Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 1 of 15
ADRMOP,REFDIS,RELATE,STAYED
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:19−cv−00731−EMC

Bhattarai et al v. Nielsen et al Assigned to: Judge Edward M. Chen Referred to: Magistrate Judge Sallie Kim Relate Case Case: 3:18−cv−01554−EMC Cause: 05:702 Administrative Procedure Act
Plaintiff
Keshav Bhattarai

Date Filed: 02/10/2019 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Alycia Ann Degen Sidley Austin LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013−1010 213−896−6682 Fax: 213−896−6600 Email: adegen@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213−977−5211 Fax: 213−977−5297 Email: aarulanantham@aclusocal.org ATTORNEY TO BE NOTICED
Ava Xiaoqing Guo Sidley Austin LLP 1501 K Street, NW Washington, DC 20005 202−736−8529 Fax: 202−736−8711 Email: aguo@sidley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Myron Lapinig Asian Americans Advancing Justice − Los Angeles 1145 Wilshire Boulevard Los Angeles, CA 90017 213−977−7500 Email: clapinig@advancingjustice−la.org TERMINATED: 09/06/2019
Emilou MacLean 555 Seventh Street San Francisco, CA 94103 510−473−6343 Fax: 415−553−9810 Email: emi.maclean@sfgov.org TERMINATED: 09/19/2019 ATTORNEY TO BE NOTICED
Jessica Karp Bansal ACLU Foundation of Southern California 1313 W. 8th St. Los Angeles, CA 90016

Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 2 of 15
909−380−7501 Email: jbansal@aclusocal.org ATTORNEY TO BE NOTICED
Jingni (Jenny) Zhao Asian Americans Advancing Justice − Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415−896−1701 Fax: 415−896−1702 Email: jennyz@advancingjustice−alc.org ATTORNEY TO BE NOTICED
Jon Dugan 1501 K Street Suite 600 Washington, DC 20005 202−736−8115 Email: jdugan@sidley.com TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Jon Dugan Sidley Austin LLP 1501 K Street, NW Washington, DC 20005 202−736−8000 Fax: 202−736−8711 Email: jdugan@sidley.com TERMINATED: 06/13/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kimberly Ann Leaman Sidley Austin LLP 1501 K Street, NW Washington, DC 20005 202−736−8000 Email: kimberly.leaman@sidley.com PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Amena Hoq Asian Pacific American Legal Center 1145 Wilshire Blvd 2nd Floor Los Angeles, CA 90017 213−977−7500 Fax: 213−977−7595 Email: labonihoq@hotmail.com TERMINATED: 10/31/2019 ATTORNEY TO BE NOTICED
Michelle Young Cho ACLU SoCal 1313 W 8th Street #200 Los Angeles, CA 90017 213−977−9500 Fax: 213−915−0219 Email: mcho@aclusocal.org ATTORNEY TO BE NOTICED
Sean Ashley Commons

Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 3 of 15

Plaintiff Sajjan Pandey

Sidley Austin LLP 555 West Fifth Street, Suite 4000 Los Angeles, CA 90013 (213) 896−6010 Fax: (213) 896−6600 Email: scommons@sidley.com ATTORNEY TO BE NOTICED
Tami Weerasingha−Cote Sidley Austin LLP 1501 K Street, NW Washington, DC 20005 202−736−8000 Email: tweerasi@sidley.com TERMINATED: 09/14/2019 PRO HAC VICE
Tyler J. Domino Sidley Austin LLP 1501 K Street, NW Washington, DC 20005 202−736−8000 Email: tdomino@sidley.com TERMINATED: 07/31/2019 PRO HAC VICE
Winifred Virginia Kao Asian Americans Advancing Justice − Asian Law Caucus 55 Columbus Avenue San Francisco, CA 94111 415−896−1701 Fax: 415−896−1702 Email: winifredk@advancingjustice−alc.org ATTORNEY TO BE NOTICED
Zoe N. McKinney ACLU Foundation of Southern California 1313 West 8th Street Los Angeles, CA 90017 213−977−5211 Fax: 213−977−5297 Email: zmckinney@aclusocal.org ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Ava Xiaoqing Guo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Myron Lapinig (See above for address) TERMINATED: 09/06/2019

Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 4 of 15

Plaintiff Sumnima Thapa

Emilou MacLean (See above for address) TERMINATED: 09/19/2019 ATTORNEY TO BE NOTICED
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jingni (Jenny) Zhao (See above for address) ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kimberly Ann Leaman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019 ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) ATTORNEY TO BE NOTICED
Sean Ashley Commons (See above for address) ATTORNEY TO BE NOTICED
Tami Weerasingha−Cote (See above for address) TERMINATED: 09/14/2019 PRO HAC VICE
Tyler J. Domino (See above for address) TERMINATED: 07/31/2019 PRO HAC VICE
Winifred Virginia Kao (See above for address) ATTORNEY TO BE NOTICED
Zoe N. McKinney (See above for address) ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY

Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 5 of 15
ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Ava Xiaoqing Guo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Myron Lapinig (See above for address) TERMINATED: 09/06/2019
Emilou MacLean (See above for address) TERMINATED: 09/19/2019 ATTORNEY TO BE NOTICED
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jingni (Jenny) Zhao (See above for address) ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kimberly Ann Leaman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019 ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) ATTORNEY TO BE NOTICED
Sean Ashley Commons (See above for address) ATTORNEY TO BE NOTICED
Tami Weerasingha−Cote (See above for address) TERMINATED: 09/14/2019 PRO HAC VICE
Tyler J. Domino (See above for address) TERMINATED: 07/31/2019

Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 6 of 15

Plaintiff Donaldo Posadas Caceres

PRO HAC VICE
Winifred Virginia Kao (See above for address) ATTORNEY TO BE NOTICED
Zoe N. McKinney (See above for address) ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Ava Xiaoqing Guo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Myron Lapinig (See above for address) TERMINATED: 09/06/2019
Emilou MacLean (See above for address) TERMINATED: 09/19/2019 ATTORNEY TO BE NOTICED
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jingni (Jenny) Zhao (See above for address) ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kimberly Ann Leaman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019 ATTORNEY TO BE NOTICED
Michelle Young Cho

Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 7 of 15

Plaintiff Sorayda Rodriguez Motino

(See above for address) ATTORNEY TO BE NOTICED
Sean Ashley Commons (See above for address) ATTORNEY TO BE NOTICED
Tami Weerasingha−Cote (See above for address) TERMINATED: 09/14/2019 PRO HAC VICE
Tyler J. Domino (See above for address) TERMINATED: 07/31/2019 PRO HAC VICE
Winifred Virginia Kao (See above for address) ATTORNEY TO BE NOTICED
Zoe N. McKinney (See above for address) ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Ava Xiaoqing Guo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Myron Lapinig (See above for address) TERMINATED: 09/06/2019
Emilou MacLean (See above for address) TERMINATED: 09/19/2019 ATTORNEY TO BE NOTICED
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jingni (Jenny) Zhao (See above for address) ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Jon Dugan (See above for address)

Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 8 of 15

Plaintiff Denis Molina Chavez

TERMINATED: 06/13/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kimberly Ann Leaman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019 ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) ATTORNEY TO BE NOTICED
Sean Ashley Commons (See above for address) ATTORNEY TO BE NOTICED
Tami Weerasingha−Cote (See above for address) TERMINATED: 09/14/2019 PRO HAC VICE
Tyler J. Domino (See above for address) TERMINATED: 07/31/2019 PRO HAC VICE
Winifred Virginia Kao (See above for address) ATTORNEY TO BE NOTICED
Zoe N. McKinney (See above for address) ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Ava Xiaoqing Guo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Myron Lapinig (See above for address) TERMINATED: 09/06/2019
Emilou MacLean (See above for address) TERMINATED: 09/19/2019 ATTORNEY TO BE NOTICED

Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 9 of 15

Plaintiff
S.S. (a minor) individually and on behalf of others similarly situated

Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jingni (Jenny) Zhao (See above for address) ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kimberly Ann Leaman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019 ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) ATTORNEY TO BE NOTICED
Sean Ashley Commons (See above for address) ATTORNEY TO BE NOTICED
Tami Weerasingha−Cote (See above for address) TERMINATED: 09/14/2019 PRO HAC VICE
Tyler J. Domino (See above for address) TERMINATED: 07/31/2019 PRO HAC VICE
Winifred Virginia Kao (See above for address) ATTORNEY TO BE NOTICED
Zoe N. McKinney (See above for address) ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED

Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 10 of 15
Ava Xiaoqing Guo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Myron Lapinig (See above for address) TERMINATED: 09/06/2019
Emilou MacLean (See above for address) TERMINATED: 09/19/2019 ATTORNEY TO BE NOTICED
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jingni (Jenny) Zhao (See above for address) ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kimberly Ann Leaman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019 ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) ATTORNEY TO BE NOTICED
Sean Ashley Commons (See above for address) ATTORNEY TO BE NOTICED
Tami Weerasingha−Cote (See above for address) TERMINATED: 09/14/2019 PRO HAC VICE
Tyler J. Domino (See above for address) TERMINATED: 07/31/2019 PRO HAC VICE
Winifred Virginia Kao (See above for address) ATTORNEY TO BE NOTICED

Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 11 of 15

Plaintiff
G.D.P. (a minor) individually and on behalf of others similarly situated

Zoe N. McKinney (See above for address) ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Ava Xiaoqing Guo (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Christopher Myron Lapinig (See above for address) TERMINATED: 09/06/2019
Emilou MacLean (See above for address) TERMINATED: 09/19/2019 ATTORNEY TO BE NOTICED
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jingni (Jenny) Zhao (See above for address) ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 ATTORNEY TO BE NOTICED
Jon Dugan (See above for address) TERMINATED: 06/13/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Kimberly Ann Leaman (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Laboni Amena Hoq (See above for address) TERMINATED: 10/31/2019 ATTORNEY TO BE NOTICED
Michelle Young Cho (See above for address) ATTORNEY TO BE NOTICED
Sean Ashley Commons (See above for address)

Case: 3:19-cv-731 As of: 05/05/2020 11:41 AM PDT 12 of 15
ATTORNEY TO BE NOTICED
Tami Weerasingha−Cote (See above for address) TERMINATED: 09/14/2019 PRO HAC VICE
Tyler J. Domino (See above for address) TERMINATED: 07/31/2019 PRO HAC VICE
Winifred Virginia Kao (See above for address) ATTORNEY TO BE NOTICED
Zoe N. McKinney (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Kirstjen Nielsen in her official capacity as Secretary of Homeland Security
Defendant Elaine C. Duke in her official capacity as Deputy Secretary of Homeland Security
Defendant United States Department of Homeland Security
Defendant United States of America

represented by Adam Kirschner United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street NW Room 11020 Washington, DC 2005 202−353−9265 Email: adam.kirschner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Adam Kirschner (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 02/10/2019

# Docket Text
1 CLASS ACTION COMPLAINT against All Defendants, (Filing Fee: $400.00, receipt number 0971−13080047). Filed by Sajjan Pandey, S.S. (a minor), Sumnima Thapa, Sorayda Rodriguez Motino, G.D.P. (a minor), Donaldo Posadas Caceres, Denis Molina Chavez, Keshav Bhattarai. (Attachments: #(1) Civil Cover Sheet)(Degen, Alycia) (Filed on 2/10/2019) Modified on 2/12/2019 (tnS, COURT STAFF). (Entered: 02/10/2019)

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02/11/2019
02/11/2019 02/11/2019 02/11/2019 02/11/2019 02/12/2019
02/12/2019 02/14/2019 02/14/2019 02/14/2019 02/19/2019 02/19/2019 02/26/2019

2 Case assigned to Judge Jon S. Tigar.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.
Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (jjbS, COURT STAFF) (Filed on 2/11/2019) (Entered: 02/11/2019)
3 Proposed Summons. (Degen, Alycia) (Filed on 2/11/2019) (Entered: 02/11/2019)
4 Certification of Interested Entities or Persons Pursuant to Civil Local Rule 3−15 filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa (Degen, Alycia) (Filed on 2/11/2019) (Entered: 02/11/2019)
5 NOTICE filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa of NOTICE OF PENDENCY OF OTHER ACTIONS (Degen, Alycia) (Filed on 2/11/2019) (Entered: 02/11/2019)
6 MOTION for Leave to Appear in Pro Hac Vice, (Filing Fee: $310.00, receipt number 0971−13083844) filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa. (Attachments: #(1) Certificate of Good Standing)(Leaman, Kimberly) (Filed on 2/11/2019) (Entered: 02/11/2019)
7 Initial Case Management Scheduling Order with ADR Deadlines: This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras Joint Case Management Statement due by 5/8/2019. Initial Case Management Conference set for 5/15/2019 at 2:00 PM in San Francisco, Courtroom 09, 19th Floor. (Attachments: #(1) Standing Order for All Civil Cases Before District Judge Jon S. Tigar, #(2) Standing Order for All Judges, #(3) Notice of Eligibility for Video Recording) (tnS, COURT STAFF) (Filed on 2/12/2019) (Entered: 02/12/2019)
8 Summons Issued as to Defendants Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security & United States of America. (tnS, COURT STAFF) (Filed on 2/12/2019) (Entered: 02/12/2019)
9 MOTION for Leave to Appear in Pro Hac Vice, (Filing Fee: $310.00, receipt number 0971−13093553) filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa. (Attachments: #(1) Certificate of Good Standing)(Domino, Tyler) (Filed on 2/14/2019) (Entered: 02/14/2019)
10 ORDER by Judge Jon S. Tigar granting 9 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 2/14/2019) (Entered: 02/14/2019)
11 ORDER by Judge Jon S. Tigar granting 6 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 2/14/2019) (Entered: 02/14/2019)
12 MOTION for Leave to Appear in Pro Hac Vice, (Filing Fee: $310.00, receipt number 0971−13102134) filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa. (Attachments: #(1) Certificate of Good Standing)(Guo, Ava) (Filed on 2/19/2019) (Entered: 02/19/2019)
13 ORDER by Judge Jon S. Tigar granting 12 Motion for Pro Hac Vice. (wsn, COURT STAFF) (Filed on 2/19/2019) (Entered: 02/19/2019)
14 RELATED CASE ORDER. Related to: 18−cv−01554−EMC, Ramos v. Nielsen. Signed by Judge Edward M. Chen on 2/25/2019. (afmS, COURT STAFF) (Filed

