. The need to
look outside of the administrative records for these four
decisions weighs in favor of concluding that plaintiffs’ claim
raises a collateral challenge. See Mace v. Skinner, 
34 F.3d
854
, 859 (9th Cir. 1994); see also City of 
Rialto, 581 F.3d
at 874 
(observing that, when deciding if a claim is collateral,
80                    RAMOS V. WOLF

courts consider whether the administrative record is
“insufficient to provide a basis for meaningful judicial
review” (quoting 
Ortiz, 179 F.3d at 722
)).

    To decide whether a claim is collateral, we also consider
whether it requires an examination that is “neither peculiarly
within the agency’s ‘special expertise’ nor an integral part of
its ‘institutional competence.’” 
Mace, 34 F.3d at 859
.
Applied to the facts of this case, this factor is
straightforward. Whether to extend or terminate a foreign
state’s TPS designation is a question that lies squarely within
the agency’s province and expertise, but determining
whether the Secretary misinterpreted her statutory authority
or acted unlawfully by abruptly breaking from past practice
sub silentio, is not. Compliance with the APA is a legal
question routinely and properly addressed by the courts.
See, e.g., Charles H. Koch, Jr. & Richard Murphy, 4 Admin.
L. & Prac. § 11:41 (3d ed. 2020). Whether the Secretary
correctly interpreted the extent of her statutory authority
when she made these four decisions is a question of law that
is collateral to the Secretary’s TPS merits decisions. See,
e.g., John v. United States, 
247 F.3d 1032
, 1038 (9th Cir.
2001) (en banc) (Tallman, J., concurring).

    Finally, City of Rialto teaches that we must consider
whether another forum exists where plaintiffs’ claim may be
heard. 581 F.3d at 874
. Application of this factor is also
straightforward. The TPS statute includes an administrative
review process for challenging denials of individual
noncitizen TPS applications, see 8 U.S.C. § 1254a(b)(5)(B),
but it does not include a path for challenging the termination
of a foreign state’s TPS designation. The administrative
record from the denial of individual noncitizens’ TPS
applications could not possibly allow review of plaintiffs’
APA claim because evaluating the claim requires a
                      RAMOS V. WOLF                        81

longitudinal comparison of the criteria the agency
considered when deciding country designations, not
individual eligibility for temporary protected status.

    The majority points to no other administrative process
available for considering this type of claim. Accordingly,
the majority’s conclusion that § 1254a precludes judicial
review of plaintiffs’ APA claim requires it to concede that
there will be no review at all of the claim that the Secretary
made an unannounced change in the practice used to make
TPS country determinations. See 
McNary, 498 U.S. at 497
(observing that restricting judicial review to individual
deportation orders “is the practical equivalent of a total
denial of judicial review of generic constitutional and
statutory claims”). The absence of any forum for review
would leave the Secretary with complete discretion—a result
plainly inconsistent with the purpose of the TPS statute,
which the majority concedes was intended to curb the
previously unchecked discretion exercised by the executive
branch in the form of EVD. We know that when Congress
wants to grant “sole and unreviewable discretion” to the
Secretary, it does so. See 
Gebhart, 879 F.3d at 984
. But
Congress took a different approach in the TPS statute. It
employed the same language used in McNary and Catholic
Social Services rather than the language used in the Adam
Walsh Act. See 
McNary, 498 U.S. at 494 
(discussing
McNary’s review bar and concluding “had Congress
intended the limited review provisions . . . to encompass
challenges to INS procedures and practices, it could easily
have used broader statutory language”).

     The majority also concedes that a legal challenge to the
agency’s interpretation of its statutory authority would be a
McNary-style claim reviewable under § 1254a(b)(5)(A), so
it is equally boxed in on this part of plaintiffs’ APA claim.
82                    RAMOS V. WOLF

The majority’s only response is to deny the complaint’s
express allegations and argue that the Secretary’s new and
unannounced interpretation of the TPS statute is not part of
plaintiffs’ APA claim. According to the majority, plaintiffs
only “loosely assert” such a challenge.              But this
characterization of plaintiffs’ APA claim cannot be squared
with the complaint’s actual allegations, nor with the
arguments plaintiffs advanced in the district court.

    What the complaint alleges is that the agency’s new
statutory interpretation and practice of not considering
intervening events “constitutes an arbitrary, unexplained
abandonment of the government’s longstanding
interpretation of the TPS statute, on which several hundred
thousand people have come to rely.” The complaint
expressly alleges that the agency’s changed practice resulted
from the Secretary’s re-interpretation of the TPS statute. It
asserts that in testimony she gave to Congress, the Secretary
explained that “DHS has now taken the position that such
factors cannot be considered.” The complaint even quotes
Secretary Nielsen, who testified before Congress that,
“[T]he law does not allow me to look at the country
conditions of a country writ large. It requires me to look
very specifically as to whether the country conditions
originating from the original designation continue to exist.”
The complaint also alleges that then-Secretary Kelly
described the scope of his statutory authority the same way
in his testimony before a Senate subcommittee.

    The majority attempts to minimize the significance of the
Secretaries’ testimony because both of the Secretaries’
statements were made during fairly lengthy congressional
hearings. But the Secretaries’ descriptions of their authority
were unequivocal, and the relevant point is the prominence
of the statements in the complaint, not the number of minutes
                      RAMOS V. WOLF                         83

it took to deliver the testimony. The complaint quoted both
statements verbatim, and as party-opponent admissions go,
plaintiffs could not have hoped for statements more
favorable to their claims. See Fed. R. Evid. 801(d)(2).

