Case: 1:18-cv-239 As of: 05/15/2020 09:35 PM EDT 1 of 11
U.S. District Court District of Maryland (Baltimore) CIVIL DOCKET FOR CASE #: 1:18−cv−00239−DKC

STAYED

National Association for the Advancement of Colored People et al v. United States Department of Homeland Security et al Assigned to: Judge Deborah K. Chasanow Cause: 28:1331 Federal Question: Other Civil Rights
Plaintiff

Date Filed: 01/24/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

National Association for the Advancement of Colored People

represented by Ajmel Quereshi NAACP Legal Defense Fund 700 14th St. NW Suite 600 Washington, DC 20005 2022165574 Fax: 2026821312 Email: aquereshi@naacpldf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Cara McClellan NAACP Legal Defense and Educational Fund, Inc. 40 Rector St. 5th Floor New York, NY 10006 (212) 965−2200 Fax: (212) 226−7592 Email: cmcclellan@naacpldf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Sherrilyn A Ifill NAACP Legal Defense and Educational Fund, Inc. 40 Rector Street 5th Floor New York, NY 10006 2129652785 Email: sifill@naacpldf.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Antonio M Haynes Davis Polk and Wardwell LLP 450 Lexington Ave. New York, NY 10017 2124503109 Fax: 2127016109 Email: antonio.haynes@davispolk.com PRO HAC VICE ATTORNEY TO BE NOTICED

Deuel Ross NAACP Legal Defense and Educational Fund INC 40 Rector St. 5th Fl New York, NY 10006 2129652200 Fax: 2122267592 Email: Dross@naacpldf.org PRO HAC VICE

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ATTORNEY TO BE NOTICED
Erika A James Davis Polk and Wardwell LLP 450 Lexington Ave. New York, NY 10017 2124503446 Fax: 2127016446 Email: erika.james@davispolk.com PRO HAC VICE ATTORNEY TO BE NOTICED
James Irving McClammy Davis Polk and Wardwell 450 Lexington Ave New York, NY 10017 2124504584 Fax: 2127015584 Email: james.mcclammy@davispolk.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jin Hee Lee NAACP Legal Defense and Educational Fund INC 40 Rector St. 5th Fl New York, NY 10006 2129652200 Fax: 2122267592 Email: jlee@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED
Khyla Danielle Craine Michigan Secretary of State Legal Services Administration Richard H. Austin Building 430 W. Allegan St. Lansing, MI 48933 Email: kcraine@naacpnet.org TERMINATED: 04/05/2019
Kristen Johnson NAACP Legal Defense and Educational Fund Inc. 40 Rector St. 5th Fl. New York, NY 10006 2129652200 Fax: 2122267592 Email: kjohnson@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED
Natasha C Merle NAACP Legal Defense and Educational Fund INC 40 Rector St 5th Fl New York, NY 10006 2129652200 Fax: 2122267592 Email: nmerle@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED
Raymond Audain

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NAACP Legal Defense and Educational Fund INC 40 Rector St 5th Fl. New York, NY 10006 2129652200 Fax: 2122267592 Email: raudain@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED

Samuel Spital NAACP Legal Defense and Educational Fund Inc 40 Rector St. 5th Fl. New York, NY 10006 2129652200 Fax: 2122267592 Email: sspital@naacpldf.org PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff Haitian Women for Haitian Refugees

represented by Antonio M Haynes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cara McClellan (See above for address) ATTORNEY TO BE NOTICED

Erika A James (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

James Irving McClammy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Raymond Audain (See above for address) ATTORNEY TO BE NOTICED

Sherrilyn A Ifill (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Haitian Lawyers Association, Inc.

represented by Antonio M Haynes (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Cara McClellan (See above for address) ATTORNEY TO BE NOTICED

Erika A James (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

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James Irving McClammy (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Raymond Audain (See above for address) ATTORNEY TO BE NOTICED
Sherrilyn A Ifill (See above for address) ATTORNEY TO BE NOTICED

V. Defendant United States Department of Homeland Security
Defendant Elaine Costanzo Duke in her official capacity
Defendant Kirstjen Nielsen in her official capacity
Amicus County of Los Angeles

represented by Adam D Kirschner U.s. Department Of Justice 20 Massachusetts Ave. NW Washington, DC 20530 2023539265 Fax: 2026168470 Email: adam.kirschner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph C Dugan Gallagher Evelius & Jones LLP 218 N Charles St Ste 400 Baltimore, MD 21201 410−951−1421 Email: jdugan@gejlaw.com TERMINATED: 02/25/2019 ATTORNEY TO BE NOTICED
represented by Adam D Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph C Dugan (See above for address) TERMINATED: 02/25/2019
represented by Adam D Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Joseph C Dugan (See above for address) TERMINATED: 02/25/2019 ATTORNEY TO BE NOTICED
represented by Daniel R Suvor O'Melveny and Myers LLP 400 South Hope St. Los Angeles, CA 90071

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2134306000 Fax: 2134306407 Email: dsuvor@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED

Margaret Carter O'Melveny and Myers LLP 400 South Hope St. Los Angeles, CA 90071 2134306000 Fax: 2134306407 Email: mcarter@omm.com PRO HAC VICE ATTORNEY TO BE NOTICED

Shannon Barrett OMelveny and Myers LLP 1625 I St NW Washington, DC 20006 12023835300 Fax: 12023835414 Email: sbarrett@omm.com ATTORNEY TO BE NOTICED

Amicus
Catholic Legal Services, Archdiocese of Miami, Inc.

represented by Christopher M Ryan Shearman and Sterling LLP 401 9th Street NW Suite 800 Washington, DC 20004 12025088000 Fax: 12026617465 Email: cryan@shearman.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jonathan Lee Greenblatt Shearman and Sterling LLP 401 Pe9th St. NW Washington, DC 20004 2025088070 Fax: 2025088100 Email: jgreenblatt@shearman.com ATTORNEY TO BE NOTICED

Date Filed 01/24/2018
01/24/2018 01/25/2018 01/25/2018

# Docket Text
1 COMPLAINT against Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security ( Filing fee $ 400 receipt number 0416−7118932.), filed by National Association for the Advancement of Colored People. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B, # 4 Summons − US Atty, # 5 Summons − US Atty General, # 6 Summons − Dept of Homeland Sec, # 7 Summons − Elaine C. Duke, # 8 Summons − Kirstjen Nielsen)(Ifill, Sherrilyn) (Entered: 01/24/2018)
2 NOTICE of Appearance by Sherrilyn A Ifill on behalf of National Association for the Advancement of Colored People (Ifill, Sherrilyn) (Entered: 01/24/2018)
Deficiency Notice as to National Association for the Advancement of Colored People −− Your Local Rule 103.3 disclosure statement has not been filed. The Statement must be filed by 2/1/2018 (kw2s, Deputy Clerk) (Entered: 01/25/2018)
3 Summons Issued 60 days as to Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security, U.S. Attorney and U.S. Attorney General

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01/25/2018 01/25/2018 01/29/2018 01/31/2018 01/31/2018 01/31/2018 01/31/2018 02/01/2018 02/06/2018
02/06/2018 02/06/2018 02/06/2018 02/06/2018 02/06/2018 02/07/2018

(Attachments: # 1 Summons, # 2 Summons, # 3 Summons, # 4 Summons)(kw2s, Deputy Clerk) (Entered: 01/25/2018)
4 NOTICE of Appearance by Cara McClellan on behalf of National Association for the Advancement of Colored People (McClellan, Cara) (Entered: 01/25/2018)
5 NOTICE of Appearance by Ajmel Quereshi on behalf of National Association for the Advancement of Colored People (Quereshi, Ajmel) (Entered: 01/25/2018)
6 Local Rule 103.3 Disclosure Statement by National Association for the Advancement of Colored People (Ifill, Sherrilyn) (Entered: 01/29/2018)
7 MOTION to Appear Pro Hac Vice for Samuel Spital (Filing fee $100, receipt number 0416−7132075.) by National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(McClellan, Cara) (Entered: 01/31/2018)
8 MOTION to Appear Pro Hac Vice for Jin Hee Lee (Filing fee $100, receipt number 0416−7132144.) by National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(McClellan, Cara) (Entered: 01/31/2018)
9 MOTION to Appear Pro Hac Vice for Natasha C. Merle (Filing fee $100, receipt number 0416−7132153.) by National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(McClellan, Cara) (Entered: 01/31/2018)
10 MOTION to Appear Pro Hac Vice for Deuel Ross (Filing fee $100, receipt number 0416−7132175.) by National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(McClellan, Cara) (Entered: 01/31/2018)
11 MOTION to Appear Pro Hac Vice for Raymond Audain (Filing fee $100, receipt number 0416−7134052.) by National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(McClellan, Cara) (Entered: 02/01/2018)
12 SUMMONS Returned Executed by National Association for the Advancement of Colored People. Elaine Costanzo Duke served on 2/2/2018, answer due 4/3/2018; Kirstjen Nielsen served on 2/2/2018, answer due 4/3/2018; United States Department of Homeland Security served on 2/2/2018, answer due 4/3/2018.(McClellan, Cara) (Entered: 02/06/2018)
13 PAPERLESS ORDER granting 7 Motion to Appear Pro Hac Vice on behalf of Samuel Spital. Directing attorney Samuel Spital to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 2/6/2018. (srd, Deputy Clerk) (Entered: 02/06/2018)
14 PAPERLESS ORDER granting 8 Motion to Appear Pro Hac Vice on behalf of Jin Hee Lee. Directing attorney Jin Hee Lee to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 2/6/2018. (srd, Deputy Clerk) (Entered: 02/06/2018)
15 PAPERLESS ORDER granting 9 Motion to Appear Pro Hac Vice on behalf of Natasha Merle. Directing attorney Natasha Merle to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 2/6/2018. (srd, Deputy Clerk) (Entered: 02/06/2018)
16 PAPERLESS ORDER granting 10 Directing attorney Deuel Ross to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 2/6/2018. (srd, Deputy Clerk) (Entered: 02/06/2018)
17 PAPERLESS ORDER granting 11 Attorney Raymond Audain will receive a separate email with the previously issued CM/ECF login and password. Signed by Clerk on 2/6/2018. (srd, Deputy Clerk) (Entered: 02/06/2018)
18 MOTION to Appear Pro Hac Vice for Kristen Johnson (Filing fee $100, receipt number 0416−7144954.) by National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(McClellan, Cara) (Entered: 02/07/2018)

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02/08/2018

19 SUMMONS Returned Executed by National Association for the Advancement of Colored People. United States Department of Homeland Security served on 2/6/2018, answer due 4/9/2018.(McClellan, Cara) (Entered: 02/08/2018)

02/08/2018

20 SUMMONS Returned Executed by National Association for the Advancement of Colored People. Kirstjen Nielsen served on 2/6/2018, answer due 4/9/2018.(McClellan, Cara) (Entered: 02/08/2018)

02/08/2018

21 SUMMONS Returned Executed by National Association for the Advancement of Colored People. Elaine Costanzo Duke served on 2/6/2018, answer due 4/9/2018.(McClellan, Cara) (Entered: 02/08/2018)

02/12/2018

22 PAPERLESS ORDER granting 18 Motion to Appear Pro Hac Vice on behalf of Kristen Johnson. Directing attorney Kristen Johnson to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 2/12/2018. (srd, Deputy Clerk) (Entered: 02/12/2018)

02/12/2018

23 SUMMONS Returned Executed by National Association for the Advancement of Colored People. United States Department of Homeland Security served on 2/5/2018, answer due 4/9/2018.(McClellan, Cara) Modified on 2/13/2018 (kw2s, Deputy Clerk). (Entered: 02/12/2018)

04/03/2018 24 NOTICE of Appearance by Adam D Kirschner on behalf of All Defendants (Kirschner, Adam) (Entered: 04/03/2018)

04/03/2018 25 NOTICE of Appearance by Joseph C Dugan on behalf of All Defendants (Dugan, Joseph) (Entered: 04/03/2018)

04/04/2018

26 Joint MOTION for Extension of Time and to Set Deadlines by Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 04/04/2018)

04/05/2018

27 ORDER granting 26 Joint MOTION for Extension of Time and to Set Deadlines. Signed by Judge Marvin J. Garbis on 4/4/2018. (kw2s, Deputy Clerk) (Entered: 04/05/2018)

04/16/2018

28 (FILED IN ERROR) AMENDED COMPLAINT against Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security, filed by National Association for the Advancement of Colored People, Haitian Women for Haitian Refugees, Haitian Lawyers Association, Inc..(Ifill, Sherrilyn) Modified on 4/17/2018 (kw2s, Deputy Clerk). (Entered: 04/16/2018)

04/17/2018

29 QC NOTICE: 28 Amended Complaint, filed by Haitian Lawyers Association, Inc., National Association for the Advancement of Colored People, Haitian Women for Haitian Refugees was filed incorrectly. The following corrective actions are needed regarding missing or incomplete information:***Redline copy has not been filed. Please re−file the clean version of the amended complaint as the main document and the redline version as an attachment to the amended complaint. It has been noted as FILED IN ERROR, and the document link has been disabled. (kw2s, Deputy Clerk) (Entered: 04/17/2018)

04/17/2018

30 AMENDED COMPLAINT against Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security, filed by Haitian Lawyers Association, Inc., National Association for the Advancement of Colored People, Haitian Women for Haitian Refugees. (Attachments: # 1 Comparison of Complaint to Amended Complaint)(Ifill, Sherrilyn) (Entered: 04/17/2018)

04/19/2018 31 Local Rule 103.3 Disclosure Statement by Haitian Lawyers Association, Inc. (Ifill, Sherrilyn) (Entered: 04/19/2018)

04/20/2018 32 Local Rule 103.3 Disclosure Statement by Haitian Women for Haitian Refugees (Audain, Raymond) (Entered: 04/20/2018)

05/04/2018

33 MOTION to Appear Pro Hac Vice for Erika A. James (Filing fee $100, receipt number 0416−7311417.) by Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(McClellan, Cara) (Entered: 05/04/2018)

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05/04/2018

34 MOTION to Appear Pro Hac Vice for James I. McClammy (Filing fee $100, receipt number 0416−7311418.) by Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(McClellan, Cara) (Entered: 05/04/2018)

05/04/2018

35 MOTION to Appear Pro Hac Vice for Antonio M. Haynes (Filing fee $100, receipt number 0416−7311430.) by Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(McClellan, Cara) (Entered: 05/04/2018)

05/07/2018

36 MOTION to Dismiss for Failure to State a Claim, MOTION to Dismiss for Lack of Jurisdiction by Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 05/07/2018)

05/08/2018

37 PAPERLESS ORDER granting 33 Motion to Appear Pro Hac Vice on behalf of Erika James. Directing attorney Erika James to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 5/8/2018. (srd, Deputy Clerk) (Entered: 05/08/2018)

05/08/2018

38 PAPERLESS ORDER granting 34 Motion to Appear Pro Hac Vice on behalf of James Irving McClammy. Directing attorney James Irving McClammy to use the attorney's existing CM/ECF login and password previously issued in this Court. The account password can be reset at http://www.mdd.uscourts.gov/electronic−case−filing−password−reset. Signed by Clerk on 5/8/2018. (srd, Deputy Clerk) (Entered: 05/08/2018)

05/08/2018

39 PAPERLESS ORDER granting 35 Motion to Appear Pro Hac Vice on behalf of Antonio Haynes. Directing attorney Antonio Haynes to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 5/8/2018. (srd, Deputy Clerk) (Entered: 05/08/2018)

05/17/2018

40 NOTICE of Appearance by James Irving McClammy on behalf of Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People (McClammy, James) (Entered: 05/17/2018)

05/17/2018

41 NOTICE of Appearance by Antonio M Haynes on behalf of Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People (Haynes, Antonio) (Entered: 05/17/2018)

05/17/2018

42 NOTICE of Appearance by Erika A James on behalf of Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People (James, Erika) (Entered: 05/17/2018)

05/29/2018

43 Consent MOTION for Extension of Time by Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(Audain, Raymond) (Entered: 05/29/2018)

05/30/2018 44 ORDER granting 43 Consent MOTION for Extension of Time. Signed by Judge Marvin J. Garbis on 5/29/2018. (kw2s, Deputy Clerk) (Entered: 05/30/2018)

06/07/2018

45 RESPONSE in Opposition re 36 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People. (Attachments: # 1 Declaration of Raymond Audain in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss, # 2 Exhibit 1, # 3 Exhibit 2, # 4 Exhibit 3, # 5 Exhibit 4, # 6 Exhibit 5, # 7 Exhibit 6, # 8 Exhibit 7, # 9 Appendix)(Audain, Raymond) (Entered: 06/07/2018)

06/12/2018 46 Amicus Curiae APPEARANCE entered by Shannon Barrett on behalf of County of Los Angeles(Barrett, Shannon) (Entered: 06/12/2018)

06/12/2018

47 MOTION to Appear Pro Hac Vice for Daniel R. Suvor (Filing fee $100, receipt number 0416−7386213.) by County of Los Angeles(Barrett, Shannon) (Entered: 06/12/2018)

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06/12/2018

48 MOTION to Appear Pro Hac Vice for Margaret L. Carter (Filing fee $100, receipt number 0416−7386224.) by County of Los Angeles(Barrett, Shannon) (Entered: 06/12/2018)

06/13/2018 49 NOTICE of Appearance by Christopher M Ryan on behalf of Catholic Legal Services, Archdiocese of Miami, Inc. (Ryan, Christopher) (Entered: 06/13/2018)

06/13/2018 50 Local Rule 103.3 Disclosure Statement by Catholic Legal Services, Archdiocese of Miami, Inc. (Ryan, Christopher) (Entered: 06/13/2018)

06/13/2018

51 Consent MOTION for Extension of Time to File Amicus Brief in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss by Catholic Legal Services, Archdiocese of Miami, Inc. (Attachments: # 1 Text of Proposed Order)(Ryan, Christopher) (Entered: 06/13/2018)

06/13/2018

52 PAPERLESS ORDER granting 47 Motion to Appear Pro Hac Vice on behalf of Daniel Suvor. Directing attorney Daniel Suvor to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 6/13/2018. (srd, Deputy Clerk) (Entered: 06/13/2018)

06/14/2018

53 ORDER granting 51 Motion for Extension of Time to File Amicus Brief in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss. Signed by Judge Marvin J. Garbis on 6/13/2018. (bmhs, Deputy Clerk) (Entered: 06/14/2018)

06/14/2018

54 PAPERLESS ORDER granting 48 Motion to Appear Pro Hac Vice on behalf of Margaret Carter. Directing attorney Margaret Carter to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 6/14/2018. (srd, Deputy Clerk) (Entered: 06/14/2018)

06/14/2018 55 NOTICE of Appearance by Jonathan Lee Greenblatt on behalf of Catholic Legal Services, Archdiocese of Miami, Inc. (Greenblatt, Jonathan) (Entered: 06/14/2018)

06/14/2018

56 MOTION for Leave to File Brief of Amici Curiae 20 Cities and 6 Counties re 45 Opposition to Motion by County of Los Angeles (Attachments: # 1 [Proposed] Brief of Amici Curiae)(Barrett, Shannon) (Entered: 06/14/2018)

06/20/2018

57 RESPONSE re 45 Response in Opposition to Motion,, / Brief of Amicus Curiae Catholic Legal Services, Archdiocese of Miami, Inc. in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss filed by Catholic Legal Services, Archdiocese of Miami, Inc..(Greenblatt, Jonathan) (Entered: 06/20/2018)

06/27/2018

58 REPLY to Response to Motion re 36 MOTION to Dismiss for Failure to State a Claim MOTION to Dismiss for Lack of Jurisdiction filed by Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security.(Kirschner, Adam) (Entered: 06/27/2018)

06/29/2018

59 Consent MOTION for Leave to File Surreply Memorandum by Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(Audain, Raymond) (Entered: 06/29/2018)

07/03/2018 60 Joint Request for Conference (Audain, Raymond) (Entered: 07/03/2018)

07/03/2018

61 MARGINAL ORDER granting 59 Motion for Leave to File Surreply Memorandum. Signed by Chief Judge James K. Bredar on 7/1/2018. (kns, Deputy Clerk) (Entered: 07/03/2018)

07/06/2018

62 SURREPLY Memorandum of Law in Further Support by Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People re 45 Response in Opposition to Motion,, (Audain, Raymond) Modified on 7/9/2018 (kw2s, Deputy Clerk). (Entered: 07/06/2018)

07/24/2018

Case reassigned to Judge Deborah K. Chasanow. Judge Marvin J. Garbis no longer assigned to the case. (cags, Deputy Clerk) (Entered: 07/24/2018)

07/27/2018

63 Correspondence re: Supplemental Authority (Attachments: # 1 Memorandum and Order, Centro Presente v. United States Department of Homeland Security, 18−10340)(McClammy, James) (Entered: 07/27/2018)

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08/09/2018

64 Correspondence re: Supplemental Authority (Attachments: # 1 Exhibit A−Order Denying Defendants' Motion to Dismiss, USDC−NDCA 18−cv−1554)(McClammy, James) (Entered: 08/09/2018)

02/23/2019 65 MOTION to Withdraw as Attorney by Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security(Dugan, Joseph) (Entered: 02/23/2019)

02/25/2019

66 PAPERLESS ORDER GRANTING 65 Motion to Withdraw as Attorney. Attorney Joseph C. Dugan terminated. Signed by Judge Deborah K. Chasanow on 2/25/2019. (Chasanow, Deborah) (Entered: 02/25/2019)

03/12/2019 67 MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/12/2019. (sat, Chambers) (Entered: 03/12/2019)

03/12/2019

68 ORDER GRANTING IN PART and DENYING IN PART 36 motion to dismiss, DISMISSING Counts II and III of Plaintiffs' amended complaint, GRANTING 56 motion for leave to file Brief of Amici Curiae, and SCHEDULING a telephone conference with counsel on April 24, 2019, at 12:00 p.m. (E.D.T.). Signed by Judge Deborah K. Chasanow on 3/12/2019. (sat, Chambers) (Entered: 03/12/2019)

03/22/2019

69 Consent MOTION for Extension of Time to File Answer by Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 03/22/2019)

03/22/2019

70 PAPERLESS ORDER GRANTING 69 unopposed motion for extension of time. Defendants' response to 30 amended complaint is now due by April 9, 2019. Signed by Judge Deborah K. Chasanow on 3/22/2019. (Chasanow, Deborah) (Entered: 03/22/2019)

04/05/2019

71 MOTION to Withdraw as Attorney Khyla D. Craine by National Association for the Advancement of Colored People (Attachments: # 1 Text of Proposed Order)(Craine, Khyla) (Entered: 04/05/2019)

04/05/2019

72 PAPERLESS ORDER GRANTING 71 Motion to Withdraw as Attorney. Attorney Khyla Danielle Craine terminated. Signed by Judge Deborah K. Chasanow on 4/5/2019. (Chasanow, Deborah) (Entered: 04/05/2019)

04/08/2019

73 MOTION to Stay by Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 04/08/2019)

04/09/2019

74 ANSWER to 30 Amended Complaint, by Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security.(Kirschner, Adam) (Entered: 04/09/2019)

04/15/2019

75 NOTICE by Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security re 73 MOTION to Stay of Supplemental Authority (Kirschner, Adam) (Entered: 04/15/2019)

04/22/2019

76 RESPONSE in Opposition re 73 MOTION to Stay /Memorandum of Law in Opposition to Defendants' Motion to Stay or Limit Discovery filed by Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People.(McClammy, James) (Entered: 04/22/2019)

04/24/2019 77 RECORDED Telephone Conference held on 4/24/2019 before Judge Deborah K. Chasanow.(FTR−Hibbs−3A) (jmhs, Deputy Clerk) (Entered: 04/24/2019)

04/26/2019 78 LETTER/ORDER re: limited discovery and DEFERRING 73 motion to stay. Signed by Judge Deborah K. Chasanow on 4/26/2019. (sat, Chambers) (Entered: 04/26/2019)

04/30/2019

79 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of telephone conference held on 4/24/19, before Judge Deborah K. Chasanow. Total number of pages filed: 14. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber, 301−344−3106, before the deadline for Release of Transcript Restriction. After that date it may be obtained from the Court Reporter or through PACER. Redaction Request due 5/21/2019. Redacted Transcript Deadline set for 5/31/2019. Release of Transcript Restriction set for 7/29/2019.(krc, Deputy Clerk) Modified on 7/18/2019 (sp2, Deputy Clerk). (Additional attachment(s) added on 7/18/2019: # 1) (sp2, Deputy Clerk). (Entered: 05/02/2019)

Case: 1:18-cv-239 As of: 05/15/2020 09:35 PM EDT 11 of 11

05/21/2019

80 STIPULATION and [Proposed] Order Governing Confidential Information by Haitian Lawyers Association, Inc., Haitian Women for Haitian Refugees, National Association for the Advancement of Colored People(McClammy, James) (Entered: 05/21/2019)

05/21/2019

81 PAPERLESS ORDER APPROVING 80 Stipulation Governing Confidential Information and NOTING that whenever materials subject to the confidentiality order (or any pleading, motion or memorandum referring to them) are proposed to be filed in the court record under seal, the party making such filing must simultaneously submit a motion and accompanying order which includes (a) proposed reasons supported by specific factual representations to justify the sealing and (b) an explanation why alternatives to sealing would not provide sufficient protection (see Local Rule 105.11). Signed by Judge Deborah K. Chasanow on 5/21/2019. (Chasanow, Deborah) (Entered: 05/21/2019)

06/27/2019

82 PAPERLESS NOTICE SCHEDULING a recorded telephone conference with counsel on Tuesday, July 23, 2019, at 10:00 a.m. Chambers will initiate the conference call. (sat, Chambers) (Entered: 06/27/2019)

07/10/2019 83 Consent REQUEST for Extension of Time to File Letter re Plaintiffs' Position on Defendants' Request for Stay (Audain, Raymond) (Entered: 07/10/2019)

07/11/2019

84 PAPERLESS ORDER APPROVING 83 Plaintiffs' unopposed request for an extension of time. Plaintiffs' update to the court regarding its position on the government's request to stay is now due by July 18, 2019. Signed by Judge Deborah K. Chasanow on 7/11/2019. (Chasanow, Deborah) (Entered: 07/11/2019)

07/18/2019 85 Correspondence Regarding Substantive legal issues (Audain, Raymond) Modified on 7/19/2019 (heps, Deputy Clerk). (Entered: 07/18/2019)

07/22/2019

86 RESPONSE re 85 Substantive legal issues − addressing filed by Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security.(Kirschner, Adam) (Entered: 07/22/2019)

07/23/2019

87 RECORDED Telephone Conference held on 7/23/2019 re: 73 Motion of Defendants to Stay or, in the alternative, to Confine Discovery to the Administrative Record − Argued − RESERVED, all as stated by and before Judge Deborah K. Chasanow. (Court to issue a written opinion) (Court Reporter: Renee Ewing) (tds, Deputy Clerk) (Entered: 07/23/2019)

11/06/2019 88 NOTICE by Elaine Costanzo Duke, Kirstjen Nielsen, United States Department of Homeland Security re 73 MOTION to Stay (Kirschner, Adam) (Entered: 11/06/2019)

03/23/2020 89 MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/23/2020. (sat, Chambers) (Entered: 03/23/2020)

03/23/2020

90 ORDER GRANTING 73 motion to stay and STAYING this case until further order of court or June 1, 2020, whichever first occurs. Signed by Judge Deborah K. Chasanow on 3/23/2020. (sat, Chambers) (Entered: 03/23/2020)

 
 Case 1:18-cv-00239-MJG Document 1 Filed 01/24/18 Page 1 of 37

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE,
Plaintiff,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; ELAINE COSTANZO DUKE, in her official capacity; and KIRSTJEN NIELSEN, in her official capacity,
Defendants.