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02/26/2019 02/27/2019
03/01/2019 03/04/2019 03/04/2019 03/05/2019 03/07/2019
03/12/2019 03/12/2019 03/12/2019 06/13/2019 07/31/2019 09/04/2019
09/06/2019

on 2/26/2019) (Entered: 02/26/2019)
15 Case reassigned to Judge Edward M. Chen. Judge Jon S. Tigar no longer assigned to the case. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras (srnS, COURT STAFF) (Filed on 2/26/2019) (Entered: 02/26/2019)
16 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13129042.) filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa. (Attachments: # 1 Certificate of Good Standing)(Weerasingha−Cote, Tami) (Filed on 2/27/2019) (Entered: 02/27/2019)
17 Order by Judge Edward M. Chen granting 16 Motion for Pro Hac Vice.(afmS, COURT STAFF) (Filed on 3/1/2019) (Entered: 03/01/2019)
18 NOTICE of Appearance by Adam Kirschner (Kirschner, Adam) (Filed on 3/4/2019) (Entered: 03/04/2019)
19 Joint Discovery Letter Brief filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa. (Degen, Alycia) (Filed on 3/4/2019) (Entered: 03/04/2019)
20 ORDER by Judge Edward M. Chen Re 19 Joint Discovery Letter of March 4, 2019. (emcsec, COURT STAFF) (Filed on 3/5/2019) (Entered: 03/05/2019)
21 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−13152110.) filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa. (Attachments: # 1 Certificate/Proof of Service Certificate of Good Standing)(Dugan, Jon) (Filed on 3/7/2019) Modified on 3/8/2019 (aaaS, COURT STAFF). (Entered: 03/07/2019)
22 STIPULATION WITH PROPOSED ORDER to Stay Proceedings filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa. (Degen, Alycia) (Filed on 3/12/2019) (Entered: 03/12/2019)
23 Order by Judge Edward M. Chen granting 22 Stipulation to Stay Proceedings.(afmS, COURT STAFF) (Filed on 3/12/2019) (Entered: 03/12/2019)
24 Order by Judge Edward M. Chen granting 21 Motion for Pro Hac Vice.(afmS, COURT STAFF) (Filed on 3/12/2019) (Entered: 03/12/2019)
25 NOTICE of Change In Counsel by Jon Dugan (Attachments: # 1 Proposed Order)(Dugan, Jon) (Filed on 6/13/2019) (Entered: 06/13/2019)
26 NOTICE of Change In Counsel by Tyler J. Domino (Attachments: # 1 Proposed Order)(Domino, Tyler) (Filed on 7/31/2019) (Entered: 07/31/2019)
27 Transcript of Proceedings held on August 2, 2018, before Judge Sallie Kim. Court Reporter/Transcriber Joan Marie Columbini, CSR, RPR, telephone number (510) 367−3043, joan.columbini.csr@gmail.com. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (152 in 3:18−cv−01554−EMC) Transcript Order, ) Redaction Request due 9/25/2019. Redacted Transcript Deadline set for 10/7/2019. Release of Transcript Restriction set for 12/3/2019. (Columbini, Joan) (Filed on 9/4/2019) (Entered: 09/04/2019)
28 First MOTION to Withdraw as Attorney filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa. Responses due by 9/20/2019. Replies due by 9/27/2019. (Lapinig, Christopher) (Filed on 9/6/2019) (Entered: 09/06/2019)

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09/06/2019 09/13/2019 09/14/2019 09/19/2019 09/19/2019 10/31/2019
10/31/2019

29 Order by Judge Edward M. Chen granting 28 Motion to Withdraw as Attorney..(afmS, COURT STAFF) (Filed on 9/6/2019) (Entered: 09/06/2019)
30 MOTION to Withdraw as Attorney filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa. Responses due by 9/27/2019. Replies due by 10/4/2019. (Attachments: # 1 Proposed Order)(Weerasingha−Cote, Tami) (Filed on 9/13/2019) (Entered: 09/13/2019)
31 Order by Judge Edward M. Chen granting 30 Motion to Withdraw as Attorney. (afmS, COURT STAFF) (Filed on 9/14/2019) (Entered: 09/14/2019)
32 NOTICE of Withdrawal of Attorney filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa. Responses due by 10/3/2019. Replies due by 10/10/2019. (MacLean, Emilou) (Filed on 9/19/2019) Modified on 9/19/2019 (slhS, COURT STAFF). (Entered: 09/19/2019)
Electronic filing error Re: 32 MOTION to Withdraw as Attorney filed by G.D.P. (a minor), Donaldo Posadas Caceres, Keshav Bhattarai, Sorayda Rodriguez Motino, Denis M olina Chavez, Sumnima Thapa, S.S. (a minor), Sajjan Pandey. Incorrect event used. [err101] Corrected by Clerk's Office. No further action is necessary. (slhS, COURT STAFF) (Filed on 9/19/2019) (Entered: 09/19/2019)
33 MOTION to Withdraw as Attorney filed by G.D.P. (a minor), S.S. (a minor), Keshav Bhattarai, Denis Molina Chavez, Sajjan Pandey, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Sumnima Thapa. Motion Hearing set for 12/3/2019 01:00 PM before Judge Edward M. Chen. Responses due by 11/14/2019. Replies due by 11/21/2019. (Attachments: # 1 Proposed Order)(Hoq, Laboni) (Filed on 10/31/2019) (Entered: 10/31/2019)
34 Order by Judge Edward M. Chen granting 33 Motion to Withdraw as Attorney. Attorney Laboni A. Hoq terminated. (afmS, COURT STAFF) (Filed on 10/31/2019) (Entered: 10/31/2019)

 
 Case 3:19-cv-00731 Document 1 Filed 02/10/19 Page 1 of 39

1 Ahilan T. Arulanantham, SBN 237841

aarulanantham@aclusocal.org

2 Zoë N. McKinney, SBN 312877

zmckinney@aclusocal.org

3 ACLU FOUNDATION OF SOUTHERN CALIFORNIA

1313 West 8th Street

4 Los Angeles, CA 90017

Telephone: (213) 977-5211/Fax: (213) 977-5297

5 Jessica Karp Bansal, SBN 277347

6

jbansal@ndlon.org Emilou MacLean, SBN 319071

7

emi@ndlon.org NATIONAL DAY LABORER

8

ORGANIZING NETWORK 674 S. La Layette Park Place

9

Los Angeles, CA 90057 Telephone: (213) 380-2214/Fax: (213) 380-2787

10 Alycia A. Degen, SBN 211350 adegen@sidley.com
11 Sean A. Commons, SBN 217603 scommons@sidley.com
12 SIDLEY AUSTIN LLP 555 West Fifth Street, Suite 4000
13 Los Angeles, CA 90013 Telephone: (213) 896-6000/Fax: (213) 896-6600
14 Attorneys for Plaintiffs 15 [Additional Counsel Listed on Next Page]

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18

KESHAV BHATTARAI; SAJJAN PANDEY; SUMNIMA THAPA; DONALDO POSADAS

Case No. 19-cv-731

19

CACERES; SORAYDA RODRIGUEZ MOTIÑO; DENIS MOLINA CHAVEZ; S.S.,

CLASS ACTION COMPLAINT

20

individually and on behalf of others similarly situated; and G.D.P., individually and on behalf

21 of others similarly situated.

22

Plaintiffs,

23

vs.

24

KIRSTJEN NIELSEN, in her official capacity as Secretary of Homeland Security; ELAINE C.

25

DUKE, in her official capacity as Deputy Secretary of Homeland Security; UNITED

26

STATES DEPARTMENT OF HOMELAND SECURITY; and UNITED STATE OF

27 AMERICA

28

Defendants.