    Plaintiffs have not engaged in post hoc revision of their
legal theory in order to avoid the TPS statute’s jurisdictional
bar. The complaint alleges that “without any formal
announcement or other explanation—[DHS] adopted a new,
novel interpretation of the TPS statute that eschews
consideration of any intervening country conditions,” and
that “[u]nder previous administrations, DHS regularly
considered natural disasters and social or economic crises
that occurred after a country was originally designated for
TPS in deciding whether to continue or instead terminate a
country’s designation.” The complaint unmistakably asserts
that “Defendants’ sudden and unexplained departure from
decades of consistent interpretation and corresponding
practice violates the Administrative Procedure Act.” The
complaint is replete with these allegations, but the APA
section summarizes the claim in one succinct paragraph:

       Defendants’ adoption of a new, drastically
       narrower interpretation of the TPS statute
       was arbitrary, capricious, and contrary to law
       in violation of the APA because it
       represented a sudden and unexplained
       departure from decades of decision-making
       practices and ordinary procedures.          By
       shifting the decision-governing standard for
       country designations without explanation,
       Defendants have ignored a clear statutory
       command and engaged in procedurally
       flawed      decision-making.          Further,
       Defendants changed their policy without
84                        RAMOS V. WOLF

         taking into account the serious reliance
         interests that their prior policy had
         engendered.

    Yet the majority denies the words used by the drafters of
the complaint. It repeatedly incants the conclusion that
plaintiffs’ claim must be, “at its core,” “an attack on the
substantive considerations underlying the Secretary’s
specific TPS determinations.” The majority says this is so
because plaintiffs’ APA claim challenges the Secretary’s
failure to consider intervening events or to explain why the
agency no longer considers them. The cornerstone of this
argument is the majority’s assumption that the TPS statute
grants the Secretary unbridled discretion to decide whether
to consider intervening events. But a key allegation in the
complaint is that both Secretary Kelly and Secretary Nielsen
testified before Congress that the TPS statute did not allow
them that discretion. As discussed infra, the district court
cited additional evidence that strongly suggests Acting
Secretary Duke had the same understanding regarding the
scope of her statutory authority. The need to resolve whether
the Secretaries were mistaken about the degree of discretion
afforded to them by the TPS statute compels the conclusion
that plaintiffs’ claim falls squarely within the ambit of the
APA. See 
Regents, 140 S. Ct. at 1916 
(observing that
“doubts about whether the agency appreciated the scope of
its discretion or exercised that discretion in a reasonable
manner” raised a valid APA claim). 7


     7
      Indeed, despite Secretary Kelly’s testimony that he did not have
the discretion to consider intervening events, it is uncontested that he
considered them when he extended Haiti’s designation in 2017. 82 Fed.
Reg. 23,830, 23,832. As the district court recognized, DHS later adopted
a very different interpretation of the statute.
                      RAMOS V. WOLF                         85

    The majority’s application of the City of Rialto factors
lends no support to its position. First, the majority lops off
the last half of the first factor (which asks whether the claim
challenges a procedure or policy that is collateral to an
alien’s substantive 
eligibility). 581 F.3d at 874 
(quoting
Ortiz, 179 F.3d at 722
). The majority’s application of this
factor asserts that plaintiffs do “not challenge any agency
procedure or regulation.” But plaintiffs do just that. Without
question, the very centerpiece of the complaint is the
allegation that DHS discontinued its decades-long practice
of considering intervening events that occur after a country’s
most recent TPS designation. Plaintiffs do not seek rulings
that they are entitled to TPS, nor rulings that their home
countries are eligible for TPS, and there is no basis for the
majority’s assertion that plaintiffs do not challenge an
agency procedure. As to the majority’s observations that the
complaint does not challenge a specific regulation or official
interpretation, there is no regulation or official position to
challenge because the agency denies that it has changed its
practice, and as the complaint explains, “no relevant statute
or regulation has changed in the intervening decades.”

   The majority offers no response to City of Rialto’s
second factor, which asks whether plaintiffs’ claims require
looking beyond the administrative record. This factor also
favors the conclusion that plaintiffs’ claims are collateral.

    Considering the “agency’s special expertise” factor, the
majority again assumes a legal ruling the district court has
not yet reached—that the TPS statute allows the Secretary
the unfettered discretion to decide whether to consider
intervening events. From there, the majority argues that
whether or how to weigh intervening events is within the
agency’s special expertise. In other words, the majority
reframes plaintiffs’ central allegation. If one focuses on the
86                    RAMOS V. WOLF

complaint as it was written, plaintiffs unambiguously allege
that the Secretary’s new statutory interpretation resulted in a
stark change in the agency’s practice and that by “shifting
the decision-governing standard for country designations
without explanation, Defendants have ignored a clear
statutory command and engaged in procedurally flawed
decision-making.” City of Rialto’s third factor asks whether
that claim lies within the agency’s special expertise. The
majority’s analysis side-steps City of Rialto’s third factor
and dodges the unrefutable conclusion that review of
executive agency action for procedural correctness is not
within DHS’s special expertise. Instead, this is a task
routinely and appropriately undertaken by the court.

    The majority brushes aside City of Rialto’s final factor,
which asks whether an alternative forum is available to hear
plaintiffs’ APA claim. City of Rialto’s first guiding principle
comprises this factor, but the majority deems it not
“particularly critical” because, the majority decides,
Congress intended the TPS statute to grant the Secretary
unreviewable discretion. The majority’s view on this point
cannot be squared with the fact that the TPS statute includes
a McNary-style judicial review bar, not the complete
Gebhardt-style judicial review bar that Congress employed
elsewhere.

