Temporary protected status ruling: Judge uses Trump’s racial bias.
A federal judge in California temporarily blocked the Trump administration’s plans to terminate the legal status of about 300 000 immigrants who fled violence and disaster in Haiti, Sudan, Nicaragua and El Salvador.
In a decision late Wednesday, US District Judge Edward M. Chen in San Francisco found substantial evidence that the administration lacked “any explanation or justification” to end the “temporary protected status” designations for immigrants from those countries.
At the same time, he said there were “serious questions as to whether a discriminatory purpose was a motivating factor” in the administration’s decision, which would violate the Constitution’s guarantee of equal protection under the law.
He cited statements by President Donald Trump denigrating Mexicans, Muslims, Haitians and Africans, including his January remark about “people from s**thole countries” and his June 2017 comments stating that 15 000 recent immigrants from Haiti “all have AIDS.”
It is one of numerous cases in which such racial or ethnic comments or tweets by the president have been cited by judges to block administration policies, including on immigration and transgender people serving in the military.
In this case, Ramos v. Nielsen, and others, the judges have also cited deeply flawed decision-making by the administration and breaches of laws and regulations meant to prevent “arbitrary” acts by government.
The judge did not rule on the merits of the case, but rather issued a preliminary injunction so the merits could be considered. The potential harm to the immigrants – returning to their countries of origin after spending years in the United States – outweighed any harm to the government, he said.
“Absent injunctive relief, TPS beneficiaries and their children indisputably will suffer irreparable harm and great hardship,” Chen wrote. “TPS beneficiaries who have lived, worked, and raised families in the United States (many for more than a decade), will be subject to removal. Many have US-born children; those may be faced with the Hobson’s choice of bringing their children with them (and tearing them away from the only country and community they have known) or splitting their families apart.”
Justice Department spokesman Devin O’Malley said in a statement shortly after the decision that the administration would “continue to fight for the integrity of our immigration laws and our national security.” He said Chen’s decision “usurps the role of the executive branch in our constitutional order,” and rejected “the notion that the White House or the Department of Homeland Security did anything improper.”
The ACLU of Northern and Southern California, National Day Laborer Organising Network and private law firm Sidley Austin filed the lawsuit in March on behalf of TPS beneficiaries who could face deportation as a result of the Trump administration’s actions.
In a series of announcements in the fall of 2017 and early 2018, DHS said it planned to terminate the temporary protected status of the immigrants from Haiti, Sudan, Nicaragua and El Salvador, claiming the life-threatening conditions that caused the immigrants to flee no longer existed.
But Chen found that the plaintiffs presented a “substantial record” showing that DHS’s decision to change various criteria affecting the TPS program were “without any explanation or justification,” in violation of the Administrative Procedure Act, which requires agencies to make orderly decisions based on reasoned judgment, evidence and in conformity with the laws and the Constitution.
Instead, it appeared senior administration officials ignored credible evidence that it would not be safe to send thousands of people back to those countries so that the administration could carry out President Donald Trump’s “America First” immigration agenda, the judge said. Rather than making decisions based on what the evidence showed, Chen found that the administration appeared to make its decisions based on a “preordained result desired by the White House.”
As former Acting Secretary of Homeland Security Elaine Duke wrote in one email that was cited: “The TPS programme must end for these countries soon. . . . This conclusion is the result of an America first view of the TPS decision.”
The evidence Chen cited to support the injunction included testimony and dozens of internal emails between administration officials, exposing a convoluted and contentious decision-making process about whether to end TPS for Haiti, Sudan, Nicaragua and El Salvador, as The Washington Post’s Nick Miroff previously reported. Some of the correspondence showed current government employees expressing alarm or confusion about how the Trump administration could justify terminating TPS for those countries.
As current and former administration officials testified, in the past, the government traditionally renewed temporary protected status for countries if conditions there were still found to be dangerous. For example, El Salvador experienced devastating earthquakes in 2001, but the government has repeatedly renewed temporary protected status because conditions are in general still not safe.
But in “a strong break with past practice,” Duke said in an email to White House Chief of Staff John Kelly, the Trump administration decided to only consider whether the original conditions still existed, such as devastation resulting specifically from the 2001 El Salvador earthquakes.
The plaintiffs argued that this change was based not on sound policy but on racial animus. Chen found that there was both direct and circumstantial evidence of race being a motivating factor.
“I think everyone already knows the Trump administration has really callous policies when it comes to deportation,” said Jessica Karp Bansal, co-legal director of the National Day Laborer Organizing Network. “But this case is not only about deportation. This is about the Trump administration taking away legal status from people who held it for decades. And that is because of racial animus toward those people.”
To justify its decisions to terminate TPS in the four countries at issue, the administration compiled “decision memos.” But if the evidence contained in the memos suggested it would be wise to extend temporary protected status for the countries, officials tried to twist the evidence to steer toward termination, emails show.
One “particularly telling” piece of correspondence, to quote the judge, was between Kathy Nuebel Kovarik, the chief of the US Citizenship and Immigration Service’s Office of Policy and Strategy, and a subordinate.
Kovarik said there was a “problem” with the memos because they “read as though we’d recommend an extension b/c we talk so much about how bad it is, but there’s not enough in there about positive steps that have been taken since it’s designation.”
An employee responded: “We can. . .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.” The decision in all four cases was still termination.
The case of Sudan’s TPS termination, as described by Judge Chen, was illustrative.
In its first decision memo for Sudan on August 17, 2017, USCIS concluded that “it remains unsafe for individuals to return to Sudan” and that the armed conflict continued to support extending Sudan’s temporary protected status.
Just one week later, USCIS issued a second memo that reiterated all of the same evidence about Sudan’s conflict – but this time instead it recommended termination.
L. Francis Cissna, who is now the USCIS director, sent an email the next day noting that the memo “seems a bit confused.”
“The 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,” Cissna wrote. “Am I missing something?”
Despite concerns from the State Department, Sudan’s TPS was terminated.
Hiwaida Elarabi, one of the main plaintiffs in the case and a TPS holder from Sudan, remembered the day she heard the news: She woke up listening to it, she told The Washington Post. Her alarm clock is set to AM radio.
“It was really. . .I can’t even describe it. It was disturbing,” said Elarabi, who has lived and worked in the Boston area now for 21 years under TPS. “It was depressing. And I really just couldn’t grapple with the situation, even comprehend it at that time.”
She had spent every day since then on “autopilot,” she said, unwilling to think about what it would be like to have to leave the United States and return to the country she fled fearing her life.
When her attorney called Wednesday evening to share the news of Chen’s ruling, she said, she was filled with relief.
“We are your neighbours, your teachers, physicians, scientists, business owners. We are in all aspects of life here in the US,” she said, “and we have been in society for so long. It is home for us here. We don’t know another home than here.”