Challenges to TPS and DED Terminations and Other TPS-Related Litigation
The U.S. Department of Homeland Security, or DHS, has announced the termination of Temporary Protected Status, or TPS, designations for nationals of Sudan, Nicaragua, Haiti, El Salvador, Nepal and Honduras, and the termination of Deferred Enforced Departure, or DED, for Liberia. In the wake of these termination decisions, several different cases have been filed in U.S district courts. The basis of most challenges is that the decisions stemmed from racial discrimination, violated required Immigration and Nationality Act, INA, and Administrative Procedures Act, or APA, procedures, and infringed on the Constitutional rights of TPS beneficiaries. In addition, two lawsuits have been filed seeking to protect the rights of certain TPS beneficiaries to adjust to lawful permanent residence status in the United States despite recent unlawful changes to USCIS policy. A brief summary of each case follows.
NAACP v. DHS – On Jan. 24, 2018, the National Association for the Advancement of Colored People sued DHS in U.S. District Court for the District of Maryland. The Plaintiffs allege that the November 2017 decision to rescind TPS for Haiti was intended to discriminate against Haitian immigrants because of race and/or ethnicity in violation of the Due Process Clause of the Fifth Amendment. According to the complaint, DHS failed to undertake a careful review of the conditions in Haiti (including severe problems related to housing, food security, infrastructure, public health, access to health care, and gender-based violence) following the 2010 earthquake that warranted Haiti’s original TPS designation and subsequent extensions. The complaint cites various examples of the current Administration’s overt bias against immigrants of color, and Haitians in particular. On Apr. 17, 2018 Plaintiffs filed an amended complaint; Haitian Women for Haitian Refugees and the Haitian Lawyers’ Association joined in the suit. Plaintiffs seek to enjoin the defendants from implementing the TPS termination decision. On Mar. 12, 2019, the lawsuit survived a motion to dismiss filed by the government.
Centro Presente v. Trump – On Feb. 22, 2018, eight TPS recipients from El Salvador and Haiti and a nonprofit organization with TPS members filed a lawsuit against President Donald J. Trump and DHS in the U.S. District Court of the District of Massachusetts. According to the Plaintiffs, the Administration’s decisions to terminate TPS for El Salvador and Haiti constitute intentional discrimination on the basis of race, ethnicity, and/or national origin in violation of the Equal Protection and Due Process clauses of the Fifth Amendment. The complaint alleges that the stated reasons behind the termination decisions were “pretext for invidious discrimination and belied by well-established facts.” In May, the lawsuit was amended to include Honduran TPS holders as well. Plaintiffs seek an injunction preventing DHS from implementing or enforcing the termination decisions. On Jul. 23, 2018, the court denied the government’s request to dismiss the lawsuit and to dismiss President Trump as a defendant, holding that the government had neither proven that its decision will survive review under the APA arbitrary and capricious standard nor that the policy change was not motivated by discriminatory purposes. The case is temporarily on hold pending the outcome of the appeal in Ramos et al v. Nielsen.
Ramos et al v. Nielsen – On Mar. 12, 2018, nine TPS recipients and five U.S. citizen children of TPS holders filed a class action lawsuit against DHS in the U.S. District Court in the Northern District of California. According to the Plaintiffs, DHS adopted a narrower interpretation of the federal law governing TPS, and used that interpretation to terminate TPS status for nationals of El Salvador, Haiti, Nicaragua, and Sudan. The complaint alleges that the defendants’ new statutory interpretation forces the U.S. citizen children of TPS holders to choose between leaving the country or living without their parents in violation of the Due Process Clause, specifically the absolute right of citizens to reside in this country. According to the complaint, the termination actions also violate the Equal Protection guarantee because they were motivated by intentional discrimination based on race, ethnicity or national origin against individuals from places President Trump has referred to as “sh*thole countries.” The lawsuit also claims that the 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.” Plaintiffs sought to enjoin DHS from implementing or enforcing the TPS termination decisions or, alternatively, from rescinding the immigration status of TPS holders with school-aged U.S. citizen children. (Note that this lawsuit is the only one to challenge the TPS terminations on behalf of the U.S. citizen children of TPS holders).
On Oct. 3, 2018, Judge Edward Chen issued a preliminary injunction preventing DHS from implementing TPS terminations for El Salvador, Haiti, Nicaragua, and Sudan while the case is resolved on its merits. DHS has published steps it is taking to comply with the injunction in a number of Federal Register Notices. The government appealed the injunction and on Sept. 14, 2020, the Ninth Circuit Court of Appeals issued a decision lifting the injunction that temporarily barred the administration from implementing TPS termination for Sudan, Nicaragua, Haiti and El Salvador. The plaintiffs filed a petition for rehearing en banc which remains pending with the Ninth Circuit. In the meantime, TPS beneficiaries from these four countries should maintain TPS status and work authorization through Oct. 4, 2021, as outlined in the Dec. 9, 2020 Federal Register Notice.
Saget v. Trump – On Mar. 15, 2018, weekly newspaper Haïti Liberté, the Family Action Network Movement, Inc., and ten Haitian TPS beneficiaries filed a lawsuit against President Trump, DHS, and DHS officials in the U.S. District Court in the Eastern District of New York. According to the complaint, the decision to terminate TPS for Haiti was an arbitrary and capricious action undertaken without statutory authority and without the procedures required by the APA. The complaint alleges that the administration failed to follow the required notice-and-comment procedures and that its actions are ultra vires of the INA. It further alleges that the termination decision violates the Regulatory Flexibility Act. Finally, Plaintiffs claim the decision violates the due process rights of Haitian TPS holders and denies them equal protection under the laws. To substantiate its claims of underlying racial animus, the complaint references a number of discriminatory statements made by President Trump, including that Haitians “all have AIDS” and “[w]hy would we want any more Haitians?” Plaintiffs ask that the Haiti termination decision be reversed and that Defendants be enjoined from removing Haitian TPS holders from the United States. On Apr. 11, 2019, Judge William Kuntz issued a nationwide preliminary injunction against the termination of TPS for Haiti. The government appealed the injunction to the Second Circuit Court of Appeals and oral argument was held on Jun. 22, 2020. DHS steps taken to comply with this injunction are described in its Dec. 9, 2020 Federal Register Notice.