    In the end, the majority’s consideration of the City of
Rialto factors repeats a conclusory mantra that plaintiffs’
claims are not collateral; ignores some of the complaint’s
express allegations and reimagines others; and dismisses one
of City of Rialto’s guiding principles. The majority’s only
response is to argue that “our court has . . . employed a fluid
range of considerations” to determine whether a claim is
collateral. But any such “fluidity” cannot permit the
conclusion that a claim is not collateral when all the relevant
                       RAMOS V. WOLF                          87

factors point in the opposite direction. Every one of the City
of Rialto factors favors reviewability.

    The majority separately argues that the complaint’s
prayer for relief supports its conclusion that the APA claim
is not collateral. In particular, the majority finds it important
that the complaint seeks an injunction preventing
implementation of the Secretary’s decisions to terminate the
TPS designations for these four countries. It reasons that
because “Plaintiffs request declaratory and injunctive relief
in setting aside the TPS terminations, they appear to seek
direct relief from the challenged decisions, rather than
collateral relief from an allegedly unlawful agency practice.”
To the contrary, the only conclusion that may fairly be drawn
from plaintiffs’ request for injunctive relief barring
implementation of the TPS terminations is that plaintiffs
allege the terminations were unlawful.

     There is nothing remarkable about the complaint’s
prayer for relief. It seeks a declaration that the four TPS
terminations were unconstitutional and unlawful under the
APA, an order vacating the termination decisions, and an
order enjoining enforcement until plaintiffs’ claims can be
adjudicated on the merits. See, e.g., Regents, 
591 140 S. Ct.
at 1901 
(vacating the Secretary’s action after concluding that
the Secretary violated the APA); Nw. Env’t. Def. Ctr. v.
Bonneville Power Admin., 
477 F.3d 668
, 690–91 (9th Cir.
2007) (declaring the agency’s decision arbitrary, capricious,
and contrary to law and setting aside the decision “unless and
until it has established a proper basis” for the departure from
its two-decade-old precedent); see also 5 U.S.C. § 703
(explicitly authorizing “actions for declaratory judgments
. . . or mandatory injunction”); 5 U.S.C. § 706(2)(A)
(empowering reviewing courts to “hold unlawful and set
aside agency action” that is arbitrary, capricious, an abuse of
88                     RAMOS V. WOLF

discretion, or otherwise not in accordance with law); Koch,
& Murphy, 3 Admin. L. & Prac. § 8:31 (“Remand is the
proper remedy when agency explanation is inadequate
. . . .”).

    The government’s argument on this point is slightly
different from the majority’s. It contends that plaintiffs’
APA claim must be deemed a direct challenge because, in
the government’s view, plaintiffs only seek an injunction
preventing implementation of the Secretary’s decision
without also requesting an order “invalidating a collateral
agency policy or practice.” The government’s spin on this
argument also falls flat. As the district court recognized, this
case is unlike others in which agencies have announced a
change in policy or practice and explained the reasons for
the change. DHS continues to deny that it changed its
practice and it certainly has not offered an explanation for
the new practice the complaint describes. Contrary to the
government’s contention, the complaint does include a
request for declaratory relief. And after the district court
decides the threshold questions presented by the APA claim
(whether a change occurred; if so, what that change was; and
whether the agency’s decision-making process was flawed),
the complaint’s prayer for relief would certainly support a
declaration clarifying the scope of the Secretary’s discretion
to consider intervening events, invalidating the terminations,
and remanding to the Secretary for reconsideration.

    To support its argument that the nature of the claim is
determined by the relief plaintiffs seek, the government
relies on Martinez v. Napolitano, 
704 F.3d 620 
(9th Cir.
2012). But the government reads Martinez wholly out of
context. Martinez was denied asylum, withholding, and
CAT relief.
 Id. at 621. 
After he twice unsuccessfully sought
review in the Ninth Circuit, Martinez filed an APA claim in
                       RAMOS V. WOLF                          89

the district court seeking an order of mandamus requiring the
immigration court to rehear his claims.
 Id. at 622. 
The
district court dismissed the claim for lack of jurisdiction, and
we affirmed. The government seizes upon our approval of
the dismissal in Martinez to argue that the district court
lacked jurisdiction over plaintiffs’ APA claim. In the
government’s view, the request for injunctive relief in
Martinez signaled a direct challenge.

    Martinez cannot possibly bear the weight the
government places on it. The plaintiff in Martinez merely
repackaged his third attempt to obtain relief as an APA
claim. The case stands for the simple proposition that the
district court lacked jurisdiction because Martinez sought a
third chance to argue that he was entitled to asylum and
withholding, rather than following the path Congress
specified for seeking review of orders of removal.
 Id. at 622.
Martinez lends no support to the government’s argument that
plaintiffs’ APA claim is not collateral. Notably, the majority
does not try to argue otherwise.

    We need look no further than McNary for an example of
a reviewable collateral challenge that included a similar
request for declaratory and injunctive relief vacating and
enjoining enforcement of an unlawfully entered
administrative order. The relief requested in McNary was
“an injunction requiring the INS to vacate large categories
of [SAW] denials,” and reconsider the applications using
proper 
procedures. 498 U.S. at 489
. The Supreme Court
rejected the government’s argument that the complaint
challenged the merits of the agency’s individual SAW
decisions merely because it sought vacation of the agency’s
decisions.
 Id. at 495. 
It was critical to the Court’s ruling that
the complaint did “not seek a substantive declaration that
[plaintiffs] are entitled to SAW status,” and that plaintiffs
90                     RAMOS V. WOLF

would only be entitled to have their applications
reconsidered in light of newly prescribed procedures. Id.; cf.
Heckler v. Ringer, 
466 U.S. 602
, 614 (1984) (holding that
although the Heckler plaintiffs attempted to frame their
claim as a challenge to a policy or practice for Medicare
reimbursements, they actually sought to circumvent the
administrative appeal process available to them and obtain a
court order entitling them to reimbursement).

