Potential DHS Strategies to Terminate Litigation Against Secretary Noem
1. Vigorous Defense Based on Executive Authority
• Strategy: DHS is likely to argue that Secretary Noem’s decision to terminate TPS for Honduras, Nicaragua, and Nepal falls within her statutory authority under the Immigration Act of 1990, which grants the DHS Secretary discretion to designate, extend, or terminate TPS based on country conditions. DHS could assert that Noem’s review, which concluded that conditions in these countries have improved since Hurricane Mitch (1998 for Honduras and Nicaragua) and the 2015 earthquake (Nepal), complies with the APA’s requirement for reasoned decision-making. The department may cite its consultation with U.S. Citizenship and Immigration Services (USCIS) and the State Department, as noted in Federal Register notices, to bolster its case.
• Details: DHS spokesperson Tricia McLaughlin has stated that the lawsuit “ignores the President’s constitutionally vested powers” and that TPS was “never intended to be a de facto asylum program,” suggesting a defense rooted in executive prerogative and the temporary nature of TPS. DHS could argue that the 60-day wind-down period, while shorter than historical norms, is sufficient under the statute, and that the terminations align with the Trump administration’s goal of “restoring integrity” to the immigration system.
• Likelihood: High. DHS has consistently defended TPS terminations by emphasizing executive discretion, as seen in the Venezuelan TPS case (National TPS Alliance v. Noem, Case No. 3:25-cv-01766), where it argued similar points. The Supreme Court’s May 2025 ruling allowing the termination of TPS for 350,000 Venezuelans supports this approach, indicating judicial deference to DHS’s authority.
• Critical Perspective: While DHS’s reliance on executive authority is legally grounded, its claim of improved conditions in Honduras and Nicaragua is questionable. State Department travel advisories (Level 3: Reconsider Travel) cite ongoing crime, arbitrary detention in Nicaragua, and gang violence in Honduras, contradicting DHS’s assessment. The failure to address Nicaragua’s authoritarian regime under Daniel Ortega in termination notices weakens the APA compliance argument, as it suggests selective evidence use.
2. Motion to Dismiss or for Summary Judgment
• Strategy: DHS could file a motion to dismiss the lawsuit on procedural grounds, arguing that the plaintiffs lack standing, the case is not ripe, or the court lacks jurisdiction over discretionary TPS decisions. Alternatively, DHS could move for summary judgment, asserting that the terminations were lawful and supported by evidence of improved conditions, such as Honduras’s tourism growth and Nicaragua’s recovery from Hurricane Mitch.
• Details: DHS’s Federal Register notices emphasize that Honduras has implemented programs like “Brother, Come Home” to reintegrate deportees, and Nicaragua is a “growing tourism, ecotourism, agriculture, and renewable energy leader.” These claims could be used to argue that the terminations are fact-based and not arbitrary. DHS might also challenge the racial animus claims, arguing that statements by Noem and Trump (e.g., a DHS post alleging TPS allowed “MS-13 gang members” and “terrorists”) are not directly linked to the termination decisions.
• Likelihood: Moderate. Motions to dismiss have been less successful in TPS cases, as seen in Ramos v. Nielsen (2018), where the Northern District rejected similar arguments. However, a summary judgment motion could gain traction if DHS provides detailed evidence of its review process, especially if the court avoids engaging with the Fifth Amendment claims, which require a higher evidentiary threshold.
• Critical Perspective: DHS’s evidence of improved conditions appears cherry-picked, ignoring ongoing crises like political repression in Nicaragua and gang violence in Honduras. The racial animus claim, while compelling, may be dismissed if the court focuses solely on APA compliance, as courts often avoid delving into intent absent clear evidence. The 60-day wind-down period is a weak point, as it deviates from prior practice (typically six months or more), potentially violating APA standards for reasoned decision-making.
3. Settlement or Policy Adjustment to Moot the Case
• Strategy: DHS could seek to settle the lawsuit by offering a longer wind-down period (e.g., six months instead of 60 days) or agreeing to re-evaluate country conditions, potentially mooting the case. This approach would avoid a prolonged legal battle while maintaining the administration’s goal of ending TPS. Alternatively, DHS could redesignate TPS for one or more countries if new crises emerge, as seen in past administrations, though this is unlikely given the Trump administration’s stance.
• Details: A longer wind-down period could address the plaintiffs’ APA claim that 60 days is insufficient, aligning with historical norms where secretaries provided six to 18 months for TPS transitions. Such a settlement could reduce economic disruption for TPS holders and businesses, as noted by critics like Senator Catherine Cortez Masto, who highlighted the contributions of TPS holders to U.S. communities.
• Likelihood: Low. The Trump administration’s aggressive immigration stance, exemplified by Noem’s termination of TPS for multiple countries (e.g., Venezuela, Haiti, Afghanistan), suggests reluctance to compromise. However, a settlement could be strategic if DHS anticipates a likely loss in court, given the Northern District’s history of blocking TPS terminations (Ramos v. Nielsen, National TPS Alliance v. Noem for Venezuela).
• Critical Perspective: A settlement seems inconsistent with Noem’s public statements and DHS’s broader deportation agenda, which includes ad campaigns urging self-deportation and incentives like a $1,000 exit bonus via the CBP One app. Offering concessions could undermine the administration’s “Make America Safe Again” narrative, but it might be pragmatic to avoid a precedent-setting loss.
4. Deportation of Key Plaintiffs to Undermine the Case
• Strategy: DHS could attempt to deport key plaintiffs or a significant number of TPS holders before the July 29, 2025, decision, potentially weakening the lawsuit by removing parties with standing or rendering the case moot. This tactic was reportedly used in a prior case against Noem, where the deportation of key plaintiffs led to the lawsuit’s collapse without Noem responding in court.