Case 3:19-cv-00731 Document 1 Filed 02/10/19 Page 2 of 39
1 Additional Counsel for Plaintiffs
2 Laboni Hoq, SBN 224140 lhoq@advancingjustice-la.org
3 Christopher Lapinig, SBN 322141 clapinig@advancingjustice-la.org
4 Michelle (Minju) Cho, SBN 321939 mcho@advancingjustice-la.org
5 ASIAN AMERICANS ADVANCING JUSTICE – LOS ANGELES 1145 Wilshire Blvd., 2nd Floor
6 Los Angeles, CA 90017 Telephone: (213) 977-7500/Fax: (213) 977-7500
7 Jingni (Jenny) Zhao, SBN 284684
8 jennyz@advancingjustice-alc.org Winifred Kao, SBN 241473
9 winifredk@advancingjustice-alc.org ASIAN AMERICANS ADVANCING JUSTICE – ASIAN LAW CAUCUS
10 55 Columbus Avenue San Francisco, California 94111
11 Telephone: (415) 896-1701/Fax: (415) 896-1702
12 Tami Weerasingha-Cote, SBN 995355 (Washington, D.C.)* tweerasi@sidley.com
13 Ava X. Guo, SBN 1027694 (Washington, D.C.)* aguo@sidley.com
14 Kimberly Leaman, SBN 85925 (Virginia)* kimberly.leaman@sidley.com
15 Tyler Domino, SRN 5614631 (New York)* tdomino@sidley.com
16 Jon Dugan, SBN 93480 (Virginia)* jdugan@sidley.com
17 SIDLEY AUSTIN LLP 1501 K Street, NW
18 Washington D.C., 20005 Telephone: (202) 736-8000/Fax: (202) 736-8711
19 Attorneys for Plaintiffs.
20 *pro hac vice application forthcoming
21
22
23
24
25
26
27
28
COMPLAINT – CASE NO. 19-CV-731

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1

INTRODUCTION

2

1. Plaintiffs, beneficiaries of Temporary Protected Status (“TPS”) from Nepal and

3 Honduras and U.S.-citizen children of TPS holders from those two countries, challenge the Trump

4 Administration’s recent decisions to terminate the TPS designations for Nepal and Honduras. TPS is

5 a form of humanitarian immigration relief that allows individuals from designated countries to

6 lawfully live and work in the United States when they cannot safely return to their country of origin

7 due to armed conflict, natural disaster, or other “exceptional circumstances.” 8 U.S.C. 1254a (“the

8 TPS statute”). On October 3, 2018, the United States District Court for the Northern District of

9 California issued a preliminary injunction halting the Trump Administration’s earlier decisions to

10 terminate TPS for individuals from El Salvador, Haiti, Nicaragua, and Sudan in Ramos v. Nielsen,

11 Case No. 18-cv-01554-EMC. The defects identified in Ramos also infect the decisions challenged

12 here.

13

2. Currently, more than 100,000 individuals from Honduras and Nepal hold TPS. Many

14 of them came to this country at a young age and have lived here productively for most of their lives.

15 They have homes, spouses, jobs, businesses, and extensive social ties to their communities. TPS

16 holders are also the parents of thousands of U.S.-citizen children, many of whom are school-aged.

17

3. Congress created TPS in 1990 to establish formal criteria and procedures to replace

18 various ad hoc practices the Executive Branch had previously used for decades in affording similar

19 humanitarian relief to people from various countries. The power to designate, extend, or terminate

20 TPS for individual countries now resides with the Secretary of the Department of Homeland Security

21 (“DHS”).

22

4. When deciding whether to continue or instead terminate a country’s TPS designation,

23 under every prior administration, DHS (and prior to its inception, the Attorney General) regularly

24 considered all of the conditions in that country, including the impact of natural disasters and social

25 or economic crises that occurred after the country’s original TPS designation.

26

5. But after President Trump took office, DHS—without any formal announcement or

27 other explanation and without acknowledging any departure from past practice—adopted a new

28
1 COMPLAINT – CASE NO. 19-CV-731

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1 interpretation of the TPS statute that eschews consideration of intervening country conditions. At

2 times, DHS has maintained that the TPS statute requires this new interpretation. It does not.

3

6. As substantial evidence obtained from the Ramos litigation and elsewhere reveals, the

4 decision to adopt that new interpretation, as well as the resulting decisions terminating TPS

5 designations, were motivated by racial animus. President Trump has repeatedly broadcast his animus

6 towards non-white, non-European immigrants. Most important, during a meeting in the White House

7 discussing a legislative proposal that would have granted permanent residency to people from certain

8 TPS-designated countries, he asked why the deal included people from “shithole countries” and

9 expressed a preference for immigrants from countries “like Norway.”

10

7. The district court in Ramos examined extensive evidence of the White House’s

11 racially discriminatory motivations and the pressure it exerted, at multiple levels, to influence the

12 TPS decisions. The court also found that the Acting Secretary of DHS was influenced by that

13 pressure. She “expressly acknowledged that the terminations of TPS designations were . . . designed

14 to fit the President’s objectives on immigration which would put ‘America first.’”

15

8. As a result of this “America first view,” the Trump Administration has approached

16 TPS decisions with the stated goal of ending TPS “in general.” Since President Trump was sworn

17 into office, DHS has announced decisions that, if permitted to take effect, would eliminate TPS

18 protection for 98 percent of all TPS holders.

19

9. In the wake of the initial terminations of TPS designation for El Salvador, Haiti,

20 Nicaragua, and Sudan, TPS-holder plaintiffs from those countries and their U.S.-citizen children

21 successfully challenged the legality of those decisions in the United States District Court for the

22 Northern District of California, winning a preliminary injunction against those TPS terminations

23 under the Administrative Procedure Act (“APA”) and the equal protection guarantee of the Fifth

24 Amendment to the U.S. Constitution. See Order Granting Plaintiffs’ Motion for Preliminary

25 Injunction, Ramos v. Nielsen, No. 3:18-cv-01554-EMC, ECF No. 128.

26

10. The Ramos court concluded that the plaintiffs were likely to succeed on the merits of

27 their claim under the APA because “a wealth of record evidence” showed that, under President

28 Trump, “DHS made a deliberate choice to base the TPS decision solely on whether the originating
2 COMPLAINT – CASE NO. 19-CV-731

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1 conditions or conditions directly related thereto persisted, regardless of other current conditions no

2 matter how bad, and that this was a clear departure from prior administration practice.” Id. Thus, in

3 terminating TPS for those countries, DHS adopted a new standard that departed from long-standing

4 practice without any reasoned explanation, in violation of the APA. Id.

5

11. The Ramos court also found that the plaintiffs had raised serious questions on the

6 merits of their Fifth Amendment claim, which alleged that DHS’s TPS termination decisions and

7 departures from prior practice were motivated and influenced by racial animus against non-white,

8 non-European immigrants. Id.

9

12. After Ramos was filed but before the court granted the preliminary injunction,1

10 Defendants announced the termination of TPS for Nepal and Honduras. Those decisions were made

11 using the same flawed procedures described in Ramos and were infected by the same race-based

12 motivation as the prior terminations.

13

13. As a result of DHS’s unlawful actions, approximately 86,000 Honduran TPS holders

14 and 15,000 Nepali TPS holders face the loss of their ability to live and work lawfully in this country.