     Finally, the majority contends that the APA cannot be
used as an end-run around a judicial review bar. This is an
uncontested point, and one that has no application to the
plaintiffs’ claim because, as explained, the TPS statute does
not preclude all judicial review; it precludes only direct
challenges to TPS determinations. Here, the majority
assumes that the TPS statute grants the Secretary unfettered
discretion to consider intervening events, and asserts that she
cannot be required to explain the departure from past
practice just because previous Secretaries considered them.
But Supreme Court precedent establishes that this is
precisely what the APA requires. See F.C.C. v. Fox
Television Stations, Inc., 
556 U.S. 502
, 515 (2009) (holding
that an agency must display awareness that it is changing its
position, and explain what that change is, and the basis for
it); see also Encino Motorcars, LLC v. Navarro, 
136 S. Ct.
2117
, 2127 (2016). Just months ago, the Supreme Court
admonished that this requirement is particularly pronounced
where serious reliance interests are at stake, as they are here.
See 
Regents, 140 S. Ct. at 1915 
(discussing the termination
of the DACA program and explaining that “because DHS
was not ‘writing on a blank slate,’ . . . it was required to
assess whether there were reliance interests, determine
whether they were significant, and weigh any such interests
against competing policy concerns.” (emphasis in original)).
                      RAMOS V. WOLF                        91

                             iii.

    The consequences of the majority’s decision are
monumental, but the majority’s reasoning is deeply flawed.
In City of Rialto, we recognized that many of the cases
addressing judicial review bars arise from immigration
statutes, including McNary and Catholic Social Services.
See 581 F.3d at 878
; accord Immigrant Assistance 
Project,
306 F.3d at 847
; Proyecto San 
Pablo, 189 F.3d at 1134
. City
of Rialto also recognized that concern for the substantial
liberty interests at stake in immigration cases was front and
center in the Supreme Court’s McNary 
decision. 581 F.3d
at 878 
(citing 
McNary, 498 U.S. at 490
). Here, the
importance of the interests at stake make the argument in
favor of reviewability even more compelling, because the
lives of 300,000 non-citizens and 200,000 U.S. citizen
children will be forever changed by these TPS terminations.
Depriving plaintiffs of any opportunity for meaningful
judicial review contravenes one of City of Rialto’s guiding
principles. 581 F.3d at 874
.

    Ultimately, my colleagues do not point to a single factor
from our case law that suggests plaintiffs’ APA claim is a
direct challenge. Worse, they forget that the starting place
for our analysis is the presumption that plaintiffs’ APA claim
is reviewable. Lacking clear and convincing evidence of
“specific language or specific legislative history that is a
reliable indicator of congressional intent,” the presumption
of reviewability remains unrebutted. Block v. Cmty.
Nutrition Inst., 
467 U.S. 340
, 349 (1984). The district court
properly asserted jurisdiction over plaintiffs’ APA claim.

                             B.

  After deciding it had jurisdiction to review plaintiffs’
APA claim, the district court concluded that plaintiffs
92                         RAMOS V. WOLF

demonstrated a likelihood of success on the merits of the
claim and enjoined enforcement of the four TPS
terminations pending the outcome of this litigation.
Specifically, the district court found that “DHS made a
deliberate choice to base the TPS decision solely on whether
the originating conditions or conditions directly related
thereto persisted, regardless of other current conditions no
matter how bad,” and “this was a clear departure from prior
administration practice.” The district court found that “this
departure was a substantial and consequential change in
practice,” and the “government has offered no explanation
or justification for this change.”

    The majority fails to acknowledge Supreme Court
precedent requiring that an agency cannot depart from its
prior policy or practice without acknowledgment or
explanation, particularly where a prior agency policy has
created serious reliance interests. See Encino 
Motorcars,
136 S. Ct. at 2127 
(“Whatever potential reasons the
Department might have given, the agency in fact gave almost
no reasons at all. In light of the serious reliance interests at
stake, the Department’s conclusory statements do not suffice
to explain its decision.”); see also Smiley v. Citibank (South
Dakota), N.A., 
517 U.S. 735
, 742 (1996) (explaining that
“[s]udden and unexplained change” in agency position, or
change that “does not take account of legitimate reliance on
prior interpretation” may be arbitrary and capricious);
California Trout v. FERC, 
572 F.3d 1003
, 1023 (9th Cir.
2009) (same). 8


     8
       Even though TPS designations are temporary, the district court
found that the risk of harm faced by plaintiffs is not entirely attributable
to the temporary nature of the program. According to the complaint,
plaintiffs are homeowners, mortgage-holders, employers and
                           RAMOS V. WOLF                               93

     The requirement that an agency provide a reasoned
explanation for its action demands that the agency first
“display awareness that it is changing position,” and then
“show that there are good reasons for the new policy.” 
Fox,
556 U.S. at 515
. This does not require that the reasons for
the new policy “are better than the reasons for the old one,”
only that reasons exist for the change.
 Id. When an agency
changes a policy that has engendered serious reliance
interests “a more detailed justification” may be necessary.
Id.; see also 
Regents, 140 S. Ct. at 1915
.

