Case: 8:18-cv-00845-GJH As of: 07/24/2020 05:39 PM EDT 1 of 8
U.S. District Court District of Maryland (Greenbelt) CIVIL DOCKET FOR CASE #: 8:18−cv−00845−GJH

STAYED

Casa De Maryland, Inc. et al v. Trump et al Assigned to: Judge George Jarrod Hazel Cause: 05:551 Administrative Procedures Act
Plaintiff Casa De Maryland, Inc.

Date Filed: 03/23/2018 Jury Demand: None Nature of Suit: 899 Other Statutes: Administrative Procedures Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant
represented by Anthony T Pierce Akin Gump Strauss Hauer and Feld LLP 1333 New Hampshire Ave NW Ste 400 Washington, DC 20036 12028874000 Fax: 12028874288 Email: apierce@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Steven H Schulman Akin Gump Strauss Hauer and Feld LLP 2001 K Street, NW Washington, DC 20006 12028874071 Fax: 12028874288 Email: sschulman@akingump.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Caroline L Wolverton Akin Grump Strauss Hauer and Feld LLP 1333 New Hampshire Ave. NW Washington, DC 20036 2028874107 Fax: 2028874288 Email: cwolverton@akingump.com PRO HAC VICE ATTORNEY TO BE NOTICED
Jillie Richards Akin Grump Strauss Hauer and Feld LLP 1333 New Hampshire Ave. Washington, DC 20036 2028874077 Fax: 2028874288 Email: richardsj@akingump.com PRO HAC VICE ATTORNEY TO BE NOTICED
Pratik A Shah Akin Gump Strauss Hauer and Feld LLP 2001 K Street, N.W. Washington, DC 20006 2028874210 Fax: 2028874288 Email: pshah@akingump.com PRO HAC VICE ATTORNEY TO BE NOTICED

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Stephanie Webster Akin Gump Strauss Hauer and Feld LLP 1333 New Hampshire Ave. NW Washington, DC 20036 2028874049 Fax: 2028874288 Email: swebster@akingump.com TERMINATED: 09/16/2019 PRO HAC VICE

Plaintiff Jose E Guevara

represented by Dennis A Corkery Washington Lawyers Cmte for Civil Rights and Urban Affairs 700 14th St. NW Ste 400 Washington, DC 20005 12023191000 Fax: 12023191010 Email: dennis_corkery@washlaw.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany Yang Washington Lawyers' Cmte. for Civil Rights & Urban Affa 11 Dupont Circle, NW Suite 400 Washington, DC 20036 202−319−1000 Email: tiffany_yang@washlaw.org TERMINATED: 07/23/2019 ATTORNEY TO BE NOTICED

Plaintiff Juan Rodriguez

represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany Yang (See above for address) TERMINATED: 07/23/2019 ATTORNEY TO BE NOTICED

Plaintiff Luis Andrade

represented by Dennis A Corkery (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Tiffany Yang (See above for address) TERMINATED: 07/23/2019 ATTORNEY TO BE NOTICED

V.
Defendant
Donald J. Trump in his official capacity as President of the United States

represented by Adam D Kirschner U.s. Department Of Justice 20 Massachusetts Ave. NW Washington, DC 20530

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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: 02/26/2019 LEAD ATTORNEY

Kevin Snell 1100 L St. NW Rm. 12510 Washington, DC 20530 2023050924 Fax: 2026168460 Email: kevin.snell@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
Kirstjen M Nielsen in her official capacity as Secretary of Homeland Security

represented by Adam D Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph C Dugan (See above for address) TERMINATED: 02/26/2019 LEAD ATTORNEY

Kevin Snell (See above for address) ATTORNEY TO BE NOTICED

Defendant U.S. Department of Homeland Security

represented by Adam D Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph C Dugan (See above for address) TERMINATED: 02/26/2019 LEAD ATTORNEY

Kevin Snell (See above for address) ATTORNEY TO BE NOTICED

Date Filed 03/23/2018

# Docket Text
1 COMPLAINT against Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security ( Filing fee $ 400 receipt number 0416−7225232.), filed by Luis Andrade, Juan Rodriguez, Casa De Maryland, Inc., Jose E Guevara. (Attachments: # 1 Civil Cover Sheet, # 2 Summons: Trump, # 3 Summons: Nielsen, # 4 Summons: DHS, # 5 Summons: USAO D. Md., # 6 Summons: Attorney General)(Corkery, Dennis) (Entered: 03/23/2018)

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03/23/2018 03/23/2018

2 MOTION for Other Relief to Omit Addresses of the Individual Plaintiffs from the Complaint by Luis Andrade, Jose E Guevara, Juan Rodriguez(Corkery, Dennis) (Entered: 03/23/2018)
3 NOTICE of Appearance by Steven H Schulman on behalf of Casa De Maryland, Inc. (Schulman, Steven) (Entered: 03/23/2018)

03/23/2018

4 Local Rule 103.3 Disclosure Statement by Casa De Maryland, Inc. (Schulman, Steven) (Entered: 03/23/2018)

03/26/2018

5 Summons Issued 60 days as to Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons Issued, # 2 Summons Issued, # 3 Summons Issued, # 4 Summons Issued)(jf3s, Deputy Clerk) (Entered: 03/26/2018)

03/26/2018 03/26/2018 03/26/2018 03/26/2018

6 MOTION to Appear Pro Hac Vice for Stephanie A. Webster (Filing fee $100, receipt number 0416−7230076.) by Casa De Maryland, Inc. (Attachments: # 1 Text of Proposed Order)(Schulman, Steven) (Entered: 03/26/2018)
7 MOTION to Appear Pro Hac Vice for Caroline L. Wolverton (Filing fee $100, receipt number 0416−7230125.) by Casa De Maryland, Inc. (Attachments: # 1 Text of Proposed Order)(Schulman, Steven) (Entered: 03/26/2018)
8 MOTION to Appear Pro Hac Vice for Jillie B. Richards (Filing fee $100, receipt number 0416−7230151.) by Casa De Maryland, Inc. (Attachments: # 1 Text of Proposed Order)(Schulman, Steven) (Entered: 03/26/2018)
9 CERTIFICATE OF SERVICE by Casa De Maryland, Inc. (Schulman, Steven) (Entered: 03/26/2018)

03/27/2018 10 NOTICE of Appearance by Tiffany Yang on behalf of Luis Andrade, Jose E Guevara, Juan Rodriguez (Yang, Tiffany) (Entered: 03/27/2018)

03/28/2018 03/28/2018 03/28/2018 03/28/2018 03/28/2018

11 PAPERLESS ORDER granting 6 Motion to Appear Pro Hac Vice on behalf of Stephanie Webster. Directing attorney Stephanie Webster to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 3/28/2018. (srd, Deputy Clerk) (Entered: 03/28/2018)
12 PAPERLESS ORDER granting 7 Motion to Appear Pro Hac Vice on behalf of Caroline Wolverton. Directing attorney Caroline Wolverton to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 3/28/2018. (srd, Deputy Clerk) (Entered: 03/28/2018)
13 PAPERLESS ORDER granting 8 Motion to Appear Pro Hac Vice on behalf of Jillie Richards. Directing attorney Jillie Richards to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 3/28/2018. (srd, Deputy Clerk) (Entered: 03/28/2018)
14 SUMMONS Returned Executed by Casa De Maryland, Inc.. U.S. Department of Homeland Security served on 3/27/2018, answer due 5/29/2018.(Schulman, Steven) (Entered: 03/28/2018)
15 SUMMONS Returned Executed by Casa De Maryland, Inc.. Kirstjen M Nielsen served on 3/27/2018, answer due 5/29/2018.(Schulman, Steven) (Entered: 03/28/2018)

03/28/2018 16 SUMMONS Returned Executed by Casa De Maryland, Inc.. Donald J. Trump served on 3/27/2018, answer due 5/29/2018.(Schulman, Steven) (Entered: 03/28/2018)

03/28/2018 03/28/2018 04/25/2018 04/25/2018

17 SUMMONS Returned Executed by Casa De Maryland, Inc.. All Defendants.(Schulman, Steven) (Entered: 03/28/2018)
18 SUMMONS Returned Executed by Casa De Maryland, Inc.. All Defendants.(Schulman, Steven) (Entered: 03/28/2018)
19 MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 4/25/2018. (kns, Deputy Clerk) (Entered: 04/25/2018)
20 ORDER granting 2 Motion to Omit Addresses of the Individual Plaintiffs from the Complaint. Signed by Judge George Jarrod Hazel on 4/25/2018. (kns, Deputy Clerk) (Entered: 04/25/2018)

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05/10/2018 05/11/2018

21 NOTICE of Appearance by Joseph C Dugan on behalf of All Defendants (Dugan, Joseph) (Entered: 05/10/2018)
22 Supplemental to 14 Summons Returned Executed as to USA filed by Casa De Maryland, Inc. Declaration of Julia M. McEnroe (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wolverton, Caroline) (Entered: 05/11/2018)

05/11/2018

23 Supplemental to 15 Summons Returned Executed as to USA filed by Casa De Maryland, Inc. Declaration of Julia M. McEnroe (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wolverton, Caroline) (Entered: 05/11/2018)

05/11/2018

24 Supplemental to 16 Summons Returned Executed as to USA filed by Casa De Maryland, Inc. Declaration of Julia M. McEnroe (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wolverton, Caroline) (Entered: 05/11/2018)

05/11/2018 05/21/2018 05/21/2018 06/04/2018

25 Supplemental to 17 Summons Returned Executed as to USA filed by Casa De Maryland, Inc. Declaration of Julia M. McEnroe (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Wolverton, Caroline) (Entered: 05/11/2018)
26 Joint MOTION for Extension of Time by Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 05/21/2018)
27 PAPERLESS ORDER granting 26 Motion for Extension of Time. Signed by Judge George Jarrod Hazel on 5/21/2018. (am2s, Chambers) (Entered: 05/21/2018)
28 MOTION to Dismiss for Lack of Jurisdiction , MOTION to Dismiss for Failure to State a Claim by Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 06/04/2018)

06/26/2018 29 Joint MOTION for Extension of Time by Casa De Maryland, Inc. (Attachments: # 1 Text of Proposed Order)(Schulman, Steven) (Entered: 06/26/2018)

06/26/2018 07/16/2018 07/18/2018 07/19/2018 07/27/2018

30 PAPERLESS ORDER granting 29 JOINT Motion for Extension of Time. Signed by Judge George Jarrod Hazel on 6/26/2018. (am2s, Chambers) (Entered: 06/26/2018)
31 MOTION to Appear Pro Hac Vice for Pratik A. Shah (Filing fee $100, receipt number 0416−7447453.) by Casa De Maryland, Inc. (Attachments: # 1 Text of Proposed Order)(Schulman, Steven) (Entered: 07/16/2018)
32 PAPERLESS ORDER granting 31 Motion to Appear Pro Hac Vice on behalf of Pratik Shah. Directing attorney Pratik Shah to register online for CM/ECF at http://www.mdd.uscourts.gov/electronic−case−filing−registration. Signed by Clerk on 7/18/2018. (srd, Deputy Clerk) (Entered: 07/18/2018)
33 RESPONSE in Opposition re 28 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim filed by Luis Andrade, Casa De Maryland, Inc., Jose E Guevara, Juan Rodriguez.(Schulman, Steven) (Entered: 07/19/2018)
34 NOTICE by Luis Andrade, Casa De Maryland, Inc., Jose E Guevara, Juan Rodriguez of Supplemental Authority (Attachments: # 1 Exhibit A)(Schulman, Steven) (Entered: 07/27/2018)

08/02/2018

35 NOTICE of Hearing: Motion Hearing set for 9/12/2018 10:00 AM in Courtroom 4A, 6500 Cherrywood Lane, Greenbelt, Maryland 20770, before Judge George Jarrod Hazel. (am2s, Chambers) (Entered: 08/02/2018)

08/09/2018 08/16/2018

36 REPLY to Response to Motion re 28 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim filed by Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security.(Dugan, Joseph) (Entered: 08/09/2018)
37 NOTICE by Luis Andrade, Casa De Maryland, Inc., Jose E Guevara, Juan Rodriguez Second Notice of Supplemental Authority (Attachments: # 1 Exhibit A)(Schulman, Steven) (Entered: 08/16/2018)

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09/05/2018 09/11/2018

38 Consent MOTION for Other Relief To Be Excused from Pro Hac Vice Attendance Requirement by Casa De Maryland, Inc. (Attachments: # 1 Text of Proposed Order)(Schulman, Steven) (Entered: 09/05/2018)
39 PAPERLESS ORDER granting 38 Motion To Be Excused from Pro Hac Vice Attendance Requirement. Signed by Judge George Jarrod Hazel on 9/11/2018. (am2s, Chambers) (Entered: 09/11/2018)

09/12/2018

40 Motion Hearing held on 9/12/2018 re 28 MOTION to Dismiss for Lack of Jurisdiction MOTION to Dismiss for Failure to State a Claim filed by U.S. Department of Homeland Security, Kirstjen M Nielsen, Donald J. Trump− As stated on record. Matter taken under advisement. Written Memorandum Opinion to issue. before Judge George Jarrod Hazel.(Court Reporter: Cindy Davis 4A) (jw2s, Deputy Clerk) (Entered: 09/12/2018)

10/09/2018

41 NOTICE by Luis Andrade, Casa De Maryland, Inc., Jose E Guevara, Juan Rodriguez Plaintiffs' Third Notice of Supplemental Authority (Attachments: # 1 Exhibit A)(Schulman, Steven) (Entered: 10/09/2018)

10/31/2018
11/28/2018 11/28/2018 12/12/2018

42 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings (Motions Hearing) held on September 12, 2018, before Judge George J. Hazel. Court Reporter Cindy Davis, Telephone number (301) 344−3228. Total number of pages filed: 81. Transcript may be viewed at the court public terminal or purchased through the Court Reporter 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 11/21/2018. Redacted Transcript Deadline set for 12/3/2018. Release of Transcript Restriction set for 1/29/2019.(cd, Court Reporter) (Entered: 10/31/2018)
43 MEMORANDUM OPINION. Signed by Judge George Jarrod Hazel on 11/28/2018. (km4, Deputy Clerk) (Entered: 11/28/2018)
44 ORDER granting in part and denying in part 28 Motion to Dismiss for Lack of Jurisdiction and Motion to Dismiss for Failure to State a Claim. Signed by Judge George Jarrod Hazel on 11/28/2018. (km4, Deputy Clerk) (Entered: 11/28/2018)
45 ANSWER to 1 Complaint, by Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security.(Dugan, Joseph) (Entered: 12/12/2018)

12/14/2018

46 MOTION for Other Relief Entry of Proposed Scheduling Order by Casa De Maryland, Inc. (Attachments: # 1 Text of Proposed Order)(Schulman, Steven) (Entered: 12/14/2018)

12/17/2018

47 RESPONSE in Opposition re 46 MOTION for Other Relief Entry of Proposed Scheduling Order filed by Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Dugan, Joseph) (Entered: 12/17/2018)

12/17/2018 12/20/2018 12/20/2018 12/26/2018

48 Cross MOTION to Stay re 46 MOTION for Other Relief Entry of Proposed Scheduling Order by Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Dugan, Joseph) (Entered: 12/17/2018)
49 REPLY to Response to Motion re 46 MOTION for Other Relief Entry of Proposed Scheduling Order filed by Luis Andrade, Casa De Maryland, Inc., Jose E Guevara, Juan Rodriguez.(Schulman, Steven) (Entered: 12/20/2018)
50 RESPONSE in Opposition re 48 Cross MOTION to Stay re 46 MOTION for Other Relief Entry of Proposed Scheduling Order filed by Luis Andrade, Casa De Maryland, Inc., Jose E Guevara, Juan Rodriguez.(Schulman, Steven) (Entered: 12/20/2018)
51 MOTION to Stay Proceedings in Light of Lapse of Appropriations by Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 12/26/2018)

01/03/2019

52 REPLY to Response to Motion re 48 Cross MOTION to Stay re 46 MOTION for Other Relief Entry of Proposed Scheduling Order filed by Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security.(Dugan, Joseph) (Entered: 01/03/2019)

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01/08/2019 01/28/2019

53 ORDER granting 51 Defendants' Motion to Stay All Proceedings in light of Lapse of Appropriations. Signed by Judge George Jarrod Hazel on 1/8/2019. (tds, Deputy Clerk) (Entered: 01/08/2019)
54 NOTICE by Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security re 53 Order on Motion to Stay (Notice of Restoration of Appropriations) (Dugan, Joseph) (Entered: 01/28/2019)

02/01/2019

55 Consent MOTION to Amend/Correct 46 MOTION for Other Relief Entry of Proposed Scheduling Order by Casa De Maryland, Inc. (Attachments: # 1 Attachment Plaintiffs' Amendment to Motion for Entry of Proposed Scheduling Order, # 2 Text of Proposed Order)(Schulman, Steven) (Entered: 02/01/2019)

02/01/2019

56 NOTICE by Kirstjen M Nielsen, Donald J. Trump, U.S. Department of Homeland Security (Notice of Corrected Dates and Deadlines) (Dugan, Joseph) (Entered: 02/01/2019)