15 In addition, TPS holders from Nepal and Honduras have over 50,000 U.S.-citizen children. These

16 children, many of whom are school-aged, face an impossible choice between leaving the only home

17 they have ever known and growing up without one or both of their parents.

18

14. Plaintiffs challenge the termination of TPS for Honduras and Nepal on several

19 grounds.

20

15. First, Defendants’ sudden and unexplained deviation from decades of consistent

21 interpretation of the TPS statute and corresponding processes for extending or terminating TPS

22 designations violates the APA. DHS terminated the TPS designations for Honduras and Nepal based

23 solely on a consideration of whether the originating conditions prompting the designation have been

24 abated. Defendants’ sub silentio departure from existing standards and practices fails to meet the

25 minimum standards of considered judgment required by the APA.

26 1 Ramos was originally filed on March 12, 2018. See Class Action Complaint, Ramos v. Nielsen, No.
27 3:18-cv-01554 (N.D. Cal. Mar. 12, 2018), ECF No. 1. The court denied Defendants’ motion to dismiss five months later. See Order Denying Defendants’ Motion to Dismiss, Ramos v. Nielsen, No.
28 3:18-cv-01554 (N.D. Cal. Aug. 6, 2018), ECF No. 55.
3 COMPLAINT – CASE NO. 19-CV-731

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1

16. Defendants and others in the Trump Administration have, at times, attempted to

2 justify their new standard by asserting that the TPS statute prohibits consideration of intervening

3 conditions. But that assertion is incorrect as a matter of law. When an agency acts based on a flawed

4 legal rationale, the courts have authority to set aside the resulting agency decisions.

5

17. Second, Defendants’ new standard for determining whether to extend TPS and the

6 corresponding terminations issued under that standard violate the equal protection guarantee of the

7 Fifth Amendment’s Due Process Clause because they were motivated by intentional race-, ethnicity-,

8 and national-origin-based animus against TPS holders. In the lead-up to making TPS extension or

9 termination decisions, the Trump Administration repeatedly expressed animus towards non-white,

10 non-European immigrants, referred to TPS-designated nations as “shithole countries,” and reviewed

11 TPS designations with the goal of removing non-white, non-European immigrants from the United

12 States. DHS was directly influenced by the White House and its racist immigration policies, and it

13 made decisions regarding TPS terminations on that unlawful basis.

14

18. Third, the new standard violates TPS beneficiaries’ Fifth Amendment’s Due Process

15 right against arbitrary government invasion of personal liberty. The new standard constitutes an

16 arbitrary, unexplained abandonment of the government’s long-standing interpretation of the TPS

17 statute, on which several hundred-thousand TPS holders have come to rely. The Due Process Clause

18 forbids the government from engaging in such arbitrary action when individual liberty and property

19 interests are at stake.

20

19. Finally, Defendants’ imposition of an arbitrary new standard motivated by invidious

21 discrimination violates the substantive due process rights of school-aged U.S.-citizen children of

22 TPS holders, by presenting them with an intolerable choice: either leave this country or be forced to

23 live without their parents. Families have a well-established, fundamental right to live together free

24 from unwarranted government interference, and citizens of the United States have an absolute right

25 to reside in this country. DHS’s abrupt changes in TPS-related process and standards do not advance

26 a legitimate government interest sufficient to justify the significant burden on both of these rights

27 created by the TPS terminations.

28
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1

JURISDICTION AND VENUE

2

20. This Court has jurisdiction under 28 U.S.C. 1331, because this action arises under the

3 Constitution and the laws of the United States. This Court has additional remedial authority under

4 the Declaratory Judgment Act, 28 U.S.C. 2201 et seq., and the Administrative Procedure Act, 5

5 U.S.C. 701–706.

6

21. The federal government has waived its sovereign immunity and permitted judicial

7 review of agency action under 5 U.S.C. 702. See Presbyterian Church (U.S.A.) v. United States, 870

8 F.2d 518, 525 (9th Cir. 1989). Moreover, sovereign immunity would not bar claims against federal

9 officials that seek solely to prevent future violations of federal law (rather than monetary relief). See,

10 e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 697–99 & nn.18–19 (1949);

11 Shields v. Utah Idaho Cent. R.R. Co., 305 U.S. 177, 183–84 (1938).

12

22. Venue is proper in the Northern District of California under 28 U.S.C. 1391(e)(1),

13 because at least one Plaintiff resides in this judicial district and each Defendant is an agency of the

14 United States or an officer of the United States sued in his or her official capacity.

15

INTRADISTRICT ASSIGNMENT

16

23. This civil action should be assigned to the San Francisco Division, because a related

17 case, Ramos et al. v. Nielson et al., No. 3:18-cv-1554, is located in the San Francisco Division. In

18 addition, assignment in the San Francisco Division is appropriate for purposes of Civil Local Rules

19 3-2(d) and 3-5(b) because one of the claims of the named Plaintiffs arises in Alameda County.

20

THE PARTIES

21 Plaintiffs

22

24. Plaintiff Keshav Raj Bhattarai, fifty-six years old, was born in Nepal. He and his wife

23 have lived in the United States and held TPS since 2015. He lives in Sunnyvale, California.

24

25. Plaintiff Sajjan Pandey, sixty-four years old, was born in Nepal and has lived in the

25 United States since 2006. He has held TPS since 2015, and lives in Alameda, California.

26

26. Plaintiff Sumnima Thapa, thirty-five years old, was born in Nepal and has lived in the

27 United States since 2002. She and her husband hold TPS, and they have two young U.S.-citizen

28 sons, aged six and ten. She lives in Apple Valley, Minnesota.
5 COMPLAINT – CASE NO. 19-CV-731

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1

27. Plaintiff S.S. is ten years old and the son of Sumnima Thapa and her husband. He was

2 born in Minnesota and is a U.S. citizen. He lives in Apple Valley, Minnesota.

3

28. Plaintiff Donaldo Posadas Caceres was born in Honduras and has lived in the United

4 States since 1998. He, his wife, and his eldest son have held TPS since 1999. He has two U.S.-

5 citizen daughters, aged eighteen and nine. He lives in Baltimore, Maryland.

6

29. Plaintiff G.D.P. is nine years old and the daughter of Donaldo Posadas Caceres and

7 his wife. She was born in the United States and is a U.S. citizen. She lives in Baltimore, Maryland.

8

30. Plaintiff Sorayda Betzabe Rodriguez Motiño was born in Honduras. She has lived in

9 the United States since December 1998 and has had TPS since 1999. Her husband is a TPS holder as

10 well. They live in Harrisonburg, Virginia with their two U.S.-citizen children, aged fifteen and eight.

11

31. Plaintiff Denis Alen Molina Chavez was born in Honduras. He has lived in the United

12 States since July 1997 and has had TPS since 1999. He is a widow and single father to two U.S.-

13 citizen children, aged 13 and 12. He lives in Bridgeport, Connecticut.

14 Defendants

15

32. Defendant Kirstjen Nielsen, sued in her official capacity, is currently the Secretary of

16 Homeland Security. Defendant Nielsen assumed office on or around December 6, 2017. As the

17 highest-ranking officer for DHS, Defendant Nielsen is responsible for, among other things,

18 “[e]stablishing national immigration enforcement policies and priorities.” 6 U.S.C. 202(5). On or

19 about May 22, 2018, Defendant Nielsen terminated the designation of TPS for Nepal, and on or

20 about June 5, 2018, Defendant Nielsen terminated the designation of TPS for Honduras.