    The district court prepared a table comparing the Federal
Register notices announcing the terminations for Haiti,
Sudan, El Salvador, and Nicaragua with notices of TPS
extensions granted prior to October 2017. 9 Though the
majority attempts to cast plaintiffs’ claim as requiring a
review and comparison of the substantive merits used to
make TPS determinations, the district court’s comparison of


entrepreneurs. They are engaged in careers, faith communities, labor
unions, and educational institutions. See 
Regents, 140 S. Ct. at 1913
–14
(noting that “DACA recipients have enrolled in degree programs,
embarked on careers, started businesses, purchased homes, and even
married and had children, all in reliance on the DACA program,” and
observing that there is no “legal authority establishing that” the
temporary nature of DACA “automatically preclude[s] reliance
interests” (internal quotation marks omitted)). At the very least, if DHS
is required to comply with the APA’s procedural requirements, plaintiffs
will have additional time to sell their homes and businesses—hopefully
avoiding fire sale prices—make difficult decisions regarding the care of
their children, and prepare to return to their home countries in an orderly
fashion.

    9
       The district court created this chart for its order denying the
government’s motion to dismiss, and later incorporated the table by
reference into its order granting plaintiffs’ motion for preliminary
injunction.
94                   RAMOS V. WOLF

the factors DHS has considered in the past only allowed the
court to determine whether DHS has changed its practices
over time. The court found that previous administrations
“consistently considered” intervening events, including
instances when intervening events had no causal connection
to the original reason a TPS designation was granted. The
district court also found that “factors that were explicitly
considered recently by prior administrations were wholly
absent” from the subject termination notices.

    There is no real room for debate that the agency changed
its practice. Former Secretary Kelly, former Acting
Secretary Duke, and former Secretary Nielsen all said as
much. In January 2018, Secretary Nielsen testified before
the Senate Judiciary Committee and described the
administration’s process for making TPS decisions:

       “We did not talk generally about the country
       conditions, and I want to be very clear on this. The
       law does not allow me to look at the country
       conditions of a country, writ large.”

       The TPS statute “requires me to look very
       specifically as to whether the country conditions
       originating from the original designation continue to
       exist.”

       Referring specifically to El Salvador, Secretary
       Nielsen stated, “[W]e didn’t dispute the country
       conditions are difficult . . . , unfortunately, the law
       requires me, if I cannot say that the conditions
       emanating from the earthquakes still exist,
       regardless of other systemic conditions, I must
       terminate TPS.” (second alteration in original).
                      RAMOS V. WOLF                         95

Secretary Nielsen also testified in April 2018 before the
House Appropriations Subcommittee on Homeland
Security. In response to the question, “How can we possibly
rationalize sending 59,000 people back to those kinds of
conditions?” The Secretary stated:

       “[T]he law really restricts my ability to extend TPS.
       The law says that if the effects of the originating
       event, so that’s a causation issue, do not continue to
       exist, then the [S]ecretary of Homeland Security
       must terminate.”

In 2017, before Elaine Duke became Acting Secretary,
Secretary Kelly testified to a similar understanding of the
scope of his authority pursuant to the TPS statute, explaining
that TPS is granted “for a specific event,” such as the 2010
earthquake in Haiti, and the law required that he look only at
whether the original condition warranting the TPS
designation had abated. Kelly testified that it was admittedly
hard to remove people who had relied on TPS for twenty
years, “[b]ut according to the law, I don’t have the ability to
solve it.” Later, in an email to then-White House Chief of
Staff Kelly, Acting Secretary Duke made clear that she
understood the agency’s practice had changed. Acting
Secretary Duke wrote that her decision to terminate the TPS
designation for Nicaragua reflected “a strong break with past
practice” that “will send a clear signal that TPS in general is
coming to a close.” Additionally, the government’s excerpts
of record include a briefing paper prepared for Acting
Secretary Duke immediately prior to a meeting of principals
to discuss several countries’ TPS designations, including
Nicaragua and Haiti. The discussion paper articulated the
same standard that Secretaries Kelly and Nielsen testified to:
the TPS statute “requires the Acting Secretary of Homeland
Security to determine . . . whether to extend or terminate the
96                         RAMOS V. WOLF

status based on an evaluation of the conditions that initially
warranted granting TPS.”

    On appeal, the government argues that it did not change
its policy, practice, or interpretation of the TPS statute, but
in the district court it conceded that there may have been “a
change in emphasis” and weight given to various factors.
Thus, in the district court the government reframed the
complaint’s central allegation rather than responding to it.
Plaintiffs’ claim is not that the Secretary incorrectly weighed
intervening events; they contend that intervening events
were entirely omitted from the Secretary’s calculation
because she understood she lacked the discretion to consider
them. Before our court, the government more directly
responds to the allegation that the agency began treating
intervening events as irrelevant. It now argues that the
Secretary’s assessment of current country conditions
“necessarily involved consideration of whether intervening
events hampered the country’s recovery” from the
circumstance that warranted the original TPS designation.
But this logic is also faulty. A survey of current country
conditions would likely answer whether a foreign state has
recovered from an earthquake or flood that prompted its
original TPS designation, but such a survey may not say
anything at all about unrelated intervening events such as an
armed conflict or epidemic. 10 See 8 U.S.C. § 1254a.