Civil Action No. 18 Civ. 239 COMPLAINT

PRELIMINARY STATEMENT The National Association for the Advancement of Colored People (“NAACP” or “Plaintiff”) brings this action against the United States Department of Homeland Security (“DHS”); Elaine C. Duke (“Defendant Duke”) in her official capacity as former Acting DHS Secretary; and Kirstjen Nielsen (“Defendant Nielsen”) in her official capacity as the current DHS Secretary. Plaintiff seeks to enjoin DHS’s November 2017 decision to rescind Temporary Protective Status (“TPS”) for Haitian immigrants, as it reflects an egregious departure from the TPS statute’s requirements and an intent to discriminate on the basis of race and/or ethnicity. On January 12, 2010, Haiti was struck by one of the deadliest earthquakes in modern history. It killed hundreds of thousands of Haitians, left millions homeless, and nearly destroyed Port-au-Prince, Haiti’s capital. Haiti’s extensive recovery efforts have been hobbled by two

Case 1:18-cv-00239-MJG Document 1 Filed 01/24/18 Page 2 of 37
additional large-scale catastrophes: the outbreak of cholera in October 2010 and a Category 4 hurricane in October 2016. Each exacerbated the dire situation created by the 2010 earthquake.
These extraordinary circumstances led to Haiti’s 2010 TPS designation and to DHS’s repeated extension of that designation over the last seven years. TPS allowed eligible Haitians to remain in the United States without fear of deportation and to obtain work authorization. Nevertheless, despite persistent food insecurity, a housing shortage, and a cholera epidemic, and despite a formal extension request from the Haitian government and various American officials from across the political spectrum, DHS terminated TPS for Haitians in November 2017, with a delayed effective date of July 22, 2019.
As such, an estimated 58,000 Haitians with TPS may face deportation to a country that is ill-prepared to receive them. The Haitian community is alarmed by the termination of TPS. As Marleine Bastien, a South Florida Haitian activist explained, “Haiti is not ready to absorb 58,000. It’s going to be a disaster for the 58,000 families in the U.S. and a disaster for Haiti.”1 U.S. Senator Bill Nelson echoed that sentiment when he tweeted, “There is no reason to send 60,000 Haitians back to a country that cannot provide for them.”2
DHS stated that the rescission decision followed an objective review of the conditions that supported the original designation. For the reasons detailed below, DHS’s explanation is demonstrably spurious. Instead, DHS’s true motive for terminating TPS for Haitians reflects racial discrimination. In early 2017, DHS officials searched for evidence that Haitians in the United States were criminals and receiving public assistance. Those efforts were grounded in longstanding and particularly noxious anti-Black stereotypes. In fact, of the approximately 58,000
1 Jacqueline Charles & Patricia Mazzei, Haitian quake victims in the U.S. will lose deportation protection in 2019, Miami Herald (Nov. 21, 2107 6:14 A.M.), http://www.miamiherald.com/news/nationworld/world/americas/haiti/article185716193.html. 2 Sen. Bill Nelson (@SenBillNelson), Twitter (Jan. 24, 2018 6:20 A.M.), https://twitter.com/SenBillNelson.
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Haitian TPS recipients, 6,200 are part of a household with a mortgage. Their median household income is $45,000. Their labor force participation rate is 81 percent (the labor force participation rate for the total U.S. population is 63 percent). Ninety-six percent speak at least a little English and 75 percent speak English well, very well, or only English. Seventy-one percent have completed high school or more and 37 percent have some college or a college degree.3 Unable to find evidence to support their discriminatory stereotypes, DHS’s Acting Secretary ultimately offered rationales for rescinding TPS that failed to acknowledge—much less address—the ongoing conditions in Haiti that warranted extending that status.
DHS’s actions are consistent with the Trump Administration’s (the “Administration”) larger, racialized goals concerning immigration. President Trump has long made clear his antipathy towards Latin American and Black immigrants, and his preference for white immigrants. In June 2017, upon learning that 15,000 Haitians and 40,000 Nigerians had received visas to enter the United States, the President reportedly exclaimed that Haitians “all have AIDS,” and that, upon seeing the United States, Nigerians would never return to their “huts” in Africa. On January 11, 2018, during a meeting on immigration with several U.S. Senators, Secretary of State Rex W. Tillerson, White House Chief of Staff John F. Kelly, and Defendant Nielsen, the President stated that he did not want immigrants from African countries, which he derided as “shithole countries.” The President also asked, “Why do we need more Haitians?” and directed that Haitian immigrants should not be admitted through any proposed immigration plan. In stark contrast, the President stated that immigrants from countries “like Norway” were more desirable and should be admitted.
3 See Robert Warren & Donald Kerwin, A Statistical and Demographic Profile of the US Temporary Protected Status Population from El Salvador, Honduras, and Haiti, 5 J. on Migration and Hum. Sec. 3 (Aug. 2017), http://cmsny.org/publications/jmhs-tps-elsalvador-honduras-haiti/.
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As Senator Richard Durbin pointed out during the meeting, President Trump’s singling out Haitians for exclusion was “an obvious racial decision.”
President Trump’s racial bias against Haitian immigrants recalls America’s long, ignominious history of discrimination against Haiti, the world’s first Black republic. In August 1791, slaves in northern Haiti launched the largest slave revolt in history.4 Within two years, every slave in the colony was free. The Haitian Revolution terrified many in the U.S. government, which refused to recognize Haiti’s independence for decades.5 American consternation reflected the fact that Haiti’s leaders were Black and, from the perspective of the U.S. Government, embodied an explosive message. That discrimination by the United States has endured, and includes several successful challenges in the 1980s and 1990s to federal policies surrounding the discriminatory treatment of Haitian immigrants. That discrimination also includes a double standard the United States exhibits towards Haitian and Cuban immigrants.
President Trump has made clear that he wishes to reduce the number of immigrants of color to the United States. The rescission of Haiti’s TPS is part of that agenda. DHS’s decision to rescind Haiti’s TPS designation was infected with the intention to discriminate on the basis of race and/or ethnicity, in violation of the Fifth Amendment.
PARTIES 1. The National Association for the Advancement of Colored People is the nation’s largest and oldest civil rights grassroots organization. Since its founding in 1909, the mission of the NAACP has been to ensure the political, educational, social, and economic equality of all persons and to eliminate race-based discrimination. The NAACP has fought in the courts for decades to protect the constitutional guarantee of equal protection under law. To advance its
4 See Laurent Dubois, Haiti: The Aftershocks of History, pp. 22-51 (Metropolitan Books 2012). 5 Id.
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mission, the NAACP has brought landmark civil rights cases over its 109-year history and continues to do so. The NAACP also has filed numerous amicus briefs in cases that significantly impact people of color. The NAACP’s membership includes Haitian TPS beneficiaries. The NAACP brings this action on behalf of those members, including but not limited to a Haitian biology student at a Florida university.
2. Defendant Department of Homeland Security is a Department of the Executive Branch of the United States Government and an agency within the meaning of 5 U.S.C. § 551. DHS and its component agencies, the U.S. Citizenship and Immigration Services (“USCIS”), U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and Customs Enforcement (“ICE”), are responsible for, inter alia, administering and enforcing American immigration laws and policies, including the TPS program.
3. Defendant Elaine Costanzo Duke was Acting Secretary of Homeland Security from on or about July 31, 2017, until on or about December 6, 2017. Defendant Duke currently serves as the Deputy Secretary of DHS. As Acting Secretary, Defendant Duke was responsible for overseeing DHS and for implementing and enforcing America’s immigration laws. Defendant Duke authorized rescission of the Republic of Haiti’s designation for TPS (“Haitian TPS”) on or about November 20, 2017. She is sued in her official capacity.
4. Defendant Kirstjen Nielsen has been Secretary of Homeland Security since on or about December 6, 2017, and is the senior official at DHS. Defendant Nielsen is responsible for overseeing DHS and for implementing and enforcing American immigration laws, including TPS. Defendant Nielsen is sued in her official capacity.
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JURISDICTION AND VENUE 5. Jurisdiction is conferred on this Court by 28 U.S.C. § 1331. 6. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391.
FACTS Temporary Protected Status
7. When civil unrest, violence, or natural disasters erupt in countries around the world, concerns arise about the ability of foreign nationals in the United States from those countries to safely return. Section 244(c)(2) of the Immigration and Nationality Act (“INA”) and 8 U.S.C. § 1254a, therefore, provide for TPS when the Secretary of Homeland Security6 finds that conditions in the country temporarily prevent nationals from returning safely or, in certain circumstances, where the country is unable to adequately handle the return of nationals.
8. Foreign nationals protected by TPS cannot be removed from the United States during the period in which the status is in effect. A foreign national who is granted TPS receives a registration document and work authorization. When TPS is terminated, the foreign national’s immigration status reverts to her status prior to the TPS grant.
9. The Secretary of Homeland Security may grant TPS protections to foreign nationals if she determines that, inter alia, (a) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the foreign state resulting in a substantial, but temporary, disruption of living conditions in the area affected; the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state; and the foreign state officially has requested TPS designation; or (b) there exist extraordinary and temporary conditions
6 Under 8 U.S.C. § 1254a, the Attorney General was authorized to administer the TPS program. The authority to designate countries and administer the TPS program was transferred from the Attorney General to the Secretary of Homeland Security in 2003, with the formation of the Department of Homeland Security. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).
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in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.
10. The Secretary of Homeland Security has discretion to issue TPS for periods of six to 18 months. Thereafter, the Secretary must review the conditions in the foreign state for which the designation is in effect and must determine whether the conditions for such designation continue to be met. If the Secretary does not determine that a foreign state no longer meets the conditions for designation under the TPS statute, the period of designation may be extended for up to 18 months. If the Secretary determines that the foreign state no longer continues to meet the conditions for designation under the statute, she must terminate the designation.
11. The Secretary’s decision—whether to renew or rescind TPS—must be published in the Federal Register on a timely basis. The timing of that publication has important consequences for TPS recipients because their employment authorization and other authorization documents expire when their TPS expires.
12. On January 15, 2010, then-Secretary of Homeland Security Janet Napolitano announced that the designation of TPS for Haitian nationals who were in the United States as of January 12, 2010, would last 18 months.7 The designation was published in the Federal Register just six days later, on January 21, 2010.
13. Secretary Napolitano designated Haiti for TPS because the “earthquake destroyed most of the capital city,” and initial estimates indicated that the “death toll [was] substantial.”8 The International Red Cross estimated that one-third of Haiti’s population—about three million people—were affected by the earthquake. Government buildings, including the Presidential
7 See Press Release, Statement from Homeland Security Secretary Janet Napolitano on Temporary Protected Status (TPS) for Haitian Nationals (Jan. 15, 2010), https://www.dhs.gov/news/2010/01/15/secretary-napolitano-temporaryprotected-status-tps-haitian-nationals. 8 Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3477 (Jan. 21, 2010).
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Palace, the Ministry of Justice, and Parliament, were destroyed or damaged, as were hospitals and schools. Haiti’s critical infrastructure, including electricity, water, and telephone services, was severely affected. The Secretary also noted the limited access to Port-au-Prince because roads were blocked by debris, a major bridge had collapsed, and Haiti’s main airport was damaged. This hindered the ability to transport food, fresh water, and medical supplies to those affected. Secretary Napolitano found that Haiti has “limited resources to cope with a natural disaster, and now has been struck by its strongest earthquake in 200 years,” and “the magnitude of the disaster is substantial.”9 As such, the Secretary determined that “there clearly exist extraordinary and temporary conditions preventing Haitian nationals from returning to Haiti in safety.”10
14. On May 17, 2011, Secretary Napolitano extended Haitian TPS for an additional 18 months. The extension was published in the Federal Register just two days later, on May 19, 2011. The Secretary determined that, since the initial designation, DHS and the Department of State had reviewed conditions in Haiti and determined that it was warranted to “extend[ ] the existing designation of Haiti for [TPS] for 18 months from July 23, 2011 through January 22, 2013, and redesignat[e] Haiti for TPS for 18 months, effective July 23, 2011 through January 22, 2013.”11
15. In extending Haitian TPS, Secretary Napolitano noted that the “earthquake has exacerbated Haiti’s position as the least developed country in the Western Hemisphere and one of the poorest in the world.”12 She also noted that, according to the Central Intelligence Agency World Factbook, as of September 22, 2010, 80 percent of Haiti’s population was living below the poverty line. Due to this widespread poverty, the Government of Haiti was unable to collect sufficient revenue to provide adequate social services and to invest in physical and human capital.
9 Id. 10 Id. 11 Id. 12 Id.
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16. Secretary Napolitano further noted that an estimated “230,000 people died and approximately three million were affected by the earthquake. In total more than one million Haitians have been left homeless and are currently living in temporary camps.”13 After an assessment for habitability of approximately 300,000 of the estimated 350,000 to 400,000 buildings destroyed by the earthquake, the Haitian government and international nongovernmental organizations concluded that approximately 21 percent of those buildings were unsafe and required major repairs or demolition.14 The Department of State estimated that there were approximately 1,300 camps for internally displaced persons in Haiti. According to the United Nations Children’s Fund, there were approximately 1.6 million internally displaced persons in Haiti, approximately 800,000 of whom were children. The camps were “extremely crowded and [ ] vulnerable to flooding, crime (including gender-based violence), and disease.”15
17. In October 2010, the first modern, large-scale outbreak of cholera occurred in Haiti when United Nations soldiers introduced the disease to the island. Secretary Napolitano also recognized the cholera outbreak as evidence of the “vulnerability of the public health sector in Haiti.” The Haitian Ministry of Public Health and Population reported “199,497 cholera cases, including 112,656 hospitalizations and 3,927 deaths.”16
18. These factors and “consultation with the appropriate Government agencies” led Secretary Napolitano to conclude that the “conditions that prompted the January 21, 2010 designation of Haiti for TPS continue to be met.”17 Secretary Napolitano extended Haiti’s TPS designation for 18 months, until January 22, 2013.
13 Id. 14 Id. 15 Id. 16 Id. 17 Id. at 29,002.
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19. On October 1, 2012, Secretary Napolitano extended Haiti’s TPS for another 18 months, from January 23, 2013, through July 22, 2014.18 The Secretary noted that “Haitian government estimates of the death toll caused by the earthquake have ranged from 230,000 to over 300,000 people. The Government of Haiti further estimated that more than 1,000,000 people were displaced within the Port-au-Prince metropolitan area.”19
20. Secretary Napolitano noted that security in Haiti remained a concern because the earthquake “killed 77 officers of the Haitian National Police (HNP), injured 253 officers, and destroyed or severely damaged 45 HNP stations and substations.”20 Secretary Napolitano also considered the “political instability” of the Government of Haiti, and its inability to “fully engage in development decisions.”21
21. She further considered that “approximately 500,000 people continued to live in camps, which are vulnerable to flooding, disease, crime, and gender-based violence. Alternative housing options are lacking. The level of displacement, scale of the damage, low funding and the lack of a government housing reconstruction policy impeded reconstruction efforts in Haiti.”22
22. Secretary Napolitano additionally considered Haiti’s public health problems, including the steady rains in October 2010 that led to flooding and contributed to the deadly cholera outbreak. She found that “as of May 1, 2012, there have been an estimated 532,192 cholera cases and 7,060 associated deaths since October 2010.”23 Secretary Napolitano noted that, despite significant progress, food security continued to be a problem. She also noted that 80 percent of the schools west of the capital were destroyed or severely damaged in the earthquake.24 The
18 Extension of the Designation of Haiti for Temporary Protected Status, 77 Fed. Reg. 59,943 (Oct. 1, 2012). 19 Id. at 59,944. 20 Id. 21 Id. 22 Id. 23 Id. 24 Id.
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Haitian government estimated that “35 to 40 percent of schools in the southeast were destroyed, rendering the total number of schools destroyed or severely damaged as high as 5,000.”25
23. Secretary Napolitano concluded that while the situation in Haiti has improved, “[g]iven the risk of contracting cholera, unsafe living conditions in [internally displaced persons] camps, damaged infrastructure, and a shortage of permanent shelter, it is unsafe for Haitians currently in the United States with TPS to return home.”26
24. On March 3, 2014, then-Secretary Jeh Johnson extended the designation of Haiti for TPS for 18 months, from July 23, 2014, through January 22, 2016. Secretary Johnson stated that “[w]hile the Government of Haiti has made considerable progress in improving the security and quality of life of its citizens following the January 2010 earthquake, Haiti continues to lack the adequate infrastructure, employment and educational opportunities, and basic services to absorb the approximately 58,000 Haitian nationals living in the United States under TPS.”27
25. Secretary Johnson further noted that the earthquake impacted the “governance and the rule of law” in Haiti. Secretary Johnson stated that the earthquake “exacerbated pre-existing vulnerabilities, including gender-based violence, trafficking, sexual exploitation, child labor, domestic violence, and recruitment into crime or violence.”28 The United Nations Security Council voted to extend the peacekeeping mission in Haiti until mid-October 2014 so that it could further contribute to the country’s stability and development.
26. In addition, Secretary Johnson found that 40 percent of Haiti’s population lacked access to basic health services, which contributed to a rise in new cholera infections.
25 Id. at 59,944-45. 26 Id. at 59,945. 27 Extension of the Designation of Haiti for Temporary Protected Status, 79 Fed. Reg. 11809 (March 3, 2014). 28 Id.
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27. Secretary Johnson also recognized that the Haitian economy, devastated by the 2010 earthquake, was further adversely affected by Tropical Storm Isaac and Hurricane Sandy. At the time, Haiti’s unemployment rate was approximately 40 percent. More than 78 percent of Haitians lived on fewer than $2 per day, and over 50 percent lived on fewer than $1 per day. In rural areas, 88 percent of individuals lived below the poverty line and basic services were practically nonexistent. As of September 2013, approximately 172,000 individuals remained in camps.
28. For these reasons, Secretary Johnson extended Haiti’s TPS designation for another 18 months, through January 22, 2016.
29. On August 25, 2015, Secretary Johnson extended Haiti’s TPS designation for another 18 months, from January 23, 2016, through July 22, 2017.29
30. Secretary Johnson extended Haiti’s TPS after carefully reviewing Haiti’s circumstances since the 2010 earthquake and consulting with the Department of State. Secretary Johnson determined that an extension was warranted because the “extraordinary and temporary conditions that led to Haiti’s designations continue to exist and prevent Haitian nationals . . . from returning to Haiti in safety.”30 The Secretary found that there remained “a housing shortage, a cholera epidemic, limited access to medical care, damage to the economy, political instability, security risks, limited access to food and water, a heightened vulnerability of women and children, and environmental risks.”31
31. As to physical infrastructure and facilities, Secretary Johnson relied on the Haitian government’s estimates that “105,000 houses were destroyed and 188,383 houses collapsed or
29 Extension of the Designation of Haiti for Temporary Protected Status, 80 Fed. Reg. 51,582 (Aug. 25, 2015). 30 Id. at 51,583. 31 Id.
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suffered considerable damage.”32 Secretary Johnson noted that while there had been improvements to road conditions and most of the earthquake-related rubble had been cleared, “the effort to rebuild damaged buildings has been slow. Virtually all government offices and ministries were destroyed in downtown Port-au-Prince and, 5 years later, remain housed in temporary facilities.”33
32. Secretary Johnson also relied on the International Organization for Migration’s December 2014 report, which estimated that 80,000 internally displaced Haitians still lived in approximately 105 camps. Most of the camps lacked waste management services and adequate sanitation facilities, which contributed to a high risk of cholera transmission and malnutrition rates that exceeded emergency thresholds.34 The Secretary was also concerned about the persistent gender-based violence in the settlements. The Secretary also found that Haiti lacked “sufficient housing units to address its pre-earthquake shortage, replace damaged or destroyed units, and satisfy projected urban growth. Some Haitians have returned to unsafe homes or built houses in informal settlements located in hazardous areas without access to basic services.”35
33. Haiti’s compromised infrastructure also compromised its food security. Secretary Johnson found that, since the earthquake, an “estimated 2.5 million people are unable to cover their basic food needs and a January 2015 United Nations report estimated that over 600,000 people were facing severe food insecurity.”36
34. Secretary Johnson also recognized that Haiti’s public health challenges were exacerbated by the earthquake and the outbreak of “the largest cholera epidemic in the Western
32 Id. 33 Id. 34 Id. 35 Id. 36 Id.
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Hemisphere.”37 Secretary Johnson found that, as of December 2014, the cholera epidemic had affected approximately 725,000 people and claimed over 8,800 lives in Haiti since October 2010. In January 2015, the U.S. Centers for Disease Control and Prevention stated that outbreaks of epidemic diseases still occur, and that progress has been slow and limited in restoring Haiti’s physical health infrastructure.38
35. Secretary Johnson also recognized that the political instability in Haiti compromised its recovery efforts. The earthquake killed approximately 18 percent of Haiti’s civil servants and destroyed key government infrastructure, including the National Police headquarters and various judicial facilities. Moreover, when local and parliamentary mandates expired on January 12, 2015, “Haiti was left without a functioning legislative branch or duly elected local authorities,” which led to violent protests and demonstrations.39
36. As such, and after consulting with “appropriate Government agencies,” Secretary Johnson concluded that, although Haiti “has taken significant steps to improve stability and the quality of life for Haitian citizens, Haiti continues to lack the adequate infrastructure, health and sanitation services, and emergency response capacity necessary to ensure the personal safety of Haitian nationals.”40
37. On May 22, 2017, then-DHS Secretary Kelly41 extended Haiti’s TPS for 6 months, from July 23, 2017, through January 22, 2018. Secretary Kelly published the extension in the Federal Register 2 days later, on May 24, 2017.42
37 Id. 38 Id. 39 Id. at 51,584. 40 Id. 41 Mr. Kelly became White House Chief of Staff on July 28, 2017. 42 Extension of the Designation of Haiti for Temporary Protected Status, 82 Fed. Reg. 23,830 (May 24, 2017).
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38. Secretary Kelly noted that 96 percent of the people displaced by the earthquake and living in camps had left those camps, and 98 percent of the internally displaced persons camps had been closed. Nonetheless, Secretary Kelly noted, “over 55,000 Haitians who lost their homes in the earthquake are still living in 31 camps for internally displaced persons without viable options to leave.”43 Secretary Kelly also noted that gender-based violence continues to be a serious and pervasive issue, and that those who are no longer in camps “have moved back to unsafe homes or relocated to informal settlements located in hazardous areas.”44
39. Moreover, Secretary Kelly determined that Hurricane Matthew caused extensive “damage to crops, housing, livestock, and infrastructure across Haiti’s southwest peninsula” when it made landfall on October 4, 2016. This hurricane impacted the entire country.45 In April 2017, heavy rains caused flooding and landslides in Haiti’s southern department. Secretary Kelly concluded that the damage from Hurricane Matthew and the heavy rains compounded “the existing food insecurity experienced by an estimated 3.2 million people (approximately 30 percent of the population) in September 2016.”46
40. Secretary Kelly additionally found that the persistent cholera epidemic strained Haiti’s fragile public health system. He noted that as of 2016, “40% of the population lacks access to fundamental health and nutrition services,” and “[e]xtreme poverty, corruption, and low levels of education in Haiti challenge its resilience and have contributed to the government’s longstanding inability to adequately provide for the security, health, and safety of its citizenry.”47
43 Id. 44 Id. 45 Id. 46 Id. 47 Id.
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41. Secretary Kelly found that conditions in Haiti continued to support its designation for TPS. Yet, even while recognizing that conditions in Haiti warranted the extension of TPS, in the May 2017 announcement, he also presaged DHS’s decision to terminate TPS by stating that Haiti’s TPS beneficiaries should prepare for their return to Haiti.48
Officials from Across the Political Spectrum Warn Against TPS Rescission 42. Secretary Kelly’s signal that Haiti’s TPS would soon be terminated provoked an
overwhelming response from Haitian and American officials across the political spectrum. 43. On August 24, 2017, Senator Nelson sent a letter strongly urging DHS to grant an
18-month extension of Haiti’s TPS designation.49 Senator Nelson wrote that Hurricane Matthew had significantly delayed Haiti’s recovery efforts and pointed out that Secretary Kelly himself had recently observed that Hurricane Matthew caused substantial losses impacting the entire country.
44. On September 28, 2017, a bipartisan group of United States Congresspersons, including U.S. Rep. Alcee L. Hastings, U.S. Senators Nelson and Marco Rubio, as well as U.S. Reps. Ileana Ros-Lehtinen, Mario Diaz-Balart, Ted Deutch, Debbie Wasserman Schultz, Carlos Curbelo, Frederica Wilson, and Lois Frankel, wrote a letter to Defendant Duke.50 The letter implored Defendant Duke to grant an 18-month extension of Haiti’s TPS. The letter stated that: “[t]he ongoing extraordinary conditions that Haiti confronts today are a direct result of the 7.0 magnitude earthquake that hit Haiti on January 12, 2010 and the major hurricane that hit Haiti on October 4, 2016.”51
48 Id. 49 Letter from Sen. Bill Nelson to Elaine C. Duke, Acting Sec’y of DHS (Aug. 24, 2017), https://www.billnelson.senate.gov/sites/default/files/20170824%20Letter %20to%20Acting%20Secretary%20Duke%20regarding%20Haitian%20TPS.pdf. 50 Letter from Cong. Alcee L. Hastings, et al., to Elaine C. Duke, Acting Sec’y of DHS (Sept. 18, 2017), https://alceehastings.house.gov/news/documentsingle.aspx?DocumentID=398877. 51 Id.
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45. On October 4, 2017, Haiti’s government wrote to DHS to formally request an 18month extension in order to “ensure that Haiti is able to adequately move forward with its recovery and redevelopment plan.”52 The Haitian government explained that Haiti has undergone a catastrophic and unprecedented series of natural disasters during the preceding seven years, including a cholera epidemic that killed thousands of people, sickened over 800,000 people, and continued to pose a healthcare risk to Haiti. Resources that the Haitian government had initially earmarked for addressing critical earthquake recovery issues had to be re-appropriated to address the cholera epidemic. The Haitian government also explained that, in October 2016, Hurricane Matthew, a Category 4 storm with 145 mph winds and the worst to strike the nation in more than five decades, raged through Haiti, destroying over 200,000 homes, wiping out towns and villages, and destroying valuable crops. This caused a severe food crisis of unparalleled magnitude in Haiti’s history. The economic loss from Hurricane Matthew alone was estimated at 2.8 billion dollars. The Haitian government further explained that Hurricanes Irma and Maria also caused serious damage to Haiti in 2017, hampering the country’s efforts to recover from the earthquake, the cholera epidemic, and Hurricane Matthew. Hurricanes Irma and Maria destroyed a substantial amount of agricultural crops and flooded communities, which resulted in further displacement. Furthermore, the impact of the 2017 hurricane season on neighboring island countries caused additional, significant harm to the Haitian economy. The Haitian government warned that terminating TPS would force the Haitian government to halt its ongoing, short-term redevelopment efforts and focus its limited resources on receiving an influx of citizens, and concluded that, under
52 Letter from Paul G. Altidor, Haitian Ambassador to the United States, to Elaine C. Duke, Acting Sec’y of DHS (Oct. 4, 2017), http://www.miamiherald.com/latestnews/article178072401.ece/binary/Lettertothe%20HonorableElaineC.Duke.pdf.
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its current circumstances, “an extension or re-designation of TPS for Haitians is fully warranted and would serve the mutual interests of both countries.”
46. On October 19, 2017, the entire Massachusetts Congressional Delegation wrote a letter advising DHS that an 18-month extension is “needed and justified based on the devastation that Haiti has suffered from a series of natural disasters.”53 The letter explained that extraordinary conditions have incessantly affected Haiti over the last seven years and that the country cannot safely repatriate the more than 50,000 TPS program participants. The letter reiterated many of the points that the Massachusetts Congressional Delegation outlined in an earlier letter to Secretary Kelly on May 4, 2017, counseling him that extending TPS status for Haitian nationals was absolutely necessary.54 Both letters were signed by U.S. Senators Elizabeth Warren and Edward J. Markey, as well as U.S. Reps. Michael E. Capuano, Richard E. Neal, Jim P. McGovern, Stephen F. Lynch, Niki Tsongas, Bill R. Keating, Joseph P. Kennedy III, Katherine Clark, and Seth Moulton.
47. On October 26, 2017, the Chamber of Commerce of the United States of America urged DHS to extend TPS designation for, inter alia, Haiti, noting that the labor force participation for its TPS population is over 80 percent.55 The Chamber of Commerce also expressed concern that terminating Haiti’s TPS designation would adversely impact some of its member companies and key industries.
53 Letter from the Mass. Cong. Delegation to Elaine C. Duke, Acting Sec’y of DHS & Rex Tillerson, Sec’y of State (Oct. 19, 2017), http://www.ijdh.org/wp-content/uploads/2016/10/Mass-Delegation-Letter-to-DHS-Sec-Kelly-onHaiti-TPS.pdf. 54 Letter from the Mass. Cong. Delegation to John F. Kelly, Acting Sec’y of DHS & Rex Tillerson, Sec’y of State (May 4, 2017), http://www.ijdh.org/wp-content/uploads/2016/10/Mass-Delegation-Letter-to-DHS-Sec-Kelly-onHaiti-TPS.pdf. 55 Letter from Neil L. Bradley, Senior V.P., U.S. Chamber of Commerce, to Elaine C. Duke, Acting Sec’y of DHS (Oct. 26, 2017), https://www.uschamber.com/sites/default/files/171024_ temporaryprotectedstatus_dhs_duke.pdf.
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48. On October 31, 2017, U.S. Senate Minority Leader Charles E. Schumer and U.S. Senators Kirsten Gillibrand, Bob Menendez, and Cory Booker sent a letter to Secretary of State Tillerson and Defendant Duke, warning that terminating Haiti’s TPS designation would jeopardize regional stability and security and impair Haiti’s fragile recovery efforts.56 The letter also cautioned that terminating Haiti’s TPS designation would endanger the health and safety of TPS holders. The letter reaffirmed the points that Senators Schumer and Gillibrand made in March 2017.57
49. On November 1, 2017, 78 members of the U.S. House of Representatives joined Congressman Jimmy Gomez’s letter to Defendant Duke and Mr. Kelly, calling on the United States to fulfill its role as a humanitarian leader by renewing Haiti’s and other countries’ TPS.58 The letter noted the economic contributions of all TPS recipients and the economic harm that could result from rescission, including an estimated loss of more than $45.2 billion dollars in GDP over the next decade. With respect to Haiti, the letter explained that the earthquake had severely damaged the island’s infrastructure, such that the conditions that prompted the most recent TPS extension persist and warrant continued protection.
50. On November 3, 2017, the Congressional Black Caucus wrote a letter to Defendant Duke that described the May 24, 2017, decision not to re-designate Haiti for the full 18 months as