02/04/2019
02/08/2019 02/25/2019 04/24/2019

PAPERLESS ORDER, scheduling a conference call for Friday February 8th, at 10:00AM. All parties shall dial in on (877)810−9415. Use access code 5860700 (jw2s, Deputy Clerk) (Entered: 02/04/2019)
57 SCHEDULING ORDER Signed by Judge George Jarrod Hazel on 2/8/2019. (km4s, Deputy Clerk) (Entered: 02/08/2019)
58 NOTICE to Substitute Attorney (Kirschner, Adam) (Entered: 02/25/2019)
59 STIPULATION and Proposed Order Regarding Completion of Document Production and Deadline for Motion to Compel by Casa De Maryland, Inc.(Schulman, Steven) (Entered: 04/24/2019)

04/26/2019

60 ORDER Approving 59 Stipulation and Proposed Order Regarding Completion of Document Production and Deadline for Motion to Compel filed by Casa De Maryland, Inc. Signed by Judge George Jarrod Hazel on 4/26/2019. (km4s, Deputy Clerk) (Entered: 04/26/2019)

05/07/2019 05/08/2019
05/09/2019 05/10/2019 07/22/2019

61 NOTICE of Change of Address by Steven H Schulman (Schulman, Steven) (Entered: 05/07/2019)
62 QC NOTICE: 61 Notice of Change of Address filed by Casa De Maryland, Inc. **Please make address change by selecting Utilities − Your Account − Manage Your Account. (km4s, Deputy Clerk) (Entered: 05/08/2019)
63 Joint MOTION for Other Relief to Modify Schedule by Casa De Maryland, Inc. (Attachments: # 1 Text of Proposed Order)(Schulman, Steven) (Entered: 05/09/2019)
64 ORDER granting 63 Joint Motion to Modify Schedule. Signed by Judge George Jarrod Hazel on 5/10/2019. (km4s, Deputy Clerk) (Entered: 05/10/2019)
65 MOTION to Withdraw as Attorney by Luis Andrade, Jose E Guevara, Juan Rodriguez(Yang, Tiffany) (Entered: 07/22/2019)

07/23/2019

66 PAPERLESS ORDER granting 65 Motion to Withdraw as Attorney. Attorney Tiffany Yang terminated. Signed by Judge George Jarrod Hazel on 7/23/2019. (jw2s, Deputy Clerk) (Entered: 07/23/2019)

07/31/2019 08/01/2019 09/16/2019 01/24/2020 02/10/2020

67 STIPULATION and [Proposed] Protective Order by Casa De Maryland, Inc.(Schulman, Steven) (Entered: 07/31/2019)
68 Stipulation and Protective Order. Signed by Judge George Jarrod Hazel on 7/31/2019. (jf3s, Deputy Clerk) (Entered: 08/01/2019)
69 NOTICE to Substitute Attorney (Attachments: # 1 Text of Proposed Order)(Schulman, Steven) (Entered: 09/16/2019)
70 NOTICE of Appearance by Kevin Snell on behalf of All Defendants (Snell, Kevin) (Entered: 01/24/2020)
71 MOTION Pls. Certificate of Discovery Conference for Mot. to Compel by Casa De Maryland, Inc. (Attachments: # 1 Plaintiffs' Motion to Compel, # 2 Pls. Index to Exhibits to Motion to Compel, # 3 Exhibit A, # 4 Exhibit B, # 5 Exhibit C, # 6 Exhibit

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07/16/2020

D, # 7 Exhibit E, # 8 Exhibit F, # 9 Exhibit G, # 10 Defs' Opp'n to Motion to Compel, # 11 Decl. ISO Def.'s Opp'n to Motion to Compel, # 12 Pls. Reply ISO Motion to Compel, # 13 Index to Exs. to Reply ISO Mot. to Compel, # 14 Exhibit 1, # 15 Exhibit 2, # 16 Exhibit 3, # 17 Exhibit 4)(Schulman, Steven) (Entered: 02/10/2020)
72 MOTION for Reconsideration re 43 Memorandum Opinion by Casa De Maryland, Inc.(Pierce, Anthony) (Entered: 07/16/2020)

 
 Case 8:18-cv-00845-GJH Document 1 Filed 03/23/18 Page 1 of 42

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

CASA de MARYLAND, INC.

)

8151 15th Avenue

)

Hyattsville, MD 20528

)

Prince George’s County

)

)

JOSE E. GUEVARA

)

JUAN RODRIGUEZ,

)

and LUIS ANDRADE1

)

)

Plaintiffs

)

)

v.

)

)

DONALD J. TRUMP, in his official capacity as

)

President of the United States

)

1600 Pennsylvania Avenue, N.W.

)

Washington, DC 20500

)

)

KIRSTJEN M. NIELSEN, in her official capacity as

)

Secretary of Homeland Security

)

U.S. DEPARTMENT OF HOMELAND SECURITY

)

3801 Nebraska Avenue, N.W.

)

Washington, D.C. 20016,

)

)

U.S. DEPARTMENT OF HOMELAND SECURITY

)

3801 Nebraska Avenue, N.W.

)

Washington, D.C. 20016,

)

)

)

Defendants.

)

)

COMPLAINT

Case No. 8:18-cv-00845

1 All of the individual plaintiffs concurrently move to waive their obligations under Local Rule 102.2(a) to provide addresses, on the basis of their objectively reasonable fear that publicizing their home addresses would subject Plaintiffs to harassment (potentially including violence) and threats.

Case 8:18-cv-00845-GJH Document 1 Filed 03/23/18 Page 2 of 42
I. NATURE OF ACTION 1. Plaintiffs seek to enjoin the unlawful termination of El Salvador’s designation as a Temporary Protected Status (“TPS”) country. El Salvador’s TPS designation has been renewed eleven times since 2001 when devastating earthquakes ravaged the country. As recently as 2016, the U.S. Government recognized that disrupted living conditions in El Salvador stemming from those earthquakes and exacerbated by subsequent natural disasters and additional environmental challenges continue to preclude safe return to the country, and allowed eligible Salvadorans to remain in the United States with protected status. 2. Much of the original destruction caused by the 2001 earthquakes remains unrepaired, and the additional natural disasters and environmental challenges have both impeded recovery and caused new damage. The result is that housing shortages continue, infrastructure remains crippled, and the El Salvador economy has stagnated, as underemployment and violence in the country have grown. Recognizing the lack of safety in El Salvador, the U.S. Department of State recently issued a Level 3 Travel Advisory for the country that advises U.S. citizens to “reconsider travel” there.2 3. In spite of these continuing crises, on January 8, 2018, the Administration of President Donald J. Trump (the “Administration”) announced the termination of El Salvador’s TPS designation, and ten days later published a notice of termination in the Federal Register. The termination notice ignores the dire conditions that continue to plague El Salvador and would jeopardize the safety and security of the individually named Plaintiffs, as well as members of CASA de Maryland and other Salvadorans with protected status, if they are forced to return. The
2 U.S. Dept. of State, El Salvador Travel Advisory, Jan. 10, 2018, https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/el-salvador-traveladvisory.html.
2

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2016 decision to extend El Salvador’s TPS designation, like the extension decisions before it, gave careful consideration to the facts and statistics on the state of El Salvador’s infrastructure, housing, economy, employment and level of violence, and made an objective assessment of whether their cumulative effect on living conditions in the country permit safe return. The 2018 termination notice, by contrast, consists largely of unsupported and conclusory assertions that the varied crises in the country that repeatedly compelled prior extensions of El Salvador’s protected status have suddenly been resolved.
4. The about-face decision to terminate El Salvador’s designation as a TPS country would seem inexplicable. Except that it came on the heels of President Trump calling El Salvador and other TPS-designated countries “shithole countries” and was preceded by repeated statements during the President’s campaign and presidency that disparage Latino immigrants. Indeed, multiple federal courts, including the Fourth Circuit Court of Appeals, have recognized such statements by the President as evidence of unconstitutional animus in considering challenges to other anti-immigrant measures adopted by the Trump Administration, namely the travel ban on persons from majority Muslim countries and the rescission of the Deferred Action on Childhood Arrivals (“DACA”) program. Here too, the President’s statements, as well as his Administration’s actions in support of its anti-immigrant agenda, expose an unconstitutional motivation behind the termination of El Salvador’s TPS designation.
5. The United States Constitution forbids the use of Executive power to discriminate against persons because of their race, ethnicity or national origin, and authorizes the Judiciary to intervene to stop such abuse of power. The Administration has abused its authority over TPS to advance an unconstitutional motive. Judicial intervention is necessary to stop the abuse.
3

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II. JURISDICTION AND VENUE 6. Jurisdiction is proper under 28 U.S.C. § 1331. 7. This action arises under Fifth Amendment of the United States Constitution, the Immigration and Naturalization Act and the Administrative Procedure Act. 8. Venue is proper in this district under 28 U.S.C. § 1391(e).
III. THE PARTIES 9. Plaintiff CASA de Maryland, Inc. (“CASA”) is a non-profit membership organization headquartered in Langley Park, Maryland, with offices in Maryland, Virginia and Pennsylvania. Founded in 1985, CASA is the largest membership-based immigrant rights organization in the mid-Atlantic region, with more than 90,000 members. CASA counts more than 5,000 TPS beneficiaries as members and more than 34,700 members overall who have ties to El Salvador. Salvadorans make up the dominant part of CASA’s diverse membership base. Overall, CASA’s mission is to create a more just society by building power and improving the quality of life in low-income immigrant communities. In furtherance of this mission, CASA offers a wide variety of social, health, job training, employment, and legal services to immigrant communities in Maryland, as well as the greater Washington D.C. metropolitan area, Virginia, and Pennsylvania. CASA has a long and robust track record of providing services to the TPS community, having provided assistance on over 500 TPS renewal applications. 10. Plaintiff Jose E. Guevara is a resident of in Maryland. He is a national of El Salvador has been a TPS beneficiary since 2001. 11. Plaintiff Juan Rodriguez is a resident of Maryland and is national of El Salvador. He has been a TPS beneficiary since 2001.
4