     10
        The government also argues on appeal that the Secretary’s
interpretation of her statutory authority follows from a natural reading of
the TPS statute. But we may only review the explanation an agency gave
contemporaneously, and here it is undisputed that DHS denied that it
changed its practice, and certainly gave no explanation for the change.
See, e.g., Encino Motorcars, LLC v. Navarro, 
136 S. Ct. 2117
, 2127
(2016) (holding that although an agency may justify its policy change by
explaining that the policy is more consistent with the statutory language,
                          RAMOS V. WOLF                              97

      The January 18, 2018 termination notice for El Salvador
illustrates the very apparent flaw in the government’s
reasoning. The Secretary summarized the reason for
termination by stating “DHS has reviewed conditions in El
Salvador” and “determined that the conditions supporting El
Salvador’s 2001 designation for TPS” based on a series of
earthquakes “are no longer met” because “[r]ecovery efforts
. . . have largely been completed” and “social and economic
conditions affected by the earthquakes have stabilized.”
83 Fed. Reg. 2654, 2655–56. By contrast, the previous
notice extending El Salvador’s TPS designation cited a
number of intervening events, many of which were unrelated
to the 2001 earthquake:

         “subsequent natural disasters and environmental
         challenges, including hurricanes and tropical storms,
         heavy rains and flooding, volcanic and seismic
         activity, [and] an ongoing coffee rust epidemic”;

         a prolonged drought causing ongoing food insecurity
         and projected to cause more than $400 million in
         agricultural losses, malnutrition, and forced
         migration;

         outbreaks of mosquito-borne illnesses;

         a housing deficit of 630,000 houses, created in part
         by homes destroyed by the original earthquake;




the agency must provide that explanation at the time of the action).
Notably, the government’s position on appeal is in significant tension
with the majority’s view that the statute grants the Secretary unfettered
discretion to consider or not consider intervening events.
98                    RAMOS V. WOLF

       lack of potable water and electricity, water
       contamination and shortages, and resulting conflicts
       over water, including extortion demands from gangs;

       increased inflation caused by general insecurity and
       water shortages;

       poor fiscal, unemployment, and security situations,
       including nearly one-third underemployment and
       one-third of the country’s population living in
       poverty;

       high rates of murder, extortion, and robbery, and
       significant gang activity;

       the government’s general inability to respond
       adequately to crime, including insufficient staffing
       and training in police departments, as well as
       corruption; and

       a weak judicial system with low criminal conviction
       rates and high levels of corruption.

81 Fed. Reg. 44,645, 44,647. There is no evidence in the
2018 termination notice that the Secretary considered any of
these intervening events beyond the conclusory statements
that “homes have been rebuilt,” “money has been provided
for water,” and the country’s “economy is steadily
improving.” 83 Fed. Reg. at 2656.

     In addition to comparing the factors cited in the Federal
Register notices announcing the TPS terminations, the
district court cited other evidence showing that DHS
changed its policy. The court called out a “particularly
telling communication” between the recently appointed
Chief of the USCIS Office of Policy and Strategy, Kathy
                      RAMOS V. WOLF                        99

Kovarik, and career employees at USCIS. In October 2017,
Chief Kovarik alerted the career staff that there was a
“problem” with their draft Decision Memos for El Salvador,
Nicaragua, and Honduras. According to Kovarik, the
Decision Memos “read[] as though we’d recommend an
extension” of TPS because the draft “talk[ed] so much about
how bad it is, but there’s not enough in there about positive
steps that have been taken since it’s [sic] designation.” One
recipient of Chief Kovarik’s email responded that staff
could:

       comb through the country conditions to try to
       see what else there might be, but the basic
       problem is that it IS bad there [with respect
       to] all of the standard metrics. Our strongest
       argument for termination, we thought, is just
       that it is not bad in a way clearly linked to the
       initial disasters prompting the designations.
       We can work with RU to try to get more,
       and/or comb through the country conditions
       we have again looking for positive gems, but
       the conditions are what they are.

In a separate email exchange, Kovarik received feedback
from the person appointed to serve as her Senior Policy
Advisor that the draft Haiti memo compiled by career
employees was “overwhelmingly weighted for extension,”
which he did “not think [was] the conclusion we are looking
for.” This email explained that the Senior Policy Advisor
edited the memo to “fully support termination” and noted
areas “where additional data should be provided to back up
this decision.”

    In perhaps the most graphic example, the district court
recounted evidence of a highly irregular sequence of events
100                      RAMOS V. WOLF

leading up to the Sudan decision. USCIS initially submitted
a decision memo to the Secretary of Homeland Security
explaining the conditions on the ground were such that
termination of Sudan’s TPS designation was not warranted.
The memo concluded that Sudan continued to meet the
statutory requirements for a TPS designation because it
“remains unsafe for individuals to return.” Just one week
later, USCIS submitted a second decision memo on Sudan
reiterating the same country conditions, but this time it
recommended termination of TPS. In response to the new
memo, the nominee to head USCIS, Lee Francis Cissna, 11
wrote:

        This memo reads like one person who
        strongly supports extending TPS for Sudan
        wrote everything up to the recommendation
        section, and then someone who opposes
        extension snuck up behind the first guy,
        clubbed him over the head, pushed his
        senseless body out of the way, and finished
        the memo.

    The government argues that these emails simply reflect
internal debate about TPS designation decisions, and the
majority characterizes them as “a commonplace aspect of
how agencies often operate.” But read in conjunction with
the district court’s chart comparing TPS notices in the
Federal Register that tracked over time the criteria the
agency actually considered, these email exchanges
powerfully support the district court’s conclusion that DHS
embarked on a new practice of ignoring intervening events
when reviewing TPS determinations. They also leave no

    11
       At the time, Cissna had been nominated by the President to serve
as Director of USCIS. He was confirmed as Director in October 2017.
                      RAMOS V. WOLF                        101

doubt that there was ample support for the district court’s
preliminary conclusion that the subject TPS terminations
may have been the result of an irregular, non-evidence based
process. The evidence cited by the district court overwhelms
any objection to the injunction the court entered to maintain
the status quo until this concerning record can be sorted.