56 Letter from Sen. Minority Leader Charles E. Schumer & Sens. Kirsten Gillibrand, Bob Menendez & Cory Booker, to Rex Tillerson, Sec’y of State, & Elaine C. Duke, Acting Sec’y of DHS (Oct. 31, 2017), https://www.gillibrand.senate.gov/imo/media/doc/TPS%20Haiti%20Letter%202017.pdf. 57Letter from Sen. Minority Leader Charles E. Schumer & Sen. Kirsten Gillibrand, to Rex Tillerson, Sec’y of State,
& Elaine C. Duke, Acting Sec’y of DHS (March 24, 2017),
https://www.gillibrand.senate.gov/imo/media/doc/Letter%20to%20DHS%20and% 20State%20re%20Haitian%20TPS%203.24.17.pdf. 58 Letter from Cong. Jimmy Gomez & 78 other House Colleagues to John Kelly, White House Chief of Staff, & Elaine C. Duke, Acting Sec’y of DHS (Nov. 1, 2017), https://gomez.house.gov/uploadedfiles/11-012017_congressman_jimmy_gomez_letter_to_white_ house_cos_kelly_and_dhs_acting_secretary_duke_re_temporary_protected_status.pdf.
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contrary to “the facts on the ground.”59 The letter advised DHS that terminating Haiti’s TPS designation would end essential remittances to Haiti from the United States, while simultaneously forcing Haiti to absorb the cost of reintegrating thousands of people, and concluded that it is in the best interests of Haiti and the United States to re-designate Haiti for another 18 months of TPS.
51. On November 8, 2017, the Senate Foreign Relations Committee Ranking Member Senator Ben Cardin explained that following the catastrophic 2010 hurricane, Haiti’s capacity to manage repatriation efforts have faced substantial setbacks, compounded by two category five hurricanes that occurred just two months earlier.60 The letter emphasized that an April 2017 DHS memorandum had itself reported that an estimated 30 percent of the Haitian population suffers from food insecurity, and 40 percent of the population lacks access to fundamental health and nutrition services. Senator Cardin’s letter emphasized the recommendation that he made in May 2017, that an extension of the TPS designation was fully warranted.61
52. On November 9, 2017, 58 members of the U.S. Senate and House wrote a letter encouraging DHS to extend TPS designation to participants in the program from Haiti and other nations.62 The letter emphasized that nearly 275,000 Americans have parents who are TPS recipients from El Salvador, Honduras, or Haiti and who will be forced to choose between leaving their children or risking deportation if they lose TPS designation.
59 Letter from the Congressional Black Caucus to Elaine C. Duke, Acting Sec’y of DHS (Nov. 3, 2017), http://www.ijdh.org/wp-content/uploads/2017/10/CBC-Haiti-TPS-Update-Letter.pdf. 60 Letter from Benjamin L. Cardin, Ranking Member Comm. on Foreign Relations, to Elaine C. Duke, Acting Sec’y of DHS (Nov. 8, 2017), https://www.foreign.senate.gov/. imo/media/doc/11-8-17%20BLC%20letter%20to%20DHS%20on%20Haiti%20TPS%20extension.pdf. 61 Letter from Benjamin L. Cardin, Ranking Member Comm. on Foreign Relations, to John F. Kelly, Acting Sec’y of DHS & Rex Tillerson, Sec’y of State (May 18, 2017), http://www.ijdh.org/wp-content/uploads/2016/10/5-18-17BLC-letter-to-Tillerson-and-Kelly-on-Haiti-TPS.pdf. 62 Letter from 58 members of the Senate & House, to Elaine C. Duke, Acting Sec’y of DHS (Nov. 9, 2017) https://votesmart.org/public-statement/1205364/letter-to-the-hon-elaine-c-duke-acting-secretary-of-homelandsecurity-reverse-administration-decision-to-expose-thousands-to-dangerous-deportations#.Wl5A1ainGUk.
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53. On November 14, 2017, Governor Charlie Baker of Massachusetts implored Defendant Duke to recognize the unsuitability of ordering tens of thousands of Haitians to return to a place that is in crisis and that will be at risk of becoming further destabilized by a sudden influx of TPS nationals.63 Governor Baker recommended that TPS should be extended for, inter alia, the 5,000 Haitians in Massachusetts because it would be inconsistent “with the traditions and values of the United States to order the return of large numbers of foreign nationals who have been following our laws and contributing to our economy and culture to countries that are dangerous, politically unstable, and incapable of providing basic services and protections for their citizens.”64
54. On November 17, 2017, Senator Nelson, along with U.S. Senator Marco Rubio, and U.S. Reps. Alcee L. Hastings, Ileana Ros-Lehtinen, Frederica Wilson, Mario Diaz-Balart, Lois Frankel, Debbie Wasserman Schultz, Ted Deutch, and Carlos Curbelo, urged Defendant Duke to extend Haitian TPS for 18 months.65 They stated that the need for a full extension is clear, and that “Haiti—the poorest country in the Western Hemisphere—continues to recover from the devastating 2010 earthquake which killed more than 200,000 people and displaced more than a million.” They explained that, “[t]o this day, Haiti struggles to combat an outbreak of cholera introduced by United Nations relief workers following the earthquake that has already killed more than 10,000 people.” They also cited the extensive damage Hurricane Matthew caused in 2016, destroying much of Haiti’s food crops and leaving millions of Haitians food insecure. In their bipartisan letter, these members of Congress stated that these “persistent, difficult conditions in Haiti warrant a full extension . . . [and we] owe it to the Haitian people to assist them in their
63 Letter from Charlie Baker, Gov. of Massachusetts, to Elaine C. Duke, Acting Sec’y of DHS (Nov. 14, 2017), https://www.scribd.com/document/364519924/Gov-Baker-TPS-Letter-to-Secretary-Duke#download&from_embed. 64 Id. 65 Letter from Sens. Bill Nelson, Marco Rubio, & other Florida lawmakers to Elaine C. Duke, Acting Sec’y of DHS (Nov. 17, 2017), https://www.billnelson. senate.gov/newsroom/news/sen-bill-nelson-calls-on-dhs-to-extent-tps-for-haitian.
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efforts, especially as they begin to make limited progress. Haiti simply cannot absorb the premature return of 60,000 people at once.”66
55. Haiti’s Ambassador to the United States and its Foreign Minister also met with Defendant Duke in November 2017 to lay out their case for renewal and petition for a TPS extension. Circumstantial and Direct Evidence that DHS’s Rescission of TPS for Haiti was Motivated by Racial Discrimination
56. Despite the overwhelming evidence that TPS for Haiti remains necessary given ongoing conditions in the country, on November 20, 2017, Defendant Duke publicly announced her decision to terminate TPS for Haiti with a delayed effective date of 18 months.
57. According to the DHS Office of the Press Secretary’s November 20, 2017, press release (“press release”), the decision to terminate Haitian TPS was made after a review of the conditions upon which the original designation was based. The press release stated that “[b]ased on all available information, including recommendations received as part of an inter-agency consultation process, Acting Secretary Duke determined that those extraordinary but temporary conditions caused by the 2010 earthquake no longer exist.”67 The press release did not acknowledge, much less attempt to address, the overwhelming evidence cited above demonstrating that conditions in Haiti, in fact, have not sufficiently recovered from the 2010 earthquake. There
66 Attached hereto as Ex. A is a list of additional letters, editorials, and articles about Haitian TPS. https://haitiadvocacy.org/icymi-summary-recent-articles-letters-editorials-temporary-protected-status-haitians/. Additionally, attached hereto as Ex. B is an independent analysis of Haiti’s qualifications, conducted by the Global Justice Clinic at the New York University School of Law, entitled Extraordinary Conditions: A Statutory Analysis of Haiti’s Qualification for TPS. http://www.ijdh.org/wp-content/uploads/2017/10/ Extraordinary-Conditions_A-Statutory-Analysis-of-Haitis-Qualification-for-TPS.pdf. 67 Press Release, Acting Secretary Elaine Duke Announcement on Temporary Protected Status for Haiti, DHS website (Nov. 20, 2017), https://www.dhs.gov/news/2017/11/20/acting-secretary-elaine-duke-announcementtemporary-protected-status-haiti#.
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was no discussion about what constituted the “inter-agency consultation” referred to in the press release.
58. Although DHS published its other TPS determinations in the Federal Register within days of publicly announcing the decisions, it took DHS until January 18, 2018, to provide an analysis to support its putative reasons for the rescission decision. This unprecedented delay has disrupted the lives of TPS recipients across the country. That is because the last extension— issued on May 24, 2017, and set to expire on January 22, 2018—remained operative until DHS gave notice in the Federal Register of its November 2017 decision to rescind. Until DHS published its November 2017 decision in the Federal Register, Haitian immigrants with TPS would be unable to legally work or receive public benefits after January 22, 2018. As a result, upon information and belief, scores of Haitians with TPS lost or were denied employment and/or federal entitlements like Medicare because they were unable to timely re-apply for those benefits.
59. According to the notice published on January 18, 2018, the “Acting Secretary of [DHS] determined on November 2017 that conditions in Haiti no longer support its designation for TPS” after consultation with the “appropriate U.S. Government agencies.”68 It is noteworthy that Defendant Duke only refers generally to “U.S. Government agencies,” while all previous Haitian TPS notices in the Federal Register referred to DHS’s consultations with the Department of State. The January 18, 2018, notice does not indicate whether DHS consulted with the Department of State before the rescission.
60. Defendant Duke also stated in the Federal Register that Haiti has made “progress recovering from the 2010 earthquake and subsequent effects that formed the basis for its designation.” Defendant Duke relied upon the decrease in internally displaced persons and on the
68 Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2648 (Jan. 18, 2018).
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closure of 98 percent of the internally displaced persons camps. Defendant Duke also noted that, in October 2017, the United Nations withdrew its peacekeeping mission.
61. Defendant Duke further stated that Haiti “successfully completed its presidential election in February 2017” and that key government infrastructure was being rebuilt. Defendant Duke added that the annual GDP growth “has been generally positive since 2010, averaging 1.7 percent over the period (2010-2016),” and that “cholera is currently at its lowest level since the outbreak began.”
62. Defendant Duke’s stated reasoning for rescinding Haiti’s TPS represents a sharp departure from DHS’s ordinary decision-making process. Under 8 U.S.C. § 1254a, DHS is required to consider “the conditions in the foreign state . . . for which a designation is in effect under this subsection and . . . determine whether the conditions for such designation under this subsection continue to be met.” Consistent with that statutory mandate, DHS has previously undertaken a careful review as to whether conditions in Haiti continued to reflect the severe problems with respect to housing, food security, infrastructure, public health, access to health care, and gender-based violence that originally resulted from the 2010 earthquake and warranted Haiti’s TPS designation. Defendant Duke, however, failed to fully consider those factors in rescinding Haiti’s TPS.
63. For example, Defendant Duke failed to address the persistent gender-based violence in the internally displaced persons camps, which Mr. Kelly himself described as a serious concern just months earlier. Defendant Duke also failed to consider the fact that people who were displaced by the earthquake moved back to unsafe homes or were relocated to informal settlements in hazardous areas. Defendant Duke also failed to consider the extent of the damage that Hurricane Matthew caused, which Mr. Kelly noted killed more than 500 people and left more than 150,000
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without housing. Defendant Duke also failed to address that 40 percent of the Haitian population lacked access to fundamental health and nutrition services. Defendant Duke also failed to address the questionable habitability of the buildings the earthquake destroyed, or conditions in the remaining internally displaced persons camps. Furthermore, although Defendant Duke noted the decrease in cholera, she failed to consider whether access to medical care had improved or whether Haiti’s physical health infrastructure was restored.
64. Remarkably, Defendant Duke cited the completion of Haiti’s presidential election in February 2017 to support the rescission decision, even though that election was already complete when Mr. Kelly extended Haitian TPS in May 2017.69
65. Defendant Duke also relied on modest total GDP growth (under two percent a year) to determine that the conditions in Haiti were sufficiently improved to rescind TPS. But in 2011, the Secretary found that 80 percent of Haiti’s population was living below the poverty line and that per capita GDP was under $2 per day. The 2018 determination fails to address whether these economic metrics have improved.
66. In addition, Defendant Duke failed to indicate whether DHS considered the Haitian government’s input and the reservations that it expressed about rescinding TPS. DHS also failed to consider how the Caribbean hurricanes that have occurred since 2010 may have impacted Haiti’s recovery.
67. Defendant Duke also failed to address the issue of food insecurity. She failed to do so although Secretary Napolitano noted that food insecurity continued to be a problem two years after the earthquake; although Secretary Johnson noted the earthquake’s continuing impact on food
69 Haiti’s presidential election was complete in November 2016, when the current president secured enough votes to avoid a runoff vote. In February 2017, the president was sworn in.
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insecurity years after the earthquake, and although, just five months earlier, then-Secretary Kelly noted that Hurricane Matthew caused extensive crop damage.
68. In all of the foregoing respects, DHS departed from the normal decision-making process in deciding to rescind Haitian TPS by failing to engage the factors identified in the original determination, the factors identified in the four subsequent 18-month extensions, and the factors that Mr. Kelly identified in his extension just five months earlier.
69. Further, the reasons offered by DHS in the press release and Federal Register announcement appear to be pretextual. Months earlier, DHS had attempted to manufacture evidence of a different nature to support rescission. In early 2017, while Mr. Kelly was Secretary of Homeland Security, DHS officials sought crime data on Haitians with TPS. DHS also sought information on how many Haitian nationals were receiving public benefits in the United States. After USCIS staff said they could not gather information about wrongdoing, policy chief Kathy Nuebel Kovarik pressed. “I know some of it is not captured,” she said, “but we’ll have to figure out a way to squeeze more data out of our system.”70 The Administration’s efforts to gather this data on Haitian TPS recipients trades on false anti-Black stereotypes about criminality and exploitation of public benefits, and suggests the effort to manufacture a public safety rationale for the planned rescission. The Administration’s Overt Racial Bias Against Immigrants of Color and Haitians in Particular.
70. In addition to this evidence showing that DHS departed from its normal decisionmaking process and appeared to offer pretextual reasons for rescinding Haiti’s TPS, the evidence of the Administration’s overt bias against immigrants of color, and Haitians in particular, strongly supports an inference that DHS’s decision was motivated by racial discrimination.
70 Alicia A. Caldwell, AP Exclusive: US digs for evidence of Haiti immigrant crimes, AP News (May 9, 2017) https://apnews.com/740ed5b40ce84bb398c82c48884be616.
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71. Since announcing his candidacy for public office, President Trump has repeatedly
made statements revealing discriminatory intent against immigrants of color from around the
world, including Black and Latino immigrants.71 In June 2015, he started his presidential bid by
disparaging South and Central American immigrants: “When Mexico sends its people, they’re not
sending their best. . . . They’re sending people that have lots of problems, and they’re bringing
those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists . . . .
It’s coming from more than Mexico. It’s coming from all over South and Latin America.”72
72. Then-candidate Trump repeated that sentiment in August 2015, when he stated that,
“The Mexican government . . . send[s] the bad ones over because they don’t want to pay for them.
They don’t want to take care of them.”73
73. In November 2015, then-candidate Trump disseminated a debunked story about
“thousands and thousands of people” celebrating the September 11, 2001, attacks, in New Jersey,
where, in his words, “you have large Arab populations.”74
74. President Trump’s anti-immigrant bias extends to native-born American citizens of
Hispanic descent, whom he perceives to be alien. In June 2016, then-candidate Trump questioned
71 The President has repeatedly expressed the view that immigrants of color bring disease and crime into the United States. See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Feb. 24, 2015, 4:47 PM), https://twitter.com/realdonaldtrump/status/570384640281870337?lang=en (“The Mexican legal system is corrupt, as is much of Mexico. Pay me the money that is owed me now - and stop sending criminals over our border.”); Donald J. Trump (@realDonaldTrump), Twitter (Aug. 5, 2014, 5:55 AM), https://twitter.com/realdonaldtrump/status/496640747379388416?lang=en (“Our government now imports illegal immigrants and deadly diseases.”). 72 Full text: Donald Trump announces a presidential bid, Wash. Post (June 16, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trump-announces-apresidential-bid/?utm_term=.9dd8ac586d54. 73 Andrew O’Reilly, At GOP debate, Trump says ‘stupid’ U.S. leaders are being duped by Mexico, Fox News (Aug. 6, 2015), http://www.foxnews.com/politics/2015/08/06/at-republican-debate-trump-says-mexico-is-sendingcriminals-because-us.html. 74 Glenn Kessler, Trump’s outrageous claim that ‘thousands’ of New Jersey Muslims celebrated the 9/11 attacks, Wash. Post (Nov. 22, 2015), https://www.washingtonpost.com/news/fact-checker/wp/2015/11/22/donald-trumpsoutrageous-claim-that-thousands-of-new-jersey-muslims-celebrated-the-911-attacks/?utm_term=.88120e0b9d60 (video embedded).
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United States District Judge Gonzalo Curiel’s competence to preside over a lawsuit because his
Mexican heritage made him “pro-Mexican.”75 Speaker of the United States House of
Representatives Paul Ryan characterized Mr. Trump’s statement as “sort of like the textbook
definition of a racist comment.”76
75. In October 2016, then-candidate Trump responded to a presidential debate question
about immigration by stating: “We have some bad hombres here, and we’re going to get them
out.”77
76. In December 2016, referring to an article about a crime wave on Long Island,
President-Elect Trump said, “They come from Central America. They’re tougher than any people
you’ve ever met. They’re killing and raping everybody out there. They’re illegal. And they are
finished.”78
77. President Trump articulated his antipathy towards Haitians in particular in June
2017, when, during a meeting in the Oval Office with then-Homeland Security Secretary Kelly
and Secretary of State Tillerson, he reportedly reacted to a document listing how many immigrants
had received visas to enter the United States in 2017. Upon learning that 15,000 Haitian people
had received such visas, President Trump is reported to have stated they “all have AIDS.”79 During
that June 2017 meeting, President Trump also learned that 40,000 immigrants from Nigeria had
75 Transcript of Face the Nation, CBS News (June 5, 2016 12:57 P.M.), https://www.cbsnews.com/news/face-thenation-transcripts-june-5-2016-trump/; Jose A. DelReal & Katie Zezima, Trump’s personal, racially tinged attacks on federal judge alarm legal experts, Wash. Post (June 1, 2016), https://www.washingtonpost.com/politics/2016/06/01/437ccae6-280b-11e6-a3c40724e8e24f3f_story.html?utm_term=.5c1816dc5543. 76 Allan Smith, PAUL RYAN: Trump’s attacks on judge “the textbook definition of a racist comment,” Business Insider (June 7, 2016), http://www.businessinsider.com/paul-ryan-trump-racist-curiel-judge-2016-6. 77 Katie Zezima, Trump on immigration: There are ‘bad hombres’ in the United States, Wash. Post (Aug. 30, 2017). 78 Michael Scherer, 2016 Person of the Year: Donald Trump, TIME (Dec. 2016), http://time.com/time-person-ofthe-year-2016-donald-trump/. 79 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times (Dec. 23, 2017), https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html. This article states that other officials insist that President Trump never used the words “AIDS” or “huts.” Several participants in the meeting said that they did not recall President Trump using those words.
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received visas to enter the United States in 2017. According to news reports, he reacted by stating that, once they had seen the United States, these Nigerian immigrants would never go back to their “huts” in Africa.80 The President and Mr. Kelly upbraided Secretary Tillerson for the perceived influx of immigrants of color.
78. A White House press statement obliquely denied what they characterized as “these outrageous claims” and criticized the reporting for relying on anonymous sources,81 although the report was the product of more than 36 interviews. The White House also denied using the words “AIDS” or “huts” to describe people from any country.
79. On January 11, 2018, during a White House meeting with several U.S. Senators, the President is alleged to have disparaged a draft immigration plan that protected people from Haiti, El Salvador, and some African countries, asking, “Why are we having all these people from shithole countries come here?”82 President Trump is alleged to have further disparaged Haitians in particular, asking “Why do we need more Haitians?” and ordered the bill’s drafters to “take them out.”83 In this meeting, the President is further alleged to have expressed his preference for more immigrants from places like Norway,84 where the population is over 90 percent white. Haiti’s population, by contrast, is over 95 percent Black.
80 Id. 81 Eli Watkins, WH denies NYT report claiming Trump said Haitian immigrants “all have AIDS,” CNN (Dec. 24, 2017 5:55 P.M.), https://www.cnn.com/2017/12/23/politics/donald-trump-oval-office-immigration/index.html. 82 Josh Dawsey, Trump derides protections for immigrants from ‘shithole’ countries, Wash. Post (Jan. 12, 2018), https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrants-from-shithole-countries-inoval-office-meeting/2018/01/11/bfc0725c-f711-11e7-91af-31ac729add94_story.html?utm_term=.b56f11cc896f. Other senators have suggested the word used might have been “shithouse.” Julie Hirschfeld Davis, Trump’s Harsh Words, Not His Plan for Wall, Dominate Hearing, N.Y. Times (Jan. 16, 2018), https://www.nytimes.com/2018/01/16/us/politics/trump-shithole-shithouse-immigration.html. 83 Id. 84 Id.
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80. President Trump has also obliquely denied these reports, tweeting, “The language used by me at the DACA meeting was tough, but this was not the language used.”85 President Trump has also denied saying “anything derogatory about Haitians other than Haiti is, obviously, a very poor and troubled country.”86
81. According to Senator Dick Durbin, a participant in the White House meeting, “After [Senator] Lindsey [Graham] and I left the room and got in the car together to come back to Capitol Hill, it was silence in the car. We had just witnessed something that neither one of us ever expected.”87 Senator Durbin has stated that he warned the President that singling out Haitians for exclusion was “an obvious racial decision.”88
82. By the time Defendant Duke rescinded Haiti’s TPS status in November 2017, President Trump had already made his discriminatory intent against Haitian immigrants clear, as the meeting described above between President Trump, Mr. Kelly, and Secretary Tillerson occurred in June 2017. And, on or about April 2017, Mr. Kelly had directed DHS to seek evidence that Haitians were engaged in criminal conduct or receiving public welfare benefits.
83. Further, there is direct evidence that the Administration has pressured DHS with respect to another TPS decision involving a country whose population is predominantly non-white. On November 6, 2017, Mr. Kelly, in his capacity as White House Chief of Staff, and White House Homeland Security Adviser Tom Bossert repeatedly telephoned Defendant Duke to pressure her to rescind Honduras’s TPS designation. A former official with knowledge of the call said, “They
85 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 12, 2008), https://twitter.com/realDonaldTrump/status/951793123985973248?ref_src=twsrc%5Etfw&ref_url=https%3A%2F% 2Fwww.cnn.com%2F2018%2F01%2F12%2Fpolitics%2Fdonald-trump-tweet-daca-rejection%2Findex.html. 86 Reuters, Trump denies vulgar remarks about Haiti, African countries; condemnation mounts (Jan. 12, 2018), https://www.reuters.com/article/us-usa-immigration/trump-denies-vulgar-remarks-about-haiti-african-countriescondemnation-mounts-idUSKBN1F11H8. 87 Carl Hulse, Inside the Oval Office Immigration Meeting That Left a Senator Stunned, N.Y. Times (Jan. 19, 2018), https://www.nytimes.com/2018/01/19/us/politics/trump-durbin-immigration-daca.html. 88 Id.
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put massive pressure on her.” Mr. Kelly made the call from Japan, where he was travelling with President Trump. Mr. Kelly was described as irritated and persistent, and told Duke that the extension “prevents our wider strategic goal” on immigration.89
COUNT I (Violation of the Fifth Amendment to the United States Constitution) 84. Plaintiff incorporates the allegations in paragraphs 1-83 by reference as if fully set forth herein. 85. The Due Process Clause of the Fifth Amendment incorporates the equal protection principal of the Fourteenth Amendment. Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017); United States v. Windsor, 133 S. Ct. 2675 (2013); Bolling v. Sharpe, 347 U.S. 497 (1954). 86. The Due Process Clause of the Fifth Amendment also prohibits irrational government action. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973). 87. The Administration’s decision to rescind TPS protections for Haitians living the United States violates both aspects of the Fifth Amendment because the Administration intended to discriminate against Haitian immigrants to the United States because of race and/or ethnicity. 88. The inference of race and/or ethnicity discrimination is supported by the Administration’s departure from the normal decision-making process; the fact that the decision bears more heavily on one race than another; the sequence of events leading to the decision; the contemporaneous statements of decisionmakers; and the historical background of the decision. The Supreme Court has recognized these factors as probative of intentional discrimination. See Vill. of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252 (1977).
89 Nick Miroff, White House chief of staff tried to pressure acting DHS secretary to expel thousands of Hondurans, officials say, Wash. Post (Nov. 9. 2017), https://www.washingtonpost.com/world/national-security/white-housechief-of-staff-tried-to-pressure-acting-dhs-secretary-to-expel-thousands-of-hondurans-officialssay/2017/11/09/914d3700-c54a-11e7-a441-3a768c8586f1_story.html?utm_term=.076d78250e7e.
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89. The inference of race and/or ethnicity discrimination is supported by the departure of DHS, Defendant Duke, and/or Defendant Nielsen from the analysis that previous Secretaries of Homeland Security have undertaken. The previous Secretaries’ consistent practice set the standard of review for TPS extension and/or termination decisions, and made clear what kind of review is appropriate under INA § 244(b)(3) and 8 U.S.C. § 1254a.
90. The inference of race and/or ethnicity discrimination is also supported by the departure of DHS, Defendant Duke, and/or Defendant Nileson from INA § 244(b)(3)’s and 8 U.S.C. § 1254a’s requirement that DHS undertake a genuine, good faith review of the conditions in a foreign state designated for TPS to determine whether the conditions for designation continue to be met.
91. The inference of race and/or ethnicity discrimination is also supported by the departure of DHS and/or Defendant Nielsen from DHS’s custom of timely publishing Haitian TPS decisions in the Federal Register, to the severe detriment of many Haitian TPS holders.
92. The inference of race and/or ethnicity discrimination is also supported by Mr. Kelly’s efforts to manufacture evidence that Haitian TPS recipients engaged in criminal activity or exploited public benefits.
93. The inference of race and/or ethnicity discrimination is also supported by the White House’s exertion of pressure on Defendant Duke to expel tens of thousands of Hondurans living in the United States in order to achieve the Administration’s wider strategic goals on immigration.
94. The inference of race and/or ethnicity discrimination is also supported by President Trump’s contemporary statements disparaging Haitian and other Black immigrants from so-called “shithole countries” and expressed preference for immigrants from Norway.
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95. The inference of race and/or ethnicity discrimination is also supported by the historical background of the decision, including the federal government’s history of racial and/or ethnic discrimination against Haitian immigrants. See, e.g., Comm’r., I.N.S. v. Jean, 496 U.S. 154 (1990), aff’g sub nom. Jean v. Nelson, 863 F.2d 759 (11th Cir. 1988) (finding that Haitian immigrants were prevailing parties in a suit to end federal policies of conducting mass exclusion hearings without counsel and of detentions pending the determination of political asylum applications); Haitian Refugee Ctr. v. Smith, 676 F.2d 1023 (5th Cir. 1982) (requiring the adoption of a procedurally fair plan for the orderly reprocessing of asylum claims of Haitian immigrants); Haitian Ctrs. Council, Inc. v. Sale, 823 F. Supp. 1028 (E.D.N.Y. 1993) (finding that federal executive officials violated the Refugee Act and the due process rights of prescreened HIV positive Haitian immigrants by detaining them without parole and subjecting them to further screening interviews without benefit of counsel or other procedural safeguards); Louis v. Meissner, 530 F. Supp. 924 (S.D. Fla. 1981) (access to counsel, fair hearings, erroneous deportation); Sannon v. United States, 427 F. Supp. 1270 (S.D. Fla. 1977) (political asylum claims in exclusion as opposed to deportation hearing), vacated as moot, 631 F.2d 1247 (5th Cir. 1980) (holding that the newly promulgated federal regulations offered same relief as that ordered by district judge).
96. The federal government’s history of racial and/or ethnic discrimination against Haitian immigrants is also reflected in the special privileges and favorable immigration laws that Cuban immigrants have long enjoyed, although Haiti and Cuba share comparable histories of persecution and economic deprivation. That disparity is manifest in the so-called Wet-Foot/DryFoot immigration policy, which is widely perceived as discriminatory because it allows Cuban immigrants who reach American soil to remain and become American citizens. Haitians have no such special status.
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97. As a direct and proximate result of the rescission of Haitian TPS by Defendants and/or their agents, Plaintiff and some of its members have been deprived of their rights under the Fifth Amendment to the United States Constitution.
COUNT II (Mandamus, 28 U.S.C. § 1361) 98. Plaintiff incorporates the allegations in paragraphs 1-97 by reference as if fully set forth herein. 99. Defendants have failed to carry out their mandatory and non-discretionary duties owed to Plaintiff, including the duties established in 8 U.S.C. § 1254a(b)(3). 28 U.S.C. § 1361. 100. Defendants’ failure to carry out their mandatory and non-discretionary duties owed to Plaintiff is likely to irrevocably harm Plaintiff and certain of its members.
COUNT III (Declaratory Judgment, 28 U.S.C. § 2201) 101. Plaintiff incorporates the allegations in paragraphs 1-100 by reference as if fully set forth herein. 102. For the reasons stated above, Defendants have violated the United States Constitution. 103. Plaintiff seeks a declaratory judgment to that effect. 104. Defendants’ violations of the Constitution have injured and will continue to injure Plaintiff and its members, including but not limited to stigmatic injury, which derives from, inter alia, the government’s efforts to intentionally discriminate against Black immigrants to the United States, and DHS’s efforts to link Haitians and/or Black immigrants to criminality and exploitation of public benefits.
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Case 1:18-cv-00239-MJG Document 1 Filed 01/24/18 Page 35 of 37 105. For the foregoing reasons, a live controversy exists between the Parties, and declaratory relief is appropriate.
PRAYER FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this Court: A. Declare that Defendants’ actions to rescind Haitian TPS are void and without legal force or effect; B. Declare that Defendants’ actions to rescind Haitian TPS are in violation of the United States Constitution and contrary to the laws of the United States; C. Enjoin and restrain Defendants, their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them from implementing or enforcing the decision to rescind Haitian TPS and from taking any other action to rescind Haitian TPS that is not in compliance with applicable law; D. Issue a writ of mandamus compelling Defendants to carry out all nondiscretionary duties required by the United States Constitution, the INA, and any other applicable law with respect to the TPS program, including the requirements set forth above; and
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E. Provide any and all other relief to which Plaintiff is entitled and that is necessary to
remedy the legal violations set forth above, and any and all other relief the Court deems
appropriate.
Respectfully submitted this 24th day of January 2018.
/s/ Sherrilyn A. Ifill Sherrilyn A. Ifill D. Md. Bar No. 20072
Director-Counsel Counsel of Record Janai Nelson* Samuel Spital* Jin Hee Lee* Raymond Audain* Natasha C. Merle* Deuel Ross* Cara McClellan D. Md. Bar No. 20047 NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC. 40 Rector St., 5th Floor New York, NY 10006 Tel.: (212) 965-2200 Fax.: (212) 226-7592 sifill@naacpldf.org
Ajmel Quereshi D. Md. Bar No. 28882 NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC. 1444 I Street NW Washington, DC 20005 Tel.: (202) 682-1300 Fax.: (202) 682-1312 aquereshi@naacpldf.org
Bradford M. Berry* Janette M. Louard* Anson Asaka*
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Case 1:18-cv-00239-MJG Document 1 Filed 01/24/18 Page 37 of 37 Khyla Craine D. Md. Bar No. 14117 NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC. Office of General Counsel 4805 Mount Hope Drive Baltimore, Maryland 21215 Tel.: (410) 580-5777 bberry@naacpnet.org *Application for pro hac vice admission forthcoming Attorneys for Plaintiff
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 Case 1:18-cv-00239-MJG Document 30 Filed 04/17/18 Page 1 of 49