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12. Plaintiff Luis Andrade is a resident of Virginia and is a national of El Salvador.
He has been a TPS beneficiary since 2001.
13. Defendant Donald J. Trump is the President of the United States. He is the head
of the Administration and oversees the cabinet agencies and heads, including the Department of
Homeland Security and the Secretary of Homeland Security.
14. Defendant U.S. Department of Homeland Security (“DHS”) is a cabinet agency of
the United States that has responsibility for administering federal immigration laws and
programs, including TPS.
15. Defendant Kirstjen M. Nielsen is the Secretary of Homeland Security (the
“Secretary”).
IV. STATUTORY BACKGROUND
16. The Immigration and Nationality Act of 1990, 8 U.S.C. §§ 1101 to 1537 (“INA”),
authorizes the Attorney General to designate a country for protected status as follows:
[A]fter consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if—
(A) the Attorney General finds that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;
(B) the Attorney General finds that— (i) 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, (ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and (iii) the foreign state officially has requested designation under this subparagraph; or
(C) the Attorney General finds that 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, unless the Attorney General finds that
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permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States. 8 U.S.C. § 1254a(b)(1); accord H.R. Rep. No. 101-245, at 13 (1989). 17. In 2003, Congress transferred authority for TPS designation, extension and termination to the Secretary. 6 U.S.C. § 557. 3 18. TPS allows eligible nationals of a designated country (as well as individuals with no nationality who last habitually resided in the country) who are present in the United States at the time of the designation and meet other eligibility criteria to remain lawfully in the United States for the duration of the designation. 8 U.S.C. § 1254a(a), (c). 19. The INA provision for TPS is designed to provide “a more formal and orderly mechanism for the selection, processing, and registration” of individuals “from countries experiencing turmoil.” H.R. Rep. No. 100-627, at 4. 20. The INA provides for periodic review of TPS designations at least 60 days before the end of the initial designation period or any extended designation period. 8 U.S.C. § 1254a(b)(3)(A). It directs the Secretary to consult with “appropriate agencies of the Government,” “review the conditions in the foreign state (or part of such foreign state) for which a designation is in effect . . .” and “determine whether the conditions for such designation under this subsection continue to be met.” Id. 21. The INA provides for termination of TPS as follows: If the Attorney General determines under subparagraph (A) that a foreign state (or part of such foreign state) no longer continues to meet the conditions for designation under paragraph (1), the Attorney General shall terminate the designation by publishing notice in the Federal Register of the determination under this subparagraph (including the basis for the determination). Such termination is effective in accordance with subsection (d)(3), but shall not be
3 Thus, references to the Attorney General in the original provisions of the INA are now deemed to refer to the Secretary of Homeland Security. See Pub. L. No. 107-296, 116 Stat. 2135.
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effective earlier than 60 days after the date the notice is published or, if later, the expiration of the most recent previous extension under subparagraph (C). 8 U.S.C. § 1254a(b)(3)(B). 22. The INA also provides for extension of TPS designation: If the Attorney General does not determine under subparagraph (A) that a foreign state (or part of such foreign state) no longer meets the conditions for designation under paragraph (1), the period of designation of the foreign state is extended for an additional period of 6 months (or, in the discretion of the Attorney General, a period of 12 or 18 months). 8 U.S.C. § 1254a(b)(3)(C).
V. FACTUAL BACKGROUND A. Initial TPS Designation of El Salvador
23. On January 13, 2001, a 7.6 magnitude earthquake struck El Salvador, followed by powerful aftershocks, leaving 1,100 people dead, some 2,500 missing, and approximately 8,000 injured. Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14214 (Mar. 9, 2001). At the time, it was estimated that the earthquakes and subsequent landslides displaced 1.3 million people, caused nearly $3 billion in damages, including damage or destruction of over 200,000 homes and public buildings, among them 1,696 schools. Id.
24. After considering the extensive devastation of the 2001 earthquakes, and following the Salvadoran government’s formal request for protected status, the administration of President George W. Bush designated El Salvador as a TPS country. On March 2, 2001 his administration announced that Salvadorans who had been residing in the United States since February 13, 2001 would be eligible to apply for protected status, which if granted prevented
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their removal.4 The notice of designation was published in the Federal Register one week later
on March 9, 2001. 66 Fed. Reg. 14214.
B. Extensions of TPS Designation Based on Unimproved Country Conditions 25. Between 2002 and 2016, the Attorney General and, after transfer of TPS authority
to the Secretary of Homeland Security, the Secretary extended El Salvador’s protected status
eleven times. For each extension, the Attorney General or the Secretary relied on a
contemporaneous review of the conditions in El Salvador prepared by the Department of State or its recommendation to extend the protected status.5
a. On July 11, 2002, the Attorney General extended the designation of El Salvador,
citing reports from May 2002 by the Immigration and Naturalization Service
Resource Information Center and the Department of State concluding “that the conditions that warranted TPS designation continue[d] to exist.”6 Those reports
observed, inter alia, that more than 75% of the road infrastructure needed
rebuilding, and that recovery from the earthquakes was hindered by a subsequent drought.7
b. On July 16, 2003, the Secretary extended El Salvador’s TPS designation until March 9, 2005.8 This notice specifically cited a recommendation from the
4 President Bush Announces El Salvador Designated For Temporary Protected Status Following Devastating Earthquakes, (March 2, 2001, https://www.uscis.gov/sites/default/files/files/pressrelease/BushElSalvadorEng_030201.pdf. 5 See infra notes 4-32 and accompanying text. 6 Extension of the Designation of El Salvador Under the Temporary Protected Status Program; Automatic Extension of Employment Authorization Documentation for Salvadorans, 67 Fed. Reg. 46000 (July 11, 2002). 7 Id. at 46000 – 46001 (July 11, 2002). 8 Extension of the Designation of El Salvador Under Temporary Protected Status; Automatic Extension of Employment Authorization Documentation for El Salvador, 68 Fed. Reg. 42071, 42072 (July 16, 2003).
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Department of State, dated April 13, 2003, that “[a]lthough El Salvador ha[d] made progress in its post-earthquake reconstruction effort, much work remain[ed].”9 The Department of State also recommended the extension because the “large number of returnees from the United States would not be able to find jobs, or possibly housing, creating social unrest and exacerbating a critical crime situation and already dismal living conditions.”10 c. On January 7, 2005, the Secretary extended El Salvador’s TPS designation until September 9, 2006.11 This notice, like previous notices of extension, specifically cited recommendations from the Department of State and the U.S. Citizenship and Immigration Services Resource Information Center.12 Those reports observed that only one-third of the houses destroyed or damaged in the 2001 earthquakes had been rebuilt or were under construction, over 240 schools needed rebuilding, and no hospitals had been rebuilt.13 d. On June 15, 2006, the Secretary extended El Salvador’s TPS designation until September 9, 2007.14 The notice of extension, like previous notices, referred to a recommendation by the Department of State; it also cited research by the USCIS Office of Refugee, Asylum, and International Operations, documented in a report
9 Id. at 42072. 10 Id. 11 Automatic Extension of Employment Authorization Documentation for El Salvador TPS Beneficiaries, 70 Fed. Reg. 1450, 1451 (Jan. 7, 2005). 12 Id. at 1451. 13 Id. 14 Extension of the Designation of Temporary Protected Status for El Salvador; Automatic Extension of Employment Authorization Documentation for El Salvadorian TPS Beneficiaries, 71 Fed. Reg. 34637 (June 15, 2006).
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on conditions on rebuilding efforts.15 Those reports stated that only 46 percent of the homes damaged or destroyed had been repaired in the five years since the earthquakes, reconstruction on the country’s seven main hospitals was still pending, and that recovery efforts were curtailed by a 2005 volcanic eruption, as well as flooding and mudslides from a hurricane.16 e. On August 21, 2007, the Secretary extended El Salvador’s TPS designation until March 9, 2009.17 Citing a request by the government of El Salvador for the extension and a review of the country conditions by DHS and the Department of State, DHS determined “that the conditions that prompted the designation of El Salvador for TPS continue[d] to be met.”18 The extension notice observed that only 50 percent of the homes damaged by the earthquakes had been repaired and only two of the seven main hospitals in the country were undergoing reconstruction, while the others were in various stages of pre-reconstruction.19 f. On October 1, 2008, the Secretary extended El Salvador’s TPS designation until September 9, 2010, citing a year-long review of the country conditions by DHS and the Department of State.20 This extension notice stated that still only half of
15 Id. 16 Id. at 34637-8. 17 Extension of the Designation of El Salvador for Temporary Protected Status; Automatic Extension of Employment Authorization Documentation for Salvadoran TPS Beneficiaries, 72 Fed. Reg. 46649 (Aug. 21, 2007). 18 Id. 19 Id. at 46650. 20 Extension of the Designation of El Salvador for Temporary Protected Status, 73 Fed. Reg. 57128, 57129 (Oct. 1, 2008).
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the almost 300,000 damaged or destroyed homes had been rebuilt or repaired and reconstruction of only one of the seven main hospitals was complete.21 g. On July 9, 2010, the Secretary extended El Salvador’s TPS designation until March 9, 2013, citing a year-long review of the country conditions by DHS and the Department of State.22 Among the facts presented to warrant the extension was that “Department of State… report[ed] that of the 276,000 homes destroyed in 2001, only approximately half have been rebuilt to date.”23 The notice also pointed to post-2001 natural disasters, including a tropical storm and a volcanic eruption in 2005, a series of earthquakes in 2006, and a hurricane in 2009, as factors contributing to the decision to extend the TPS designation.24 h. On January 11, 2012, the Secretary extended El Salvador’s TPS designation until September 9, 2013, citing a year-long review of country conditions by DHS and Department of State.25 This extension notice also pointed out that “rebuilding efforts have been further complicated by more recent natural disasters,” including “Hurricanes Adrian and Stan in 2005, Hurricane Felix in 2007, Hurricane Ida in 2009, and . . . Tropical Storm Agatha in 2010.”26 Half of the 276,000 destroyed or
21 Id. at 57129. 22 Extension of the Designation of El Salvador for Temporary Protected Status and Automatic Extension of Employment Authorization Documentation for Salvadoran TPS Beneficiaries, 75 Fed. Reg. 39556, 39557 (July 9, 2010). 23 Id. at 39557- 39558. 24 Id. at 39558. 25 Extension of the Designation of El Salvador for Temporary Protected Status, 77 Fed. Reg. 1710, 1711 (Jan. 11, 2012). 26 Id. at 1712.
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damaged homes from the earthquake were still in need of rebuilding or repairing.27 i. On May 30, 2013, the Secretary extended El Salvador’s TPS designation until March 9, 2015, noting that DHS and Department of State had conducted a yearlong review of the country conditions and citing reports by USAID of the continuing effects of the 2001 earthquakes and the impact of subsequent natural disasters as “slow[ing] and disrupt[ing]” recovery, and “compound[ing] the already substantial disruption to living conditions resulting from the 2001 earthquakes.”28 j. On January 7, 2015, the Secretary extended El Salvador’s TPS designation until September 9, 2016.29 Again, DHS noted that both it and the Department of State had conducted a year-long review of the conditions in El Salvador.30 The reasons for the extension included not only the continued disruption to living conditions from the 2001 earthquake, but also subsequent natural disasters, including a 2005 tropical storm, a 2006 earthquake, tropical storms in 2009 and 2010, a tropical depression in 2011, another tropical storm in June 2013, and an earthquake in December 2013. The extension notice cited “[t]hese environmental disasters, as well as others not detailed herein, [as having] caused substantial setbacks to infrastructure recovery and development since the 2001 earthquakes.”31 In
27 Id. 28 Extension of the Designation of El Salvador for Temporary Protected Status, 78 Fed. Reg. 32418, 32419 (May 30, 2013). 29 Extension of the Designation of El Salvador for Temporary Protected Status, 80 Fed. Reg. 893, 894 (January 7, 2015). 30 Id. at 894. 31 Id. at 894-895.
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addition, the extension referenced a reported “housing deficit … of 446,000, a profound deficit for a country of 6.1 million people,” which would only be “exacerbated by the return of thousands of Salvadoran nationals currently residing in the United States under TPS.”32 26. On July 8, 2016, the Secretary extended El Salvador’s TPS designation until March 9, 2018. Extension of the Designation of El Salvador for Temporary Protected Status, 81 Fed. Reg. 44645 (July 8, 2016).33 As with all previous extensions, the notice stated that the decision reflects a comprehensive review of current country conditions. Id. at 44647. The reasons given for this extension of TPS included the continuing effects of the 2001 earthquake— as well as the effects of “subsequent natural disasters and environmental challenges,” and the increase in violence and insecurity due in part to the “significant criminal gang activity.” Id. Among the issues impacting the decision were a housing deficit of approximately 630,000 houses, with homes from the earthquake still in need of rebuilding, a regional drought contributing to food insecurity, a coffee rust epidemic, outbreak of mosquito borne illnesses, a lack of potable water affecting ten percent of the population, a workforce in which approximately one third of the population was underemployed or unable to find full-time work, and a poverty rate of nearly 32 percent. Id. C. January 2018 Announcement of Termination 27. Since the last extension of El Salvador’s TPS designation in 2016, very little in that country has changed. As described herein, see section D, infra, an overwhelming number of
32 Id. at 894. 33 The re-registration deadline was later extended to March 19, 2018. See USCIS, Temporary Protected Status Designated Country: El Salvador (last reviewed/updated: 01/18/2018), https://www.uscis.gov/humanitarian/temporary-protected-status/temporary-protected-statusdesignated-country-el-salvador.
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the conditions that supported the 2016 extension, as well as the initial designation and other extensions, are still present. Some conditions have worsened. Persistent infrastructure failures and housing shortages, multiple natural disasters, pervasive violence and lack of security, and relentlessly poor economic prospects continue to impede recovery efforts from the 2001 earthquakes and subsequent exacerbating natural disasters. Substantially disrupted living conditions remain a critical issue in El Salvador. Further, high displacement rates of persons living in El Salvador, as well as the country’s high underemployment and poverty rates, preclude integration of tens of thousands of returned workers into the country’s labor market.
28. Despite the well-documented continuing crises in El Salvador, on January 8, 2018, the Secretary announced that the country’s TPS designation would be terminated,34 and ten days later DHS published a notice of the termination decision in the Federal Register. 83 Fed. Reg. 2654 (Jan. 18, 2018). The notice states that the termination of El Salvador’s TPS designation will be effective on September 9, 2019. Id. D. Continued Dire Conditions in El Salvador
29. Multiple conditions in El Salvador continue to substantially disrupt living conditions, precluding the safe return of large numbers of Salvadoran nationals after years, and in some cases decades, in the United States.
Compromised Housing and Infrastructure Resulting from Multiple Natural Disasters 30. Not only have conditions not improved since the last designation of TPS for El Salvador in 2016, they have actually worsened. Throughout 2016, natural disasters led to the
34 Press Release, Secretary of Homeland Security Kirstjen M. Nielsen Announcement on Temporary Protected Status for El Salvador (Jan. 8, 2018), https://www.dhs.gov/news/2018/01/08/secretary-homeland-security-kirstjen-m-nielsenannouncement-temporary-protected.
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displacement of significant numbers of Salvadorans and caused major infrastructure damage in
the country,35 further reducing any gains made in recovering from the 2001 earthquakes. In
November 2016, a 7.0-magnitude earthquake struck El Salvador, prompting evacuations in
coastal areas.36 Less than five months later, in April 2017, a 5.1-magnitude earthquake—the
strongest of more than 50 registered earthquakes that shook El Salvador over a 24-hour period—
caused landslides and damaged homes and roads throughout the country.37
31. In 2017, torrential rains and storms further damaged El Salvador’s infrastructure.
In June 2017, flooding from intense rains engulfed more than 150 homes, forced the evacuation
and displacement of hundreds of people, damaged streets, highways, and bridges, and led to
multiple deaths and injuries.38 Heavy rains again struck the country in September 2017, causing
additional deaths, injuries, and damage to dozens of roads, highways, and homes.39
32. Habitat for Humanity reports that El Salvador continues to suffer from critical
housing shortages, affecting nearly one million families, with 6 out of 10 families living in
35 IDMC, Global Report on Internal Displacement (May 2017), at 114, http://www.internaldisplacement.org/global-report/grid2017/pdfs/2017-GRID.pdf. 36 Guy Birchall, Tsunami Danger El Salvador hit by massive 7 magnitude earthquake as a tsumani warning is issued, THE SUN, (Nov. 24, 2016, 8:07 p.m., updated Nov. 24, 2016, 8:29 p.m.), https://www.thesun.co.uk/news/2258714/el-salvador-hit-by-massive-7-2-magnitudeearthquake-as-a-tsunami-warning-is-issued/. 37 Telesur, At Least 1 Dead in El Salvador After 5.1 Magnitude Earthquake, Telesurtv.net (Apr. 10, 2017), https://www.telesurtv.net/english/news/At-Least-One-Dead-in-El-Salvador-After-5.1Magnitude-Earthquake-20170410-0038.html. 38 Associated Press, 3 dead, hundreds displaced in El Salvador flooding, DAILY MAIL (June 16, 2017, 12:10 EST), “http://www.dailymail.co.uk/wires/ap/article-4611600/3-dead-hundredsdisplaced-El-Salvador-flooding.html; Gobierno de la República de El Salvador, Ministerio del Interior, Dirección General de Protección Civil, Informe Preliminar de Affectaciones por Lluvias Desde el 13 de Junio a la Fecha No 8, (June 21, 2017), http://proteccioncivil.gob.sv/informe-preliminar-de-afectaciones-por-lluvias-desde-el-13-dejunio-a-la-fecha-n-8-21junio2017/. 39 Uveli Alemán, Dos muertes y 39 evacuados por lluvias del fin de semana, EL MUNDO (Sept. 25, 2017), http://elmundo.sv/dos-muertes-y-39-evacuados-por-lluvias-del-fin-de-semana/.
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inadequate housing.40 In 2017, a United Nations organization reported that the country’s housing deficit was 360,000 homes.41
Weak Economy and Persistent Poverty 33. El Salvador continues to suffer from persistently low levels of economic growth and the significant challenges to its economy that the 2016 extension notice recognized.42 The
Salvadoran economy grew by only 2.4 percent in 2016, and is predicted to grow by only 2.3 percent in 2017.43 This stagnant rate of economic expansion has made El Salvador the slowest growing economy in Central America.44 By comparison, Gross Domestic Product (“GDP”) growth in Nicaragua in 2016 was approximately 4.6 percent,45 and 4.8 percent in Panama.46
34. Available data on labor market conditions show no improvement since the 2016
TPS renewal for El Salvador. In May 2017, a report by El Salvador’s Director General of
Statistics and Census stated that approximately one-third of the country’s urban labor force
40 Habitat for Humanity, Habitat for Humanity in El Salvador, habitat.org (last visted Mar. 7, 2018), https://www.habitat.org/where-we-build/el-salvador; Habitat for Humanity, Country Profile El Salvador, habitat.org, https://www.habitat.org/sites/default/files/ElSalvador_CP_June2017-2.pdf. 41 SDGF, Case Study Sustainable urban development in El Salvador, sdgfund.org (2017) at 2, http://www.sdgfund.org/case-study/sustainable-urban-development-el-salvador. 42 USAID, Economic Opportunities, USAID (last updated: Jan. 2, 2018), https://www.usaid.gov/el-salvador/economic-opportunities. 43 Forbes Staff, El Salvador cerrará con un crecimiento de 2.4% en 2017, FORBES MÉXICO (Dec. 13, 2017), https://www.forbes.com.mx/el-salvador-cerrara-con-un-crecimiento-de-2-4-en-2017/. 44 The World Bank, The World Bank In El Salvador, worldbank.org (2018), http://www.worldbank.org/en/country/elsalvador/overview. 45 The World Bank, The World Bank in Nicaragua, http://www.worldbank.org/en/country/nicaragua/overview (last updated Oct. 10, 2017). 46 The World Bank, The World Bank in Panama, http://www.worldbank.org/en/country/panama/overview (last updated Oct. 10, 2017).
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remains underemployed or unable to find full-time work. 47 That report observed that over 40
percent of Salvadoran households live in poverty or extreme poverty.48
35. Remittances—money sent from Salvadoran nationals living abroad—remain
critical to El Salvador’s economy. In 2016, remittances were the country’s greatest single source
of income and, surpassing $4.5 billion, accounted for approximately 17% of El Salvador’s
GDP.49 El Salvador’s Central Bank documented a 10.5% increase in remittances during the first
half of 2017,50 and from January through November of 2017, $4.51 billion in remittances were
sent to homes in El Salvador.51 Over 97% of the remittances sent to El Salvador come from
relatives residing in the United States.52 The amount of remittances sent annually to El Salvador
dwarfs the $88 million that El Salvador received in aid from the United States in 2017.53