    The district court’s review of the record compellingly
supports the plaintiffs’ contention that DHS changed its
policy in the way plaintiffs’ complaint describes, but
plaintiffs also introduced a sworn declaration from former
USCIS Director Leon Rodriguez that unequivocally
confirms this. According to Rodriguez, during his tenure as
Director from 2014 to 2017, the agency had broad discretion
to consider both current and intervening events “regardless
of whether those intervening factors had any connection to
the event that formed the basis for the original designation
or to the country’s recovery from that originating event.”

    My concurring colleague strongly suggests that
consideration of the Rodriguez declaration may have been
error. He argues that the district court prematurely ordered
discovery, but also acknowledges that the government did
not appeal the district court’s discovery orders. The majority
does not reach this issue. I agree that we should not reach it,
and briefly explain why.

    On appeal, the government’s opening brief made passing
mention that it objected in the district court to the court’s
discovery orders. The discovery issue was not briefed by
either party and it was not an issue in this appeal. See Arpin
v. Santa Clara Valley Transp. Agency, 
261 F.3d 912
, 919
(9th Cir. 2001) (“[A] bare assertion does not preserve a
claim.” (quoting Barnett v. U.S. Air, Inc., 
228 F.3d 1105
,
1110 n.1 (9th Cir. 2000) (en banc)). The propriety of the
discovery orders was first raised by a member of our panel
102                    RAMOS V. WOLF

at oral argument, and we issued an order requesting
supplemental briefing concerning the scope of the
permissible record. Specifically, we asked the parties to
“identify the documents that comprise the reviewable
administrative record” and “identify any documents that the
district court relied upon or cited” in its preliminary
injunction order “that are not contained within the
administrative record.” In response, the government took
the position that we need not decide the discovery dispute at
this stage of the proceedings, and restated its position that it
had preserved the issue for a future merits appeal. Plaintiffs’
response to our order also argued that we should not take up
the discovery dispute in this interlocutory appeal, citing
Mohawk Industries, Inc. v. Carpenter, 
558 U.S. 100
, 108
(2009). That should be the end of the matter, particularly
because plaintiffs so clearly demonstrated a likelihood of
success on the merits of their APA claim based solely on the
administrative record the government certified. The district
court’s analysis of the APA claim does not depend on former
Director Rodriguez’s declaration.

    I write separately on this point to explain that even if we
were inclined to wade into the discovery dispute, the record
would surely stymy our efforts. According to plaintiffs, the
government argued to the district court that making an
Overton Park finding “would be a waste of judicial
resources” because discovery was already taking place and
there was an “overlap between the administrative record and
the documents produced in discovery.” See Citizens to
Preserve Overton Park, Inc. v. Volpe, 
401 U.S. 402
, 420
(1971). Assuming the government elsewhere preserved an
objection to the district court’s discovery orders, the
government’s supplemental brief states that it “is not now
contesting the inclusion in the administrative record of the
deliberative materials that appear there,” but it does not
                           RAMOS V. WOLF                              103

explain which materials it considers to be deliberative, or
why. As plaintiffs’ brief argues, the government’s choice to
produce documents exclusively from persons who directly
or indirectly advised the Secretary strongly suggests that the
produced materials are likely included within the scope of
the administrative record.

    In any event, our supplemental order requested
information that would have allowed us to parse the
evidence relied upon by the district court, and we did not
receive it. The government’s supplemental briefing raises
more questions than it answers concerning the discovery
issues that were litigated in the district court, and as my
concurring colleague notes, no interlocutory appeal was
taken from the district court’s discovery orders. For
purposes of this appeal, the government has waived this
issue. 12

   The district court’s analysis of the evidence in the record
was thorough, careful, and detailed. The court applied the

    12
         The concurrence also shares concerns about nationwide
injunctions, though this issue was raised by the government for the first
time on appeal. I agree this is an unsettled and difficult area of the law;
but here, it is not even clear the district court entered a nationwide
injunction. The district court was only asked to consider four discrete
country designations. The TPS statute makes individual determinations
dependent upon country designations. In this way, the district court’s
preliminary injunction is readily distinguishable from cases in which
courts have enjoined nationwide application of other immigration
provisions and policies. See, e.g., Saget v. Trump, 
375 F. Supp. 3d 280
,
379 (E.D.N.Y. 2019) (observing Secretary Duke’s termination of Haiti’s
TPS designation “concerns a single decision on a nationwide policy,”
not case-by-case enforcement, and the government does not argue how
the TPS terminations could apply to some beneficiaries and not to
others). Questions regarding the intended scope of the injunction should
be first addressed by the district court.
104                   RAMOS V. WOLF

correct legal standard. Within the stipulated record, the
district court found “a wealth of record evidence” supporting
its factual finding that the current administration changed its
practice and based the TPS decisions in this case “solely on
whether the originating conditions or conditions directly
related thereto persisted, regardless of other current
conditions no matter how bad.” An abrupt and unexplained
change in agency policy or practice is a classic basis for an
APA challenge, as is the allegation that an agency
erroneously interpreted its governing statute. The district
court correctly concluded that plaintiffs demonstrated a
likelihood of success on their APA claim.

                              C.