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE; HAITIAN WOMEN FOR HAITIAN REFUGEES; and THE HAITIAN LAWYERS ASSOCIATION, INC.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY; ELAINE COSTANZO DUKE, in her official capacity; and KIRSTJEN NIELSEN, in her official capacity,
Defendants.

Civil Action No. 18 Civ. 239 (MJG) FIRST AMENDED COMPLAINT

PRELIMINARY STATEMENT The National Association for the Advancement of Colored People (“NAACP”), Haitian Women for Haitian Refugees (“HWHR”), and the Haitian Lawyers Association, Inc. (“HLA”) (collectively, “Plaintiffs”) bring this action against the United States Department of Homeland Security (“DHS”); Elaine C. Duke (“Defendant Duke”) in her official capacity as former Acting DHS Secretary; and Kirstjen Nielsen (“Defendant Nielsen”) in her official capacity as the current DHS Secretary. Plaintiffs seek to enjoin DHS’s November 2017 decision to rescind Temporary Protective Status (“TPS”) for Haitian immigrants, as it reflects an egregious departure from the TPS statute’s requirements and an intent to discriminate on the basis of race and/or ethnicity. On January 12, 2010, Haiti was struck by one of the deadliest earthquakes in modern history. It killed hundreds of thousands of Haitians, left millions homeless, and nearly destroyed