47 Gobierno de la República de El Salvador, Ministerio de Economía, Dirección General de Estadística y Censos, Encuesta de Hogares de Propósitos Múltiples 2016 at 31, 42, http://www.digestyc.gob.sv/index.php/temas/des/ehpm/publicacionesehpm.html?download=616%3Apublicacion-ehpm-2016. 48 Id. 49 Joshua Partlow, Salvadorans fear TPS decision will be a huge economic blow but pin hopes on Congress, WASHINGTON POST (Jan. 8, 2018), https://www.washingtonpost.com/world/the_americas/salvadorans-fear-tps-decision-will-be-ahuge-economic-blow-to-their-country/2018/01/08/eefd9ab4-f486-11e7-9af7a50bc3300042_story.html?utm_term=.3a2f19da9288; The World Bank, Personal remittances, received (% of GDP), https://data.worldbank.org/indicator/BX.TRF.PWKR.DT.GD.ZS?end=2016&locations=SV&star t=1976. 50 Banco Central de Reserva de El Salvador, Remesas familiars crecen 10.5% en el primer semestre y alcanzan US$2,454.2 millones (July 18, 2017), http://www.bcr.gob.sv/bcrsite/uploaded/content/category/756736864.pdf. 51 Patrick Gillespie, Trump clamps down on El Salvador’s ‘lifeline’, CNNMoney (Jan. 8, 2018, 5:32PM ET), http://money.cnn.com/2018/01/08/news/economy/el-salvadorremittances/index.html. 52 Banco Central de Reserva de El Salvador, Remesas familiars crecen 10.5% en el primer semestre y alcanzan US$2,454.2 millones (July 18, 2017), http://www.bcr.gob.sv/bcrsite/uploaded/content/category/756736864.pdf 53 Gillespie, supra note 51.
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According to data provided by the Salvadoran government in April 2017, approximately one in five Salvadoran households receives remittances.54
36. Cessation of remittances from TPS holders could have catastrophic consequences on the already-fragile Salvadoran economy.55
Pervasive Violent Crime and Lack of Safety 37. Gang and criminal violence recognized in the 2016 extension notice continues to destabilize El Salvador. 38. El Salvador has one of the world’s highest homicide rates.56 According to one expert, El Salvador’s homicide rate in 2001, the year of its TPS designation, was six people per day.57 In 2017, the homicide rate was nearly twice that rate.58
54 Banco Central de Reserva de El Salvador, Remesas familiares registran crecimiento de 12.4% al primer trimestre de 2017 (April 24, 2017), http://www.bcr.gob.sv/bcrsite/uploaded/content/category/2017028216.pdf. 55 See Gillespie, supra note 51; Ryan Devereaux, Ignoring Violence in El Salvador, Trump Ends Years of Special Protective Status for Immigrants, THE INTERCEPT (Jan. 8, 2018), https://theintercept.com/2018/01/08/el-salvador-immigration-tps-trump/. 56 Raymond Bonner, America’s Role in El Salvador’s Deterioration, The Atlantic (Jan. 20, 2018), https://www.theatlantic.com/international/archive/2018/01/trump-and-elsalvador/550955/; Reuters Staff, U.N. finds possible extrajudicial killings in El Salvador gang offensive, Reuters (Feb. 5, 2018), https://www.reuters.com/article/us-el-salvador-violence/u-nfinds-possible-extrajudicial-killings-in-el-salvador-gang-offensive-idUSKBN1FQ0E1. 57 Josh Boswell, Donald Trump’s decision to expel Salvadorans could empower deadly MS-13 gang, warn experts, THE TELEGRAPH (Jan. 14, 2018), http://www.telegraph.co.uk/news/2018/01/14/donald-trumps-decision-send-salvadorans-homecould-empower-deadly/. 58 Boswell, supra note 57.
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39. In 2016, as reported by USAID, the murder rate in El Salvador was 81 per 100,000 people59; in comparison, the U.S. rate for the same year was 5.4 per 100,000.”60 Since January 2010, at least 38 U.S. citizens have been murdered in El Salvador. 61
40. According to the U.S. Department of State, nearly one out of every five persons in El Salvador has been a victim of violent crime.62
41. Since at least January 2016, the U.S. Department of State has warned U.S. citizens that “crime and violence levels in El Salvador remain critically high.”63
42. On January 10, 2018, the U.S. State Department issued a Level Three travel
advisory for El Salvador that warns travelers to “[r]econsider travel” to the country “due to crime.”64 The advisory states that “[v]iolent crime, such as murder, assault, rape, and armed
robbery, is common,” and that “[g]ang activity, such as extortion, violent street crime, and narcotics and arms trafficking, is widespread.”65 The advisory also states that “[l]ocal police may lack the resources to respond effectively to serious criminal incidents.”66
59 USAID, USAID/El Salvador Country Fact Sheet, Nov. 2017, https://www.usaid.gov/sites/default/files/documents/1862/El_Salvador_External_Fact_Sheet__November_2017.pdf. 60 FBI, 2016 Crime in the United States, Table 11, https://ucr.fbi.gov/crime-in-theu.s/2016/crime-in-the-u.s.-2016/tables/table-11. 61 U.S. Embassy El Salvador, Security Message for U.S. Citizens: Travel Warning – El Salvador, Jan. 15, 2016, https://sv.usembassy.gov/sm-01152016/. 62 Dept. of State, El Salvador 2016 Human Rights Report (report updated 4/12/2017) at 1, https://www.state.gov/documents/organization/265798.pdf. 63 U.S. Embassy El Salvador, supra note 61. 64 U.S. Dept. of State, supra note 2. https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/el-salvador-traveladvisory.html. 65 Id. 66 Id.
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43. For women and girls in particular, El Salvador has been identified as one of the world’s deadliest countries.67 Approximately ten women per day experience violence or sexual assault in El Salvador, and 7 of every 10 victims of sexual violence are under the age of 20.68
44. A delegation from the Migration and Refugee Services of the U.S. Conference of
Catholic Bishops (“USCCB Delegation”) traveled to El Salvador in August 2017 to examine the
country’s conditions, and it found that violence was pervasive and permeated most aspects of Salvadoran society.69 The USCCB Delegation’s report stated that crime, including extortion,
appeared to “be increasing” in gang-infiltrated areas of El Salvador, and that the failure to satisfy
extortion or gang recruitment demands resulted in entire families becoming vulnerable to forced displacement from their homes.70
45. In a report published in August 2017, the U.N. World Food Programme identified
the violence in El Salvador as “a humanitarian emergency” that “has significantly impeded development” in the country.71 Violence and the need to escape from life-threatening situations was identified as one of the principal motivations for Salvadoran emigration.72
46. A significant portion of El Salvador’s population continues to be displaced by
criminal and gang violence. The State Department’s 2017 Salvadoran Human Rights Report
stated that over 48,000 students dropped out of school in 2015 due to gang threats, crime, or
67 Catalina Lobo-Guerrero, Opinion, In El Salvador, ‘Girls Are a Problem’, N.Y. TIMES (Sept. 2, 2017), https://www.nytimes.com/2017/09/02/opinion/sunday/el-salvador-girls-homicides.html. 68 Id. 69 U.S. Conf. of Catholic Bishops/Migration & Refugee Services, Temporary Protected Status: A Vital Piece of the Central American Protection and Prosperity Puzzle (Oct. 2017), at 4, http://www.usccb.org/about/migration-policy/fact-finding-mission-reports/upload/el-salvadorhonduras-report-20171016.pdf. 70 Id. 71 U.N. World Food Programme, Food Security and Emigration (Aug. 2017), at 23, https://reliefweb.int/sites/reliefweb.int/files/resources/WFP-0000022124.pdf. 72 Id. at 15, 19.
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forced displacement due to gang activity.73 In 2017, the Internal Displacement Monitoring Centre (“IDMC”) estimated that nearly 220,000 people were forced to flee violence in El Salvador in 2016 alone, ranking El Salvador second in the world in the number of new displacements relative to population size.74 The USCCB Delegation noted that the estimated number of displaced persons in El Salvador is a “contested issue,” ranging from 220,000 to 400,000.75 Both the IDMC and the USCCB Delegation observed that the Salvadoran government has failed to acknowledge the scale of this displacement and has yet to establish a national strategy or legislative framework to comprehensively monitor, address, or respond to the displacement or its motivating violence.76
47. In March 2017, the Department of State issued a report on El Salvador’s human rights practices.77 This report described rampant human rights abuses throughout El Salvador that “stem[] from . . . widespread extortion and other crime,” “widespread corruption,” “weak rule of law, which contributed to high levels of impunity and government abuse, including unlawful killings by security forces,” “widespread” violence against women and girls, and the commercial sexual exploitation of women and children.78 The report observed that impunity persisted despite government attempts to remedy the violence and abuse.79
73 Dept. of State, El Salvador 2016 Human Rights Report (Mar. 2017), at 17, https://www.state.gov/documents/organization/265798.pdf. 74 IDMC, supra note 35, at 10, 22. 75 U.S. Conf. of Catholic Bishops/Migration & Refugee Services, supra note 69, at 8. 76 IDMC, supra note 35 at 22; U.S. Conf. of Catholic Bishops/Migration & Refugee Services, supra note 69 at 8. 77 Dept. of State, supra note 73, at 1. 78 Id. at 1, 21. 79 Id. at 1.
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E. Multiple Leaders Urged the Administration to Extend TPS Designation for El Salvador 48. Recognizing that conditions that served as the basis for designating El Salvador as
a protected status country and for every extension have not significantly improved, and following signals from the Administration that El Salvador’s TPS designation would be terminated, throughout the later part of 2017 and into January 2018 numerous government officials, legislators, industry leaders, and faith-based organizations implored the Administration to extend rather than rescind the designation. Their entreaties fell on deaf ears.
49. For example, on September 11, 2017, a bipartisan group of 116 lawmakers wrote former Acting DHS Secretary Elaine Duke strongly urging the Administration to extend TPS designations for El Salvador and Honduras. 80 The letter emphasized that “conditions have not sufficiently improved since the most recent extension,” and recognized that violence and scarce job opportunities continue to impede recovery from the natural disasters that led to the original TPS designation. 81 The lawmakers wrote that “[t]he potential return of hundreds of thousands of former TPS holders to . . . El Salvador would likely bring destabilizing consequences throughout the region.”82
50. On October 19, 2017, U.S. Senators Ben Cardin and Chris Van Hollen of Maryland led twenty colleagues in sending a letter to Secretary of State Rex Tillerson and Acting Secretary Duke that urged the Trump Administration to extend TPS designations for El Salvador as well as Honduras. They cited the environmental, economic, and security challenges, natural
80 Letter from James McGovern, et al., Member of Congress to Hon. Elaine C. Duke, Acting Secretary, Dept. of Homeland Security (Sept. 11, 2017), https://mcgovern.house.gov/uploadedfiles/tps_2017_-_extend_tps_salvadorans-honduransto_elaine_duke-dhs-final.pdf. 81 Id. 82 Id.
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disasters, high levels of violence and insecurity, high rates of sexual violence and poverty that continue to preclude recovery in El Salvador. 83 “Clearly,” the letter continued, “neither [El Salvador nor Honduras] has the capacity and resources at this time to safely absorb the return of tens of thousands of their nationals,” and their forced return will “have destabilizing consequences, strain[] recovery efforts and exacerbat[e] existing challenges to achieving sustained economic growth and development.”84
51. On October 26, 2017, the U.S. Chamber of Commerce called on the Trump administration to extend TPS designations for El Salvador and other countries. The letter emphasized that “[t]he labor force participation for [El Salvador’s] TPS populations is over 80%,” and that loss of employment authorization for TPS holders “would adversely impact several key industries where TPS recipients make up a significant amount of the workforce,” specifically food processing, hospitality, home healthcare services and construction.85
52. On October 31, 2017, the USCCB sent a letter urging Acting Secretary Duke to extend the TPS extensions for El Salvador and Honduras. Based on their August 2017 delegation trip to these two countries and first-hand observations described above, see ¶ 44, supra, the USCCB delegation determined that the Salvadoran government would be unable to ensure citizen safety, remedy humanitarian concerns, or adequately integrate or protect returning
83 Press Release, U.S. Senator Ben Cardin, Cardin, Van Hollen Urge Trump Administration to Extend Temporary Protected Status for Honduras and El Salvador (Oct. 19, 2017), https://www.cardin.senate.gov/newsroom/press/release/cardin-van-hollen-urge-trumpadministration-to-extend-temporary-protected-status-for-honduras-and-el-salvador. 84 Id. 85 Letter from Neil L. Bradley, SVP & Chief Policy Officer, Chamber of Commerce of the United States to Hon. Elaine Duke, Acting Secretary, Dept. of Homeland Security (Oct. 26, 2017), https://www.uschamber.com/sites/default/files/171024_temporaryprotectedstatus_dhs_duke.pdf.
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nationals. Given the current country conditions, the letter advised, “[t]erminating TPS at this time would be inhumane and untenable.”86
53. On November 1, 2017, U.S. Representative Jimmy Gomez and 78 of his House colleagues wrote Acting Secretary Duke and White House Chief of Staff John Kelly urging the renewal of TPS designations for El Salvador and other countries. The members of Congress observed that “[i]nfrastructure problems related to the[] [natural] disasters, including lack of potable water, housing shortage, widespread hunger, and unemployment continue to permeate the region,” and that “staggering homicide rates,” “transnational gang activity,” and “violence continue[] to ravage El Salvador.” 87 They emphasized that “TPS recipients are hardworking contributors to the American economy and do not represent a risk to public safety,” and that “[e]xtending TPS for . . . El Salvador . . . is a compassionate and pragmatic choice.”88
54. On December 21, 2017, Senator Cardin wrote to Secretary of State Rex Tillerson and Secretary Nielsen again requesting extension of El Salvador’s TPS designation. Senator Cardin observed that El Salvador “has consistently suffered per capita murder rates that have been among the worst in the world,” and that “[t]hese troubling security statistics are compounded” by the poverty, a historic drought in 2016, and limited government resources in the country. He wrote that “[t]he disorderly repatriation of [the nearly 200,000 individuals who
86 Letter from USCCB, et al. to Hon. Elaine Duke, Acting Secretary, Dept. of Homeland Security (Oct. 31, 2017), https://justiceforimmigrants.org/2016site/wpcontent/uploads/2017/10/Catholic-Partner-Letter-to-DHS-requesting-TPS-Ext.pdf. 87 Letter from Jimmy Gonzalez, Member of Commerce, et al. to Hon. John Kelly, Chief of Staff, The White House and Hon. Elaine C. Duke, Acting Secretary, Dept. of Homeland Security (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. 88 Id.
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would be subject to immediate deportation] . . . could potentially exacerbate already precarious conditions in the country” and “would create unnecessary burdens and separate families.”89
55. In early January 2018, Salvadoran officials, including President Salvador Sánchez Cerén, appealed to the Secretary not to rescind the TPS designation, explaining that it would wreak havoc on El Salvador’s economy.90 F. Anti-Latino Immigrant Motivation Behind Termination
56. The Administration’s dismissal of the urgent and emphatic appeals described immediately above and its disregard of the continuing dire conditions in El Salvador reflect that the decision to terminate TPS was not motivated by an objective assessment of current conditions, but was driven by bias against Latino immigrants. That bias is evidenced in the termination notice’s cursory and inadequate review of the actual conditions in El Salvador, including its dismissal of facts about the actual conditions, and the President’s multiple statements disparaging Latino and other immigrants of color.
Insufficient Review of Current Conditions in El Salvador 57. As described above, the 2016 decision to extend protected status for eligible Salvadorans and previous extension decisions were based on careful assessment of the facts, including statistics, on the conditions in El Salvador as they relate to safety, infrastructure, housing, employment, security, and other factors affecting living conditions. In contrast, the January 18, 2018 termination notice fails to account for key facts and statistics about present-day
89 Press Release, U.S. Senator Ben Cardin, Cardin Requests Extension of Protected Status for Salvadorans in the United States, (Dec. 21, 2017), https://www.cardin.senate.gov/newsroom/press/release/cardin-requests-extension-of-protectedstatus-for-salvadorans-in-the-united-states. 90 Ryan Devereaux, Ignoring Violence in El Salvador, Trump Ends Years of Special Protective Status for Immigrants, THE INTERCEPT (Jan. 8, 2018), https://theintercept.com/2018/01/08/elsalvador-immigration-tps-trump/.
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conditions in El Salvador. Indeed, the magnitude of information that the Administration outright ignored strongly indicates that the disregard was not a mere oversight.
58. The January 18, 2018 Federal Register notice states that DHS reviewed conditions in El Salvador, and based on that review and input from appropriate U.S. Government agencies “determined that the conditions supporting El Salvador’s 2001 designation for TPS on the basis of environmental disaster due to the damage caused by the 2001 earthquakes are no longer met.” Id. at 2655-56. However, the termination notice fails to account for many of the grave conditions that previously warranted TPS extensions and, as described above, continue to persist in El Salvador.
59. For example, the notice of termination states that “[r]ecovery efforts relating to the 2001 earthquakes have largely been completed,” and asserts broadly that “[d]amaged schools and hospitals have been reconstructed and repaired, homes have been rebuilt, and money has been provided for water and sanitation and to repair damaged roads and other infrastructure.” Id. at 2656. Unlike the initial notice of designation and the notices of extension, the termination notice cites no statistics on those key country conditions.
60. The notice fails to address the subsequent natural disasters that exacerbated the damage to the country’s infrastructure and housing. Notably, the notice offers no explanation of how—within the narrow span of a year and a half—El Salvador could have cured the 630,000 housing deficit (including homes that had not yet been rebuilt following the destruction of the 2001 earthquakes) that is identified in DHS’s 2016 extension notice. Compare 81 Fed. Reg. at 44647 with 83 Fed. Reg. at 2656.
61. The termination notice states in conclusory fashion that “[t]he social and economic conditions affected by the earthquakes have stabilized,” and that “people are able to
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conduct their daily activities without impediments directly related to damage from the earthquakes.” Id. It fails to account for the high rates of violence, food and water insecurity, and poverty, as well as the country’s weak governance and public security crises, described above, that continue to disrupt living conditions in El Salvador.
62. Indeed, two days after the Administration announced the termination of El Salvador’s TPS designation the Department of State issued a travel advisory that contradicted the termination notice. As previously described, the Department of State advised reconsideration of travel to El Salvador and warned that “[v]iolent crime, such as murder, assault, rape, and armed robbery, is common,” that “[g]ang activity, such as extortion, violent street crime, and narcotics and arms trafficking, is widespread,” and that “[l]ocal police may lack the resources to respond effectively to serious criminal incidents.”91
63. The termination notice asserts that El Salvador’s economy is “steadily improving.” Id. The notice points to the country’s unemployment rate, which remained consistent at seven percent in 2014 through 2016, as well as the fact that El Salvador’s GDP reached a high of $26.80 billion in 2016. Id. However, prior extension notices cited El Salvador’s high underemployment rate, which relate directly to the ability to find employment there. See supra ¶ 29. El Salvador’s underemployment rate has not improved since the most recent TPS extension. See supra ¶ 37. The termination notice also fails to consider that El Salvador’s GDP and economic stability is heavily dependent on U.S.-based remittances from TPS recipients, as set forth above, and that an end to those remittances would cause severe strains on an already fragile economy.
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64. The termination notice acknowledges that “[g]overnment assistance and resources
for returnees are reportedly limited,” yet baldly asserts that the Salvadoran government, U.S.
government, and international organizations are all cooperating “to improve security and
economic opportunities in El Salvador” for the returned. 83 Fed. Reg. at 2656. The notice
provides no supporting details.
65. Prior to the announcement that El Salvador’s TPS designation would be
terminated, White House Chief of Staff John Kelly pressured acting DHS Secretary Elaine Duke
to terminate the TPS designation of Honduras, another Central American country, telling her that
continuing the designation “prevents [the Administration’s] wider strategic goal” on immigration, according to Administration officials. 92 Duke resisted the pressure and, according to a White House official, told Kelly that she planned to resign.93 Current DHS Secretary Nielsen is reported to be a close confidant of Chief of Staff Kelly.94
Disparaging Statements About Latino and Other Immigrants of Color
66. Throughout President Trump’s campaign and presidency, he has repeatedly made
statements that reflect an anti-immigrant animus based on race, ethnicity and national origin and
are directed at immigrants from El Salvador, other Latino countries, and other TPS-designated
92 Nick Miroff, White House chief of staff tried to pressure acting DHS secretary to expel thousands of Hondurans, officials say, WASHINGTON POST (Nov. 9, 2017), https://www.washingtonpost.com/world/national-security/white-house-chief-of-staff-tried-topressure-acting-dhs-secretary-to-expel-thousands-of-hondurans-officialssay/2017/11/09/914d3700-c54a-11e7-a4413a768c8586f1_story.html?utm_term=.076d78250e7e. 93 Id. 94 Nick Miroff, Senate confirms Kirstjen Nielsen, a top White House aide, to lead Homeland Security, WASHINGTON POST (Dec. 5, 2017), https://www.washingtonpost.com/world/nationalsecurity/senate-confirms-kirstjen-nielsen-a-top-white-house-aide-to-lead-homelandsecurity/2017/12/05/65337056-d9fb-11e7-b859fb0995360725_story.html?utm_term=.314bd7b928c7.
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countries. This evidence of the Administration’s overt animus against Latino immigrants and other immigrants of color supports an inference that DHS’s decision to terminate El Salvador’s TPS designation was motivated by discrimination on the basis of race and national origin. For example:
a. On June 16, 2015, when announcing his presidential campaign, then-candidate Trump said: “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 . . . They’re sending us not the right people. It’s coming from more than Mexico. It’s coming from all over South and Latin America . . . .”95
b. On August 21, 2015, two men urinated on a sleeping Latino man and then beat him with a metal pole. At the police station, they stated, “Donald Trump was right; all these illegals need to be deported.” 96 When asked about the incident, Trump failed to condemn the men, stating instead that they were “passionate.” 97 Specifically, Trump said “[i]t would be a shame . . . I will say that people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate.”98
95 Washington Post Staff, Full text: Donald Trump announces a presidential bid, WASHINGTON POST (June 16, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/fulltext-donald-trump-announces-a-presidential-bid/?utm_term=.963f83af6ca3. 96 Adrian Walker, ‘Passionate’ Trump fans behind homeless man’s beating?, BOSTON GLOBE (Aug. 21, 2015), https://www.bostonglobe.com/metro/2015/08/20/after-two-brothers-allegedlybeat-homeless-man-one-them-admiringly-quote-donald-trump-deportingillegals/I4NXR3Dr7litLi2NB4f9TN/story.html. 97 Id. 98 Id.
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c. On May 25, 2016, in response to anti-Trump protestors in New Mexico, Trump tweeted that the protestors “were thugs who were flying the Mexican flag. The rally inside was big and beautiful, but outside, criminals!”99
d. On June 2, 2016, then-candidate Trump told the Wall Street Journal that U.S. District Judge Curiel of the Southern District of California could not be fair in presiding over a lawsuit against Trump University because Judge Curiel was “of Mexican heritage,” “Hispanic,” and a member of a Latino Lawyers’ association, which Trump characterized as being “very strongly pro-Mexican.” 100 Trump asserted that Judge Curiel’s ancestry presented “an inherent conflict of interest” given Trump’s campaign pledge to build a wall along the southern U.S. border. 101 U.S. House Speaker Paul Ryan stated that he “disavow[ed] these comments,” and explained that “[c]laiming a person can’t do the job because of their race is sort of like the textbook definition of a racist comment. I think that should be absolutely disavowed. It’s absolutely unacceptable.”102
e. On January 25, 2017, newly-inaugurated President Trump issued two Executive Orders: one that called for the immediate construction of a wall along the U.S.Mexico border and another that ordered the withholding federal funds from sanctuary cities that limited their cooperation with federal immigration officials. E.O. 13767
99 Donald J. Trump (@realDonaldTrump), TWITTER (May 25, 2016, 6:39 AM), https://twitter.com/realdonaldtrump/status/735465352436408320. 100 Tom Kertscher, Donald Trump’s racial comments about Hispanic judge in Trump University case, politifact.com (June 8, 2016, 4:29 p.m.), http://www.politifact.com/wisconsin/article/2016/jun/08/donald-trumps-racial-comments-aboutjudge-trump-un/. 101 Id. 102 Id.
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(border wall); E.O. 13768, sec. 9 (Jan. 25, 2017) (sanctuary cities). When delivering a speech at DHS, President Trump cited Central American migration as a purported justification for both orders, and asserted that the country is “in the middle of a crisis on our southern border” and condemned a so-called “unprecedented surge” of migrants from Central America for eroding safety in the United States, claiming that these two orders “will save thousands of lives.” 103 f. In June 2017, during an Oval Office meeting, President Trump said that immigrants from Haiti “all have AIDS” and that Nigerian immigrants, once they had seen the United States, would never “go back to their huts.” Officials who attended the meeting or were briefed about it by another participant attributed these words to President Trump.104 g. On July 6, 2017, during a foreign policy speech delivered in Poland, President Trump expressed the need to protect “the West” and “civilization” against forces from “the South or the East” that threaten to undermine western “values,” “courage,” “spirit,” and “will.”105 h. On January 11, 2018, President Trump met with lawmakers in the Oval Office to discuss a possible bipartisan immigration deal. When discussing potential protections for immigrants from Haiti, El Salvador, and African countries, President Trump asked, “Why are we having all these people from shithole countries come here?” He
103 President Trump Visits Homeland Security Department (Jan. 25, 2017), https://www.cspan.org/video/?422704-1/president-trump-visits-homeland-security-department. 104 Michael D. Shear and Julie Hirshfeld, 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. 105 Remarks by President Trump to the People of Poland, whitehouse.gov (July 6, 2017), https://www.whitehouse.gov/briefings-statements/remarks-president-trump-people-poland/.
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then suggested that the United States should bring more people from countries such
as Norway, which has an overwhelmingly white population. Regarding Haitian immigrants, Trump asked “Why do we need more Haitians?” and said, “Take them out.” 106
67. Indeed, courts have recognized disparaging remarks by the President as evidence of bias
and animus. For example: a. In upholding the District of Maryland’s preliminary injunction of the third iteration of the Administration’s “travel ban” applicable to immigrants from predominantly
Muslim countries, the Fourth Circuit, sitting en banc, considered anti-Muslim comments and tweets by the President as “undisputed evidence of such bias.” Int’l
Refugee Assistance Project v. Trump, Nos. 17-2231, 17-2232, 17-2233, 17-2240,
2018 U.S. App. LEXIS 3513, at *49 (4th Cir. Feb. 15, 2018) (en banc), pet. for
certiorari filed (U.S. Feb. 23, 2018). The Circuit cited, inter alia, a tweet in which the President “endorsed an apocryphal story involving General Pershing and a purported massacre of Muslims with bullets dipped in a pig’s blood,” and his retweeting of three anti-Muslim videos, “Muslim Destroys a Statue of Virgin Mary!”
106 Josh Dawsey, “Trump derides protections for immigrants from ‘shithole’ countries, WASHINGTON POST (Jan. 12, 2018), https://www.washingtonpost.com/politics/trump-attacksprotections-for-immigrants-from-shithole-countries-in-oval-officemeeting/2018/01/11/bfc0725c-f711-11e7-91af-31ac729add94_story.html. There has been some disagreement among parties present at the meeting about what phrase President Trump used to refer to El Salvador and other countries; three White House officials are reported to have said that Senators Perdue and Cotton told the White House that they heard the President use “shithouse” instead of “shithole” as the adjective to describe these countries. Josh Dawsey, Robert Costa, and Ashley Parker, Inside the tense, profane White House meeting on immigration, WASHINGTON POST (Jan. 15, 2018), https://www.washingtonpost.com/politics/inside-the-tenseprofane-white-house-meeting-on-immigration/2018/01/15/13e79fa4-fa1e-11e7-8f662df0b94bb98a_story.html?utm_term=.e87aab635b62/.
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“Islamist mob pushes teenage boy off roof and beats him to death!” and “Muslim migrant beats up Dutch boy on crutches!” Id. at *55-56. The Circuit posited that “an objective observer could conclude that the President’s repeated statements convey the primary purpose of the Proclamation —to exclude Muslims from the United States.” Id. at *56. See also Washington v. Trump, 847 F.3d 1151, 1167-68 (9th Cir. 2017) (finding that the President’s statements regarding a “Muslim ban” constituted “serious allegations and presented significant constitutional questions”); Hawai’i v. Trump, 245 F. Supp. 3d 1227, 1236 (D. Haw. 2017) (considering the President’s anti-Muslim campaign statements in finding likelihood of success on the merits on Establishment Clause claims); Aziz v. Trump, 234 F. Supp. 3d 724, 736 (E.D. Va. 2017) (same). b. In denying the government’s motion to dismiss a challenge to the rescission of the DACA program, the Northern District of California found derogatory statements directed to Latinos and Mexicans relevant to a showing of racial animus. Regents of the Univ. of Cal. v. Dep’t of Homeland Security, Nos. 17-5211, 17-5235, 17-5329, 17-5380, 17-5813, 2018 U.S. Dist. LEXIS 6141, at *32 (N.D. Cal. Jan. 12, 2018), appeal docketed No. 18-15068, UC Regents v. USDHS (9th Cir. Jan. 17, 2018). The district court cited: (i) the President’s candidacy announcement in which “he characterized Mexicans as criminals, rapists and ‘people that have lots of problems’”; (ii) a subsequent tweet by the President “that ‘[d]ruggies, drug dealers, rapists and killers are coming across the southern border,’ and [rhetorical question] ‘When will the U.S. get smart and stop this travesty?’”; (iii) his claim during the first Republican presidential debate that the Mexican government “‘send[s] the bad ones over because they don’t want to pay for them’” and “refer[ence] to undocumented immigrants as
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‘animals’ who are responsible for ‘the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, MS13.’” Id. at *31-32 (citing complaint) 68. Additionally, the President frequently relies on inflammatory rhetoric about MS13 gang members to inspire fear and support for its immigration policies. For example: a. In December 2016, when responding to an article about deaths linked to MS-13 in Long Island, New York, President 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.”107 b. On April 18, 2017, President Trump tweeted: “The weak illegal immigration policies of the Obama Admin. allowed bad MS 13 gangs to form in cities across U.S. We are removing them fast!”108 c. On September 5, 2017, Attorney General Sessions announced the rescission of the Deferred Action for Childhood Arrivals (“DACA”) program. On the same day, President Trump issued a written statement on that rescission that explicitly tied it to his Administration’s views on migrants from Central America: “The temporary implementation of DACA . . . helped spur a humanitarian crisis – the massive surge of unaccompanied minors from Central America including, in some cases, young people who would become members of violent gangs throughout our country, such as MS-13.”109
107 Michael Scherer, 2016 Person of the Year, TIME, http://time.com/time-person-of-the-year2016-donald-trump/. 108 Donald J.Trump (@RealDonaldTrump), TWITTER, (April 18, 2017, 2:39AM), https://twitter.com/realdonaldtrump/status/854268119774367745?lang=en. 109 Statement from President Donald J. Trump, whitehouse.gov (Sept. 5, 2017), https://www.whitehouse.gov/briefings-statements/statement-president-donald-j-trump-7/.
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d. While campaigning for the presidency, President Trump frequently told a story about a snake that fatally bites a woman after she welcomes and cares for it. He compared the duplicitous snake to refugees and other immigrants; thereby stoking xenophobic fearmongering. He has continued this refrain while president, repeating the same snake story as recently as last month.110
G. Impact of Termination of TPS on Plaintiffs and Communities 69. Jose Guevara is the forty-one year old father of twin 7 year-old daughters who are
U.S. citizens. He supports them and his wife through his work in the construction field, in which he has been employed for the last five years.
70. Mr. Guevara is active in his community; he is one of the leaders of a tenant association pressing the landlord to improve the living conditions in his apartment complex.
71. Mr. Guevara fears for his daughters’ future if he is forced to return to El Salvador with them because of their young age. His daughters suffer from chronic asthma and regularly visit their doctor in Maryland to receive special treatment for this condition. Mr. Guevara fears that because of El Salvador’s poor health infrastructure, his daughters’ health will be at risk.
72. Juan Rodriguez is forty-eight years old and has lived in the United States for over twenty years, and though he is not a citizen, he feels American. Over the years, he has supported his family with work in the construction field, which allowed him to purchase the home he has lived in since 2001.
110 Eli Rosenberg,‘The Snake’: How Trump appropriated a radical black singer’s lyrics for immigration fearmongering, WASHINGTON POST (Feb. 24, 2018), https://www.washingtonpost.com/news/politics/wp/2018/02/24/the-snake-how-trumpappropriated-a-radical-black-singers-lyrics-for-refugeefearmongering/?utm_term=.65bec69d2cfa.
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73. Mr. Rodriguez is currently employed in the maintenance department of a nonprofit organization that provides services to children and adults with autism and other severe disabilities. He paints and repairs the homes of disabled individuals, contributing to their ability to live independently. He has received accolades from his employer each of the five years he has worked there.
74. Mr. Rodriquez fears a return to El Salvador will subject him to violence from gangs who seek extortion payments. He knows from news reports that gangs target returnees from the United States because of their perceived relative wealth. Because of the high unemployment in El Salvador, Mr. Rodriguez believes that his job options will be a day laborer or street vendor, possibly earning seven dollars a day. Even at this amount, he believes he will be a target for gang extortion because they seek payments from almost everyone.
75. Luis Andrade is forty-three years old and the father of two U.S. citizens, a 6 yearold kindergartener and an 11 year-old fifth-grader. Both of his sons serve as altar boys in the church Mr. Andrade attends every Sunday. To support his sons, he operates a licensed food truck, the license for which he will not be able to maintain with the termination of TPS. Before operating the food truck, Mr. Andrade worked years in construction, including on projects in federal buildings, the Pentagon among them.
76. Mr. Andrade’s years of hard work allowed him to purchase a home and start the food truck business that supports his young boys. If forced to return to El Salvador, Mr. Andrade does not know who he will be able to leave his children with. To him, a life for these U.S. citizens in El Salvador, where there is pervasive violence and they barely speak Spanish, is unthinkable. To Mr. Andrade, the forced return to El Salvador means the loss of the ability to support his children given the high unemployment in El Salvador.
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77. Since the January 18, 2018 announcement terminating the TPS designation for El Salvador, CASA has had to reallocate significant resources to counsel and assist Salvadorans with protected status in understanding the impact of the termination and to help them navigate a vast set of necessary decisions and planning.
78. To meet the needs of CASA members, CASA has refocused its legal work to assist protected Salvadorans by, inter alia: providing financial counseling and developing plans for the transfer of assets; developing custody and guardianship plans for children in the event the parents are removed from the United States; and developing plans for the healthcare of dependents should the head of household be removed. CASA’s small legal and social services team has had to suspend significant work to provide this assistance, to the detriment of its ability to provide other important services. In addition, members of CASA’s community organizing department, as well as other CASA departments, have reprioritized their work to engage with the Salvadoran TPS community and provide education about the consequences of the TPS termination.
79. The termination of El Salvador’s TPS designation has had a significant negative impact on CASA’s communities, as its members with protected status and their families face an uncertain future that may include loss of employment, loss of a business, loss of a home and potential permanent separation from their families.
VI. ASSIGNMENT OF ERRORS 80. The Administration’s anti-immigrant agenda, the President’s disparaging statements, and defendants’ failure to account for current disrupted living conditions in El Salvador that jeopardize safety and security show that racial, ethnic and national origin animus is
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a motivating factor behind the termination of El Salvador’s TPS designation in violation of the Constitution, the INA and the Administrative Procedure Act.
COUNT I – VIOLATION OF FIFTH AMENDMENT EQUAL PROTECTION 81. The Equal Protection Clause as incorporated by the Fifth Amendment prohibits the federal government from taking action for which discriminatory intent or purpose is a motivating factor. E.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977); N.C. State Conference of the NAACP v. McCrory, 831 F.3d 204, 220 (4th Cir. 2016). 82. Defendants’ termination of El Salvador’s TPS was motivated by the Administration’s discriminatory intent to remove Salvadorans with protected status because of their Latino race, ethnicity and national origin. The discriminatory intent is evidenced by, inter alia, the President’s contemporaneously calling El Salvador and other TPS-designated countries “shithole countries,” asking “Why are we having all these people from shithole countries come here,” suggesting that the United States should instead encourage immigrants from places like Norway, whose population is overwhelmingly white; the President’s repeated disparaging statements directed at Latino immigrants; the Administration’s anti-immigrant agenda that is targeted at Latino and other non-white or non-Christian immigrants; and defendants’ failure to consider the conditions in El Salvador that continue to disrupt living conditions. 83. The termination of El Salvador’s TPS designation therefore violates the Fifth Amendment’s guarantee of equal protection. COUNT II – VIOLATION OF FIFTH AMENDMENT SUBSTANTIVE DUE PROCESS 84. At the “core” of the Fifth Amendment Due Process rights is “protection against arbitrary action.” Cnty. of Sacramento v. Lewis, 523 U.S. 833, 845 (1998); accord id. (“We have
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emphasized time and again that ‘[t]he touchstone of due process is protection of the individual against arbitrary action of government.’”) (quoting Wolff v. McDonnell, 418 U.S. 539, 558 (1974)). Substantive due process protects against egregious federal action that “shocks the conscience” and “offend[s] the community’s sense of fair play and decency,” Rochin v. California, 342 U.S. 165, 172-73 (1952), and “conduct intended to injure in some way unjustifiable by any government interest is the sort of official action most likely to rise to the conscience-shocking level.” Cnty. of Sacramento, 523 U.S. at 849 (citing Daniels v. Williams, 474 U.S. 327, 331 (1986)).
85. Defendants’ abuse of authority under the INA to advance the Administration’s discriminatory objective of removing Salvadorans with protected status because of their Latino race, ethnicity and national origin both shocks the conscience and offends fundamental notions of fair play and decency.
86. The termination of El Salvador’s TPS designation therefore violates Fifth Amendment substantive due process principles.
COUNT III – VIOLATION OF IMMIGRATION AND NATURALIZATION ACT 87. The INA authorizes the Secretary to terminate a designation of TPS based on a
determination that the country no longer meets the conditions for designation that the Act specifies. 8 U.S.C. § 1254a(b)(3)(B). It does not authorize the Administration to use termination of TPS as a means of removing persons whom it disfavors because of their race, ethnicity or national origin.
88. In terminating the TPS designation of El Salvador, Defendants abused their authority under the INA by using it to carry out the Administration’s discriminatory objective.
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Specifically, defendants terminated El Salvador’s TPS designation in order to remove immigrants on the basis of their Latino race and ethnicity and their origin from Central America.
89. Defendants’ termination of El Salvador’s TPS designation based on racial, ethnic and national origin animus is outside the authority conferred by the INA and thus ultra vires. See 8 U.S.C. § 1254a(b)(3)(B).
COUNT IV – VIOLATION OF ADMINISTRATIVE PROCEDURE ACT 90. The Administrative Procedure Act authorizes the federal courts to hold unlawful and set aside agency action that is: “(A) arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law; (B) contrary to constitutional right, power, privilege, or immunity; (C) in excess of statutory jurisdiction, authority, or limitations, or short of statutory right.” 5 U.S.C. § 706(2). 91. Defendants terminated El Salvador’s TPS designation based on a discriminatory motive rather than the factors specified by the INA. 92. The termination is therefore arbitrary, capricious, an abuse of discretion, not in accordance with law, contrary to constitutional right and power, and in excess of statutory authority. 93. The termination is also arbitrary and capricious because defendants failed to conduct an objective assessment of the conditions in El Salvador, disregarded relevant and important evidence about the current conditions in the country despite being advised of their dire status by numerous parties, and issued a decision that is based largely on broad and conclusory assertions that are not grounded in fact. 94. The termination is arbitrary and capricious for the additional reason that it failed to consider the reliance interests of the persons with protected status, including the individual
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plaintiffs and members of CASA who have protected status. See Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016). The U.S. government engendered that reliance through previous extensions that recognized that continuing significant housing shortages, damaged infrastructure, weak economy, underemployment, poverty and violence preclude safe return to El Salvador. Salvadorans with protected status relied on the promise of TPS that they would be able to remain in the United States until conditions in El Salvador improved to ensure safety and security. The Administration broke that promise arbitrarily and capriciously.
VII. RELIEF REQUESTED For the foregoing reasons, plaintiffs request that the Court:
a) declare unlawful and set aside the January 18, 2018 termination of TPS for El Salvador; b) enjoin defendants from implementing or enforcing their decision to terminate El
Salvador’s designation as a TPS country; c) order that TPS be continued for all Salvadorans who had such status prior to the January
18, 2018 termination notice unless and until the Secretary provides a lawful basis to terminate, and in no event end earlier than the September 9, 2019 effective date set forth in the January 18, 2018 termination notice; d) direct defendants to pay plaintiffs’ legal fees and other costs of suit; and e) provide such other relief as the Court may deem appropriate.
Respectfully submitted,
/s/ Steven Schulman (D. Md. 17144) Stephanie A. Webster* Caroline L. Wolverton* Jillie B. Richards* AKIN GUMP STRAUSS HAUER & FELD, LLP 1333 New Hampshire Avenue, N.W. 41