21

33. Defendant Elaine C. Duke, sued in her official capacity, is currently the Deputy

22 Secretary of Homeland Security and served as Acting Secretary of Homeland Security from around

23 July 31, 2017 to December 6, 2017 or thereabout. As the chief operating officer for DHS, Defendant

24 Duke is responsible for the administration and enforcement of the immigration laws of the United

25 States.

26

34. Defendant U.S. Department of Homeland Security is a cabinet-level department of

27 the Executive Branch of the federal government and is an “agency” within the meaning of 5 U.S.C.

28 551(1). DHS includes various component agencies, such as the U.S. Citizenship and Immigration
6 COMPLAINT – CASE NO. 19-CV-731

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1 Services (“USCIS”), U.S. Customs and Border Protection (“CBP”), and U.S. Immigration and

2 Customs Enforcement (“ICE”). DHS, together with all of its component agencies, is responsible for

3 administering and enforcing the nation’s immigration laws and policies, including the TPS statute.

4

35. Defendant United States of America includes all government agencies and

5 departments responsible for the implementation, administration, and change in policy concerning the

6 TPS statute.

7

STATUTORY FRAMEWORK

8

36. Congress established the TPS program through the Immigration Act of 1990.2 TPS is

9 a form of humanitarian relief, providing lawful immigration status to eligible foreign nationals who

10 cannot safely return home to war-torn or disaster-stricken countries. By enacting the TPS statute,

11 codified at 8 U.S.C. 1254a, Congress established formal criteria for relief and set forth predictable

12 procedures for issuing, extending, or terminating that relief.3

13

37. Under the TPS statute, the Secretary of Homeland Security4 may make a

14 “designation” determination for a given country. After consulting with “appropriate” government

15 agencies, the Secretary may designate a foreign state, or any part of that state, for TPS based on:

16 (A) an “ongoing armed conflict within the state” that would “pose a serious threat” to the “personal

17 safety” of returning nationals of that state; (B) an “earthquake, flood, drought, epidemic, or other

18 environmental disaster in the state resulting in a substantial, but temporary, disruption of living

19 conditions” if the foreign state is “unable, temporarily, to handle adequately the return to the state”

20 of its nationals and the foreign state has “officially” requested a designation; or (C) “extraordinary

21 2 Pub. L. No. 101-649, § 302, 104 Stat. 4978, 5030–36.

22 3 The Executive Branch previously used ad hoc enforcement-based mechanisms to allow individuals to remain in the United States for humanitarian reasons. See Adam B. Cox & Cristina Rodríguez,

23 The President and Immigration Law, 119 Yale L.J. 458, 501–02 (2009) (discussing use of the

“parole power,” codified at 8 U.S.C. 1182(d)(5)). For example, Presidents occasionally exercised 24 their discretion to designate countries for “Extended Voluntary Departure” and “Deferred Enforced

25

Departure.” Similar to TPS, both of those delayed-departure practices allowed foreign nationals to lawfully remain and work in the United States while conditions in their homeland were unsafe or

26 return was otherwise impracticable. 4 References to the Attorney General in provisions describing functions that have been transferred

27 from the Department of Justice to the Department of Homeland Security “shall be deemed to refer to

the Secretary” of Homeland Security. See 6 U.S.C. 557. 28

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1 and temporary conditions in the foreign state” that prevent its nationals from safely returning, and

2 where the temporary presence of those foreign nationals in the United States is not “contrary to the

3 national interest of the United States.”5

4

38. An initial TPS designation period for a given country lasts between six and eighteen

5 months.6 Before the designation can become effective, the Secretary must publish a notice in the

6 Federal Register that includes, among other things, a statement of findings, the effective date of the

7 designation, and an estimate of the number of foreign nationals eligible for protected status.

8

39. Once the Secretary has designated a particular country for TPS, individuals from that

9 country (or persons without nationality who last habitually resided in that country) may apply for

10 TPS. To be eligible for TPS, applicants from a designated country must meet stringent requirements.

11 These requirements include continued physical presence and continued residence in the United

12 States from the most recent date of the foreign state’s designation through the date of the TPS

13 application; satisfaction of certain criteria for admissibility as an immigrant; lack of disqualifying

14 criminal history; and submission of an application, extensive documentation, and fees.7

15

40. Congress intended that individuals who were ultimately granted protected status

16 would enjoy the freedom to live and work in the United States without fear of removal or other

17 reprisal. Under the statute, an individual who receives and maintains TPS shall be authorized to

18 engage in employment in the United States; shall not be detained by the Secretary of Homeland

19 Security on the basis of immigration status; and shall not be removed from the United States by the

20 Department of Homeland Security.8

21

41. Under the TPS statute, the Secretary must periodically re-evaluate country

22 designations. At least 60 days before a TPS designation is set to expire, the Secretary must “review

23 the conditions in the foreign state” and determine whether the country still meets the conditions for

24 TPS.9 This periodic-review requirement also entails consultation with appropriate government

25 5 8 U.S.C. 1254a(b)(1). 26 6 8 U.S.C. 1254a(b)(2), (b)(3)(C).
7 8 U.S.C. 1254a(c)(1); 8 C.F.R. 244.2, 244.4, 244.9. 27 8 8 U.S.C. 1254a(a)(1), (d)(4).
9 8 U.S.C. 1254a(b)(3). 28
8 COMPLAINT – CASE NO. 19-CV-731

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1 agencies. Unless the Secretary determines that the conditions warranting designation of TPS for a

2 particular country no longer exist, the designation will be extended—by default—for a period of six

3 months or, at the Secretary’s discretion, for a period of twelve or eighteen months.10 The resulting

4 decision must be published by notice in the Federal Register.

5

42. When TPS is terminated for a particular country, the individual TPS holder’s status

6 typically will revert back to his or her prior immigration status.11

7 THE TRUMP ADMINISTRATION ADOPTED A NEW STANDARD FOR TPS DECISIONS

8

IN ORDER TO BRING ABOUT THE END OF TPS

9

43. After President Trump took office, the White House began to pressure DHS to end

10 TPS.

11

44. The White House Domestic Policy Council sought repeatedly to influence the

12 decision-making process at the State Department and DHS to ensure a predetermined outcome: the

13 termination of TPS designations. Stephen Miller, President Trump’s senior advisory for domestic

14 policy, “frequently” reached out to DHS to urge termination.

15

45. Officials from President Trump’s immigration transition team, including Kathy

16 Nuebel Kovarik and Lee Francis Cissna, assumed high-level positions at DHS and USCIS, where

17 they directly shaped TPS policy. In October 2017, Kovarik hired Robert Law and assigned him

18 responsibility for editing career staffs’ TPS recommendations. Law had previously worked for the

19 “anti-immigrant hate group” Federation for American Immigration Reform (“FAIR”), where he co-

20 authored a report for the 2017 Trump Presidential Transition calling to “revoke TPS for any country

21 that has received more than two renewals.”

22

46. In order “to get to the President/White House’s desired result of terminating TPS,”

23 President Trump’s political surrogates within DHS made numerous changes to TPS practices.12 Most

24 significantly, under their leadership, DHS abandoned a long-established standard under which it

25 considered all current conditions—including intervening events—in deciding whether to extend or

26 10 8 U.S.C. 1254a(b)(3)(C).
27 11 8 C.F.R. 244.19. 12 Order Granting Plaintiffs’ Motion for Preliminary Injunction, Ramos v. Nielsen, No. 3:18-cv-
28 01554-EMC, ECF No. 128, at 32.
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1 terminate a country’s TPS designation. In its place, DHS adopted a new, narrow standard in which

2 DHS considers only whether the original conditions that initially gave rise to the TPS designation

3 persist.