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Port-au-Prince, Haiti’s capital. Haiti’s extensive recovery efforts have been hobbled by two additional large-scale catastrophes: the outbreak of cholera in October 2010 and a Category 4 hurricane in October 2016. Each catastrophe exacerbated the dire situation created by the 2010 earthquake.
These extraordinary circumstances led to Haiti’s 2010 TPS designation and to DHS’s repeated extension of that designation over the last seven years. TPS allowed eligible Haitians to remain in the United States without fear of deportation and to obtain work authorization. Nevertheless, despite persistent food insecurity, a housing shortage, and a cholera epidemic, and despite a formal extension request from the Haitian government and various American officials from across the political spectrum, DHS terminated TPS for Haitians in November 2017, with a delayed effective date of July 22, 2019.
As such, an estimated 58,000 Haitians with TPS may face deportation to a country that is ill-prepared to receive them. The Haitian community is alarmed by the termination of TPS. As Marleine Bastien, a South Florida Haitian activist explained, “Haiti is not ready to absorb 58,000. It’s going to be a disaster for the 58,000 families in the U.S. and a disaster for Haiti.”1 U.S. Senator Bill Nelson echoed that sentiment when he tweeted, “There is no reason to send 60,000 Haitians back to a country that cannot provide for them.”2
DHS stated that the rescission decision followed an objective review of the conditions that supported the original designation. For the reasons detailed below, DHS’s explanation is demonstrably spurious. Instead, DHS’s true motive for terminating TPS for Haitians reflects racial
1 Jacqueline Charles & Patricia Mazzei, Haitian quake victims in the U.S. will lose deportation protection in 2019, Miami Herald (Nov. 21, 2017), http://www.miamiherald.com/news/nationworld/world/americas/haiti/article185716193.html. 2 Sen. Bill Nelson (@SenBillNelson), Twitter (Nov. 20, 2017, 4:41 PM), https://twitter.com/SenBillNelson/status/932770987644420098.
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discrimination. In early 2017, DHS officials searched for evidence that Haitians in the United States were criminals and receiving public assistance. Those efforts were grounded in longstanding and particularly noxious anti-Black stereotypes. In fact, of the approximately 58,000 Haitian TPS recipients, 6,200 are part of a household with a mortgage. Their median household income is $45,000. Their labor force participation rate is 81 percent (the labor force participation rate for the total U.S. population is 63 percent). Ninety-six percent speak at least a little English and 75 percent speak English well, very well, or only English. Seventy-one percent have completed high school or more and 37 percent have some college or a college degree.3 Unable to find evidence to support their discriminatory stereotypes, DHS’s Acting Secretary ultimately offered pretextual rationales for rescinding TPS that failed to acknowledge—much less address— the ongoing conditions in Haiti that warranted extending that status.
DHS’s actions are consistent with the Trump Administration’s (the “Administration”) larger, racialized goals concerning immigration. President Trump has long made clear his antipathy towards Latin American and Black immigrants, and his preference for white immigrants. In June 2017, upon learning that 15,000 Haitians and 40,000 Nigerians had received visas to enter the United States, the President reportedly exclaimed that Haitians “all have AIDS,” and that, upon seeing the United States, Nigerians would never return to their “huts” in Africa. On January 11, 2018, during a meeting on immigration with several U.S. Senators, Secretary of State Rex W. Tillerson, White House Chief of Staff John F. Kelly, and Defendant Nielsen, the President stated that he did not want immigrants from African countries, which he derided as “shithole countries.” The President also asked, “Why do we need more Haitians?” and directed that Haitian immigrants
3 See Robert Warren & Donald Kerwin, A Statistical and Demographic Profile of the US Temporary Protected Status Population from El Salvador, Honduras, and Haiti, 5 J. on Migration and Hum. Sec. 577, 583 (Aug. 2017), http://cmsny.org/publications/jmhs-tps-elsalvador-honduras-haiti/.
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should not be admitted through any proposed immigration plan. In stark contrast, the President stated that immigrants from countries “like Norway” were more desirable and should be admitted. As Senator Richard Durbin pointed out during the meeting, President Trump’s singling out Haitians for exclusion was “an obvious racial decision.”
President Trump’s racial bias against Haitian immigrants recalls America’s long, ignominious history of discrimination against Haiti, the world’s first Black republic. In August 1791, slaves in northern Haiti launched the largest slave revolt in history.4 Within two years, every slave in the colony was free. The Haitian Revolution terrified many in the U.S. government, which refused to recognize Haiti’s independence for decades.5 American consternation reflected the fact that Haiti’s leaders were Black and, from the perspective of the U.S. Government, embodied an explosive message. That discrimination by the United States has endured and includes several successful challenges in the 1980s and 1990s to federal policies surrounding the discriminatory treatment of Haitian immigrants. That discrimination also includes a double standard the United States exhibits towards Haitian and Cuban immigrants.
President Trump has made clear that he wishes to reduce the number of immigrants of color to the United States. The rescission of Haiti’s TPS is part of that agenda. DHS’s decision to rescind Haiti’s TPS designation was infected with the intention to discriminate on the basis of race and/or ethnicity, in violation of the Fifth Amendment.
PARTIES 1. The National Association for the Advancement of Colored People is the nation’s largest and oldest civil rights grassroots organization. Since its founding in 1909, the mission of the NAACP has been to ensure the political, educational, social, and economic equality of all
4 See Laurent Dubois, Haiti: The Aftershocks of History 22-51 (Metropolitan Books 2012). 5 Id.
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persons and to eliminate race-based discrimination. The NAACP has fought in the courts for decades to protect the constitutional guarantee of equal protection under law. To advance its mission, the NAACP has brought landmark civil rights cases over its 109-year history and continues to do so. The NAACP also has filed numerous amicus briefs in cases that significantly impact people of color. The NAACP’s membership includes Haitian TPS beneficiaries. The NAACP brings this action on behalf of those members, including but not limited to Marie Farah Larrieux, a Haitian TPS recipient living in South Florida.
2. Haitian Women for Haitian Refugees is a not-for-profit corporation based in New York and formed for the charitable and educational purposes of assisting Haitian immigrants and refugees in the United States. HWHR has approximately 40 active members, some of whom are TPS recipients. HWHR’s members participate in monthly meetings and help to organize HWHR’s activities. Approximately twelve members also sit on HWHR’s steering committees to organize HWHR’s campaigns.
3. In furtherance of these purposes, HWHR offers weekly classes in literacy and English. HWHR also assists Haitian domestic violence survivors with immigration concerns to secure legal services and mental health counseling. HWHR also works to address the legal needs of Haitian immigrants by, for instance, organizing legal clinics and providing legal referrals.
4. Defendants have caused and continue to cause HWHR to divert its modest financial, personnel, and other organizational resources away from these existing programs to counteract Defendants’ discriminatory TPS rescission decision. In particular, HWHR has had to field calls from distressed TPS recipients who are worried about, inter alia, being deported to a country that is unprepared to receive them; losing their authorization to work in the United States; losing their medical coverage; losing their eligibility for college financial assistance; interrupting
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their education; and being separated from their close family members, including their Americanborn children. Defendants’ rescission decision also caused HWHR to create a TPS Committee and organize legal clinics to address the immediate needs of its constituents with TPS, including those who worried about termination of employment if they were unable to demonstrate to their employers that they would be authorized to work in the United States after January 2018.
5. In particular, prior to May 2017 (when Secretary Kelly first indicated that rescission was likely), HWHR devoted its organizational resources concerning legal clinics and referrals to Haitian immigrants who entered the United States on humanitarian parole.6 Since Secretary Kelly’s announcement in May 2017, HWHR has had to shift those resources and instead make the focus of its legal clinics and referrals individuals who benefit from TPS.
6. HWHR brings this action on behalf of itself and its constituents and/or members with TPS, who are the direct subject of Defendants’ discriminatory rescission decision.
7. The Haitian Lawyer’s Association, Inc. is a not-for-profit voluntary bar association and legal organization in Florida. HLA was founded in 1996 and its members are primarily Haitian-American and Haitian lawyers, law professors, law students and judges.
8. HLA’s mission is to foster and encourage professional excellence among HaitianAmerican Lawyers; increase the law school enrollment of Haitian-Americans and other minorities; and promote, protect, and advocate for the civil rights of the Haitian-American and Haitian community, among other goals.
6 The Secretary of Homeland Security may grant humanitarian parole to otherwise inadmissible individuals in emergency situations. After the 2010 earthquake, humanitarian parole enabled more than 1,000 Haitian orphans to join their adoptive parents in the United States. Since 2015, DHS has granted humanitarian parole to certain Haitians waiting to be reunited with family in the United States, pursuant to the Haitian Family Reunification Parole Program (“HFRP”).
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9. In furtherance of these purposes, HLA advocated on behalf of Haitians who were deported from the Dominican Republic due to a change in their immigration status in 2013; sought to address the problems associated with the cholera outbreak in Haiti; and, from 2010 to 2015, helped to process TPS applications for Haitian immigrants living in the United States through legal clinics.
10. Defendants’ decision to rescind TPS has caused and continues to cause HLA to divert its modest financial, personnel, and other organizational resources away from these existing programs to counteract Defendants’ racially discriminatory decision. In response to Secretary Kelly’s May 2017 announcement that Haitian TPS recipients should begin preparing to return to Haiti, and then in response to the November 2017 announcement that TPS for Haitians would be rescinded, HLA has diverted resources away from other advocacy efforts to assist Haitian TPS recipients by (1) assessing whom among its constituency requires an adjustment of immigration status; (2) helping to educate members, TPS recipients, and the general public about Defendants’ decision to rescind TPS by, among other things, holding legal clinics, paying for radio advertising, and creating and paying for the copying and distribution of informational flyers; (3) establishing a hotline to address TPS recipients’ questions, staffing the hotline, and paying members to staff the hotline; and (4) otherwise organizing and petitioning to mitigate the effects of Defendants’ decision to rescind TPS.
11. Defendant Department of Homeland Security is a Department of the Executive Branch of the United States Government and an agency within the meaning of 5 U.S.C. § 551. DHS and its component agencies, the U.S. Citizenship and Immigration Services (“USCIS”), U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and Customs Enforcement
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(“ICE”), are responsible for, inter alia, administering and enforcing American immigration laws and policies, including the TPS program.
12. Defendant Elaine Costanzo Duke was Acting Secretary of Homeland Security from on or about July 31, 2017, until on or about December 6, 2017. Defendant Duke currently serves as the Deputy Secretary of DHS. As Acting Secretary, Defendant Duke was responsible for overseeing DHS and for implementing and enforcing America’s immigration laws. Defendant Duke authorized rescission of the Republic of Haiti’s designation for TPS (“Haitian TPS”) on or about November 20, 2017. She is sued in her official capacity.
13. Defendant Kirstjen Nielsen has been Secretary of Homeland Security since on or about December 6, 2017 and is the senior official at DHS. Defendant Nielsen is responsible for overseeing DHS and for implementing and enforcing American immigration laws, including TPS. Defendant Nielsen is sued in her official capacity.
JURISDICTION AND VENUE 14. Jurisdiction is conferred on this Court by 28 U.S.C. § 1331. 15. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391.
FACTS Temporary Protected Status
16. When civil unrest, violence, or natural disasters erupt in countries around the world, concerns arise about the ability of foreign nationals in the United States from those countries to safely return. Section 244(c)(2) of the Immigration and Nationality Act (“INA”) and 8 U.S.C. § 1254a, therefore, provide for TPS when the Secretary of Homeland Security7 finds that
7 Under 8 U.S.C. § 1254a, the Attorney General was authorized to administer the TPS program. The authority to designate countries and administer the TPS program was transferred from the Attorney General to the Secretary of Homeland Security in 2003, with the formation of the Department of Homeland Security. Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).
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conditions in the country temporarily prevent nationals from returning safely or, in certain circumstances, where the country is unable to adequately handle the return of nationals.
17. Foreign nationals protected by TPS cannot be removed from the United States during the period in which the status is in effect. A foreign national who is granted TPS receives a registration document and work authorization. When TPS is terminated, the foreign national’s immigration status reverts to her status prior to the TPS grant.
18. The Secretary of Homeland Security may grant TPS protections to foreign nationals if she determines that, inter alia, (a) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the foreign state resulting in a substantial, but temporary, disruption of living conditions in the area affected; the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state; and the foreign state officially has requested TPS designation; or (b) there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.
19. The Secretary of Homeland Security has discretion to issue TPS for periods of six to 18 months. Thereafter, the Secretary must review the conditions in the foreign state for which the designation is in effect and must determine whether the conditions for such designation continue to be met. If the Secretary does not determine that a foreign state no longer meets the conditions for designation under the TPS statute, the period of designation may be extended for up to 18 months. If the Secretary determines that the foreign state no longer continues to meet the conditions for designation under the statute, she must terminate the designation.
20. The Secretary’s decision—whether to renew or rescind TPS—must be published in the Federal Register on a timely basis. The timing of that publication has important consequences
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for TPS recipients because their employment authorization and other authorization documents expire when their TPS expires.
DHS Grants TPS for Haiti in 2010 and, After Careful Assessments of Conditions in Haiti, Repeatedly Extends TPS Through 2017
21. On January 15, 2010, then-Secretary of Homeland Security Janet Napolitano announced that the designation of TPS for Haitian nationals who were in the United States as of January 12, 2010, would last 18 months.8 The designation was published in the Federal Register just six days later, on January 21, 2010.
22. Secretary Napolitano designated Haiti for TPS because the “earthquake destroyed most of the capital city,” and initial estimates indicated that the “death toll [was] substantial.”9 The International Red Cross estimated that one-third of Haiti’s population—about three million people—were affected by the earthquake. Government buildings, including the Presidential Palace, the Ministry of Justice, and Parliament, were destroyed or damaged, as were hospitals and schools. Haiti’s critical infrastructure, including electricity, water, and telephone services, was severely affected. The Secretary also noted the limited access to Port-au-Prince because roads were blocked by debris, a major bridge had collapsed, and Haiti’s main airport was damaged. This hindered the ability to transport food, fresh water, and medical supplies to those affected. Secretary Napolitano found that Haiti has “limited resources to cope with a natural disaster, and now has been struck by its strongest earthquake in 200 years,” and “the magnitude of the disaster is
8 See Press Release, Statement from Homeland Sec’y Janet Napolitano on Temporary Protected Status (TPS) for Haitian Nationals (Jan. 15, 2010), https://www.dhs.gov/news/2010/01/15/secretary-napolitano-temporary-protectedstatus-tps-haitian-nationals. 9 Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3,476, 3,477 (Jan. 21, 2010).
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substantial.”10 As such, the Secretary determined that “there clearly exist extraordinary and temporary conditions preventing Haitian nationals from returning to Haiti in safety.”11
23. On May 17, 2011, Secretary Napolitano extended Haitian TPS for an additional 18 months. The extension was published in the Federal Register just two days later, on May 19, 2011. The Secretary determined that, since the initial designation, DHS and the Department of State had reviewed conditions in Haiti and determined that it was warranted to “extend[ ] the existing designation of Haiti for [TPS] for 18 months from July 23, 2011 through January 22, 2013, and redesignat[e] Haiti for TPS for 18 months, effective July 23, 2011 through January 22, 2013.”12
24. In extending Haitian TPS, Secretary Napolitano noted that the “earthquake has exacerbated Haiti’s position as the least-developed country in the Western Hemisphere and one of the poorest in the world.”13 She also noted that, according to the Central Intelligence Agency World Factbook, as of September 22, 2010, 80 percent of Haiti’s population was living below the poverty line. Due to this widespread poverty, the Government of Haiti was unable to collect sufficient revenue to provide adequate social services and to invest in physical and human capital.
25. Secretary Napolitano further noted that an estimated “230,000 people died and approximately three million were affected by the earthquake. In total more than one million Haitians have been left homeless and are currently living in temporary camps.”14 After an assessment for habitability of approximately 300,000 of the estimated 350,000 to 400,000 buildings destroyed by the earthquake, the Haitian government and international nongovernmental organizations concluded that approximately 21 percent of those buildings were unsafe and required
10 Id. 11 Id. 12 Extension and Redesignation of Haiti for Temporary Protected Status, 76 Fed. Reg. 29,000, 29,000 (May 19, 2011). 13 Id. at 29,001. 14 Id.
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major repairs or demolition.15 The Department of State estimated that there were approximately 1,300 camps for internally displaced persons in Haiti. According to the United Nations Children’s Fund, there were approximately 1.6 million internally displaced persons in Haiti, approximately 800,000 of whom were children. The camps were “extremely crowded and [ ] vulnerable to flooding, crime (including gender-based violence), and disease.”16
26. In October 2010, the first modern, large-scale outbreak of cholera occurred in Haiti when United Nations soldiers introduced the disease to the island. Secretary Napolitano also recognized the cholera outbreak as evidence of the “vulnerability of the public health sector of Haiti.” The Haitian Ministry of Public Health and Population reported “199,497 cholera cases, including 112,656 hospitalizations and 3,927 deaths.”17
27. These factors and “consultation with the appropriate Government agencies” led Secretary Napolitano to conclude that the “conditions that prompted the January 21, 2010 designation of Haiti for TPS continue to be met.”18 Secretary Napolitano extended Haiti’s TPS designation for 18 months, until January 22, 2013.
28. On October 1, 2012, Secretary Napolitano extended Haiti’s TPS for another 18 months, from January 23, 2013, through July 22, 2014.19 The Secretary noted that “Haitian government estimates of the death toll caused by the earthquake have ranged from 230,000 to over 300,000 people. The Government of Haiti further estimated that more than 1,000,000 people were displaced within the Port-au-Prince metropolitan area.”20
15 Id. 16 Id. 17 Id. 18 Id. at 29,001, 29,002. 19 Extension of the Designation of Haiti for Temporary Protected Status, 77 Fed. Reg. 59,943, 59,943 (Oct. 1, 2012). 20 Id. at 59,944.
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29. Secretary Napolitano noted that security in Haiti remained a concern because the earthquake “killed 77 officers of the Haitian National Police (HNP), injured 253 officers, and destroyed or severely damaged 45 HNP stations and substations.”21 Secretary Napolitano also considered the “[p]olitical instability” of the Government of Haiti, and its inability to “fully engage in development decisions.”22
30. She further considered that “approximately 500,000 people continued to live in … camps, which are vulnerable to flooding, disease, crime, and gender-based violence. Alternative housing options are lacking . . . [The] level of displacement, scale of the damage, low funding and the lack of a government housing reconstruction policy impeded reconstruction efforts in Haiti.”23
31. Secretary Napolitano additionally considered Haiti’s public health problems, including the steady rains in October 2010 that led to flooding and contributed to the deadly cholera outbreak. She found that “as of May 1, 2012, there have been an estimated 532,192 cholera cases and 7,060 associated deaths since October 2010.”24 Secretary Napolitano noted that, despite significant progress, food security continued to be a problem. She also noted that “80 percent of the schools west of the capital were destroyed or severely damaged in the earthquake.”25 The Haitian government estimated that “35 to 40 percent of schools in the southeast were destroyed, rendering the total number of schools destroyed or severely damaged as high as 5,000.”26
32. Secretary Napolitano concluded that while the situation in Haiti has improved, “[g]iven the risk of contracting cholera, unsafe living conditions in [internally displaced persons]
21 Id. 22 Id. 23 Id. 24 Id. 25 Id. 26 Id. at 59,944-45.
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camps, damaged infrastructure, and a shortage of permanent shelter, it is unsafe for Haitians currently in the United States with TPS to return home.”27
33. On March 3, 2014, then-Secretary Jeh Johnson extended the designation of Haiti for TPS for 18 months, from July 23, 2014, through January 22, 2016. Secretary Johnson stated that “[w]hile the Government of Haiti has made considerable progress in improving the security and quality of life of its citizens following the January 2010 earthquake, Haiti continues to lack the adequate infrastructure, employment and educational opportunities, and basic services to absorb the approximately 58,000 Haitian nationals living in the United States under TPS.”28
34. Secretary Johnson further noted that the earthquake impacted the “governance and the rule of law” in Haiti. Secretary Johnson stated that the earthquake “exacerbated pre-existing vulnerabilities, including gender-based violence, trafficking, sexual exploitation, child labor, domestic violence, and recruitment into crime or violence.”29 The United Nations Security Council voted to extend the peacekeeping mission in Haiti until mid-October 2014 so that it could further contribute to the country’s stability and development.
35. In addition, Secretary Johnson found that 40 percent of Haiti’s population lacked access to basic health services, which contributed to a rise in new cholera infections.
36. Secretary Johnson also recognized that the Haitian economy, devastated by the 2010 earthquake, was further adversely affected by Tropical Storm Isaac and Hurricane Sandy. At the time, Haiti’s unemployment rate was approximately 40 percent. More than 78 percent of Haitians lived on fewer than $2 per day, and over 50 percent lived on fewer than $1 per day. In rural areas, 88 percent of individuals lived below the poverty line and basic services were
27 Id. at 59,945. 28 Extension of the Designation of Haiti for Temporary Protected Status, 79 Fed. Reg. 11,808, 11,809 (Mar. 3, 2014). 29 Id. at 11,809, 11,810.
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practically nonexistent. As of September 2013, approximately 172,000 individuals remained in camps.
37. For these reasons, Secretary Johnson extended Haiti’s TPS designation for another 18 months, through January 22, 2016.
38. On August 25, 2015, Secretary Johnson extended Haiti’s TPS designation for another 18 months, from January 23, 2016, through July 22, 2017.30
39. Secretary Johnson extended Haiti’s TPS after carefully reviewing Haiti’s circumstances since the 2010 earthquake and consulting with the Department of State. Secretary Johnson determined that an extension was warranted because the “extraordinary and temporary conditions that led to Haiti’s designations continue to exist and prevent Haitian nationals . . . from returning to Haiti in safety.”31 The Secretary found that there remained “a housing shortage, a cholera epidemic, limited access to medical care, damage to the economy, political instability, security risks, limited access to food and water, a heightened vulnerability of women and children, and environmental risks.”32
40. As to physical infrastructure and facilities, Secretary Johnson relied on the Haitian government’s estimates that “105,000 houses were destroyed and 188,383 houses collapsed or suffered considerable damage.”33 Secretary Johnson noted that while there had been improvements to road conditions and most of the earthquake-related rubble had been cleared, “the effort to rebuild damaged buildings has been slow. Virtually all government offices and ministries
30 Extension of the Designation of Haiti for Temporary Protected Status, 80 Fed. Reg. 51,582, 51,582 (Aug. 25, 2015). 31 Id. at 51,583. 32 Id. 33 Id.
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were destroyed in downtown Port-au-Prince and, 5 years later, remain housed in temporary facilities.”34
41. Secretary Johnson also relied on the International Organization for Migration’s December 2014 report, which estimated that 80,000 internally displaced Haitians still lived in approximately 105 camps. Most of the camps lacked waste management services and adequate sanitation facilities, which contributed to a high risk of cholera transmission and malnutrition rates that exceeded emergency thresholds.35 The Secretary was also concerned about the persistent gender-based violence in the settlements. The Secretary also found that Haiti lacked “sufficient housing units to address its pre-earthquake shortage, replace damaged or destroyed units, and satisfy projected urban growth. Some Haitians have returned to unsafe homes or built houses in informal settlements located in hazardous areas without access to basic services.”36
42. Haiti’s compromised infrastructure also compromised its food security. Secretary Johnson found that, since the earthquake, an “estimated 2.5 million people are unable to cover their basic food needs and a January 2015 United Nations report estimated that over 600,000 people were facing severe food insecurity.”37
43. Secretary Johnson also recognized that Haiti’s public health challenges were exacerbated by the earthquake and the outbreak of “the largest cholera epidemic in the Western Hemisphere.”38 Secretary Johnson found that, as of December 2014, the cholera epidemic had affected approximately 725,000 people and claimed over 8,800 lives in Haiti since October 2010. In January 2015, the U.S. Centers for Disease Control and Prevention stated that outbreaks of
34 Id. 35 Id. 36 Id. 37 Id. 38 Id.
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epidemic diseases still occur, and that progress has been slow and limited in restoring Haiti’s physical health infrastructure.39
44. Secretary Johnson also recognized that the political instability in Haiti compromised its recovery efforts. The earthquake killed approximately 18 percent of Haiti’s civil servants and destroyed key government infrastructure, including the National Police headquarters and various judicial facilities. Moreover, when local and parliamentary mandates expired on January 12, 2015, “Haiti was left without a functioning legislative branch or duly elected local authorities,” which led to violent protests and demonstrations.40
45. As such, and after consulting with “appropriate Government agencies,” Secretary Johnson concluded that, although Haiti “has taken significant steps to improve stability and the quality of life for Haitian citizens, Haiti continues to lack the adequate infrastructure, health and sanitation services, and emergency response capacity necessary to ensure the personal safety of Haitian nationals.”41
46. In December 2016, the USCIS concluded that “[m]any of the conditions prompting the original January 2010 TPS designation persist, including a housing shortage, a cholera epidemic and limited access to medical care, damage to the economy (including extensive damage to Haiti’s physical infrastructure), political instability, security risks, food insecurity, and environmental risks.”42 On December 12, 2016, then-Secretary of State John F. Kerry warned that “[s]pecific lingering effects of the 2010 earthquake remain in infrastructure, health, sanitation services, and emergency response capacity,” and recommended that DHS extend the designation
39 Id. 40 Id. at 51,584. 41 Id. 42 TPS Considerations: Haiti at 1, U.S. Citizenship and Immigration Servs. (Dec. 2016), http://www.ijdh.org/wpcontent/uploads/2016/10/Haiti_TPS_StateDept-Dec2016-HaitiMemo.pdf.
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of TPS for Haiti upon expiration in July 2017.43 Secretary Kerry explained that “[t]he Government
of Haiti would have serious problems shouldering the responsibility for facilitating the
reintegration of approximately 59,000 Haitian nationals when the Haiti TPS program would
otherwise expire in 2017.”44
Lawmakers and Media Outlets Recognize that Conditions in Haiti Continue to Warrant TPS
47. These repeated statements by executive officials that conditions in Haiti continue
to warrant TPS are consistent with the contemporaneous assessments of editorial boards and
bipartisan groups of lawmakers across the country.
48. On October 7, 2016, the New York Times editorial board reported that Hurricane
Matthew ravaged Southwestern Haiti and flattened about 80 percent of the buildings in the city of
Jérémie, and estimated that the nationwide death toll was in the hundreds. The editorial board