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Dated: March 23, 2018

Washington, D.C. 20036 Phone: (202) 887-4000 Fax: (202) 887-4288 sschulman@akingump.com
*Application for pro hac vice admission forthcoming
Attorneys for Plaintiff CASA de Maryland, Inc.
/s/ Dennis A. Corkery____________ Matthew K. Handley (D. Md. 18636) Dennis A. Corkery (D. Md. 19076) Tiffany S. Yang (D. Md. 20011) WASHINGTON LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND URBAN AFFAIRS 11 Dupont Circle, Suite 400 Washington, DC 20036 (202) 319-1000 matthew_handley@washlaw.org dennis_corkery@washlaw.org tiffany_yang@washlaw.org
/s/ Nicholas C. Katz_____________ Nicholas C. Katz (pro hac vice forthcoming) CASA DE MARYLAND, INC. 8151 15th Avenue Hyattsville, MD 20783 (240) 491-5743 nkatz@wearecasa.org tmccormick@wearecasa.org
Attorneys for Plaintiffs Jose E. Guevara, Juan Rodriguez, and Luis Andrade

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 Case 8:18-cv-00845-GJH Document 43 Filed 11/28/18 Page 1 of 30

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND Southern Division

CASA DE MARYLAND, INC., ET AL., *

Plaintiffs,

*

v.

Case No.: GJH-18-845

*

DONALD J. TRUMP, in his official

capacity as President of the

United States, et al.,

*

Defendants.

*

* * * * * * * * * * * * *

MEMORANDUM OPINION

On March 1, 2001, after a devastating earthquake that killed 1,100 people and displaced

another 1.3 million, the Bush Administration designated El Salvador for “Temporary Protected

Status,” (TPS), a status that permits eligible nationals living in the United States at the time of

the designation to lawfully remain here and work for as long as the designation remains in

place.1 Since then, El Salvador has struggled to recover from this earthquake, enduring repeated

natural disasters, persistent poverty, and low economic growth that have combined to prevent the

country from fully rebuilding its infrastructure. Accordingly, El Salvador’s protected status was

extended eleven times between 2002 and 2016. It is estimated that 262,500 Salvadoran nationals

are recipients of TPS residing in the United States.

In January 2018, the Secretary of Homeland Security announced that El Salvador’s TPS

designation would be terminated. In March 2018, Plaintiffs filed this lawsuit, alleging that the

decision to terminate El Salvador’s TPS was motivated not by a determination that the country

no longer continues to meet the conditions for designation, but by President Donald Trump’s