• Details: DHS has encouraged TPS holders to self-deport using the CBP One app, offering complimentary plane tickets and a $1,000 exit bonus. If plaintiffs like Jhony Silva, a Honduran TPS holder, are deported or leave voluntarily, the court could dismiss the case for lack of active plaintiffs. DHS’s recent actions, such as deporting Venezuelans to El Salvador under the Alien Enemies Act, indicate a willingness to expedite removals.
• Likelihood: Moderate. The prior success of this strategy, as noted in a May 22, 2025, X post, suggests DHS might replicate it. However, the Northern District’s swift action in the Venezuelan TPS case (granting a nationwide injunction in March 2025) shows courts can act quickly to block deportations during litigation. The ACLU and other legal groups representing the plaintiffs may also seek emergency stays to protect plaintiffs.
• Critical Perspective: Deporting plaintiffs to derail litigation raises ethical and legal concerns, potentially violating due process by undermining access to the courts. The strategy’s success depends on DHS’s ability to act faster than judicial interventions, which is uncertain given the court’s history of issuing injunctions. Moreover, targeting plaintiffs could strengthen the racial animus claim by appearing retaliatory, though DHS would likely argue it’s enforcing lawful terminations.
5. Appeal to Higher Courts
• Strategy: If the Northern District issues an injunction on July 29, 2025, blocking the TPS terminations, DHS could appeal to the Ninth Circuit Court of Appeals, as it did in the Venezuelan TPS case after a March 2025 injunction. If the Ninth Circuit upholds the injunction, DHS could escalate to the Supreme Court, leveraging its May 2025 ruling that allowed the termination of Venezuelan TPS to argue for broad executive authority.
• Details: The Supreme Court’s 2025 decision to lift an injunction on Venezuelan TPS terminations indicates a favorable view of DHS’s discretion, though Justices Jackson and Sotomayor dissented, citing harm to TPS holders. DHS could argue that the terminations for Honduras, Nicaragua, and Nepal are similarly within its authority and that judicial overreach undermines immigration enforcement. Oral arguments in the Ninth Circuit for the Venezuelan case are ongoing, and their outcome could influence DHS’s strategy.
• Likelihood: High if an injunction is issued. DHS has shown a pattern of appealing adverse rulings, as seen in the Venezuelan and Haitian TPS cases. The Supreme Court’s conservative majority makes it a favorable venue for DHS, though the lack of reasoning in its May 2025 order leaves uncertainty about broader TPS precedent.
• Critical Perspective: Appealing to higher courts aligns with DHS’s goal of expediting deportations but risks prolonging uncertainty for TPS holders. The Supreme Court’s deference to executive authority may not extend to cases with clear APA violations, such as inadequate wind-down periods or failure to consider current conditions (e.g., Nicaragua’s human rights abuses). An appeal could also galvanize advocacy groups, as seen in posts on X criticizing Noem’s actions.
Broader Context and DHS’s Immigration Agenda
DHS’s approach to the litigation is shaped by the Trump administration’s broader immigration crackdown, which includes terminating TPS for multiple countries (Afghanistan, Cameroon, Haiti, Nepal, Nicaragua, Honduras, Venezuela) and prioritizing mass deportations. Noem’s actions, such as launching a multimillion-dollar ad campaign urging self-deportation and targeting criminal aliens (e.g., MS-13 members), reflect a focus on “securing the homeland” and reducing legal immigration pathways. The termination notices for Honduras and Nicaragua, effective September 6, 2025, and Nepal, effective August 5, 2025, align with this agenda, offering a 60-day transition period and incentives for voluntary departure. However, legal challenges have slowed similar efforts, with federal judges in California and New York blocking TPS terminations for Venezuelans and Haitians, respectively, suggesting DHS may face an uphill battle.
Critical Perspective
DHS’s potential strategies—defending executive authority, seeking dismissal, settling, deporting plaintiffs, or appealing—reflect a calculated effort to end TPS while navigating legal constraints. However, the department’s reliance on outdated or selective evidence (e.g., tourism growth in Honduras) undermines its APA compliance, as ongoing crises in Nicaragua (authoritarian repression) and Honduras (gang violence) contradict claims of safety. The 60-day wind-down period, significantly shorter than the six-to-18-month periods in prior terminations, appears designed to expedite deportations but risks judicial scrutiny for arbitrariness. The racial animus allegations, supported by DHS’s own statements about “non-white, non-European” TPS holders, could strengthen the plaintiffs’ case but require concrete evidence to sway a court. Deporting plaintiffs to moot the case, while effective in one instance, raises ethical questions and may provoke judicial backlash. Ultimately, DHS’s success depends on whether the court prioritizes executive discretion or procedural fairness, with the Northern District’s history favoring the latter. The broader narrative of TPS as a “temporary” program is valid, but DHS’s failure to address current conditions and its aggressive deportation tactics suggest political motivations over humanitarian considerations.
Conclusion
DHS is likely to pursue a multi-pronged approach to terminate the litigation: defending Noem’s authority, seeking dismissal or summary judgment, and preparing to appeal if necessary. Deporting plaintiffs is a riskier tactic but has precedent, while a settlement seems unlikely given the administration’s stance. The most probable near-term strategy is a robust legal defense emphasizing executive discretion, backed by an appeal to the Ninth Circuit or Supreme Court if the July 29, 2025, ruling is unfavorable. However, the Northern District’s track record and the plaintiffs’ strong APA claims suggest DHS may face a temporary injunction, delaying terminations until a full review. For real-time updates closer to the decision date or specific details about DHS’s legal filings, I can search further if requested