called on DHS to “immediately reinstitute temporary protected status for Haitians in the United
States, and suspend efforts to deport unauthorized immigrants back to the disaster zone.”45 Many
additional editorial boards recognized that conditions in Haiti continued to militate for an extension
of TPS.46
43 Letter from John F. Kerry, Sec’y of State, to Hon. Jeh Johnson, Sec’y of DHS at 1 (Dec. 12, 2016), attachment to TPS Considerations: Haiti, supra note 42. 44 Department of State Recommendations Regarding Extension of Temporary Protected Status (TPS) for Haiti at 4, U.S. Dep’t of State (Nov. 9, 2016), attachment to Letter from Kerry to Johnson, supra note 43. 45 Editorial Board, Haiti’s New Catastrophe, N.Y. Times (Oct. 7, 2016), https://www.nytimes.com/2016/10/08/opinion/haitis-new-catastrophe.html?_r=1. 46 Editorial Board, Extend Temporary Protected Status for eligible Haitians, Miami Herald (Apr. 16, 2017), http://www.miamiherald.com/opinion/editorials/article144888619.html; Editorial, Let them stay: U.S. must show compassion to threatened Haitians, N.Y. Daily News (Apr. 22, 2017), http://www.nydailynews.com/opinion/stay-america-show-compassion-threatened-haitian-article-1.3087734; Editorial Board, The United States may be about to inflict a massive hardship on Haiti, Wash. Post (Apr. 22, 2017), https://www.washingtonpost.com/opinions/the-united-states-may-be-about-to-inflict-a-massive-hardship-onhaiti/2017/04/22/a0741cb2-26ad-11e7-bb9d-8cd6118e1409_story.html?utm_term=.9d11b8771a30; Editorial Board, Extend protection for Haitian immigrants, Sun Sentinel (Apr. 18, 2017), http://www.sunsentinel.com/opinion/editorials/fl-editorial-haiti-tps-20170418-story.html; Editorial, Renew protected status for Haitians, Bos. Globe (Apr. 24, 2017), http://www.bostonglobe.com/opinion/editorials/2017/04/24/renew-protected-status-forhaitians/naGVEd8TT1afpqiEGVEGZN/story.html#comments;
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49. On March 14, 2017, Congresswoman Mia B. Love urged DHS to extend Haiti’s
TPS because conditions in Haiti warrant it.47 She wrote that “[t]his would enable TPS beneficiaries
to thrive while Haiti builds its capacity to support them in the future.”48 On March 24, 2017,
Senators Charles E. Schumer and Kirsten Gillibrand urged DHS to extend Haitian TPS because
they did “not believe it is safe or humane to deport non-violent Haitian nationals back to Haiti at
this time.”49 Also on March 24, 2017, Congressman Alcee L. Hastings and Senators Marco Rubio
and Bill Nelson, joined by seven U.S. Representatives from Florida (three Republican and four
Democrats), wrote that TPS remained necessary because “Haiti continues its efforts to rebuild
from the 2010, 7.0 magnitude earthquake, and recover from the Cholera outbreak of the same
year.”50 On April 17, 2017, national Catholic leaders urged DHS to extend the TPS designation
because “Haiti is in no position to accommodate the return on the estimated 58,000 Haitians who
have received TPS from the United States. Doing so would undoubtedly destabilize the small
nation and potentially bring harm to those returned.”51 On April 18, 2017, Senator Edward J.
Editorial Board, Don’t Send 50,000 Back to Fragile Haiti, N.Y. Times (Apr. 29, 2017), https://mobile.nytimes.com/2017/04/29/opinion/sunday/dont-send-50000-back-to-fragilehaiti.html?referer=https://t.co/nHyQvUmaAG; Editorial, Extend protected status for eligible Haitians, Palm Beach Post (May 9, 2017), https://www.mypalmbeachpost.com/news/opinion/editorial-extend-protected-status-for-eligiblehaitians/ZvYTuHaGehHIOQCiIEYnuO/; Editorial, Hanging Haitians out to dry, N.Y. Daily News (May 10, 2017), http://www.nydailynews.com/opinion/hanging-haitians-dry-article-1.3151165; Editorial, An easy call on Haiti for Trump – just heed Florida’s advice, Orlando Sentinel (May 19. 2017), http://www.orlandosentinel.com/opinion/os-ed-extend-deportation-protections-for-haitians-20170518-story.html. 47 Letter from Cong. Mia B. Love to Pres. Barack Obama (Mar. 14, 2017), http://www.ijdh.org/wpcontent/uploads/2016/10/Rep.-Mia-Love-TPS-Letter.pdf. 48 Id. 49 Letter from Sens. Charles E. Schumer & Kirsten Gillibrand to John F. Kelly, Sec’y of DHS & Rex Tillerson, Sec’y of State (Mar. 24, 2017), https://www.gillibrand.senate.gov/imo/media/doc/Letter%20to%20DHS%20and%20State%20re%20Haitian%20TP S%203.24.17.pdf. 50 Letter from Cong. Alcee L. Hastings, et al. to John F. Kelly, Sec’y of DHS (Mar. 24, 2017), http://www.ijdh.org/wp-content/uploads/2017/03/Haiti-TPS-Letter.pdf. 51 Letter from Catholic Leaders to John F. Kelly, Sec’y of DHS (Apr. 17, 2017), http://www.ijdh.org/wpcontent/uploads/2016/10/Catholic-Partners-TPS-Haiti-Letter-4.17.17-FINAL.pdf; see also Letter from Faith-Based Organizations and Faith Leaders to John F. Kelly, Sec’y of DHS (May 1, 2017), http://www.ijdh.org/wpcontent/uploads/2016/10/Haiti-TPS-Extension-Interfaith-Ltr-to-Sec-Kelly-1-May-2017.pdf.
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Markey encouraged an extension.52 Sixteen U.S. Senators encouraged an extension on April 26,
2017;53 as did the entire bipartisan delegation of the Congressional Black Caucus from the U.S.
House of Representatives on May 2, 2017;54 all 11 members of the Massachusetts congressional
delegation on May 4, 2017;55 13 members of New York’s congressional delegation on May 5,
2017;56 the Broward County Board of County Commissioners on May 9, 2017;57 Boston Mayor
Martin J. Walsh58 and Republican Homeland Security Committee Chairman Rep. Dan Donovan
on May 11, 2017;59 the mayors of 14 cities on May 17, 2017, including Boston, Chicago, Los
Angeles, Miami, New York, Philadelphia, and Washington, D.C.;60 and Senate Foreign Relations
Committee Ranking Member Senator Ben Cardin on May 18, 2017.61
50. On May 8, 2017, the Haitian government informed DHS that Haiti could not
support the return of Haitian nationals with TPS, and worried that “[a] sudden repatriation of tens
of thousands of Haitians will give rise to instability in Haiti.” 62 The Haitian government also
52 Letter from Sen. Edward J. Markey to John F. Kelly, Sec’y of DHS (Apr. 18, 2017), http://www.ijdh.org/wpcontent/uploads/2016/10/17-04-18-EJM-Letter-to-DHS-re-Haiti-TPS.pdf. 53 Letter from Sens. Robert Menendez, et al. to John F. Kelly, Sec’y of DHS & Rex Tillerson, Sec’y of State (Apr. 26, 2017), http://www.ijdh.org/wp-content/uploads/2016/10/Joint-Letter-to-State-and-DHS-Haiti-TPS-4.26.17.pdf. 54 Letter from Cong. Yvette D. Clarke & Cong. Black Caucus to John F. Kelly, Sec’y of DHS (May 2, 2017), https://clarke.house.gov/congresswoman-clarke-congressional-black-caucus-call-dhs-secretary-kelly-extendtemporary-protected-status-haitian-nationals/. 55 Letter from Mass. Cong. Delegation to John F. Kelly, Sec’y of DHS (May 4, 2017), http://www.ijdh.org/wpcontent/uploads/2016/10/Mass-Delegation-Letter-to-DHS-Sec-Kelly-on-Haiti-TPS.pdf. 56 Letter from N.Y. Cong. Delegation to John F. Kelly, Sec’y of DHS & Rex Tillerson, Sec’y of State (May 5, 2017), http://www.ijdh.org/wp-content/uploads/2016/10/NewYorkCongressionalDelegationaHaiti-TPS-letter.pdf. 57 Letter from Broward Cty. Comm’rs to John F. Kelly, Sec’y of DHS (May 9, 2017), http://www.ijdh.org/wpcontent/uploads/2016/10/BrowardCounty_TPSLetter.pdf. 58 Letter from Bos. Mayor Martin Walsh to John F. Kelly, Sec’y of DHS (May 11, 2017), http://www.ijdh.org/wpcontent/uploads/2016/10/Boston-Mayor-Martin-Walsh.pdf. 59 Letter from Cong. Daniel Donovan to John F. Kelly, Sec’y of DHS & Rex Tillerson, Sec’y of State (May 11, 2017), http://www.ijdh.org/wp-content/uploads/2016/10/RepDonavanSupportTPSExtension4Haiti.pdf. 60Letter from Martin J. Walsh, Mayor of Boston, et al. to John F. Kelly, Sec’y of DHS & Rex Tillerson, Sec’y of State (May 17, 2017), https://d3n8a8pro7vhmx.cloudfront.net/citiesforaction/pages/259/attachments/original/1495035467/TPS_sign_on_le tter.pdf?1495035467. 61 Letter from Sen. Benjamin L. Cardin, Ranking Member Comm. on Foreign Relations, to John F. Kelly, Sec’y of DHS & Rex Tillerson, Sec’y of State (May 18, 2017), http://www.ijdh.org/wp-content/uploads/2016/10/5-18-17BLC-letter-to-Tillerson-and-Kelly-on-Haiti-TPS.pdf. 62 Letter from Paul G. Altidor, Haitian Ambassador to the United States, to John F. Kelly, Sec’y of DHS (May 8, 2017), http://www.ijdh.org/wp-content/uploads/2016/10/The-Honorable-Secretary-John-F.-Kelly.pdf.
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worried that “a sudden repatriation of Haitians living under this status will cause further hardship to Haiti and effectively derail our rebuilding efforts.”63
Secretary Kelly Extends Haitian TPS for Six Months but Informs Recipients to Prepare to Leave the United States.
51. On May 22, 2017, then-DHS Secretary Kelly64 extended Haiti’s TPS for six months, from July 23, 2017, through January 22, 2018. Secretary Kelly published the extension in the Federal Register two days later, on May 24, 2017.65
52. Secretary Kelly noted that 96 percent of the people displaced by the earthquake and living in camps had left those camps, and 98 percent of the internally displaced persons camps had been closed. Nonetheless, Secretary Kelly noted, “over 55,000 Haitians who lost their homes in the earthquake are still living in 31 camps for internally displaced persons without viable options to leave.”66 Secretary Kelly also noted that gender-based violence continues to be a serious and pervasive issue, and that those who are no longer in camps “have moved back to unsafe homes or relocated to informal settlements located in hazardous areas.”67
53. Moreover, Secretary Kelly determined that Hurricane Matthew caused extensive “damage to crops, housing, livestock, and infrastructure across Haiti’s southwest peninsula” when it made landfall on October 4, 2016. This hurricane impacted the entire country.68 In April 2017, heavy rains caused flooding and landslides in Haiti’s southern department. Secretary Kelly concluded that the damage from Hurricane Matthew and the heavy rains compounded “the existing
63 Id. 64 Secretary Kelly became White House Chief of Staff on July 28, 2017. 65 Extension of the Designation of Haiti for Temporary Protected Status, 82 Fed. Reg. 23,830, 23,830 (May 24, 2017). 66 Id.at 23,832. 67 Id. 68 Id.
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food insecurity experienced by an estimated 3.2 million people (approximately 30 percent of the population) in September 2016.”69
54. Secretary Kelly additionally found that the persistent cholera epidemic strained Haiti’s fragile public health system. He noted that as of 2016, “40% of the population lacks access to fundamental health and nutrition services,” and “[e]xtreme poverty, corruption, and low levels of education in Haiti challenge its resilience and have contributed to the government’s longstanding inability to adequately provide for the security, health, and safety of its citizenry.”70
55. Secretary Kelly found that conditions in Haiti continued to support its designation for TPS. Yet, even while recognizing that conditions in Haiti warranted the extension of TPS, in the May 2017 announcement, he also presaged DHS’s decision to terminate TPS by stating that Haiti’s TPS beneficiaries should prepare for their return to Haiti.71
Experts and Officials from Across the Political Spectrum Warn Against TPS Rescission 56. Secretary Kelly’s signal that DHS would soon terminate Haiti’s TPS provoked an
overwhelming response from Haitian and American officials across the political spectrum. 57. On August 24, 2017, Senator Nelson sent a letter strongly urging DHS to grant an
18-month extension of Haiti’s TPS designation.72 Senator Nelson wrote that Hurricane Matthew had significantly delayed Haiti’s recovery efforts and pointed out that Secretary Kelly himself had recently observed that Hurricane Matthew caused substantial losses impacting the entire country.
58. On September 18, 2017, a bipartisan group of United States Congresspersons, including U.S. Rep. Hastings, U.S. Senators Nelson and Rubio, as well as U.S. Reps. Ileana Ros-
69 Id. 70 Id. 71 Id. 72 Letter from Sen. Bill Nelson to Elaine C. Duke, Acting Sec’y of DHS (Aug. 24, 2017), https://www.billnelson.senate.gov/sites/default/files/20170824%20Letter %20to%20Acting%20Secretary%20Duke%20regarding%20Haitian%20TPS.pdf.
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Lehtinen, Mario Diaz-Balart, Ted Deutch, Debbie Wasserman Schultz, Carlos Curbelo, Frederica Wilson, and Lois Frankel, wrote a letter to Defendant Duke.73 The letter implored Defendant Duke to grant an 18-month extension of Haiti’s TPS. The letter stated that: “[t]he ongoing extraordinary conditions that Haiti confronts today are a direct result of the 7.0 magnitude earthquake that hit Haiti on January 12, 2010 and the major hurricane that hit Haiti on October 4, 2016.”74
59. In October 2017, The Global Justice Clinic at New York University School of Law, which works on human rights in Haiti, issued a report detailing the extraordinary conditions in Haiti that prevented nationals from safely returning, including a housing crisis that has left families stranded in camps and dangerous makeshift shelters; the cholera outbreak, which has caused nearly 10,000 deaths and more than 815,000 cases of illness; and a period of extreme hunger and malnutrition caused by drought and storms which was exacerbated by the economic shocks of the earthquake and Hurricane Matthew.75 The report found that the Haitian government is still working to provide effective solutions to the massive displacement caused by the 2010 earthquake and Hurricane Matthew.76 It also found that the cholera epidemic made it unsafe for Haitians living in the United States to return to Haiti, as did food insecurity, the continuing housing crisis, and degraded living conditions occasioned by the earthquake and exacerbated by Hurricane Matthew.77
60. On October 4, 2017, Haiti’s government wrote to DHS to formally request an 18month extension in order to “ensure that Haiti is able to adequately move forward with its recovery
73 Letter from Cong. Alcee L. Hastings, et al., to Elaine C. Duke, Acting Sec’y of DHS (Sept. 18, 2017), https://alceehastings.house.gov/news/documentsingle.aspx?DocumentID=398877. 74 Id. 75 Ellie Happel & Nathan Yaffe, et al., Extraordinary Conditions: A Statutory Analysis of Haiti’s Qualification for TPS at 1., Global Just. Clinic at the NYU Sch. of Law (Oct. 2017), http://www.ijdh.org/wpcontent/uploads/2017/10/ Extraordinary-Conditions_A-Statutory-Analysis-of-Haitis-Qualification-for-TPS.pdf. 76 Id. 77 Id. at 2-3.
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and redevelopment plan.”78 The Haitian government explained that Haiti has undergone a catastrophic and unprecedented series of natural disasters during the preceding seven years, including a cholera epidemic that killed thousands of people, sickened over 800,000 people, and continued to pose a healthcare risk to Haiti. Resources that the Haitian government had initially earmarked for addressing critical earthquake recovery issues had to be re-appropriated to address the cholera epidemic. The Haitian government also explained that, in October 2016, Hurricane Matthew, a Category 4 storm with 145 mph winds, the worst to strike the nation in more than five decades, raged through Haiti, destroying over 200,000 homes, wiping out towns and villages, and destroying valuable crops. This caused a severe food crisis of unparalleled magnitude in Haiti’s history. The economic loss from Hurricane Matthew alone was estimated at 2.8 billion dollars. The Haitian government further explained that Hurricanes Irma and Maria also caused serious damage to Haiti in 2017, hampering the country’s efforts to recover from the earthquake, the cholera epidemic, and Hurricane Matthew. Hurricanes Irma and Maria destroyed a substantial amount of agricultural crops and flooded communities, which resulted in further displacement. Furthermore, the impact of the 2017 hurricane season on neighboring island countries caused additional, significant harm to the Haitian economy. The Haitian government warned that terminating TPS would force the Haitian government to halt its ongoing, short-term redevelopment efforts and focus its limited resources on receiving an influx of citizens, and concluded that, under its current circumstances, “an extension or re-designation of TPS for Haitians is fully warranted and would serve the mutual interests of both countries.”
78 Letter from Paul G. Altidor, Haitian Ambassador to the United States, to Elaine C. Duke, Acting Sec’y of DHS (Oct. 4, 2017), http://www.miamiherald.com/latestnews/article178072401.ece/binary/Lettertothe%20HonorableElaineC.Duke.pdf.
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61. On October 19, 2017, the entire Massachusetts Congressional Delegation wrote a letter advising DHS that an 18-month extension is “needed and justified based on the devastation that Haiti has suffered from a series of natural disasters.”79 The letter explained that extraordinary conditions have incessantly affected Haiti over the last seven years and that the country cannot safely repatriate the more than 50,000 TPS program participants. The letter reiterated many of the points that the Massachusetts Congressional Delegation outlined in an earlier letter to Secretary Kelly on May 4, 2017, counseling him that extending TPS status for Haitian nationals was absolutely necessary.80 Both letters were signed by U.S. Senators Elizabeth Warren and Edward J. Markey, as well as U.S. Reps. Michael E. Capuano, Richard E. Neal, Jim P. McGovern, Stephen F. Lynch, Niki Tsongas, Bill R. Keating, Joseph P. Kennedy III, Katherine Clark, and Seth Moulton.
62. On October 26, 2017, the Chamber of Commerce of the United States of America urged DHS to extend TPS designation for, inter alia, Haiti, noting that the labor force participation for its TPS population is over 80 percent.81 The Chamber of Commerce also expressed concern that terminating Haiti’s TPS designation would adversely impact some of its member companies and key industries.
63. On October 27, 2017, Representative Love sent another letter to Defendant Duke, explaining that “TPS is central to our country’s commitment in providing safe haven to individuals unable to securely return to their home country due to ongoing violence, environmental disasters,
79 Letter from the Mass. Cong. Delegation to Elaine C. Duke, Acting Sec’y of DHS & Rex Tillerson, Sec’y of State (Oct. 19, 2017), http://www.ijdh.org/wp-content/uploads/2016/10/Mass-Delegation-Letter-to-DHS-Sec-Kelly-onHaiti-TPS.pdf. 80 Letter from the Mass. Cong. Delegation to John F. Kelly, Acting Sec’y of DHS & Rex Tillerson, Sec’y of State (May 4, 2017), http://www.ijdh.org/wp-content/uploads/2016/10/Mass-Delegation-Letter-to-DHS-Sec-Kelly-onHaiti-TPS.pdf. 81 Letter from Neil L. Bradley, Senior V.P., U.S. Chamber of Commerce, to Elaine C. Duke, Acting Sec’y of DHS (Oct. 26, 2017), https://www.uschamber.com/sites/default/files/171024_ temporaryprotectedstatus_dhs_duke.pdf.
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or other extraordinary conditions. Haiti continues to face such conditions.”82 Representative Love’s October 2017 letter reaffirmed the points that she made in her March 2017 letter.83
64. On October 31, 2017, U.S. Senate Minority Leader Charles E. Schumer and U.S.
Senators Kirsten Gillibrand, Robert Menendez, and Cory Booker sent a letter to Secretary of State
Tillerson and Defendant Duke, warning that terminating Haiti’s TPS designation would jeopardize regional stability and security and impair Haiti’s fragile recovery efforts.84 The letter also
cautioned that terminating Haiti’s TPS designation would endanger the health and safety of TPS
holders. The letter reaffirmed the points that Senators Schumer and Gillibrand made in March 2017.85
65. On November 1, 2017, 78 members of the U.S. House of Representatives joined
Congressman Jimmy Gomez’s letter to Defendant Duke and Mr. Kelly, calling on the United States to fulfill its role as a humanitarian leader by renewing Haiti’s and other countries’ TPS.86
The letter noted the economic contributions of all TPS recipients and the economic harm that could
result from rescission, including an estimated loss of more than $45.2 billion dollars in GDP over
the next decade. With respect to Haiti, the letter explained that the earthquake had severely
82 Letter from Cong. Mia B. Love, et al. to Elaine C. Duke, Acting Sec’y of DHS (Oct. 27, 2017), http://www.ijdh.org/wp-content/uploads/2017/10/TPS-Extension-for-Haitian-Nationals-10-27-17.pdf. 83 See Letter from Love to Obama, supra note 47. 84 Letter from Sen. Minority Leader Charles E. Schumer & Sens. Kirsten Gillibrand, Robert Menendez & Cory Booker, to Rex Tillerson, Sec’y of State, & Elaine C. Duke, Acting Sec’y of DHS (Oct. 31, 2017), https://www.gillibrand.senate.gov/imo/media/doc/TPS%20Haiti%20Letter%202017.pdf. 85Letter from Sen. Minority Leader Charles E. Schumer & Sen. Kirsten Gillibrand, to Rex Tillerson, Sec’y of State, & Elaine C. Duke, Acting Sec’y of DHS (Mar. 24, 2017), https://www.gillibrand.senate.gov/imo/media/doc/Letter%20to%20DHS%20and% 20State%20re%20Haitian%20TPS%203.24.17.pdf. 86 Letter from Cong. Jimmy Gomez & 78 other House Colleagues to John Kelly, White House Chief of Staff, & Elaine C. Duke, Acting Sec’y of DHS (Nov. 1, 2017), https://gomez.house.gov/uploadedfiles/11-012017_congressman_jimmy_gomez_letter_to_white_ house_cos_kelly_and_dhs_acting_secretary_duke_re_temporary_protected_status.pdf.
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damaged the island’s infrastructure, such that the conditions that prompted the most recent TPS extension persist and warrant continued protection.
66. On November 3, 2017, the Congressional Black Caucus wrote a letter to Defendant Duke that described the May 24, 2017, decision not to re-designate Haiti for the full 18 months as contrary to “the facts on the ground.”87 The letter advised DHS that terminating Haiti’s TPS designation would end essential remittances to Haiti from the United States, while simultaneously forcing Haiti to absorb the cost of reintegrating thousands of people, and concluded that it is in the best interests of Haiti and the United States to redesignate Haiti for another 18 months of TPS.
67. On November 8, 2017, the Senate Foreign Relations Committee Ranking Member Senator Ben Cardin explained that following the catastrophic 2010 hurricane, Haiti’s capacity to manage repatriation efforts have faced substantial setbacks, compounded by two Category 5 hurricanes that occurred just two months earlier.88 The letter emphasized that an April 2017 DHS memorandum had itself reported that an estimated 30 percent of the Haitian population suffers from food insecurity, and 40 percent of the population lacks access to fundamental health and nutrition services. Senator Cardin’s letter emphasized the recommendation that he made in May 2017, that an extension of the TPS designation was fully warranted.89
68. On November 9, 2017, 58 members of the U.S. Senate and House wrote a letter encouraging DHS to extend TPS designation to participants in the program from Haiti and other
87 Letter from the Congressional Black Caucus to Elaine C. Duke, Acting Sec’y of DHS (Nov. 3, 2017), http://www.ijdh.org/wp-content/uploads/2017/10/CBC-Haiti-TPS-Update-Letter.pdf. 88 Letter from Sen. Benjamin L. Cardin, Ranking Member Comm. on Foreign Relations, to Elaine C. Duke, Acting Sec’y of DHS (Nov. 8, 2017), https://www.foreign.senate.gov/. imo/media/doc/11-8-17%20BLC%20letter%20to%20DHS%20on%20Haiti%20TPS%20extension.pdf. 89 Letter from Sen. Benjamin L. Cardin, Ranking Member Comm. on Foreign Relations, to John F. Kelly, Acting Sec’y of DHS & Rex Tillerson, Sec’y of State (May 18, 2017), http://www.ijdh.org/wp-content/uploads/2016/10/518-17-BLC-letter-to-Tillerson-and-Kelly-on-Haiti-TPS.pdf.
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nations.90 The letter emphasized that nearly 275,000 Americans have parents who are TPS recipients from El Salvador, Honduras, or Haiti and who will be forced to choose between leaving their children or risking deportation if they lose TPS designation.
69. On November 14, 2017, Governor Charlie Baker of Massachusetts implored Defendant Duke to recognize the unsuitability of ordering tens of thousands of Haitians to return to a place that is in crisis and that will be at risk of becoming further destabilized by a sudden influx of TPS nationals.91 Governor Baker recommended that TPS should be extended for, inter alia, the 5,000 Haitians in Massachusetts because it would be inconsistent “with the traditions and values of the United States to order the return of large numbers of foreign nationals who have been following our laws and contributing to our economy and culture to countries that are dangerous, politically unstable, and incapable of providing basic services and protections for their citizens.”92
70. On November 15, 2017, the National Haitian-American Elected Officials Network (“NHAEON”) — an organization comprised of 41 federal, state, and local elected officials of Haitian descent – explained that, even before the 2010 earthquake, Haiti ranked 145th out of the 169 countries in the U.N. Human Development Index, the lowest in the Western Hemisphere.93 NHAEON also explained that, before the 2010 earthquake, more than 70 percent of people in Haiti were living on fewer than $2 per day; 86 percent of people in Port-au-Prince were living in slum conditions; and half of the population in Port-au-Prince had no access to latrines and only onethird had access to tap water. In light of these already difficult conditions, the 2010 earthquake
90 Letter from 58 members of the Senate & House, to Elaine C. Duke, Acting Sec’y of DHS (Nov. 9, 2017) https://votesmart.org/public-statement/1205364/letter-to-the-hon-elaine-c-duke-acting-secretary-of-homelandsecurity-reverse-administration-decision-to-expose-thousands-to-dangerous-deportations#.Wl5A1ainGUk. 91 Letter from Charlie Baker, Gov. of Massachusetts, to Elaine C. Duke, Acting Sec’y of DHS (Nov. 14, 2017), https://www.scribd.com/document/364519924/Gov-Baker-TPS-Letter-to-Secretary-Duke#download&from_embed. 92 Id. 93 Letter from NHAEON to Pres. Donald J. Trump, & Elaine C. Duke, Acting Sec’y of DHS (Nov. 15, 2017), http://www.ijdh.org/wp-content/uploads/2017/10/National-Haitian-American-Elected-Officials-Network.pdf.
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was particularly devastating: 105,000 houses were destroyed and an additional 188,000 houses were badly damaged; 1.5 million people became homeless; 19 million cubic meters of rubble and debris clogged Port-au-Prince, “enough to fill a line of shipping containers stretching end to end from London to Beirut”;94 4,000 schools were damaged or destroyed; 25 percent of civil servants in Port-au-Prince died; and 60 percent of government and administrative buildings were destroyed or damaged.
71. On November 17, 2017, Senator Nelson, along with Senator Rubio, and U.S. Reps. Hastings, Ileana Ros-Lehtinen, Frederica Wilson, Mario Diaz-Balart, Lois Frankel, Debbie Wasserman Schultz, Ted Deutch, and Carlos Curbelo, urged Defendant Duke to extend Haitian TPS for 18 months.95 They stated that the need for a full extension is clear, and that “Haiti—the poorest country in the Western Hemisphere—continues to recover from the devastating 2010 earthquake which killed more than 200,000 people and displaced more than a million.” They further explained that, “[t]o this day, Haiti struggles to combat an outbreak of cholera introduced by United Nations relief workers following the earthquake that has already killed more than 10,000 people.” They also cited the extensive damage Hurricane Matthew caused in 2016, destroying much of Haiti’s food crops and leaving millions of Haitians food insecure. In their bipartisan letter, these members of Congress stated that these “persistent, difficult conditions in Haiti warrant a full extension . . . [and we] owe it to the Haitian people to assist them in their efforts, especially as they begin to make limited progress. Haiti simply cannot absorb the premature return of 60,000 people at once.”
94 Id. 95 Letter from Sens. Bill Nelson, Marco Rubio, & other Florida lawmakers to Elaine C. Duke, Acting Sec’y of DHS (Nov. 17, 2017), https://www.billnelson. senate.gov/newsroom/news/sen-bill-nelson-calls-on-dhs-to-extent-tps-for-haitian.
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72. In November 2017, the United States Conference of Catholic Bishops issued a report on conditions in Haiti.96 Their delegation met with Haitian government officials, the U.S. Embassy, the U.N. High Commissioner for Refugees, the U.N. Development Program, and the International Organization for Migration. The delegation analyzed Haiti’s progress since its initial designation for TPS in 2010 and assessed its ability to safely accept and reintegrate returned nationals. The delegation concluded that “the country is not yet at a point where it can safely accommodate the return of 50,000 TPS recipients” because Haiti is still “in the midst of recovery, as evidenced by the thousands that remain displaced in camps and the key infrastructure that has yet to be rebuilt.”97 The delegation also found “no evidence of capacity to provide large-scale reintegration services for repatriated nationals with TPS.”98
73. Haiti’s Ambassador to the United States and its Foreign Minister also met with Defendant Duke in November 2017 to lay out their case for renewal and petition for a TPS extension because, according to Haiti’s Ambassador, “some of the key conditions that warranted TPS in the first place are still existing.”99
Circumstantial and Direct Evidence that DHS’s Rescission of TPS for Haiti was Motivated by Discrimination
74. Despite the overwhelming evidence that TPS for Haiti remains necessary given ongoing conditions in the country, on November 20, 2017, Defendant Duke publicly announced her decision to terminate TPS for Haiti with a delayed effective date of 18 months.
96 U.S. Conf. of Catholic Bishops, Haiti’s Ongoing Road to Recovery: The Necessity of an Extension of Temporary Protected Status (Nov. 2017), http://www.usccb.org/about/migration-policy/fact-finding-missionreports/upload/mrs-haiti-trip-report.pdf. 97 Id. at 2. 98 Id. at 2-3. 99 Ted Hesson, Haitian officials press Duke, Politico (Nov. 17, 2017), https://www.politico.com/newsletters/morning-shift/2017/11/17/haitian-officials-press-duke-026792.
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75. According to the DHS Office of the Press Secretary’s November 20, 2017, press release (“press release”), the decision to terminate Haitian TPS was made after a review of the conditions upon which the original designation was based. The press release stated that “[b]ased on all available information, including recommendations received as part of an inter-agency consultation process, Acting Secretary Duke determined that those extraordinary but temporary conditions caused by the 2010 earthquake no longer exist.”100 The press release did not acknowledge, much less attempt to address, the overwhelming evidence cited above demonstrating that conditions in Haiti, in fact, have not sufficiently recovered from the 2010 earthquake. There was no discussion about what constituted the “inter-agency consultation” referred to in the press release.
76. Although DHS published its other TPS determinations in the Federal Register within days of publicly announcing the decisions, it took DHS until January 18, 2018, to provide an analysis to support its putative reasons for the rescission decision. This unprecedented delay disrupted the lives of TPS recipients across the country. That is because the last extension—issued on May 24, 2017, and set to expire on January 22, 2018—remained operative until DHS gave notice in the Federal Register of its November 2017 decision to rescind. Until DHS published its November 2017 decision in the Federal Register, Haitian immigrants with TPS would be unable to legally work or receive public benefits after January 22, 2018. As a result, upon information and belief, scores of Haitians with TPS lost or were denied employment and/or federal entitlements like Medicare because they were unable to timely re-apply for those benefits.
100 Press Release, Acting Sec’y Elaine Duke Announcement on Temporary Protected Status for Haiti, DHS website (Nov. 20, 2017), https://www.dhs.gov/news/2017/11/20/acting-secretary-elaine-duke-announcement-temporaryprotected-status-haiti#.