4

47. Before the Trump Administration, for at least twenty years, Republican and

5 Democratic Administrations alike regularly relied on “[i]ntervening factors arising after a country’s

6 original TPS designation to extend TPS.” Secretaries considered “the full range of current country

7 conditions” in making TPS decisions, regardless of whether those conditions traced back to the event

8 that triggered the original designation.

9

48. Under the Trump Administration, in contrast, extensions would be permitted only

10 when warranted by the continued effects of the original event triggering the TPS designation.

11

49. In June 2017, then-Secretary Kelly described the new standard. He testified at a

12 Senate hearing that DHS could only consider the original reason for a country’s designation when

13 recommending extension or termination. He explained that, in the administration’s view, TPS “is for

14 a specific event. In Haiti, it was the earthquake. Yes, Haiti had horrible conditions before the

15 earthquake, and those conditions aren’t much better after the earthquake. But the earthquake was

16 why TPS was—was granted and—and that’s how I have to look at it.”13

17

50. Secretary Nielsen later echoed Kelly’s view. She testified, “[t]he law does not allow

18 me to look at the country conditions of a country writ large. It requires me to look very specifically

19 as to whether the country conditions originating from the original designation continue to exist. . . .

20 [T]he law requires me, if I cannot say that the conditions emanating from the [earthquake in

21 Honduras that originated the need for a TPS designation] still exist, regardless of other systemic

22 conditions, I must terminate TPS.”14 She also testified, “[t]he law says that if the effects of the

23

24 13 Hearing on the Department of Homeland Security F.Y. 2018 Budget Before the S. Comm. on

25

Homeland Security and Governmental Affairs, 115th Cong. (June 6, 2017) (statement of Secretary John F. Kelly), https://www.c-span.org/video/?429383-1/secretary-kelly-travel-ban-injunctions-

26 hobbling-homeland-security-screening-effort&start=5492. 14 Oversight of the United States Department of Homeland Security Before the S. Comm. on the

27 Judiciary, 115th Cong. (Jan. 16, 2018) (statement of Kirstjen M. Nielsen, Secretary, U.S.

Department of Homeland Security). 28

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1 originating event, so that’s a causation issue, do not continue to exist, then the Secretary of

2 Homeland Security must terminate [TPS]. . . . If the underlying conditions in a country are

3 themselves dangerous, unfortunately that is not something that I can consider in the termination.”15

4

51. Internal agency guidance prepared by the Trump-era DHS directed, “[t]he law

5 requires that when the conditions prompting a country’s original designation for TPS no longer exist,

6 the Department must terminate the country’s TPS designation.”

7

52. The White House directly urged the new standard as part of its overall effort to end

8 TPS and as applied to specific countries. For example, in November 2017, three days before the

9 statutory deadline for TPS decisions for Nicaragua and Honduras, the White House convened a

10 Cabinet-level meeting urging termination for Nicaragua, Honduras, Haiti, and El Salvador. In a

11 “Discussion Paper” to guide the meeting, the White House applied the new standard, asserting that

12 termination was required because “the temporary conditions that arose out of natural disasters and

13 supported [the original] TPS designations have long ceased to exist.”

14

53. As one source described, following the meeting, White House Chief of Staff John

15 Kelly and Homeland Security Advisor Tom Bossert called Acting Secretary Elaine Duke and “put

16 massive pressure on her” to terminate TPS for Honduras and Nicaragua.16 They told her that TPS

17 was an obstacle to the President’s “wider strategic goal” on immigration.17

18

54. Subsequently, Acting Secretary Duke determined that “[t]he TPS program must end

19 for these countries soon.” She acknowledged that “[t]his conclusion [was] the result of an America

20 first view.” She then terminated TPS for Nicaragua. She declined to make a decision on TPS for

21 Honduras, with the result that its TPS designation was automatically extended for six months. 8

22 U.S.C. 1254a(b)(3)(C). She made clear, however, that termination for Honduras was imminent under

23 15 Hearing on the Department of Homeland Security F.Y. 2019 Budget Before the H. Comm. on 24 Appropriations, 115th Cong. (Apr. 11, 2018) (statement of Secretary Kirstjen Nielsen),
https://www.c-span.org/video/?443752-1/homeland-security-secretary-nielsen-testifies-fiscal-year25 2019-budget.
16 Nick Miroff, White House chief of staff tried to pressure acting DHS secretary to expel thousands 26 of Hondurans, officials say, WASH. POST (Nov. 9, 2017),
https://www.washingtonpost.com/world/national-security/white-house-chief-of-staff-tried-to27 pressure-acting-dhs-secretary-to-expel-thousands-of-hondurans-officials-say/2017/11/09/914d3700-
c54a-11e7-a441-3a768c8586f1_story.html?utm_term=.a3d52a717ec9. 28 17 Id.
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1 the new standard. In an email to White House Chief of Staff Kelly, she explained that her “no

2 decision” on Honduras was “a strong break with past practice. . . . By not affirmatively extending,

3 I’m stating that I’m not satisfied that the country conditions remain—but not yet sure how best to

4 end TPS for this country.” She described her decisions as “send[ing] a clear signal that TPS in

5 general is coming to a close . . . consistent with the President’s position on immigration.”

6

55. In addition to adopting a new standard for TPS decisions, the Trump Administration

7 altered the process for conducting TPS reviews in other ways.

8

56. Prior to the Trump Administration, TPS review began with an objective country

9 conditions report prepared by career specialists. The reports formed the basis for decision memos

10 containing the USCIS Director’s recommendation to the DHS Secretary and Federal Register notices

11 announcing the decision. Career officials would draft Federal Register notices in tandem with the

12 decision memos, because the final decisions published in those notices were guided by the

13 recommendations from the career staff in the decision memos.

14

57. In the Trump era, this process changed. Political surrogates assumed responsibility

15 for the periodic TPS reviews. They disregarded the recommendations of career professionals and

16 rewrote decision memos so that the memos would “fully support” the pre-determined decision to

17 terminate TPS. Political surrogates also assumed control of drafting the Federal Register notices.

18 Whereas under prior administrations the Federal Register notice followed logically from career

19 officials’ drafts of the decision memos, under the Trump Administration this was no longer the case.

20

58. In addition, whereas prior administrations had typically conducted separate review

21 processes for each country, the Trump Administration reviewed multiple countries together, even

22 though each had different originating and current conditions. For example, the White House

23 “coordinat[ed] the conditions and process for terminating [TPS] for aliens from El Salvador,

24 Honduras, Nicaragua, and Haiti.”

25

59. Moreover, input from U.S. embassies, traditionally accorded great weight, was

26 disregarded by the Trump-era DHS, because the input did not support the goal of termination. As

27 James D. Nealon, chief of the DHS Office of Policy and former U.S. Ambassador to Honduras,

28 testified, the State Department traditionally afforded great weight to ambassadors’ input. Under prior
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1 administrations there would have been significant debate if DHS were to reject an ambassador’s

2 recommendation in favor of a contrary, internal recommendation. However, this all changed under

3 the current administration. State Department leadership ignored cables from U.S. embassies in TPS-

4 designated countries that sought to convey country conditions and offer recommendations on TPS

5 decisions. Additionally, in some cases, State Department leadership stalled providing

6 recommendations drafted by career State Department professionals until it was too late for DHS to

7 substantively consider them.