    The government began its Equal Protection argument
with the contention that § 1254a(b)(5)(A) also bars judicial
review of colorable constitutional claims. The majority does
not acknowledge that the government argued this point.

    It is black-letter law that “where Congress intends to
preclude judicial review of constitutional claims[,] its intent
to do so must be clear.” Webster v. Doe, 
486 U.S. 592
, 603
(1988). The TPS statute does not come close to meeting this
rigorous standard; in fact, § 1254a makes no mention of
constitutional claims at all. Thus, the government’s
argument that our court is barred from reviewing plaintiffs’
Equal Protection claim is squarely contradicted by
controlling precedent. See, e.g., Demore v. Hung Joon Kim,
538 U.S. 510
, 517 (2003); Sierra Club v. Trump, 
929 F.3d
670
, 698 (9th Cir. 2019); Allen v. Milas, 
896 F.3d 1094
, 1108
(9th Cir. 2018).

    The district court correctly ruled that it had jurisdiction
to review plaintiffs’ Equal Protection claim. The claim is
premised on a record peppered with statements that plaintiffs
                         RAMOS V. WOLF                           105

proffered as direct evidence of racial animus. After
reviewing the evidence in detail, the court ruled that
plaintiffs raised serious questions that racial animus was at
least “a motivating factor” in the decisions to terminate TPS
for Haiti, Sudan, El Salvador, and Nicaragua because the
statements were made by the President. See Arlington
Heights, 429 U.S. at 266 
(“Determining whether invidious
discriminatory purpose was a motivating factor demands a
sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.”).

    Remarkably, the government urges us to interpret the
many denigrating comments in the record as descriptions of
inferior living conditions in foreign countries, rather than
evidence of racial animus. But we cannot sweep aside the
words that were actually used, and it would be worse for us
to deny their meaning. Some of the statements expressly
referred to people, not to places. The President’s statements
require no deciphering. 13

    The majority does not dispute that the evidence
supported the district court’s finding of racial animus, but it
finds no evidence that the statements were tied to the subject
TPS terminations. Nothing in the record suggests that

     13
        The district court’s order denying the government’s motion to
dismiss included the painful observation that “President Trump did not
merely call Haiti and El Salvador ‘shithole countries.’ He asked ‘Why
are we having all these people from shithole countries come here?’ and
‘Why do we need more Haitians?’ These are not merely comments about
a place, but can reasonably be understood as comments about the people
who come from those places and their intrinsic worth.”

   The same is true of the President’s statements that 15,000 Haitian
immigrants “all have AIDS,” and his statements characterizing
immigrants from Mexico and Central America as criminals and snakes.
106                   RAMOS V. WOLF

Secretary Kelly, Acting Secretary Duke, or Secretary
Nielsen made or repeated any of the racially charged
statements recounted by the district court and by the
majority, and we should be exceptionally reticent to attribute
racial animus from one person to another.

    The doctrine of constitutional avoidance counsels that
we should not reach plaintiffs’ Equal Protection claim in this
interlocutory appeal because plaintiffs easily demonstrated a
likelihood of success on the merits of their APA claim. That
claim alone supports the district court’s preliminary
injunction.

    The doctrine of constitutional avoidance serves an
important purpose. Interpreting the Constitution is “the most
important and the most delicate of the Court’s functions” and
has perhaps the most profound consequences for others.
Rescue Army v. Mun. Court of City of Los Angeles, 
331 U.S.
549
, 569 (1947). Issuing constitutional rulings prematurely
or in the abstract risks creating uncertainty and insecurity
about our most fundamental rights.
 Id. at 56
9–72.

    The exceptional record in this case is reason for caution,
especially because we have a duty to avoid unnecessarily
deciding constitutional questions. See Jean v. Nelson,
472 U.S. 846
, 857 (1985); Alabama State Fed’n of Labor v.
McAdory, 
325 U.S. 450
, 470 (1945). The longstanding
principle especially applies when the decision on a
constitutional claim would not provide plaintiffs any
additional type of relief or remedy beyond what they are
already entitled to on their other, non-constitutional claims.
Lyng v. Nw. Indian Cemetery Protective Ass’n, 
485 U.S.
439
, 446 (1988); see also Alma Motor Co. v. Timken-Detroit
Axle Co., 
329 U.S. 129
, 136 (1946). Here, a decision on
plaintiffs’ Equal Protection claim would not entitle them to
                      RAMOS V. WOLF                       107

any additional relief. They are entitled to a preliminary
injunction based on their APA claim alone.

                             D.

    Plaintiffs’ APA claim is subject to judicial review and
plaintiffs undoubtedly demonstrated a likelihood of success
on its merits. The government does not contest three of the
four Winter factors, but it must not be forgotten that the
district court was responsible for balancing all four factors
when deciding whether to enter a preliminary injunction.
Unsurprisingly, the district court concluded that the “balance
of hardships tips decidedly” in plaintiffs’ favor. The
irreparable harm faced by plaintiffs—who include 300,000
non-citizens and 200,000 U.S. citizen children facing
separation from their parents or their country—could hardly
be more compelling. The district court also considered the
public’s interest, including the integral role of TPS holders
in national and local economies, the public’s interest in
avoiding dividing families, and the harm to local
communities. The court recognized that the government
could not in good faith argue that it would suffer any
concrete harm if TPS holders are allowed to remain in the
United States pending resolution of this litigation because
they have been lawfully present in the United States for
many years. The district court did not abuse its discretion
when it granted preliminary injunctive relief to preserve the
status quo. I would affirm that order.

   Accordingly, I respectfully dissent.