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77. According to the notice published on January 18, 2018, the “Acting Secretary of [DHS] determined on November 2017 that conditions in Haiti no longer support its designation for TPS” after consultation with the “appropriate U.S. Government agencies.”101 It is noteworthy that Defendant Duke only refers generally to “U.S. Government agencies,” while all previous Haitian TPS notices in the Federal Register referred to DHS’s consultations with the Department of State. The January 18, 2018, notice does not indicate whether DHS consulted with the Department of State before the rescission.
78. Defendant Duke also stated in the Federal Register that Haiti has made “progress recovering from the 2010 earthquake and subsequent effects that formed the basis for its designation.” Defendant Duke relied upon the decrease in internally displaced persons and on the closure of 98 percent of the internally displaced persons camps. Defendant Duke also noted that, in October 2017, the United Nations withdrew its peacekeeping mission.
79. Defendant Duke further stated that Haiti “successfully completed its presidential election in February 2017” and that key government infrastructure was being rebuilt. Defendant Duke added that the annual GDP growth “has been generally positive since 2010, averaging 1.7 percent over the period (2010-2016),” and that “cholera is currently at its lowest level since the outbreak began.”
80. Defendant Duke’s stated reasoning for rescinding Haiti’s TPS represents a sharp departure from DHS’s ordinary decision-making process. Under 8 U.S.C. § 1254a, DHS is required to consider “the conditions in the foreign state . . . for which a designation is in effect under this subsection and . . . determine whether the conditions for such designation under this subsection continue to be met.” Consistent with that statutory mandate, DHS has previously
101 Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2,648, 2,648 (Jan. 18, 2018).
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undertaken a careful review as to whether conditions in Haiti continued to reflect the severe problems with respect to housing, food security, infrastructure, public health, access to health care, and gender-based violence that originally resulted from the 2010 earthquake and warranted Haiti’s TPS designation. Defendant Duke, however, failed to fully consider those factors in rescinding Haiti’s TPS.
81. For example, Defendant Duke failed to address the persistent gender-based violence in the internally displaced persons camps, which Mr. Kelly himself described as a serious concern just months earlier. Defendant Duke also failed to consider the fact that people who were displaced by the earthquake moved back to unsafe homes or were relocated to informal settlements in hazardous areas. Defendant Duke also failed to consider the extent of the damage that Hurricane Matthew caused, which Mr. Kelly noted killed more than 500 people and left more than 150,000 without housing. Defendant Duke also failed to address that 40 percent of the Haitian population lacked access to fundamental health and nutrition services. Defendant Duke also failed to address the questionable habitability of the buildings the earthquake destroyed, or conditions in the remaining internally displaced persons camps. Furthermore, although Defendant Duke noted the decrease in cholera, she failed to consider whether access to medical care had improved or whether Haiti’s physical health infrastructure was restored.
82. Remarkably, Defendant Duke cited the completion of Haiti’s presidential election in February 2017 to support the rescission decision, even though that election was already complete when Mr. Kelly extended Haitian TPS in May 2017.102
83. Defendant Duke also relied on modest total GDP growth (under two percent a year) to determine that the conditions in Haiti were sufficiently improved to rescind TPS. But in 2011,
102 Haiti’s presidential election was complete in November 2016, when the current president secured enough votes to avoid a runoff vote. In February 2017, the president was sworn in.
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the Secretary found that 80 percent of Haiti’s population was living below the poverty line and that per capita GDP was under $2 per day. The 2018 determination fails to address whether these economic metrics have improved.
84. In addition, Defendant Duke failed to indicate whether DHS considered the Haitian government’s input and the reservations that it expressed about rescinding TPS. DHS also failed to consider how the Caribbean hurricanes that have occurred since 2010 may have impacted Haiti’s recovery.
85. Defendant Duke also failed to address the issue of food insecurity. She failed to do so although Secretary Napolitano noted that food insecurity continued to be a problem two years after the earthquake; although Secretary Johnson noted the earthquake’s continuing impact on food insecurity years after the earthquake, and although, just five months earlier, then-Secretary Kelly noted that Hurricane Matthew caused extensive crop damage.
86. In all of the foregoing respects, DHS departed from the normal decision-making process in deciding to rescind Haitian TPS by failing to engage the factors identified in the original determination, the factors identified in the four subsequent 18-month extensions, and the factors that Mr. Kelly identified in his extension just five months earlier.
87. Further, the reasons offered by DHS in the press release and Federal Register announcement appear to be pretextual. Months earlier, DHS had attempted to manufacture evidence of a different nature to support rescission. In early 2017, while Mr. Kelly was Secretary of Homeland Security, DHS officials sought crime data on Haitians with TPS. DHS also sought information on how many Haitian nationals were receiving public benefits in the United States. After USCIS staff said they could not gather information about wrongdoing, policy chief Kathy Nuebel Kovarik pressed. “I know some of it is not captured,” she said, “but we’ll have to figure
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out a way to squeeze more data out of our system.”103 The Administration’s efforts to gather this data on Haitian TPS recipients trades on false anti-Black stereotypes about criminality and exploitation of public benefits, and suggests the effort to manufacture a public safety rationale for the planned rescission.
88. On May 17, 2017, Senator Nelson wrote to Secretary Kelly to express his concern about “reports that there is an effort to find selective examples of criminal activity by Haitian Nationals as part of the Department’s review of TPS.”104 On May 19, 2017, Senators Menendez, Ron Wyden, Markey, Gillibrand, and Sherrod Brown wrote to Secretary Kelly “regarding the troubling news that your department has asked for information on the criminal history and public benefits use of Haitians protected under [TPS].”105 “Considering that you must make a decision on whether to extend TPS for eligible Haitians by May 22,” they wrote, “we are concerned that you will use this information in your decision. Such analysis would be outside the statutory framework for deciding whether to extend TPS, and it would be a disturbing executive overreach.”106 They noted that “the timing of this information request suggests that this information is pretext to deny an extension of TPS,” and urged DHS to “keep [its] review within the bounds dictated by Congress.”107
The Administration’s Overt Racial Bias Against Immigrants of Color and Haitians in Particular 89. In addition to this evidence showing that DHS departed from its normal decision-
making process and appeared to offer pretextual reasons for rescinding Haiti’s TPS, the evidence
103 Alicia A. Caldwell, AP Exclusive: US digs for evidence of Haiti immigrant crimes, AP News (May 9, 2017), https://apnews.com/740ed5b40ce84bb398c82c48884be616. 104 Letter from Sen. Bill Nelson to John F. Kelly, Sec’y of DHS (May 17, 2017), http://www.ijdh.org/wpcontent/uploads/2016/10/2017-05-17-Nelson-to-Kelly-Haiti-TPS-Extension.pdf. 105 Letter from Sens. Robert Menendez, et al., to John F. Kelly, Sec’y of DHS (May 19, 2017), https://www.menendez.senate.gov/imo/media/doc/HAITI-TPS_5_19_17.pdf. 106 Id. 107 Id.
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of the Administration’s overt bias against immigrants of color, and Haitians in particular, strongly
supports an inference that DHS’s decision was motivated by racial discrimination.
90. Since announcing his candidacy for public office, President Trump has repeatedly
made statements revealing discriminatory intent against immigrants of color from around the
world, including Black and Latino immigrants.108 In June 2015, he started his presidential bid by
disparaging South and Central American immigrants: “When Mexico sends its people, they’re not
sending their best. . . . They’re sending people that have lots of problems, and they’re bringing
those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists . . . .
It’s coming from more than Mexico. It’s coming from all over South and Latin America.”109
91. Then-candidate Trump repeated that sentiment in August 2015, when he stated that,
“The Mexican government . . . send[s] the bad ones over because they don’t want to pay for them.
They don’t want to take care of them.”110
92. In November 2015, then-candidate Trump disseminated a debunked story about
“thousands and thousands of people” celebrating the September 11, 2001, attacks, in New Jersey,
where, in his words, “you have large Arab populations.”111
108 The President has repeatedly expressed the view that immigrants of color bring disease and crime into the United States. See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (Feb. 24, 2015, 4:47 PM), https://twitter.com/realdonaldtrump/status/570384640281870337?lang=en (“The Mexican legal system is corrupt, as is much of Mexico. Pay me the money that is owed me now - and stop sending criminals over our border.”); Donald J. Trump (@realDonaldTrump), Twitter (Aug. 5, 2014, 5:55 AM), https://twitter.com/realdonaldtrump/status/496640747379388416?lang=en (“Our government now imports illegal immigrants and deadly diseases.”). 109 Full text: Donald Trump announces a presidential bid, Wash. Post (June 16, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trump-announces-apresidential-bid/?utm_term=.9dd8ac586d54. 110 Andrew O’Reilly, At GOP debate, Trump says ‘stupid’ U.S. leaders are being duped by Mexico, Fox News (Aug. 6, 2015), http://www.foxnews.com/politics/2015/08/06/at-republican-debate-trump-says-mexico-is-sendingcriminals-because-us.html. 111 Glenn Kessler, Trump’s outrageous claim that ‘thousands’ of New Jersey Muslims celebrated the 9/11 attacks, Wash. Post (Nov. 22, 2015), https://www.washingtonpost.com/news/fact-checker/wp/2015/11/22/donald-trumpsoutrageous-claim-that-thousands-of-new-jersey-muslims-celebrated-the-911-attacks/?utm_term=.88120e0b9d60 (video embedded).
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93. President Trump’s anti-immigrant bias extends to native-born American citizens of Hispanic descent, whom he perceives to be alien. In June 2016, then-candidate Trump questioned United States District Judge Gonzalo Curiel’s competence to preside over a lawsuit because his Mexican heritage made him “pro-Mexican.”112 Speaker of the United States House of Representatives Paul Ryan characterized Mr. Trump’s statement as “sort of like the textbook definition of a racist comment.”113
94. In October 2016, then-candidate Trump responded to a presidential debate question about immigration by stating: “We have some bad hombres here, and we’re going to get them out.”114
95. In December 2016, referring to an article about a crime wave on Long Island, President-Elect Trump said, “They come from Central America. They’re tougher than any people you’ve ever met. They’re killing and raping everybody out there. They’re illegal. And they are finished.”115
96. President Trump articulated his antipathy towards Haitians in particular in June 2017, when, during a meeting in the Oval Office with then-Homeland Security Secretary Kelly and Secretary of State Tillerson, he reportedly reacted to a document listing how many immigrants had received visas to enter the United States in 2017. Upon learning that 15,000 Haitian people
112 Transcript of Face the Nation, CBS News (June 5, 2016 12:57 PM), https://www.cbsnews.com/news/face-thenation-transcripts-june-5-2016-trump/; Jose A. DelReal & Katie Zezima, Trump’s personal, racially tinged attacks on federal judge alarm legal experts, Wash. Post (June 1, 2016), https://www.washingtonpost.com/politics/2016/06/01/437ccae6-280b-11e6-a3c40724e8e24f3f_story.html?utm_term=.5c1816dc5543. 113 Allan Smith, PAUL RYAN: Trump’s attacks on judge “the textbook definition of a racist comment,” Business Insider (June 7, 2016), http://www.businessinsider.com/paul-ryan-trump-racist-curiel-judge-2016-6. 114 Katie Zezima, Trump on immigration: There are ‘bad hombres’ in the United States, Wash. Post (Aug. 30, 2017). 115 Michael Scherer, 2016 Person of the Year: Donald Trump, TIME (Dec. 2016), http://time.com/time-person-ofthe-year-2016-donald-trump/.
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had received such visas, President Trump is reported to have stated they “all have AIDS.”116
During that June 2017 meeting, President Trump also learned that 40,000 immigrants from Nigeria
had received visas to enter the United States in 2017. According to news reports, he reacted by
stating that, once they had seen the United States, these Nigerian immigrants would never go back to their “huts” in Africa.117 The President and Mr. Kelly upbraided Secretary Tillerson for the
perceived influx of immigrants of color.
97. A White House press statement obliquely denied what they characterized as “these outrageous claims” and criticized the reporting for relying on anonymous sources,118 although the
report was the product of more than 36 interviews. The White House also denied using the words
“AIDS” or “huts” to describe people from any country.
98. On January 11, 2018, during a White House meeting with several U.S. Senators,
the President is alleged to have disparaged a draft immigration plan that protected people from
Haiti, El Salvador, and some African countries, asking, “Why are we having all these people from shithole countries come here?”119 President Trump is alleged to have further disparaged Haitians
in particular, asking “Why do we need more Haitians?” and ordered the bill’s drafters to “take them out.”120 In this meeting, the President is further alleged to have expressed his preference for
116 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times (Dec. 23, 2017), https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html. This article states that other officials insist that President Trump never used the words “AIDS” or “huts.” Several participants in the meeting said that they did not recall President Trump using those words. 117 Id. 118 Eli Watkins, WH denies NYT report claiming Trump said Haitian immigrants “all have AIDS,” CNN (Dec. 24, 2017), https://www.cnn.com/2017/12/23/politics/donald-trump-oval-office-immigration/index.html. 119 Josh Dawsey, Trump derides protections for immigrants from ‘shithole’ countries, Wash. Post (Jan. 12, 2018), https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrants-from-shithole-countries-inoval-office-meeting/2018/01/11/bfc0725c-f711-11e7-91af-31ac729add94_story.html?utm_term=.b56f11cc896f. Other senators have suggested the word used might have been “shithouse.” Julie Hirschfeld Davis, Trump’s Harsh Words, Not His Plan for Wall, Dominate Hearing, N.Y. Times (Jan. 16, 2018), https://www.nytimes.com/2018/01/16/us/politics/trump-shithole-shithouse-immigration.html. 120 Id.
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more immigrants from places like Norway,121 where the population is over 90 percent white. Haiti’s population, by contrast, is over 95 percent Black.
99. President Trump has also obliquely denied these reports, tweeting, “The language used by me at the DACA meeting was tough, but this was not the language used.”122 President Trump has also denied saying “anything derogatory about Haitians other than Haiti is, obviously, a very poor and troubled country.”123
100. According to Senator Dick Durbin, a participant in the White House meeting, “After [Senator] Lindsey [Graham] and I left the room and got in the car together to come back to Capitol Hill, it was silence in the car. We had just witnessed something that neither one of us ever expected.”124 Senator Durbin has stated that he warned the President that singling out Haitians for exclusion was “an obvious racial decision.”125
101. By the time Defendant Duke rescinded Haiti’s TPS status in November 2017, President Trump had already made his discriminatory intent against Haitian immigrants clear, as the meeting described above between President Trump, Mr. Kelly, and Secretary Tillerson occurred in June 2017. And, on or about April 2017, Mr. Kelly had directed DHS to seek evidence that Haitians were engaged in criminal conduct or receiving public welfare benefits.
102. Further, there is direct evidence that the Administration has pressured DHS with respect to another TPS decision involving a country whose population is predominantly non-white. On November 6, 2017, Mr. Kelly, in his capacity as White House Chief of Staff, and White House
121 Id. 122 Donald J. Trump (@realDonaldTrump), Twitter (Jan. 12, 2008), https://twitter.com/realDonaldTrump/status/951793123985973248. 123 Doina Chiacu & James Oliphant, Trump denies vulgar remarks about Haiti, African countries; condemnation mounts, Reuters (Jan. 12, 2018), https://www.reuters.com/article/us-usa-immigration/trump-denies-vulgar-remarksabout-haiti-african-countries-condemnation-mounts-idUSKBN1F11H8. 124 Carl Hulse, Inside the Oval Office Immigration Meeting That Left a Senator Stunned, N.Y. Times (Jan. 19, 2018), https://www.nytimes.com/2018/01/19/us/politics/trump-durbin-immigration-daca.html. 125 Id.
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Homeland Security Adviser Tom Bossert repeatedly telephoned Defendant Duke to pressure her to rescind Honduras’s TPS designation. A former official with knowledge of the call said, “They put massive pressure on her.” Mr. Kelly made the call from Japan, where he was travelling with President Trump. Mr. Kelly was described as irritated and persistent, and told Duke that the extension “prevents our wider strategic goal” on immigration.126
History of Anti-Haitian Discrimination by the United States 103. The relationship of the United States to Haiti has been, for centuries, punctuated by
the prejudices and stereotypes that inform the Administration’s decision to rescind TPS for Haiti. 104. The United States was deeply unsettled when self-liberated slaves formed the
Republic of Haiti in 1804, for fear that the Haitian example would stir domestic racial violence. As the scholar Michael Dash writes, “[f]rom the beginning, relations between Haiti and the United States were coloured by a tendency by the latter to project its fantasies and insecurities onto the recently independent black state.”127 Thomas Jefferson predicted that Haiti would spread ideas of rebellion to the United States which would eventually lead to racial “convulsions which would probably never end but in the extermination of one or the other race.”128 Senator Thomas Benton of Missouri warned not to “permit black consuls and ambassadors to establish themselves in our cities, and parade through the country, and give their fellow blacks in the United States proof in hand of the honors which await them for a successful revolt on their part.”129 The United States refused to recognize Haiti’s independence until 1862.
126 Nick Miroff, White House chief of staff tried to pressure acting DHS secretary to expel thousands of Hondurans, officials say, Wash. Post (Nov. 9. 2017), https://www.washingtonpost.com/world/national-security/white-housechief-of-staff-tried-to-pressure-acting-dhs-secretary-to-expel-thousands-of-hondurans-officialssay/2017/11/09/914d3700-c54a-11e7-a441-3a768c8586f1_story.html?utm_term=.076d78250e7e. 127 J. Michael Dash, Haiti and the United States: National Stereotypes and the Literary Imagination 2 (Palgrave Macmillan, 2d ed. 2014). 128 Id. at 7. 129 Id. at 8.
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105. Instances of systematic federal government discrimination against Haitians continued well into the 20th Century. In one episode that is redolent of President Trump’s association of Haitians with AIDS, in 1983, the U.S. Centers for Disease Control and Prevention (“CDC”) singled out Haitians as being at a high risk for contracting HIV/AIDS by virtue of their national identity. The CDC warned physicians who cared for Haitian patients to “be aware that opportunistic infections may occur in this population.”130 In 1990, the Food and Drug Administration issued a nation-wide ban on Haitian blood donations. By the time the CDC stopped singling out Haitians, they were already widely associated with the disease, as they were the only ethnic group singled out based on national origin.
106. The federal government also has a well-documented history of discrimination against Haitians with respect to federal immigration policy, which is reflected in the sharply disparate treatment the government has accorded Haitian immigrants compared to their Cuban counterparts, although Haiti and Cuba share comparable histories of persecution and economic deprivation. That disparity is manifest in the so-called Wet-Foot/Dry-Foot immigration policy, which allows Cuban immigrants who reach American soil to remain and become American citizens. Haitians have no such special status. While Cuba’s status as a communist country may have been a factor, the Cuban refugees were also “largely middle class and white,” while Haitians are “100 percent black by American standards.”131
107. Not a single Haitian refugee or asylee was accepted by the United States for permanent refugee status between 1981-1990.132 In 1989, Bruce Morrison, then chair of the House
130 Opportunistic Infections and Kaposi's Sarcoma among Haitians in the United States, Ctr. for Disease Control & Prevention (July 9, 1982), https://www.cdc.gov/mmwr/preview/mmwrhtml/00001123.htm. 131 Roger Daniels, Guarding the Golden Door: American Immigration Policy and Immigrants Since 1882 213 (Hill & Wang 2004). 132 Id.
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Subcommittee on Immigration, pointed out how the Immigration and Naturalization Service was treating Haitians unfairly. “There’s been a lot of discrimination [against them],” he said, “They’re black, they are from a nation close to ours, and their country isn’t communist.”133 As scholar Roger Daniels explains,
it is instructive to note that, despite the ideological differences between the Carter, Reagan, Bush I, Clinton, and Bush II administrations, each has persistently discriminated against Haitian entrants as opposed to Cubans. The Reagan administration began the practice of towing Haitian, but not Cuban, vessels back to where they came from, the first Bush administration initiated the use of the naval base at Guantanamo for detained Haitians, and the Clinton administration expanded the use of the Cuban base, out of the federal judiciary’s reach, as a warehouse for Haitians.134
COUNT I (Violation of the Fifth Amendment to the United States Constitution) 108. Plaintiffs incorporate the allegations in paragraphs 1-107 by reference as if fully set forth herein. 109. The Due Process Clause of the Fifth Amendment incorporates the equal protection principal of the Fourteenth Amendment. Sessions v. Morales-Santana, 137 S. Ct. 1678 (2017); United States v. Windsor, 133 S. Ct. 2675 (2013); Bolling v. Sharpe, 347 U.S. 497 (1954). 110. The Due Process Clause of the Fifth Amendment also prohibits irrational government action. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528 (1973). 111. The Administration’s decision to rescind TPS protections for Haitians living the United States violates both aspects of the Fifth Amendment because the Administration intended to discriminate against Haitian immigrants to the United States because of race and/or ethnicity. 112. The inference of race and/or ethnicity discrimination is supported by the Administration’s departure from the normal decision-making process; the fact that the decision
133 Id. 134 Id. at 214.
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bears more heavily on one race than another; the sequence of events leading to the decision; the contemporaneous statements of decisionmakers; and the historical background of the decision. The Supreme Court has recognized these factors as probative of intentional discrimination. See Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977).
113. The inference of race and/or ethnicity discrimination is supported by the departure of DHS, Defendant Duke, and/or Defendant Nielsen from the analysis that previous Secretaries of Homeland Security have undertaken. The previous Secretaries’ consistent practice set the standard of review for TPS extension and/or termination decisions, and made clear what kind of review is appropriate under INA § 244(b)(3) and 8 U.S.C. § 1254a.
114. The inference of race and/or ethnicity discrimination is also supported by the departure of DHS, Defendant Duke, and/or Defendant Nileson from INA § 244(b)(3)’s and 8 U.S.C. § 1254a’s requirement that DHS undertake a genuine, good faith review of the conditions in a foreign state designated for TPS to determine whether the conditions for designation continue to be met.
115. The inference of race and/or ethnicity discrimination is also supported by the departure of DHS and/or Defendant Nielsen from DHS’s custom of timely publishing Haitian TPS decisions in the Federal Register, to the severe detriment of many Haitian TPS holders.
116. The inference of race and/or ethnicity discrimination is also supported by Mr. Kelly’s efforts to manufacture evidence that Haitian TPS recipients engaged in criminal activity or exploited public benefits.
117. The inference of race and/or ethnicity discrimination is also supported by the White House’s exertion of pressure on Defendant Duke to expel tens of thousands of Hondurans living in the United States in order to achieve the Administration’s wider strategic goals on immigration.
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118. The inference of race and/or ethnicity discrimination is also supported by President Trump’s contemporary statements disparaging Haitian and other Black immigrants from so-called “shithole countries” and expressed preference for immigrants from Norway.
119. The inference of race and/or ethnicity discrimination is also supported by the historical background of the decision, including the federal government’s history of racial and/or ethnic discrimination against Haitian immigrants. See, e.g., Comm’r., I.N.S. v. Jean, 496 U.S. 154 (1990), aff’g sub nom. Jean v. Nelson, 863 F.2d 759 (11th Cir. 1988) (finding that Haitian immigrants were prevailing parties in a suit to end federal policies of conducting mass exclusion hearings without counsel and of detentions pending the determination of political asylum applications); Haitian Refugee Ctr. v. Smith, 676 F.2d 1023 (5th Cir. 1982) (requiring the adoption of a procedurally fair plan for the orderly reprocessing of asylum claims of Haitian immigrants); Haitian Ctrs. Council, Inc. v. Sale, 823 F. Supp. 1028 (E.D.N.Y. 1993) (finding that federal executive officials violated the Refugee Act and the due process rights of prescreened HIV positive Haitian immigrants by detaining them without parole and subjecting them to further screening interviews without benefit of counsel or other procedural safeguards); Louis v. Meissner, 530 F. Supp. 924 (S.D. Fla. 1981) (access to counsel, fair hearings, erroneous deportation); Sannon v. United States, 427 F. Supp. 1270 (S.D. Fla. 1977) (political asylum claims in exclusion as opposed to deportation hearing), vacated as moot, 631 F.2d 1247 (5th Cir. 1980) (holding that the newly promulgated federal regulations offered same relief as that ordered by district judge).
120. As a direct and proximate result of the rescission of Haitian TPS by Defendants and/or their agents, Plaintiffs and some of their members have been deprived of their rights under the Fifth Amendment to the United States Constitution.
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COUNT II (Mandamus, 28 U.S.C. § 1361) 121. Plaintiffs incorporate the allegations in paragraphs 1-120 by reference as if fully set forth herein. 122. Defendants have failed to carry out their mandatory and non-discretionary duties owed to Plaintiff, including the duties established in 8 U.S.C. § 1254a(b)(3). 28 U.S.C. § 1361. 123. Defendants’ failure to carry out their mandatory and non-discretionary duties owed to Plaintiffs is likely to irrevocably harm Plaintiffs and certain of their members.
COUNT III (Declaratory Judgment, 28 U.S.C. § 2201) 124. Plaintiffs incorporate the allegations in paragraphs 1-123 by reference as if fully set forth herein. 125. For the reasons stated above, Defendants have violated the United States Constitution. 126. Plaintiffs seek a declaratory judgment to that effect. 127. Defendants’ violations of the Constitution have injured and will continue to injure Plaintiffs and some of their members, including but not limited to stigmatic injury, which derives from, inter alia, the government’s efforts to intentionally discriminate against Black immigrants to the United States, and DHS’s efforts to link Haitians and/or Black immigrants to criminality and exploitation of public benefits. 128. For the foregoing reasons, a live controversy exists between the Parties, and declaratory relief is appropriate.
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Case 1:18-cv-00239-MJG Document 30 Filed 04/17/18 Page 46 of 49 PRAYER FOR RELIEF
WHEREFORE, Plaintiffs respectfully requests that this Court: A. Declare that Defendants’ actions to rescind Haitian TPS are void and without legal force or effect; B. Declare that Defendants’ actions to rescind Haitian TPS are in violation of the United States Constitution and contrary to the laws of the United States; C. Enjoin and restrain Defendants, their agents, servants, employees, attorneys, and all persons in active concert or participation with any of them from implementing or enforcing the decision to rescind Haitian TPS and from taking any other action to rescind Haitian TPS that is not in compliance with applicable law; D. Issue a writ of mandamus compelling Defendants to carry out all nondiscretionary duties required by the United States Constitution, the INA, and any other applicable law with respect to the TPS program, including the requirements set forth above; and
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E. Provide any and all other relief to which Plaintiffs are entitled and that is necessary
to remedy the legal violations set forth above, and any and all other relief the Court deems
appropriate.
Respectfully submitted this 16th day of April, 2018.
/s/ Sherrilyn A. Ifill Sherrilyn A. Ifill D. Md. Bar No. 20072
Director-Counsel Janai Nelson* Samuel Spital* Jin Hee Lee* Raymond Audain*
Counsel of Record Natasha C. Merle* Deuel Ross* Cara McClellan D. Md. Bar No. 20047 Kristen Johnson* NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC. 40 Rector St., 5th Floor New York, NY 10006 Tel.: (212) 965-2200 Fax.: (212) 226-7592 sifill@naacpldf.org
Ajmel Quereshi D. Md. Bar No. 28882 NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC. 1444 I Street NW Washington, DC 20005 Tel.: (202) 682-1300 Fax.: (202) 682-1312 aquereshi@naacpldf.org
Bradford M. Berry** Janette M. Louard** Anson Asaka**
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Case 1:18-cv-00239-MJG Document 30 Filed 04/17/18 Page 48 of 49 Khyla Craine D. Md. Bar No. 14117 NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, INC. Office of General Counsel 4805 Mount Hope Drive Baltimore, Maryland 21215 Tel.: (410) 580-5777 bberry@naacpnet.org *Appearing pro hac vice **Application for appearance pro hac vice forthcoming Attorneys for Plaintiffs
48