1 Unless noted otherwise, the facts are taken from the Complaint, ECF No. 1, and assumed to be true.
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anti-Latino immigrant animus. Plaintiffs assert claims pursuant to the Equal Protection Clause as incorporated into the Fifth Amendment,2 the Fifth Amendment’s Due Process Clause, the
Immigration and Nationality Act (INA), and the Administrative Procedure Act (APA). ECF No.
1. Presently pending before the Court is Defendants’ Motion to Dismiss, ECF No. 28. The Court
held a Motions Hearing on September 12, 2018. See ECF No. 40. For the following reasons,
Defendants’ Motion to Dismiss is granted in part and denied in part.
I. BACKGROUND
A. The Immigration and Nationality Act
The Immigration and Nationality Act of 1990, 8 U.S.C. §§ 1101 to 1537 (“INA”)
authorizes the Attorney General to designate a country for protected status if:
(A) the Attorney General finds that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;
(B) the Attorney General finds that-(i) 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, (ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and (iii) the foreign state officially has requested designation under this subparagraph; or
(C) the Attorney General finds that 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, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.
2 Though the Equal Protection Clause of the Fourteenth Amendment applies only to the states, courts have consistently applied similar substantive protections to the federal government through the Fifth Amendment. See, e.g., Obergefell v. Hodges, 135 S.Ct. 2584, 2602-03 (“The Due Process Clause and the Equal Protection Clause are connected in a profound way, though they set forth independent principles.”).
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8 U.S.C. § 1254a(b)(1)(A-C).3 In 2003, Congress transferred this authority from the Attorney General to the Secretary of Homeland Security. 6 U.S.C. § 557. When the Secretary designates a country for TPS, eligible nationals of the designated country and eligible individuals with no nationality who “last habitually resided” in the designated country may remain lawfully in the United States for the duration of the designation. 8 U.S.C. § 1254a(a)(1)(A). TPS also authorizes these individuals to engage in employment in the United States. Id. § 1254a(a)(1)(B). Only aliens who have been “continuously physically present in the United States since the effective date of the most recent designation” are eligible for TPS. Id. § 1254a(c)(1)(A)(i).
The Secretary may determine an initial period of designation ranging from six months to eighteen months, id. § 1254a(b)(2)(B), and may extend the designation for an additional period of six, twelve, or eighteen months, id. § 1254a(b)(3)(C). The Secretary may also terminate the designation if she determines that a foreign state “no longer continues to meet the conditions for designation.” Id. § 1254a(b)(3)(B). To terminate a designation, the Secretary must publish notice in the Federal Register, “including the basis for the determination.” Id. The INA also contains a jurisdiction-stripping provision, stating “[t]here is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation of a foreign state under this subsection.” Id. § 1254a(B)(5)(A). Nonetheless, the INA provides for “an administrative procedure for the review of the denial of benefits.” Id. § 1254a(B)(5)(B).
3 The Court recognizes that “many consider ‘using the term ‘alien’ to refer to other human beings’ to be ‘offensive and demeaning.’ [The Court uses] the term ‘only where necessary to be consistent with the statutory language’ that Congress has chosen and ‘to avoid any confusion in replacing a legal term of art with a more appropriate term.’” See Trump v. Hawaii, 138 S.Ct. 2392, 2443 n.7 (2018) (Sotomayor, J., dissenting) (quoting Flores v. United States Citizenship & Immigration Servs., 718 F.3d 548, 551-52 n. 1 (6th Cir. 2013)).
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B. Designation and Termination of El Salvador for TPS On January 13, 2001, a 7.6 magnitude earthquake struck El Salvador, leaving 1,100 dead, around 2,500 missing, and approximately 8,000 injured. ECF No. 1 at ¶ 23.4 The earthquake displaced an estimated 1.3 million people, caused nearly $3 billion in damages, and damaged or destroyed over 200,000 homes and public buildings. Id. The administration of President George W. Bush designated El Salvador for TPS and announced that Salvadorans who had been residing in the United States since February 13, 2001 would be eligible to apply for protected status. Id. ¶ 24. The notice of designation was published in the Federal Register on March 9, 2001. 66 Fed. Reg. 14214. Between 2002 and 2016, El Salvador’s protected status was extended eleven times. ECF No. 1 at ¶ 25. Each of these extensions detailed considerable ongoing structural and social problems in El Salvador. Id. In 2002, more than 75% of road infrastructure needed rebuilding; by 2005, only one-third of the houses destroyed or damaged had been rebuilt or were under construction, and 240 schools needed rebuilding; in 2007, only fifty percent of the homes had been repaired, and only two of the seven main hospitals were undergoing reconstruction; in 2010, still just fifty percent of the homes had been repaired, and the country was reeling from a tropical storm and a volcanic eruption in 2005, a series of earthquakes in 2006, and a hurricane in 2009; by 2015, El Salvador still faced a housing deficit of 446,000, “a profound deficit for a country of 6.1 million people.” Id. The final extension came on July 8, 2016. Id. ¶ 26. That extension was due to expire on March 9, 2018. Id. The Secretary reported that the housing deficit had risen to 630,000, a regional drought was contributing to food insecurity, a lack of potable water affected ten percent
4 Pin cites to documents filed on the Court’s electronic filing system (CM/ECF) refer to the page numbers generated by that system.
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of the population, and one third of the population was underemployed or unable to find full-time work. Id. Since then, conditions have worsened in some ways, as a 7.0 magnitude earthquake struck the country in November 2016, and a 5.1 magnitude earthquake struck in April 2017. Id. ¶ 30. The housing shortage, though down to 360,000 homes, still affects nearly one million families. Id. ¶ 32. The labor market is in similarly bad shape, as one-third of the country’s urban labor force remains underemployed. Id. ¶ 34. Forty percent of Salvadoran households live in poverty or extreme poverty. Id. In 2016, remittances sent from Salvadoran nationals living abroad were the country’s single greatest source of income, 97% of which come from relatives residing in the United States. Id. ¶ 35. And the rate of these remittances is only increasing. Id. Furthermore, crime continues to plague the country, as El Salvador has one of the highest murder rates in the world. Id. ¶ 38. In 2016 alone, nearly 220,000 people were forced to flee violence in El Salvador. Id. ¶ 46.
Nonetheless, on January 8, 2018, the Secretary announced that El Salvador’s TPS designation would be terminated. Id. ¶ 28. The notice of termination published in the Federal Register states that the termination will be effective on September 9, 2019. 83 Fed. Reg. 2654. According to the Complaint, this termination came after White House Chief of Staff John Kelly pressured acting DHS Secretary Elaine Duke to terminate the TPS designation of Honduras, another Central American country, explaining that continuing the designation would frustrate the Administration’s immigration policy. ECF No. 1 at ¶ 65. Just days later, the Department of State issued a travel advisory warning that violent crime and gang activity in El Salvador is “widespread” and “common” and “local police may lack the resources to respond effectively to serious criminal incidents.” Id. ¶ 62.
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C. President Donald J. Trump’s Statements About Latino Immigrants The Complaint details a lengthy list of disparaging statements and actions made by President Donald Trump regarding Latino immigrants. ECF No. 1 at ¶ 66. An incomplete selection is provided here. This pattern began during the announcement of his presidential campaign, when he said, “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 . . .” Id. at ¶ 66a. Months later, Trump refused to condemn two of his supporters who “urinated on a sleeping Latino man and beat him with a metal pole,” instead saying only that they were “passionate.” Id. at ¶ 66b. During the campaign, Trump told the Wall Street Journal that U.S. District Judge Gonzalo P. Curiel of the Southern District of California could not be fair in presiding over a lawsuit against Trump University because Judge Curiel was “of Mexican heritage,” “Hispanic,” and a member of a Latino Lawyers’ Association. Id. at ¶ 66d. After his election and inauguration, it is alleged that these statements continued. During a speech delivered in Poland, President Trump expressed the need to protect “the West” and “civilization” against forces from “the South or the East.” Id. at ¶ 66g. Later, when discussing potential protections for immigrants from El Salvador (as well as immigrants from Haiti and a group of African countries), President Trump allegedly asked, “Why are we having all these people from shithole countries come here?” Id. at ¶ 66h. He then suggested the United States should focus on immigration from countries such as Norway—which has a predominantly white population—instead. Id.
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II. LEGAL STANDARDS A. Rule 12(b)(1)
Defendants move to dismiss the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing that 8 U.S.C. § 1254a(b)(5)(A) strips the Court of jurisdiction over Plaintiffs’ claims. ECF No. 28 at 14. A plaintiff “has the burden of proving that subject matter jurisdiction exists.” Evans v. B.F. Perkins Co., 166 F.3d 642, 647 (4th Cir. 1999). On a motion to dismiss for lack of subject matter jurisdiction, a Court may grant the motion “only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law.” Id. The Court must “regard the pleadings as mere evidence on the issue, and may consider evidence outside the pleadings without converting the proceeding to one for summary judgment.” Id. (quoting Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir. 1991).
B. Rule 12(b)(6) Defendants also move to dismiss the Complaint pursuant to Rule 12(b)(6), asserting that Plaintiffs fail to state a claim upon which relief can be granted. On a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), the Court “must accept the factual allegations of the complaint as true and construe them in the light most favorable to the nonmoving party.” Rockville Cars, LLC v. City of Rockville, Md., 891 F.3d 141, 145 (4th Cir. 2018). To overcome a 12(b)(6) motion, the “complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Plaintiffs must “provide sufficient detail” to show “a more-than-conceivable chance of success on the merits.” Upstate Forever v. Kinder Morgan Energy Partners, 887 F.3d 637, 645 (4th Cir. 2018)
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(citing Owens v. Balt. City State’s Attorneys Ofice, 767 F.3d 379, 396 (4th Cir. 2014)). The mere recitation of “elements of a cause of action, supported only by conclusory statements, is not sufficient to survive a motion made pursuant to Rule 12(b)(6).” Walters v. McMahen, 684 F.3d 435, 439 (4th Cir. 2012). A plausibility determination is a “context-specific inquiry” that relies on the court’s “experience and common sense.” Iqbal, 556 U.S. at 679-80. III. DISCUSSION
Plaintiffs are three Salvadoran nationals who have been TPS beneficiaries since 20015 and CASA de Maryland, Inc. (“CASA”), a non-profit organization whose mission is to “create a more just society by building power and improving the quality of life in low-income immigrant communities.” ECF No. 1 at ¶¶ 9-12. They bring two constitutional claims and two statutory claims against President Trump, the U.S. Department of Homeland Security (“DHS”), and Secretary of Homeland Security Kirstjen M. Nielsen (the “Secretary”).
Plaintiffs first allege that the termination of El Salvador’s TPS was motivated by discriminatory intent in violation of the Equal Protection Clause as incorporated by the Fifth Amendment. Id. at ¶ 81. Next, they allege that, because the termination was motivated by discriminatory intent, it also violates the substantive protection against arbitrary action found in the Due Process Clause of the Fifth Amendment. Id. at ¶ 84. Third, Plaintiffs argue that, because the INA does not authorize the Administration to terminate a country’s TPS designation on the basis of disfavoring the race of persons protected under the statute, the Administration’s action is ultra vires and violates the INA. Id. at ¶ 89. Finally, Plaintiffs argue that the discriminatory basis of the Administration’s action violates 5 U.S.C. § 706(2) of the Administrative Procedure Act (“APA”). Id. at ¶ 90. But before the Court can consider these arguments, it must determine whether § 1254a(b)(5)(A) strips the Court of subject-matter jurisdiction over some, or all, of
5 Individual named Plaintiffs are: Jose E. Guevara, Juan Rodriguez, and Luis Andrade.
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these claims. The Court must also determine whether separation of powers concerns should lead the Court to dismiss the President of the United States as a defendant.
A. Subject-Matter Jurisdiction As an initial matter, the court must determine whether § 1254a(b)(5)(A) of the TPS statute bars Plaintiffs’ constitutional, APA, and/or INA claims. The statute reads: “There 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 under this subsection.” 8 U.S.C. § 1254a(b)(5)(A). Plaintiffs contend that this jurisdiction-stripping statute does not apply to actions that are challenged as unconstitutional or are based on considerations outside of the agency’s statutory authority. ECF No. 33 at 10. A federal court must have subject-matter jurisdiction to decide a matter before it. Lightfoot v. Cendant Mortg. Corp., 137 S.Ct. 553, 562 (2017). If it does not, then the court must dismiss the case. Fed. R. Civ. P. 12(b)(1). Congress may limit the subject-matter jurisdiction of the federal courts. See, e.g., Sheldon v. Sill, 49 U.S. 441, 449 (1850) (“And it would seem to follow, also, that, having a right to prescribe, Congress may withhold from any court of its creation jurisdiction of any of the enumerated controversies.”). But when interpreting a statute in which Congress seeks to limit judicial review, courts must “begin with the strong presumption that Congress intends judicial review of administrative action.” Berkley v. Mountain Valley Pipeline, 896 F.3d 624, 631 (4th Cir. 2018) (quoting Bowen v. Mich. Acad. Of Family Physicians, 476 U.S. 667, 670 (1986)). This presumption can 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). Clear and convincing evidence of contrary intent can be established by “specific language, specific legislative history, and inferences of intent drawn from the statutory
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scheme as a whole that Congress intended to bar review.” Cuozzo Speed Techs., LLC v. Lee, 136 S.Ct. 2131, 2140 (2016) (quotations omitted).
The presumption in favor of judicial review is particularly important in regards to constitutional claims. Webster v. Doe, 486 U.S. 592, 603 (1988) (“We require this heightened showing 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.”) (quoting Bowen, 476 U.S. at 681 n.12). Defendants’ burden to overcome this presumption is a “heavy” one, Mach Mining, LLC v. EEOC, 135 S.Ct. 1645, 1651 (2015), because it is expected that when Congress intends to bar judicial review altogether, it employs “unambiguous” and “comprehensive” language, Lindahl v. Office of Personnel Management, 470 U.S. 768, 780 (1985).
Courts have consistently construed jurisdiction-stripping provisions narrowly. For instance, in McNary v. Haitian Refugee Center, the Supreme Court considered whether Section 210(e)(1) of the INA barred statutory and constitutional challenges to an application review process for a farmworker amnesty program alleged to have been conducted by the Immigration and Naturalization Service (“INS”) in an arbitrary manner. 498 U.S. 479, 491-94 (1991). The plaintiffs alleged that the INS procedures for conducting the review process did not allow applicants to be apprised of or to be given opportunities to challenge adverse evidence, did not allow applicants to present witnesses on their own behalf, and that competent interpreters were not provided for those who did not speak English. Id. at 487-88. Defendants argued that the claim was precluded by Section 210(e)(1), which states, “[t]here shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subsection.” 8 U.S.C.A. § 1160(e)(1).
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The Court held that Section 210(e)(1) did not preclude the federal district court from hearing the claims. McNary, 498 U.S. at 479. The Court explained that “the reference to ‘a determination’ describes a single act rather than a group of decisions or a practice or procedure employed in making decisions.” Id. at 492. Therefore, while an individual challenge to a determination of eligibility for the farmworker amnesty program is barred, a “general collateral challenge[] to unconstitutional practices and policies” is not. Id.
Furthermore, the Court explained that limiting review of the issues raised to individual deportation proceedings would mean the plaintiffs could “ensure themselves review in courts of appeals only if they voluntarily surrender themselves for deportation. Quite obviously, that price is tantamount to a complete denial of judicial review for most undocumented aliens.” Id. at 49697. Therefore, the Court concluded that Section 210(e)(1) bars only review of denials of individual determinations. Id at 497-98; see also Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 54-56 (1993) (allowing plaintiff’s challenge to regulations interpreting the Immigration Reform and Control Act despite statute stating, “There shall be no administrative or judicial review of a determination respecting an application for adjustment of status under this section except in accordance with this subjection”) (quoting 8 U.S.C.A. §1255a(f)(1)); Bowen, 476 U.S. at 679-80 (holding that section of the Social Security Act stating that “[n]o findings of fact or decision of the Secretary shall be reviewed by any person, tribunal, or governmental agency except as herein provided” and “[n]o action . . . shall be brought . . . to recover on any claim arising under this subchapter” did not bar judicial review of the validity of a regulation governing the payment of Medicare benefits); Lindahl, 470 U.S. at 791 (holding that § 8347(c) of the Civil Service Reform Act only barred judicial review of factual determinations relating to OPM’s denial of disability retirement claims, but not review of any “substantial departure from important procedural rights,
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a misconstruction of the governing legislation, or some like error ‘going to the heart of the administrative determination’”).
In contrast, courts have enforced jurisdiction-stripping provisions where a plaintiff seeks to challenge the merits of an agency’s justification for an action that is squarely covered by the provision, particularly where other judicial recourse remains available. In Lee v. USCIS, 592 F.3d 612, 613(4th Cir. 2010), a Korean national overstayed his visa and applied to become a permanent resident under 8 U.S.C. § 1255(i), an INA provision that permitted otherwise ineligible foreign nationals to apply for an adjustment of status. But the provision had already expired, except for those “grandfathered” in. Id. U.S. Citizenship and Immigration Services (“USCIS”) denied the application, concluding he did not qualify as grandfathered, and the plaintiff filed suit in federal district court to challenge that conclusion. The INA, at 8 U.S.C. § 1252(a)(2)(B), states that:
Notwithstanding any other provision of law (statutory or nonstatutory), ... except as provided in sub paragraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review— (i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or (ii) any other decision ... specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than the granting of relief under section 1158(a) of this title.
The court recognized that plaintiff’s action was an allegation that USCIS “made a faulty eligibility determination” pursuant to § 1255. USCIS, 592 F.3d at 620. The plaintiff’s bare claim that he was raising a pure question of law was insufficient for the district court to take jurisdiction because his claim for relief directly challenged “the sole basis for the denial” of the application. Id. Furthermore, the court explained that the INA provided for these claims to be
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heard on appeal to the Board of Immigration Appeals, and then subsequently on appeal to a circuit court of appeal. Id. at 618. Therefore, such a straightforward challenge to a grant of relief under § 1255 was barred by § 1252(a)(2)(B)(i). Id. at 621.
The Supreme Court’s reasoning in Cuozzo is similarly helpful. There, the Court considered whether a provision of the Leahy-Smith America Invents Act barred judicial review of the Patent Office’s determination to institute an inter partes review of a previously allowed patent claim. Id. at 2137. That provision states that “[t]he determination by the Director [of the Patent Office] whether to institute an inter partes review under this section shall be final and nonappealable.” 35 U.S.C.A. § 314(d). After emphasizing the seemingly conclusive nature of the phrase “final and nonappealable,” the Court proceeded to note that the plaintiff was challenging the merits of the Director’s decision. Cuozzo, 136 S.Ct. at 2139. To allow such a challenge would have undermined Congress’ decision to give the Patent Office “significant power to revisit and revise earlier patent grants.” Id. at 2139-40. The Court thus emphasized that this interpretation of the statute maintained “the agency’s primacy over its core statutory function in accord with Congress’ intent.” Id. at 2141. Therefore, the Court determined that the “strong presumption” in favor of judicial review was overcome by this specific language and inferences from the statutory scheme. Id. at 2140-41.
Even still, the Court stressed that its holding did not constitute an absolute bar on judicial review. The Court explicitly excluded appeals that implicate constitutional questions, that implicate due process problems, or that allege an agency has acted outside its statutory limits, noting that the Administrative Procedure Act allows courts to “‘set aside agency action’ that is ‘contrary to constitutional right,’ ‘in excess of statutory jurisdiction,’ or ‘arbitrary [and] capricious.’” Id. at 2141-42; see also Mironescu v. Costner, 480 F.3d 664, 674 (4th Cir. 2007)
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(holding that district court was precluded from considering a challenge to the merits of an individual foreign national’s extradition where the statute required such claims to be heard only as part of the review of a final order of removal); Krua v. Dep’t of Homeland Security, 729 F. Supp. 2d 452, 455 (D. Mass. 2010) (barring naked challenge to the grant of TPS protection only to Liberians who continuously resided in the United States since 2002).
Turning to the matter at hand, there are three reasons why the language here does not support the conclusion that Congress intended § 1254a(b)(5)(A) to bar the court’s consideration of Plaintiff’s constitutional or APA claims. First, the text does not use the unambiguous and comprehensive language used in statutes courts have interpreted as broadly precluding judicial review. Second, the statutory scheme does not demand preclusion of the types of claims brought by Plaintiffs. Third, just as in McNary, the alternative methods of review of Plaintiffs’ claims offered by the Department do not constitute meaningful review.
First, the statute states that “[t]here is no judicial review of any determination” of the Secretary. This language closely resembles the language found in McNary and Reno not to constitute an absolute bar on judicial review, but instead to bar review of the merits of an individual determination. See 8 U.S.C.A. § 1160(e)(1) (“There shall be no administrative or judicial review of a determination…”); 8 U.S.C.A. § 1255a(f)(1) (“There shall be no administrative or judicial review of a determination…”). In contrast, the jurisdiction-stripping provision in USCIS states that “no court shall have jurisdiction to review . . . any judgment . . . or any other decision,” “[n]otwithstanding any other provision of law (statutory or nonstatutory).” 8 U.S.C. § 1252(a)(2)(B). By stating that it applied both to judgments under certain sections of the statute as well as any other decision, and by further specifying that this provision applied
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notwithstanding any other provision of law, the statute portrays far broader and comprehensive coverage than the provision here.
Additionally, unlike certain other statutes, § 1254a does not address constitutional challenges. See 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.” (emphasis added)) and 38 U.S.C. § 511(a) (another statute in the INA giving the Secretary authority to decide “all questions of law and fact” and making such decisions “final and conclusive,” not to be “reviewed by any other official or by any court” (emphasis added)). Just as in McNary, this statute is best read as barring judicial review of the merits of the determination itself, but not whether the determination was made through “unconstitutional practices and policies.” 498 U.S. at 492.
Second, Plaintiffs’ constitutional and APA claims do not threaten the “agency’s primacy over its core statutory function.” In USCIS, to allow the plaintiff’s claims would have permitted judicial review of the merits of every allegedly faulty eligibility determination by a USCIS District Director—precisely the outcome Congress sought to prevent. 592 F.3d at 620. In Cuozzo, the plaintiffs’ claims would have similarly exposed the Patent Office to unrestricted litigation challenging the Patent Office’s power to revisit and revise earlier patent grants. 136 S.Ct. at 2139-40. But to allow Plaintiffs’ constitutional and APA claims here will not similarly permit challenges to the merits of every determination made by the Secretary. To permit judicial review of a claim that the Secretary’s process was infected by unconstitutional discriminatory intent does not undermine the Secretary’s general authority to make a determination of the merits of a country’s eligibility for TPS. While it is true that Plaintiffs allege that the Secretary’s
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decision is not backed by actual improved conditions in El Salvador, see ECF No. 1 at ¶¶ 29-55, these facts are relevant only as circumstantial evidence of a showing of discriminatory intent or a process the Secretary abandoned without proper explanation on the record. See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977) (“Determining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.”); F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009) (agency may not “depart from a prior policy sub silentio”).
