Mullin v. Doe · ¶126

For that reason, the judicial-review bar does not preclude the plaintiffs’ failure-to-consult claims. Those claims are narrow. They do not assert that the Secretary made the wrong call when she determined that Haiti and Syria no longer meet the criteria for TPS (although the plaintiffs surely think that too). Instead, the claims are that the Secretary failed to comply with a pre-determination procedural mandate—more specifically, that she failed to consult with appropriate agencies about country conditions. A court can adjudicate those claims without reviewing—or even thinking about—the Secretary’s later “determination[s]” concerning (i.e., “with respect to”) the “termination” of Haiti’s and Syria’s TPS “designation[s].” Ibid. That is because the claims concern a distinct matter—whether the Secretary did what the statute demands before she made her unreviewable decision.

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