Case 1:18-cv-00239-MJG Document 30 Filed 04/17/18 Page 49 of 49 CERTIFICATE OF SERVICE
I certify that on April 16, 2018, I filed the foregoing FIRST AMENDED COMPLAINT electronically via the Court’s CM/ECF system, which will send a copy to all counsel of record.
/s/ Sherrilyn A. Ifill Sherrilyn A. Ifill NAACP LEGAL DEFENSE &
EDUCATIONAL FUND, INC. 40 Rector St., 5th Floor New York, NY 10006 Tel.: (212) 965-2200 Fax.: (212) 226-7592 sifill@naacpldf.org
49

 
 Case 1:18-cv-00239-DKC Document 67 Filed 03/12/19 Page 1 of 20

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

NATIONAL ASSOCIATION FOR THE :

ADVANCEMENT OF COLORED PEOPLE,

et al.

:

v.

: Civil Action No. DKC 18-0239

:

UNITED STATES DEPARTMENT OF

HOMELAND SECURITY, et al.

:

MEMORANDUM OPINION

This is one of several recent cases challenging the decisions

to end Temporary Protected Status (“TPS”) for nationals of various

countries. See, Centro Presente v. Dep’t of Homeland Sec’y, No.

18-cv-10340-DJC (D.Mass. filed February 22, 2018)(Haiti, El

Salvador, and Honduras); Ramos v. Nielson, No. 18-cv-1554-EMC

(N.D.Cal. filed March 12, 2018)(Haiti, Sudan, El Salvador, and

Nicaragua); Saget v. Trump, No. 18-cv-1599-WFK (E.D.N.Y. filed

March 15, 2018)(Haiti); Casa De Maryland, Inc. v. Trump, No. 18-

cv-845-GJH (D.Md. filed March 23, 2018)(El Salvador); and

Bhattarai v. Nielsen, No. 19-cv-731-EMC (N.D.Cal. filed February

10, 2019)(Honduras and Nepal). While not entirely uniform in their

reasoning, district court decisions reject challenges to subject

matter jurisdiction, and find at least some of the complaints to

state viable claims, both statutory and constitutional. As a

result of the decisions already produced by those courts, the

analysis here need not be extensive.

Case 1:18-cv-00239-DKC Document 67 Filed 03/12/19 Page 2 of 20
I. Factual Background1 Plaintiffs, the National Association for the Advancement of
Colored People (“NAACP”), Haitian Women for Haitian Refugees (“HWHR”), and the Haitian Lawyers Association, Inc. (“HLA”), seek declaratory relief and to enjoin the November 2017 decision of Defendants, the U.S. Department of Homeland Security (“DHS”), former acting DHS Secretary Elaine C. Duke (“Duke”), and current DHS Secretary Kristjen Nielsen (“Nielsen”), terminating Temporary Protected Status (“TPS”) for Haitian nationals based on alleged Due Process and Equal Protection violations. Plaintiffs argue that Defendants’ decision “reflects an egregious departure from the TPS statute’s requirements and an intent to discriminate on the basis of race and/or ethnicity.” (ECF No. 30 at 1).
The Amended Complaint contains three counts. Count I asserts a violation of the Fifth Amendment, both equal protection (intent to discriminate against Haitian immigrants because of race and/or ethnicity) and due process (irrational government action). Counts II and III seek mandamus and declaratory relief, respectively.
Section 244(c)(2) of the Immigration and Nationality Act (“INA”), codified in 8 U.S.C. § 1254a, allows the Secretary of
1 Unless otherwise noted, the facts outlined here are set forth in the amended complaint and construed in the light most favorable to Plaintiffs.
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Homeland Security (“Secretary”)2 to designate Temporary Protected Status (“TPS”) for a country under certain conditions, for example: (i) if “there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected,” or (ii) if the Secretary finds that a country is temporarily unable to handle the return of its nationals. 8 U.S.C. § 1254a(b)(1)(B)(i)-(ii). The TPS designation protects nationals of that country from removal while the designation is in effect, and allows them to hold a registration document and obtain work authorization in the United States. Id. § 1254a(a).
The Secretary has the discretion to designate TPS for an initial period of 6 to 18 months. Id. § 1254a(b)(2). After the allotted time has expired, the Secretary is required to review the conditions in the foreign state and determine whether to renew its TPS status. Id. § 1254a(b)(3)(A). A renewal may extend the designation for up to 18 months. Id. § 1254a(b)(3)(C). If the Secretary determines the conditions no longer warrant TPS, she must terminate the designation. Id. § 1254a(b)(3)(B). The Secretary must publish renewal and termination decisions in the Federal Register. Id. § 1254a(b)(3).
2 The authority to designate countries under TPS was transferred from the Attorney General to the Secretary of Homeland Security in 2003. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002); 8 U.S.C. § 1103.
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Haiti received an 18-month TPS designation in January 2010, after an earthquake “destroyed most of the capital city” and caused numerous deaths in 2010. (ECF No. 30 ¶ 21). Different administrations later extended the designation in May 2011, October 2012, March 2014, and August 2015. (Id. ¶¶ 23, 28, 33, 38). Each respective Secretary supported the extensions with a discussion of Haiti’s country conditions, including continuing impacts from the 2010 earthquake, multiple cholera outbreaks resulting from a breakdown in healthcare infrastructure, breakdowns in law enforcement and government stability, lack of access to basic health services, a high unemployment rate, and compromised food security, among other issues. (Id. ¶¶ 24-46).
After President Trump took office, then-DHS Secretary John Kelly extended the TPS designation for six months, from July 23, 2017 to January 22, 2018. (Id. ¶ 51). Although he found the country conditions in Haiti to be severe enough to warrant a shorter TPS renewal, he signaled the administration’s intent to terminate the TPS designation soon. (Id. ¶ 55).
On November 20, 2017, in the face of strong political support to the contrary, then-acting Secretary Duke announced her decision to terminate TPS for Haiti with a delayed effective date of 18 months.3 (Id. ¶ 74). Her press release stated that the
3 The following people and organizations offered political support for continued TPS designation for Haiti: numerous members
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extraordinary conditions caused by the 2010 earthquake no longer existed. (Id. ¶ 75). She later published her decision as a Notice in the Federal Register. See Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2,648 (Jan. 18, 2018). The Notice was published four days before the TPS designation was set to expire. Plaintiffs allege that the “unprecedented delay” caused uncertainty and economic losses for Haitians living in the United States, including loss of jobs and certain federal benefits. (Id. ¶ 76).
Plaintiffs seek to enjoin Defendants from implementing the TPS termination decision and to secure declaratory relief that the decision is a violation of Due Process and Equal Protection rights. (Id. ¶¶ 46). Plaintiffs contend that the decision was not based upon objective evidence but was intended to discriminate against Haitian immigrants on the basis of race and/or ethnicity.
Plaintiffs claim to have circumstantial and direct evidence, including (1) alleged DHS targeted searches for evidence that Haitians with TPS in the United States were criminals and recipients of public welfare, (ECF No. 30 ¶¶ 87-88); (2) President
of Congress (in various bipartisan letters), the Massachusetts Congressional Delegation, the U.S. Chamber of Commerce, the Congressional Black Caucus, Governor Baker of Massachusetts, the National Haitian-American Elected Officials Network, the U.S. Conference of Catholic Bishops, and NYU Law School. (Id. ¶¶ 5772). Haiti’s government also submitted a formal request to extend its TPS status, and its Ambassador and Foreign Minister met with DHS to discuss extending the designation. (Id. ¶¶ 60, 73).
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Trump’s alleged comments that Haitians “all have AIDS” and “Why do we need more Haitians?” and the alleged order to drafters of the immigration bill to “take [Haitians] out,” (id. ¶¶ 96-98); (3) President Trump’s alleged question in response to Haitian immigrants “Why are we having all these people from shithole countries come here?” (id.); (4) President Trump’s alleged comments expressing a preference for immigrants from places like Norway, where the population is over 90 percent white, (id.); President Trump’s comments about other minority races, (id. ¶¶ 9095); (5) Secretary Duke’s failure to acknowledge evidence of Haiti’s troubling country conditions today, (id. ¶¶ 77-86); (6) the “unprecedented” delay in publishing the Notice in the Federal Register, (id. ¶ 76); (7) Secretary Duke’s failure to consider all factors in the statutory mandate, (id. ¶ 80); and (8) influence from the presidential administration to pressure the Secretary to rescind Honduras’s designation as part of a broader strategic goal on immigration, (id. ¶ 102). II. Procedural History
On April 17, 2018 Plaintiffs filed a first amended complaint. (ECF No. 30). Defendants filed a motion to dismiss for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) on May 7, 2018. (ECF No. 36). Plaintiffs responded in opposition on June 7, 2018. (ECF No. 45). Defendants replied on June 27, 2018. (ECF No. 58).
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Plaintiffs were granted leave to file a surreply (ECF No. 61) and did so on July 6, 2018 (ECF No. 62).
The issues are fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, Defendants’ motion will be denied in part and granted in part. III. Standard of Review
Generally, “questions of subject matter jurisdiction must be decided ‘first, because they concern the court’s very power to hear the case.’” Owens—Illinois, Inc. v. Meade, 186 F.3d 435, 442 n.4 (4th Cir. 1999) (quoting 2 James Wm. Moore et al., Moore’s Federal Practice § 12.30[1] (3d ed. 1998)). The plaintiff bears the burden of proving that subject matter jurisdiction properly exists in the federal court. Evans v. B.F. Perkins Co., a Div. of Standex Int’l Corp., 166 F.3d 642, 647 (4th Cir. 1999). In a 12(b)(1) motion, the court “may consider evidence outside the pleadings” to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991); see also Evans, 166 F.3d at 647. There are two ways to present a 12(b)(1) motion to dismiss. Adams v. Bain, 697 F.2d 1213, 1219 (4th Cir. 1982). “A defendant may either contend (1) that the complaint fails to allege facts upon which subject matter jurisdiction can be based; or (2) that the jurisdictional facts alleged in the complaint are
7

Case 1:18-cv-00239-DKC Document 67 Filed 03/12/19 Page 8 of 20
untrue.” Id. The court should grant the 12(b)(1) motion “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Richmond, 945 F.2d at 768. When a defendant makes a facial challenge to subject matter jurisdiction, as Defendants do here, “the plaintiff, in effect, is afforded the same procedural protection as he would receive under a Rule 12(b)(6) consideration.” Adams, 697 F.2d at 1219. “In that situation, the facts alleged in the complaint are taken as true, and the motion must be denied if the complaint alleges sufficient facts to invoke subject matter jurisdiction.” Kerns v. United States, 585 F.3d 187, 192 (4th Cir. 2009).
Second, Defendants’ argument that the complaint fails to state a plausible claim for relief is governed by Fed.R.Civ.P. 12(b)(6). The purpose of a motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint. Presley v. City of Charlottesville, 464 F.3d 480, 483 (4th Cir. 2006). A plaintiff’s complaint need only satisfy the standard of Rule 8(a), which requires a “short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). “Rule 8(a)(2) still requires a ‘showing,’ rather than a blanket assertion, of entitlement to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007). That showing must consist of more than “a formulaic recitation of the elements of a cause of action” or “naked assertion[s] devoid of further factual enhancement.”
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Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations omitted). At this stage, all well-pleaded allegations in a complaint must be considered as true, Albright v. Oliver, 510 U.S. 266, 268 (1994), and all factual allegations must be construed in the light most favorable to the plaintiff, see Harrison v. Westinghouse Savannah River Co., 176 F.3d 776, 783 (4th Cir. 1999) (citing Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993)). IV. Analysis
A. Jurisdiction As in other cases, Defendants argue that the court lacks subject matter jurisdiction under 8 U.S.C. § 1254a(b)(5)(A), which provides that: “[t]here is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state” for TPS relief. (ECF No. 36, at 16). And, as in other decisions, that argument is rejected. There is a “‘strong presumption’ in favor of judicial review when [courts] interpret statutes.” Cuozzo Speed Techs., LLC v. Lee, 136 S.Ct. 2131, 2140 (2016) (quoting Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1650-51 (2015)). Furthermore, “where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.” Webster v. Doe, 486 U.S. 592, 603 (1988) (citing Johnson v. Robison, 415 U.S. 361, 373-74 (1974)).
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Congress’s intent must be clear because “[i]t is presumed that Congress legislates with knowledge of [the Court’s] well-settled presumption favoring interpretations that allow judicial review[.]” McNary v. Haitian Refugee Center, Inc., 498 U.S. 479 (1991). The presumption in favor of judicial review may be overcome “only upon a showing of ‘clear and convincing evidence’ of a contrary legislative intent.” Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967) (citations omitted). Such indications may be “drawn from ‘specific language,’ ‘specific legislative history,’ and ‘inferences of intent drawn from the statutory scheme as a whole,’ that Congress intended to bar review.” Cuozzo, 136 S.Ct. at 2140 (quotation omitted). Interpreting a statutory provision to eliminate any judicial review of constitutional claims raises serious questions as to separation of powers as well as constitutional concerns. See Webster, 486 U.S. at 603 (explaining that a “heightened showing” of Congressional intent is required “in part to avoid the ‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claim”); see also Johnson, 415 U.S. at 366-67 (holding that, before interpreting a statute to strip federal courts of jurisdiction over constitutional challenges, which would “raise serious questions concerning the constitutionality” of that statute, the court would “first
10

Case 1:18-cv-00239-DKC Document 67 Filed 03/12/19 Page 11 of 20
ascertain whether a construction of the statute is fairly possible by which the (constitutional) question(s) may be avoided”).
“The ‘first step’ of statutory interpretation ‘is to determine whether the language at issue has a plain and unambiguous meaning’ by looking to ‘the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.’” Orquera v. Ashcroft, 357 F.3d 413, 418 (4th Cir. 2003) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 340– 41 (1997)). When the words of the statute are “sufficient in and of themselves to determine the purpose of the legislation” and do not produce unreasonable results “plainly at variance with the policy of the legislation as a whole,” courts must follow their plain meaning. United States v. Am. Trucking Ass’ns, 310 U.S. 534 (1940) (quoting Ozawa v. United States, 260 U.S. 178, 194 (1922)). Indeed, “[t]here is . . . no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes.” Am. Trucking Ass’ns, 310 U.S. at 543.
The text of 8 U.S.C. § 1254a(b)(5)(A) precludes judicial review of “any determination” made by the Secretary “with respect to the designation, or termination or extension of a designation” of TPS for a foreign state. Although the statute does not define “determination,” Judge Chen correctly concluded that it is clear from the statutory text that “determination” refers to the
11

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“designation,” “termination,” or “extension” of any TPS designation. Ramos v. Nielsen, 321 F.Supp.3d 1083, 1102 (N.D.Cal. 2018). Thus, the decision to terminate TPS for Haiti would be encompassed within the statutory bar, the “determination” challenged here as unconstitutional.
Even when statutory language would seem to preclude judicial review, however, constitutional claims remain within a court’s subject matter jurisdiction if there is no “clear and convincing” evidence that Congress intended to preclude judicial review of colorable constitutional challenges to 1254a(b)(5)(A). See Trump v. Hawaii, 138 S.Ct. 2392, 2424 (2018) (Kennedy, J., concurring) (“There are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.”). Where Congress intends to preclude review of all constitutional claims in the INA, it has said so explicitly. See, e.g., 8 U.S.C. § 1252(b)(9) (“Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions, arising from any action taken or proceeding brought to remove an alien . . . shall be available only in judicial review of a final order under this section”); see also McNary, 498 U.S. at 494 (“had Congress intended the limited review provisions of § 210(e) of the INA to encompass
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challenges to INS procedures and practices, it could easily have used broader statutory language.”). 8 U.S.C. § 1254a(b)(5)(A) does not prohibit, as do other statutes within INA, judicial “review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions,” nor does 1254a(b)(5)(A) contain any similarly restrictive language. Plaintiffs’ claim is a constitutional challenge to the Secretary’s determination, which the scope of 8 U.S.C. § 1254a(b)(5)(A) does not clearly prohibit. Centro Presente, 332 F.Supp 3d at 407; Ramos, 321 F.Supp. 3d at 1105-06; Casa de Maryland, --- F.Supp. 3d---, 2018 WL 6192367, at *8 (D.Md. November 28, 2018); Saget v. Trump, 345 F.Supp.3d 287, 296 (E.D.N.Y. 2018). Therefore, this court has jurisdiction to hear Plaintiffs’ constitutional claim.
B. Failure to State a Claim Plaintiffs allege that Defendants’ termination of TPS violates the Fifth Amendment to the United States Constitution because the decision was an irrational government action and was motivated, at least in part, by racial or national-origin animus. Defendants contend that the Secretary’s decision is subject to deferential rational basis review and that Plaintiffs’ complaint does not state a plausible claim for relief under this standard. Defendants also argue that Plaintiffs’ complaint is facially deficient because equal protection claims necessitate comparator evidence of an individual who is similarly situated but treated
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differently. Without directly confronting President Trump’s alleged statements, Defendants argue the President’s alleged animus is irrelevant because President Trump’s statements are not attributable to the Secretary of Homeland Security.
1. Level of Scrutiny Defendants argue that the proper level of scrutiny for this claim is rational basis review, and rely on Trump v. Hawaii, 138 S.Ct. 2392 (2018), for support.4 Defendants’ reliance is misplaced. As aptly explained by various trial judges, the distinguishing factors include the absence of national security concerns and the presence of foreign nationals in the United States in this case. See, e.g., Casa de Maryland, 2018 WL 6192367, at *10; Saget, 345 F.Supp.3d at 301-02; and Ramos, 321 F.Supp.3d at 1129. Instead, Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977), provides the proper legal framework to determine whether the government’s decision truly was motivated by impermissible animus.5 If it is proven that the
4 Defendants’ also argue that rational basis review is appropriate, in line with cases involving immigration classification. It is true that some courts have applied rational basis review to immigration classifications; however, this case does not concern an immigration classification decision. Rather, this case concerns a constitutional challenge to an alleged racially discriminatory decision by the government.
5 Contrary to Defendants’ assertion, Arlington Heights, and not Reno v. Am.–Arab Anti–Discrimination Comm. (“AADC”), 525 U.S.
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government’s decision was motivated by impermissible race or
national origin discrimination, the action is presumptively
invalid and will only be upheld if the action is narrowly tailored
to achieve a compelling government purpose. Under this standard,
it is appropriate to look behind the stated reasons for government
action into circumstantial evidence to find proof of
discriminatory motivation, including:
• a decision’s historical background “if it reveals a series of official actions taken for invidious purposes”;
• “[t]he specific sequence of events leading up [to] the challenged decision”;
• “[d]epartures from the normal procedural sequence”;
• “[s]ubstantive departures . . . particularly if the factors usually considered important by
471 (1999), provides the proper framework in this case. The AADC standard necessitating a finding of “outrageous” discrimination in the immigration context is limited to individual challenges to the exercise of prosecutorial discretion, and does not apply to programmatic challenges. Ramos, 321 F.Supp.3d at 1125-26 (citing Kwai Fun Wong v. U.S., 373 F.3d 952, 970 (9th Cir. 2004) (“Importantly, the AADC standard confining discrimination claims to ‘outrageous’ cases is limited to challenges to the exercise of prosecutorial discretion, i.e., the ‘discretion to choose to deport one person rather than another.’”); see also Kandamar v. Gonzales, 464 F.3d 65 (1st Cir. 2006) (rejecting application of the AADC test for outrageous animus to a programmatic challenge to the NSEERS program); see also Hadayat v. Gonzales, 458 F.3d 659 (7th Cir. 2006) (applying AADC to a programmatic attack because the claim arose in the context of an individual’s removal who contended “he was unconstitutionally targeted for registration and removal based on his ethnicity and religion.”).
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the decisionmaker strongly favor a decision contrary to the one reached”; and, • “[t]he legislative or administrative history . . . especially where there are contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports.” Arlington Heights, 429 U.S. at 267-68 (citations/references omitted). This is a non-exhaustive list, and should be examined as a whole to avoid “consider[ing] [] each piece of evidence in a vacuum,” so that the “forest” does not go unnoticed “in carefully surveying the many trees.” N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 214 (4th Cir. 2016). Defendants contend that Plaintiffs’ claim must fail, however, and that no evaluation of discrimination is needed, because they have not identified any similarly situated individuals who were treated differently, see Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). Under the analysis provided in Arlington Heights, no comparator evidence is needed. See Washington v. Davis, 426 U.S. 229, 239-40 (1976) (“The central purpose of the Equal Protection Clause of the Fourteenth Amendment is the prevention of official conduct discriminating on the basis of race. It is also true that the Due Process Clause of the Fifth Amendment contains an equal protection component prohibiting the United States from invidiously discriminating between individuals or groups.”); see also Bryant v. Aiken Reg’l Med. Centers Inc., 333 F.3d 536, 545–46 (4th Cir. 2003) (“We would never hold, for example, that an employer who
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categorically refused to hire black applicants would be insulated from judicial review because no white applicant had happened to apply for a position during the time frame in question.”). Other courts agree: Ramos, 321 F.Supp.3d at 1124-25, Casa de Maryland, 2018 WL 6192367, at *9 n.7; Saget, 345 F.Supp.3d at 301.
Plaintiffs have not alleged any direct statements of animus by Acting Secretary Duke or Secretary Nielsen. Rather, Plaintiffs rely on statements allegedly made by President Trump during his candidacy and Presidency. Defendants claim that a lack of any statement by either Secretary is the crucial link missing from the chain of racial animus which warrants dismissal. Defendants are incorrect. Even if it cannot be proven that Acting Secretary Duke or Secretary Nielsen personally harbor animus towards TPSbeneficiaries from Haiti, their actions may violate the equal protection guarantee if President Trump’s alleged animus influenced or manipulated the decision-making process. For example, in Hill v. Lockheed Martin Logistics Management, Inc., 354 F.3d 277, 290-91 (4th Cir. 2004) (en banc), the Fourth Circuit held that courts “do not limit the discrimination inquiry to the actions or statements of formal decisionmakers[,]” because such a limitation would “thwart the very purposes of the [antidiscrimination] acts by allowing employers to insulate themselves from liability simply by hiding behind the blind approvals, albeit non-biased, of formal decisionmakers.” Influential racial animus
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principles in the employment context apply with full force to government officials’ alleged constitutional violations, even the President. See Ramos, 321 F.Supp.3d at 1124 (“There is no logical reason why this principle should not apply with equal force when the superior entity or authority (here, the President) influences a subordinate (here, a cabinet member) to perform an action charged to the latter.”); see also Batalla Vidal v. Nielsen, 291 F.Supp.3d 260, 279 (E.D.N.Y. 2018) (holding that “[i]f, as Plaintiffs allege, President Trump himself directed the end of the DACA program, it would be surprising if his ‘discriminatory intent [could] effectively be laundered by being implemented by an agency under his control’”) (quotation omitted). The dispositive question here is whether the challenged decision was motivated by impermissible animus. Defendants appear to concede that the White House may have been involved in the termination decision, (ECF No. 36, at 29) (“it should be considered unremarkable that a White House advisor would provide input to the Secretary of Homeland Security on a politically sensitive matter of this nature”), and thus do not reject the possibility of a “cats’ paw” theory of animus. Instead, Defendants argue that because Acting Secretary Duke did not immediately terminate TPS status for another country, Honduras, at the behest of the White House, that she is resistant to the administration’s pressures. (Id.; ECF No. 58, at 15). However, Defendants ignore that Honduras’ TPS status was later
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rescinded by Acting Secretary Duke, that inaction or delay could reasonably not be seen as “resistance,” and importantly fail to distinguish the power of President Trump’s alleged statements of animus specifically targeting Haiti. Even if it is arguable that Acting Secretary Duke’s delay was a “resistance,” or that President Trump’s statements did not influence the TPS decision, at the motion to dismiss stage all factual allegations must be accepted as true and construed in the light most favorable to the plaintiffs.
Accordingly, Plaintiffs’ complaint alleges a plausible claim for relief. V. Mandamus and Declaratory Judgment
Plaintiffs’ allege they are entitled to mandamus relief because Defendants’ have failed their mandatory and nondiscretionary duties set forth in 8 U.S.C. § 1254a(b)(3). Defendants’ contend that Plaintiffs’ claims do not meet the narrow criteria for mandamus relief. Mandamus relief is “intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984). Plaintiffs’ have a direct cause of action by way of the Constitution, including for injunctive relief. See, e.g., Bell v. Hood, 327 U.S. 678, 684 (1946). Thus, Plaintiffs’ have not exhausted all other avenues of relief. Similarly, the Declaratory
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Judgment Act provides a mode of relief, and is not an independent cause of action. To the extent that Plaintiffs seek full relief under Count I, there is no need to resort to Count III for declaratory relief. Accordingly, both Counts II and III will be dismissed. VI. Amicus Brief
Two amicus briefs have been filed, both with consent of the parties. The pending motion for leave, ECF No. 56, will be granted. VII. Conclusion
For the foregoing reasons, the motion to dismiss filed by Defendants will be denied as to Count I and granted as to Counts II and III. A separate order will follow, and a telephone scheduling conference will be arranged. The cases cited at the outset of this opinion are at varying stages of litigation, and counsel should be prepared to discuss whether this case presents any unique issues.
/s/ DEBORAH K. CHASANOW United States District Judge
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