Federal court blocks Trump’s termination of TPS for Haiti

The following article was published by Haiti Liberté on April 16. (tinyurl.com/y583q98m)

By the National Immigration Project

Saget vs. Trump is a lawsuit brought in January 2019 by Haïti Liberté, Family Action Network Movement (FANM), and nine Haitians who hold TPS status. The National Immigration Project of the National Lawyers Guild (NIPNLG) was one of the plaintiffs’ lawyer groups arguing the case. They wrote the following summary of Judge Kuntz’s decision.

In a victory for due process and a blow to Trump’s racially biased, anti-immigrant policies, on Apr. 11, 2019, Federal District Judge William F. Kuntz II issued a preliminary injunction blocking the Trump administration’s decision to end Temporary Protected Status (TPS) for Haiti.

The Trump Administration had terminated TPS for more than 50,000 Haitians who have lived lawfully and contributed to the U.S. for nearly a decade. This decision is the result of a four-day trial in early January 2019 that heard testimony from experts, former government officials, and plaintiffs about the impact of the TPS termination, and the ways in which the government’s decision-making process violated long-established agency practices.

In making the decision, Judge Kuntz reviewed evidence submitted by the government, by the plaintiffs, and “privileged” evidence (evidence only available to him). He then issued a nationwide injunction prohibiting the Department of Homeland Security (DHS) from terminating TPS for Haiti pending the outcome of the litigation, effective immediately.

There is also a preliminary injunction for Haitian TPS holders in a parallel case, Ramos v. Nielsen, which is currently on appeal. This injunction will continue until further order from Judge Kuntz, even if the one in Ramos is terminated upon a decision of appeal.

Specifically, Judge Kuntz ruled that the plaintiffs are likely to succeed on the merits of their claim because DHS did not conduct a good-faith, evidence-based review of facts on the ground to determine whether to extend Haiti’s TPS. Instead the agency was improperly influenced by White House officials’ political motivations to terminate TPS, in violation of the Administrative Procedures Act, the judge found. The court also ruled that plaintiffs were likely to succeed on their claims that DHS had changed the standard for determining how TPS decisions are made, without notice or explanation, and that the Trump Administration terminated TPS for Haiti based on racial animus.

Sejal Zota, legal director at the National Immigration Project of the National Lawyers Guild (NIPNLG) and attorney for the plaintiffs, said: “This 150-page decision is a long and thorough missive on government manipulation. It exposes at the highest levels the government’s unlawful dismantling of the TPS program, and its discriminatory purposes in doing so. It also vindicates the brave struggle of Haitian TPS holders who challenged Trump, because the law was on their side.”

NIPNLG’s co-counsels in the case were the law firms Kurzban, Kurzban, Tetzeli and Pratt, and Mayer Brown. Providing significant support was the Institute for Justice and Democracy in Haiti (IJDH), a Boston-based human rights nonprofit.

In sum: Judge Kuntz’s findings indicate that the White House pressured federal agencies to change their longstanding practices to reach a decision sought by the administration for its own purposes, and that these same federal agencies manipulated facts and processes to justify a predetermined decision to end Haiti’s TPS status.

“The evidence shows the White House exerted significant influence” over Elaine Duke, then the DHS acting secretary, Kuntz wrote.

NIPNLG is enormously grateful for the support and tireless efforts of all our partners in this important decision, as well as to our brilliant co-counsel. We are thrilled to share this victory with them, and with the over 50,000 impacted U.S. Haitians who will benefit from the decision.

The Court dismissed the claims related to notice and comment and the Regulatory Flexibility Act, as well as Haiti Liberté’s claims, based on a lack of standing.

Here are the “Top 10 Highlights” of the decision:

1. In an unusual step, the Court issued the injunction not only against DHS, but also against President Trump, to ensure the White House operates in accordance with the law (pp. 67-70).
2. The Court found that Acting DHS Secretary Elaine Duke sought to terminate TPS for Haiti due in part to President Trump’s “America First” policy of reducing the number of nonwhite immigrants in the U.S., and unrelated to conditions in Haiti (pp. 91-93).
3. The Court found that former DHS Secretary Kelly unlawfully predetermined the termination of Haiti’s TPS when he made his decision to extend TPS for Haiti in May of 2017. The Court cited to a “privileged” email directive to the agency that it should announce a 6-month extension, but also make clear in the federal register notice that Haiti’s TPS will be terminated in 6 months. In other words, it was unlawful for DHS to predetermine to cancel TPS at the same time that DHS extended TPS (p. 29, pp. 93-95).
4. The Court found that high level officials furthered the agenda to dismantle the TPS program, including Gene Hamilton, then senior advisor to Secretary Kelly and previously a member of President Trump’s transition team on immigration, who wrote, “African countries are toast; Haiti is next” (p. 115, p. 132).
5. The Court found that after the Haiti termination decision was announced, a DHS official admitted in a privileged email that it was the White House who led the TPS decision-making process for Haiti and influenced Duke. This included a November 2017 meeting orchestrated by the White House, during which Jeff Sessions, attorney general at the time, and many other White House officials, leaned on Duke to terminate Haiti’s TPS status. The implication of this finding is that the White House did indeed pressure DHS to change its process about TPS decisions (p. 128, p. 129).
6. The Court found that State Department officials manipulated the process to reach a pretextual decision by ignoring the views of U.S. embassy officials in contravention of longstanding practice, rescinding an already-delivered recommendation to extend Haiti’s TPS from June, labeled in a privileged email by Secretary Nielsen as a mistake, and coordinating its review with DHS to terminate Haiti’s TPS (pp. 36-42, p. 100).
7. The Court found that DHS officials Kathy Kovarik, Robert Law, Francis Cissna, and others manipulated the facts to reach a preordained decision by omitting negative information of Haiti’s country conditions from its memos and searching for any positive facts. For example, DHS official Robert Law noted to Kathy Kovarik that the draft decision memo for Haiti is “overwhelmingly weighted for extension which I do not think is the conclusion we are looking for.” In fewer than 30 minutes, and thus with no time to conduct any factual or legal analysis, Law returned another draft director memorandum that “made the document fully support termination” (pp. 95-97).
8. The Court also pointed to then Secretary Kelly’s atypical and unprecedented directives to his staff to “search for criminality and welfare data” as “further evidence the agency was fishing for reasons to terminate TPS for Haiti,” and as evidence of discriminatory intent (pp. 23-25, p. 134). The Court also took note of Kelly’s racist statement that Haitians are “not a bad people, but they are welfare recipients” (p. 31, pp. 98-99, p. 132).
9. The Court found that DHS unlawfully changed its past practice of looking to all country conditions to determine whether it was safe for nationals to return to their home country to only conditions related to the originating event, without explanation and in contravention of the statute (pp. 105-110).
10. While the decisions to terminate Honduras’s and El Salvador’s TPS were delayed, the Court found that those decisions were predetermined in 2017 for Haiti, as evidenced by privileged government memos about the implications of the impending terminations for those countries. This means that the Judge, after examining evidence he could only see, found that Honduras and El Salvador were treated in a similar matter as Haiti (p. 132).

More information about the lawsuit, links to the court filings, and decisions are available at nipnlg.org.

(PHOTO CREDIT: https://haitiliberte.com/federal-court-blocks-trumps-termination-of-tps-for-haiti/)