Casa De Maryland, Inc. v. Trump – TPS recipients from El Salvador and CASA de Maryland challenge the DHS’ termination of TPS for El Salvador, alleging violation of the Equal Protection and Due Process Clauses, the INA and the APA. This suit was filed in the U.S. District Court for the District of Maryland on Mar. 23, 2018 and seeks injunctive relief and a declaratory judgment. Plaintiffs argue that the decision to end TPS for El Salvador was based not on a change in conditions in El Salvador, but rather on discrimination toward Latino immigrants on the basis of race, ethnicity, and/or national origin based on President Trump’s comments. The administration moved to dismiss this suit in June and a hearing on this motion was held on Sept. 12, 2018. On Nov. 28, 2018, the court dismissed the Plaintiffs’ INA claim but held that the remaining claims may go forward.
Bhattarai et al v. Nielsen – On Feb. 10, 2019, six TPS holders and two U.S. citizen children of TPS recipients filed a class action lawsuit against DHS in the U.S. District Court in the Northern District of California. The Plaintiffs allege that the terminations of TPS for Honduras and Nepal were a sudden and unexplained departure from decades of consistent standards and practices in violation of the APA; violate the Fifth Amendment’s Due Process right against arbitrary government invasion of personal liberty; and violate equal protection because they were motivated by intentional racial and national-origin animus against TPS holders. The Plaintiffs also contend that the termination decisions violate the substantive due process rights of TPS holders’ school-aged U.S. citizen children who are forced to make the “intolerable choice” of either departing the U.S. or living without their parents. The case seeks to vacate the TPS terminations for Honduras and Nepal and enjoin the Defendants from implementing these decisions.
On Mar. 12, 2019, Judge Edward Chen signed an order linking this case to the preliminary injunction in the Ramos v. Nielsen case and preventing DHS from implementing termination of TPS for Hondurans and Nepalis while the case is resolved on its merits. DHS has published steps it is taking to comply with the injunction in Federal Register Notices issued on May 10, 2019 and Nov. 4, 2019 and Dec. 9, 2020. Currently, an automatic extension of TPS for Hondurans and Nepalis is in place through Oct. 4, 2021. However, should the Ninth Circuit’s Sept. 14, 2020 decision in Ramos become final, the government may soon seek to lift the Bhattarai court order which could pave the way for DHS to take steps toward implementing the TPS terminations for Honduras and Nepal.
African Communities Together v. Trump – On Mar. 8, 2019, two non-profit organizations, six Liberian beneficiaries of DED and nine U.S. citizen children of DED beneficiaries filed a lawsuit in the U.S. District Court of the District of Massachusetts challenging the constitutionality of the Trump Administration’s termination of DED for Liberia. The Plaintiffs requested a declaration that the termination of DED violates the Fifth Amendment of the U.S. Constitution and asked that the government be prevented from implementing the termination of DED for Liberia that was scheduled to take effect on Mar. 31, 2019. On Mar. 28, 2019, the White House announced that the DED termination date will be postponed for one year, until Mar. 30, 2020. A Federal Register Notice automatically extending Liberian DED holder work authorization through Sept. 27, 2019, and containing information about how Liberian DED holders can maintain work authorization through the entire year until Mar. 30, 2020, was published on Apr. 3, 2019. In October 2019, Judge Timothy Hillman dismissed the case after finding the court did not have the authority to halt the termination of DED since it is a discretionary presidential authority and not subject to judicial review.
Moreno v. Nielsen – On Feb. 22, 2018, a class action lawsuit was filed in the U.S. District Court for the Eastern District of New York by three TPS beneficiaries, as well as the American Immigration Council and the Northwest Immigrant Rights Project. The Plaintiffs challenge the U.S. Citizenship and Immigration Services (USCIS) and DHS policy of depriving certain TPS holders who entered the U.S. without inspection from adjusting status in the United States under INA § 245(a). The complaint (amended on Mar. 26, 2018) asks the court to declare that this policy is unlawful and to order DHS to grant adjustment applications of TPS recipients residing in the jurisdictions of the First, Second, Third, Fourth, Fifth, Seventh, Eighth, and Tenth Circuit Courts of Appeal who have been inspected and admitted by virtue of their TPS grants and are otherwise eligible for 245(a) adjustment. A preliminary injunction was also requested.
Central American Resource Center v. Cuccinelli - CLINIC, along with Democracy Forward Foundation, Montagut & Sobral PC, and Debevoise & Plimpton LLP, is counsel in a lawsuit brought by seven TPS beneficiaries and CARECEN, filed on Aug. 26, 2020 in the U.S. District Court for the District of Columbia. The case challenges an unlawful USCIS policy change issued in December 2019 that harms many TPS beneficiaries. That policy eliminates the ability for TPS beneficiaries with prior removal orders to apply to adjust status with USCIS even though they departed the United States and returned with USCIS permission. The suit challenges the policy change as unlawful under the Administrative Procedure Act and the Constitution’s Due Process Clause, and because its author, Ken Cuccinelli, was not legally appointed to direct USCIS.