Third, Defendants’ argument that removal proceedings pursuant to Section 1254a(b)(5)(B) offer a forum for Plaintiffs’ constitutional claims is not persuasive. To pursue these claims, individual plaintiffs would have to lose their protected status and then wait until they face removal before they may bring claims. Such a choice is “tantamount to a complete denial of judicial review.” McNary, 498 U.S. at 496-97 (rejecting the same argument). McNary plainly forecloses this option. Furthermore, the Board of Immigration Appeals is powerless to address fundamental constitutional claims. See, e.g., Hadayat v. Gonzales, 458 F.3d 659, 665 (7th Cir. 2006). And CASA de Maryland cannot be subject to removal proceedings, so federal court is the only forum available for it to pursue its constitutional claims.
Thus, the Court holds that § 1254a(b)(5)(A) does not bar review of Plaintiffs’ Equal Protection, Substantive Due Process, or Administrative Procedure Act claims. See also Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1101-08 (N.D. Cal. 2018) (holding § 1254a(b)(5)(A) does not strip court of jurisdiction to consider general collateral practices or colorable constitutional claims); Centro Presente v. Dep’t of Homeland Security, 2018 WL 3543535 at *10 (D. Mass.
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2018) (holding §1254a(b)(5)(A) does not strip court of jurisdiction to consider equal protection, substantive due process, and APA claims).
Plaintiffs’ claim that the Secretary’s determination violates the INA, ECF No. 1 ¶¶ 87-89, fares differently. To evaluate the plausibility of Plaintiffs’ constitutional and APA claims, the Court need only determine whether a reasonable factfinder could determine that discriminatory intent infected the Secretary’s process for terminating El Salvador’s TPS. But the Secretary’s actions are not, as Plaintiffs’ suggest, ultra vires if her decision to terminate El Salvador’s TPS was appropriately based on statutory factors. Plaintiffs’ claims that the decision violated the INA would thus necessarily force the Court to evaluate the sufficiency of the Secretary’s determination.6 The text of § 1254a(b)(5)(A) bars judicial review of precisely this kind of determination. The primacy of the Secretary’s authority to designate country’s for TPS precludes the Court from probing the sufficiency of the Secretary’s determinations. Therefore, review of Plaintiffs’ INA claim is unreviewable and must be dismissed.
B. Equal Protection Clause Plaintiffs contend that the termination of TPS for El Salvador violates the Equal Protection Clause as incorporated by the Fifth Amendment because discriminatory intent or purpose on the basis of race is a motivating factor. See Arlington Heights, 429 U.S. at 265-66. Defendants counter with two main arguments: first, that Hawaii v. Trump, 138 S.Ct. 2392, 241819 (2018), and not Arlington Heights, 429 U.S. at 265-66, controls this case; and second, that,
6 Additionally, as Defendants argue, to adopt Plaintiff’s argument here would allow any potential plaintiff to claim an act was ultra vires anytime they are unhappy with a result by claiming the wrong factors were considered. To the extent Plaintiffs claim that Defendants considered factors that violated the Constitution, those assertions are best addressed as part of their Constitutional claims.
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even if Arlington Heights applies, Plaintiffs have not established that discriminatory animus was a motivating factor in the decision.7 The Court will address both arguments.
1. Level of Deference Defendants contend that Trump v. Hawaii provides the appropriate analysis. There, the plaintiffs brought an Establishment Clause challenge to an Executive Order that placed entry restrictions on the nationals of eight foreign states, alleging that the primary purpose of the Order was to discriminate against Muslims. Id. at 2403. On an appeal from the grant of a preliminary injunction, the Supreme Court held that rational-basis review would be applied to the Establishment Clause claim, as it concerned the entry of foreign nationals. Id. at 2420. The Court emphasized that the claim sought to “invalidate a national security directive regulating the entry of aliens abroad.” Id. at 2418. Explaining that “the admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised . . . largely immune from judicial control,’” the Court determined that it should not interfere with “relations with foreign powers” or “classifications defined in the light of changing political and economic circumstances.” Id. (quoting Fiallo v. Bell, 430 U.S. 787, 792 (1977) and Mathews v. Diaz, 426 U.S. 67, 81 (1976)). Plaintiffs counter that Arlington Heights provides the proper analysis. There, the plaintiffs argued that local zoning restrictions were motivated, at least in part, by racial discrimination. 429 U.S. at 265-66. The Supreme Court explained that even though courts properly refrain from analyzing the merits of legislative or administrative action, “[w]hen there is
7 Defendants very briefly argue that the lack of identified comparators should defeat the equal protection claim, citing Morrison v. Garraghty, 239 F.3d 648, 654 (4th Cir. 2001). But neither Arlington Heights nor subsequent Fourth Circuit precedent restricts the Court from considering direct evidence of discriminatory intent. See N.C. State Conference of NAACP v. McCrory, 831 F.3d 204, 220 (4th Cir. 2016) (courts should consider “[t]he specific sequence of events leading up to the challenged decision” and “[d]epartures from normal procedural sequence” in addition to whether the impact of the official action bears more heavily on one race than another”) (quoting Arlington Heights, 429 U.S. at 266-67); see also Swanson v. City of Chetek, 719 F.3d 780, 784 (7th Cir. 2013) (overt animus obviated the need to present a similarly situated individual who was treated differently).
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a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.” Id. at 265-66.
For two key reasons, Hawaii does not apply to this case. First, Hawaii dealt with aliens seeking admission to the United States for the first time, while this case deals with residents who have lived in the United States for years and have established deep connections—some of them familial—to this country. See, e.g., ECF No. 1 ¶¶ 69-76. Courts have long established that, “[s]ince an alien obviously brings with him no constitutional rights, Congress may exclude him in the first instance for whatever reason it sees fit.” Bridges v. Wixon, 326 U.S. 135, 161 (1945) (Murphy, J., concurring); see also Turner v. Williams, 194 U.S. 279, 290 (1904) (“the bringing of persons into the ports of the United States . . . is not open to constitutional objection”). “But once an alien lawfully enters and resides in this country he becomes invested with the rights guaranteed by the Constitution to all people within our borders.” Kwong Hai Chew v. Colding, 344 U.S. 590, 596 n.5 (1953) (quoting Bridges, 326 U.S. at 161-62). Commensurate with this legal residence is a “generous and ascending scale of rights as [the alien] increases his identity with our society.” Johnson v. Eisentrager, 339 U.S. 763, 770-71 (1950); see also Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly”).
Repeatedly, courts have applied this principle to ensure that lawfully present aliens are not subject to removal processes that violate the Constitution.8 See, e.g., Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (“It is true that aliens who have once passed through our gates, even illegally, may be expelled only after proceedings conforming to traditional standards of fairness encompassed in due process of law.”); Haitian Refugee Ctr., Inc.
8 Defendants’ suggestion that claims challenging the constitutionality of removal of legally present aliens should be accorded rational-basis review thus threatens this entire body of law. This Court does not read Hawaii so expansively.
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v. Nelson, 872 F.2d 1555, 1563 (11th Cir. 1989) (holding that aliens applying for protections under the Special Agricultural Worker program had a property interest that was accorded procedural due process protection).
That these cases apply the Due Process Clause rather than the Equal Protection Clause is of no matter; “each aspect of the Fourteenth Amendment reflects an elementary limitation on state power,” and both clauses thus apply with equal weight to resident aliens. Plyler v. Doe, 457 U.S. 202, 213 (1982) (“There is simply no support for appellants’ suggestion that ‘due process’ is somehow of greater stature than ‘equal protection[.]’); see also Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886). Nowhere in this body of law is it suggested that judicial review of the constitutionality of removal proceedings of resident aliens is subject to a blanket of rational-basis review. See Haitian Refugee Ctr., 872 F.2d at 1562-63 (affirming preliminary injunction where INS procedures for evaluating aliens’ applications for a Special Agricultural Workers program violated the Due Process Clause without applying rational-basis review); see also Plyler, 457 U.S. at 216 (applying heightened scrutiny to an Equal Protection challenge to a state’s denial of free public education to the children of illegally present aliens).
Second, none of the national security or foreign policy concerns implicated in Hawaii are present here. There, the Executive Order at issue was facially designed “to diminish the risk that dangerous individuals would enter without adequate vetting from . . . state sponsor[s] of terrorism,” states significantly compromised by terrorist organizations, or active conflict zones. Hawaii, 138 S.Ct. at 2404. The Court emphasized “the lack of competence on the part of the courts” in “collecting evidence and drawing inferences” on questions of national security. Id. at 2419 (quoting Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010)). Defendants do not dispute that the termination of TPS for El Salvador does not implicate any of these, or similar
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concerns; rather, they contend that these concerns do not underlie the Court’s decision in Hawaii See ECF No. 36 at 9-10.
Hawaii relies on a line of cases applying rational-basis review to immigration decisions that involved the admission of aliens, but not national security implications, see Fiallo v. Bell, 430 U.S. 787, 795 (1977) (deferring to congressional judgment to prefer admission of illegitimate children seeking preference by virtue of relationship with citizen mothers, but not citizen fathers); Kleindienst v. Mandel, 408 U.S. 753, 770 (1972) (deferring to Executive denial of admission of a Belgian journalist who subsequently challenged the denial on the basis of the First Amendment); involved the removal of aliens, due to national security concerns, who were already present, see Rajah v. Mukasey, 544 F.3d 427, 433 (2d Cir. 2008) (upholding deportation of illegally present aliens identified by the National Security Entry-Exit Registration System); or involved both the admission of aliens and national security concerns, see Kerry v. Din, 135 S.Ct. 2128, 2140 (2015) (deferring to Executive’s refusal to issue a visa for admission to husband of a U.S. Citizen who was a former civil servant in the Taliban); see also Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 489, 491 (1999) (hereinafter AADC) (rejecting the First Amendment claims of a group of undocumented residents who were allegedly targeted for deportation because they were members of a government-designated terrorist organization and selective-enforcement is the province of the Executive). Defendants do not cite to, and the Court is not aware of, a case applying a rational-basis standard of review to plausible allegations of invidious discrimination against legally present aliens who are not alleged to pose a threat to national security.
Defendants also contend that a series of other cases involving immigration classifications establishes that rational-basis is the proper standard of review. See Malik v. Gonzales, 213 F.
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App’x 173, 174 (4th Cir. 2007); Malek-Marzban v. INS, 653 F.2d 113, 116 (4th Cir. 1981); Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979). Malik provides no help here—it makes no statement regarding the standard of review used to determine that a foreign national’s registration for the National Security Entry–Exit Registration System did not violate the Equal Protection Clause and, as in Rajah, involves national security concerns. Malik, 213 F. App’x at 174. In two other immigration cases cited by Defendants, courts have stated the longheld rule that “when the government classifies aliens on the basis of nationality, the classification must be upheld if it has a rational basis.” Malek-Marzban, 653 F.2d at 116; Narenji, 617 F.2d at 748. But Plaintiffs do not merely suggest that the Secretary classified on the basis of nationality; Plaintiffs contend that the Secretary’s decision was infected by discriminatory intent on the basis of race, color, and ethnicity. ECF No. 1. ¶ 82. In the immigration context, a government’s classifications on the basis of nationality are sensibly reviewed deferentially, as nearly all immigration policies involve some degree of classification on the basis of nationality. See generally Plyler, 457 U.S. at 216 (“A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill.”). But that rationale does not justify, as Plaintiffs allege, the government’s discrimination in this case on the basis of race or color, which are distinct from individual Plaintiffs’ national origin. Therefore, the Court holds that the analysis outlined in Arlington Heights controls. See also Ramos v. Nielsen, 321 F. Supp. 3d at 1127 (rejecting rational-basis review of equal protection challenge to TPS terminations of Haiti, Sudan, Nicaragua, and El Salvador); Centro Presente, 2018 WL 3543535 at *14-15 (holding the Arlington Heights
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standard applies to TPS terminations of Haiti, El Salvador, and Honduras, and that claims would nonetheless survive rational-basis review)
2. Plaintiffs Plausibly Allege Sufficient Facts to Establish a Violation of the Equal Protection Clause
The government violates the Equal Protection Clause when a “facially neutral” state action is motivated by “invidious racial discrimination.” McCrory, 831 F.3d at 220. Facially neutral action that is motivated by racial discrimination is “just as abhorrent, and just as unconstitutional, as [action] that expressly discriminate[s] on the basis of race.” Id. Under Arlington Heights, Plaintiffs need not show that the discriminatory purpose is the “‘sole’ or even a ‘primary’ motive for the [action], just that it was ‘a motivating factor’” Id. (quoting Arlington Heights, 429 U.S. at 265-66 (emphasis added by the Fourth Circuit)). To determine whether a facially neutral action is motivated by racial discrimination, a court should consider the following nonexhaustive factors: “‘[t]he historical background of the [challenged] decision’; ‘[t]he specific sequence of events leading up to the challenged decision’; ‘[d]epartures from normal procedural sequence;’” and the public statements made in support of the action. Id. (quoting Arlington Heights, 429 U.S. at 266-67.) An action is not cured of discriminatory taint because it is taken by an unprejudiced decision-maker who is manipulated or controlled by another who is motivated by discriminatory intent. See Staub v. Proctor Hospital, 562 U.S. 411, 413 (2011). “Once racial discrimination is shown to have been a ‘substantial’ or ‘motivating’ factor behind enactment of the law, the burden shifts to the law's defenders to demonstrate that the law would have been enacted without this factor.” Id. at 221 (quoting Hunter v. Underwood, 471 U.S. 222, 228 (1985)).
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Defendants do not suggest that President Trump’s alleged statements are not evidence of discriminatory motive on his part, nor could they. One could hardly find more direct evidence of discriminatory intent towards Latino immigrants. He has broadly painted Latino immigrants as drug-users, criminals, and rapists. ECF No. 1 ¶ 66a. He spoke publicly about the need to protect “the West” and “civilization” from forces from “the South or the East.” Id. ¶ 66g. And, just three days after the Secretary announced the termination of TPS for El Salvador, the President allegedly called El Salvador and Haiti (another TPS-designated country) a “shithole” country and expressed a preference for immigrants from overwhelmingly white countries like Norway. Id. ¶ 66h. These final statements, in particular, are “contemporary statements” by the President of the United States, who is alleged to have been involved in the decision to terminate TPS for El Salvador. Arlington Heights, 429 U.S. at 268. “[R]acially charged code words may provide evidence of discriminatory intent by sending a clear message and carrying the distinct tone of racial motivations and implications.” Smith v. Fairview Ridges Hosp., 625 F.3d 1076, 1085 (8th Cir. 2010) (internal quotation marks and alterations omitted). The alleged termination of El Salvador’s TPS on the basis of these beliefs is impermissible under the Equal Protection Clause. See also Ríos-Colón v. Toledo-Dávila, 641 F.3d 1, 5 (1st Cir. 2011) (allegations that a supervisor who used “abusive and derogatory slurs expressing explicit anti-black bias” had recommended a less qualified white candidate over the black plaintiff were “sufficient to plead a cognizable claim under the Equal Protection Clause”); cf. Mhany Mgmt., Inc. v. County of Nassau, 819 F.3d 581, 608-10 (2d Cir. 2016) (affirming district court finding that zoning decision was based on impermissible animus in response to citizen complaints about the “flavor” and “character” of likely new residents).
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Defendants contend that the Secretary was the decision-maker, not the President, and that the Secretary’s decision did not involve classification of a group of foreign nationals on the basis of their individual characteristics, but rather the classification of a foreign state. As to the first of these contentions, there can be no doubt that if, as alleged, the President influenced the decision to terminate El Salvador’s TPS, the discriminatory motivation cannot be laundered through the Secretary. Staub v. Proctor Hospital, 562 U.S. at 413. As to the second contention, it may prove to be true, but it is not what Plaintiffs allege. They allege that animus on the basis of race, color, and ethnicity was a motivating factor in the Secretary’s decision to terminate El Salvador’s TPS, see ECF No. 1 ¶¶ 81-83, and have offered sufficient evidence to make their Equal Protection claims plausible. See also Ramos, 321 F. Supp. 3d at 1131 (TPS plaintiffs plausibly stated claim that terminations were motivated by racial animus); Centro Presente, 2018 WL 3543535 at *1415 (same).
C. Due Process Clause Plaintiffs allege that because the termination is motivated by discriminatory animus, it is a violation of the Fifth Amendment’s guarantee of substantive due process as an “arbitrary” action. See City of Sacramento v. Lewis, 523 U.S. 833, 845 (1988). Defendants counter that the alleged conduct does not meet the “fatally arbitrary” standard of the Fourth Circuit. See Hawkins v. Freeman, 195 F.3d 732, 738 (4th Cir. 1999). Courts considering a claim for a substantive due process violation must first be “‘reluctant to expand the concept of substantive due process because guideposts for responsible decision-making in this uncharted area are scarce and open-ended.’” Id. (quoting Washington v. Glucksberg, 521 U.S. 702, 720 (1999) (Courts should thus “exercise the utmost care whenever we are asked to break new ground in this field.” Id. (quoting Glucksberg, 521 U.S. at 720). In
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cases challenging executive action, courts must ask, as a threshold question, whether the action is fatally arbitrary—that is, “whether the challenged conduct was ‘so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience.’” Id. (quoting Lewis, 523 U.S. at 847 n. 8). When the conscience-shocking behavior is intentional, courts are more likely to find liability; conversely, when the conscience-shocking behavior is only negligent, courts are less likely to find liability. Lewis, 523 U.S. at 849. Only then should courts address the nature of the asserted liberty interest. Hawkins, 195 F.3d at 738.
Plaintiffs do not ask the Court to “break new ground” and recognize any new rights protected by substantive due process. Substantive due process has long encompassed racial discrimination, and it is no surprise; one can hardly think of a more arbitrary motivation for executive action than racial discrimination. See, e.g., Loving v. Virginia, 388 U.S. 1, 12 (1967) (holding that laws barring interracial marriage were a violation of both the Equal Protection Clause and substantive due process); Bolling v. Sharpe, 347 U.S. 497, 499-500 (1954) (outlawing racial segregation in District of Columbia public schools as a violation of substantive due process); MARJAC, LLC v. Trenk, 380 F. App’x 142, 147 (3d Cir. 2010) (holding that the plaintiffs properly alleged that a township’s selective enforcement based on Italian heritage was a violation of substantive due process). Plaintiffs thus assert that the alleged conduct—alongside the severity of the consequences for the Salvadoran nationals—is sufficient to meet this “fatally arbitrary” threshold standard. The Court agrees. Plaintiffs allege that the President of the United States is intentionally willing to terminate TPS due to anti-Latino animus, sending 262,500 nationals of El Salvador back to a country that lacks the basic infrastructure to adequately handle their return. It is an action that, if true, would shock the conscience. Therefore, Plaintiffs have plausibly alleged a violation of substantive due process under the Fifth Amendment.
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D. Administrative Procedure Act Under the APA, courts must set aside any final agency action that is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” § 706(2)(A); “contrary to constitutional right, power, privilege or immunity,” § 706(2)(B); “in excess of statutory jurisdiction, authority, or limitations, or short of statutory right,” § 706(2)(C); or “without observance of procedure required by law,” § 706(2)(D). However, aggrieved persons are not entitled to judicial review of final agency action “to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law.” § 701(a). The parties do not dispute that the termination of TPS is final agency action. To satisfy the arbitrary and capricious standard, an agency must “examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Sierra Club v. Dep’t of the Interior, 899 F.3d 260, 293 (4th Cir. 2018) (quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983)). An action is arbitrary and capricious if “the agency has relied on factors which Congress has not intended it to consider.” Id. “[A]n agency changing its course must supply a reasoned analysis.” State Farm, 463 U.S. at 57 (quoting Greater Boston Television Corp. v. FCC, 444 F.2d 841, 852 (D.C. Cir. 1970)). The rational basis for an agency’s decision must be supplied by the agency itself; the court may not infer the agency’s reasoning from mere silence. Id. Plaintiffs allege that the termination violates the APA in three ways. First, the decision was based on a discriminatory motive, making it arbitrary and capricious, contrary to constitutional right and power, and in excess of statutory authority. ECF No. 1 at ¶ 91-92. This
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theory is coextensive with Plaintiffs’ Equal Protection and Substantive Due Process theories, and survives for the same reasons.
Second, Plaintiffs allege the termination is arbitrary and capricious because DHS failed to conduct an objective assessment of the conditions in El Salvador. Id. at ¶ 93. In its opposition brief, they clarify the allegation that the Administration “abruptly and without explanation departed from [earlier] practice by considering only whether the conditions that led to the original 2001 TPS designation continue to be met and ignoring the other statutory criteria the INA provides for TPS designation.” ECF No. 33 at 31. Defendants ask the Court not to consider this argument, because it was not well-developed in the Complaint. But the Complaint need not detail every single theory Plaintiffs may advance, as long as the factual allegations are “sufficient to support a meritorious legal claim.” Arar v. Ashcroft, 585 F.3d 559, 594 (2d Cir. 2009). When viewing the Secretary’s justification for the termination in the Federal Register against prior justifications, and the Secretary’s lack of an explanation for a changed approach, Plaintiffs plausibly allege that the termination is arbitrary and capricious. See Ramos, 321 F. Supp. 3d at 1110-16 (holding that ongoing problems were considered in prior administrations’ termination of TPS, but not here, and therefore plaintiffs had sufficiently alleged a new policy); Centro Presente, 2018 WL 3543535 at *16 (holding plaintiffs plausibly alleged violation of the APA where a new policy was made and the agency showed no good reasons for the new policy);
Third, Plaintiffs allege that the termination is arbitrary and capricious because DHS failed to consider the reliance interests of persons with protected status. This alleged reliance interest is rooted in the United States government’s prior extensions of El Salvador’s TPS while conditions in the country remained troubling. ECF No. 1 ¶ 94. Even if such interests could be established— and the explicitly temporary nature of the program suggests they could not—nothing in the TPS
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statute requires the Secretary to consider any such interests in her determination. See § 1254a(b)(1). To accept this theory would require the Court to substitute its judgment for Congress’ determination of the considerations the Secretary must take into account when designating or terminating a country for TPS. The Court declines to do so, and thus will not entertain this theory.
E. The President as Defendant Finally, Defendants contend the President is not a proper Defendant due to the separation of powers concerns that would arise from a court enjoining the President. “In general, ‘this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.” Franklin v. Mass., 505 U.S. 788, 802-03 (1993). Furthermore, any “grant of injunctive relief against the President himself is extraordinary, and should . . . raise [] judicial eyebrows.” Id. at 802. There can be no doubt that Presidential action is reviewable, but it is ordinarily sufficient to seek to enjoin the officers who attempt to enforce the President’s directive. Id. at 828; see also Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996) (“[i]n most cases . . . the injury at issue can be rectified by injunctive relief against subordinate officials). Defendants argue that an injunction issued against the Secretary would be sufficient relief for the claims in this case. To this, Plaintiffs only respond that it is premature to determine whether this case is one of the rare ones demanding the Court enjoin the President directly. See Centro Presente, 2018 WL 3543535 at *17 (denying motion to dismiss the President). Though ultimately, relief against the President himself is extraordinarily unlikely in this case, none of the authority cited by Defendants requires that the President be dismissed at this early stage. The Court thus denies Defendants’ motion to dismiss President Trump from the case.
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IV. CONCLUSION For the foregoing reasons, the Court grants Defendants’ Motion to Dismiss, ECF No. 28,
with respect only to Plaintiffs’ INA claim (Count III), and denies Defendants’ motion in all other respects. A separate Order shall issue.

Date: November 28, 2018

________/s__________________ GEORGE J. HAZEL United States District Judge

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