8

60. The first TPS termination announced by the Trump Administration was for Sudan in

9 September 2017. In a draft decision memo, career officials reviewed a broad range of country

10 conditions, including intervening conditions, and concluded, “termination does not appear to be

11 warranted.” Political surrogates then edited the memo to recommend termination. In support, they

12 tacked on a section focused narrowly on the factors that triggered Sudan’s original designation. The

13 resulting decision memo was so incoherent that the current USCIS Director Francis Cissna said it

14 read “like one person who strongly supports extending TPS for Sudan wrote everything up to the

15 recommendation section and then someone who opposes extension snuck up behind the first guy,

16 clubbed him over the head, pushed his senseless body out of the way, and finished the memo.” The

17 memo was changed several more times before ultimately being revised “to clearly support the . . .

18 decision to terminate.”

19

61. Subsequent terminations “underwent a similar process.” For example, Kovarik

20 complained in October 2017 of a “problem” in decision memos drafted by career professionals for

21 Honduras, Nicaragua, and El Salvador, because they “read[] as though we’d recommend an

22 extension b/c we talk so much about how bad it is, but there’s not enough in there about positive

23 steps that have been taken since it’s designation.” A career professional responded, “We can comb

24 through the country conditions to try to see what else there might be, but the basic problem is that it

25 IS bad there [with respect to] all of the standard metrics. Our strongest argument for termination, we

26 thought, is just that it is not bad in a way clearly linked to the initial disasters prompting the

27 designations.”

28
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1

62. DHS applied these same flawed processes to the two TPS terminations at issue in this

2 case—for Nepal and for Honduras.

3 Nepal

4

63. On April 26, 2018, Secretary Nielsen announced her decision to terminate TPS for

5 Nepal, with a twelve-month delayed effective date. 18 Like previous Trump-era TPS terminations,

6 the decision was the product of the White House’s persistent and ongoing effort to end TPS.

7

64. Nepal was first designated for TPS by Secretary Jeh Johnson on June 24, 2015, after a

8 7.8 magnitude earthquake and a number of significant aftershocks struck the country, killing nearly

9 9,000 people, injuring more than 20,000 people, displacing millions, and destroying or significantly

10 damaging over 750,000 homes.19 On October 26, 2016, DHS extended Nepal’s designation for

11 eighteen months.20 The extension took into account a variety of factors and conditions that arose

12 subsequent to the original designation, many of which were wholly or partially unrelated to the

13 earthquakes, including civil unrest, the obstruction of crossings at the Nepal-India border, and

14 inadequate sanitation.21

15

65. In terminating Nepal’s TPS, DHS applied its new standard. The Secretary considered

16 only whether Nepal had recovered from the earthquake that triggered its original designation;

17 intervening conditions that affected the country were not considered except to the extent they related

18 directly to the original basis for designation.

19

66. During the periodic review process for Nepal, Trump surrogate Kathy Nuebel

20 Kovarik instructed career employees to focus the country conditions report “specifically . . . on

21 progress in earthquake and recovery efforts” as opposed to the “extremely comprehensive” overview

22

23

24 18 Press Release, U.S. Dep’t of Homeland Security, Secretary Kirstjen M. Nielsen Announcement on Temporary Protected Status for Nepal (Apr. 26, 2018) (emphases added), https://www.dhs.
25 gov/news/2018/04/26/secretary-kirstjen-m-nielsen-announcement-temporary-protected-status-nepal. 26 19 Designation of Nepal for Temporary Protected Status, 80 Fed. Reg. 36,346, 36,347 (June 24,
2015). 27 20 Extension of the Designation of Nepal for Temporary Protected Status, 81 Fed. Reg. 74,470 (Oct.
26, 2016). 28 21 Id. at 74,471.
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1 “usually” provided. In response, career employees agreed “not to devote research” to political crises

2 and other intervening conditions not directly related to the earthquake.

3

67. An early draft decision memo for Nepal described the decision whether to extend or

4 terminate as a “close case.” It described the destructive intervening events that had befallen Nepal

5 but then dismissed them, because they were not “primarily” related to the original event, stating: “In

6 August 2017, the worst rains in 15 years struck Nepal, triggering widespread large-scale flooding

7 and landslides, causing significant property damage, and impacting access to food, water, and

8 healthcare, albeit primarily in the southern plains region that has been little affected by the

9 earthquake.” The draft recommended termination with an eighteen-month wind down period.

10

68. Upon reviewing a subsequent draft decision memo, Director Cissna complained that

11 it did not “adequately support the proposal to terminate TPS.” He noted specific sections of the

12 memo that he viewed as problematic, including factual statements about challenges to Nepal’s

13 rebuilding efforts and the number of individuals still living in temporary shelters.

14

69. The final Nepal decision memo recommended termination with a twelve-month wind

15 down period and no longer described the decision as a “close case.” The memo emphasized original

16 conditions and significantly downplayed the significance of any intervening factors. For example, it

17 limited consideration of the damage caused by severe, post-earthquake flooding in Nepal to simply

18 one of several “[f]actors delaying the completion of recovery and reconstruction efforts” but

19 otherwise “unrelated to the earthquake that led to the TPS designation” and, therefore, not relevant

20 to the termination decision. To the extent the decision memo considered the independent effects of

21 severe flooding, it was only to assert that disruption caused by the flooding did not “rise to the level

22 of a new event that would warrant a new TPS designation.”

23

70. In a Press Release announcing the termination of TPS for Nepal, DHS explained,

24 “[t]he decision to terminate TPS for Nepal was made after a review of the environmental disaster-

25

26

27

28
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1 related conditions upon which the country’s original designation was based and an assessment of 2 whether those originating conditions continue to exist as required by statute.”22

3

71. Accompanying DHS Press Affairs Guidance stated, “[b]ased on careful consideration

4 of available information . . . the Secretary determined that the original conditions caused by the 2015

5 earthquake no longer exist. Thus, as required under the applicable statute, the current TPS

6 designation must be terminated.”

7

72. The announcement terminating Nepal’s TPS was published in the Federal Register on

8 May 22, 2018.23 The Federal Register Notice made no mention of intervening events and did not

9 discuss the severe flooding of August 2017.

10 Honduras

11

73. On May 4, 2018, Secretary Nielsen announced her decision to terminate TPS for

12 Honduras with an eighteen-month delayed effective date. Again, like the previous Trump-era TPS

13 terminations, her decision was the product of the Trump Administration’s systematic effort to end

14 TPS. It effectuated a predetermined conclusion articulated by Acting Secretary Duke months earlier,

15 when she allowed a short, automatic six-month extension for Honduras because she was “not yet

16 sure how best to end TPS for this country.”

17

74. Honduras was originally designated for TPS on January 5, 1999 by Attorney General

18 Janet Reno, after Hurricane Mitch caused severe damage to the country.24 Multiple Attorneys

19 General and DHS Secretaries extended TPS for Honduras in regular periodic reviews over nearly 20 twenty years—fourteen times in all.25 Those extensions took into consideration social, economic,

21 22 Press Release, U.S. Dep’t of Homeland Security, Secretary Kirstjen M. Nielsen Announcement on

22 Temporary Protected Status for Nepal (Apr. 26, 2018) (emphases added), https://www.dhs. gov/news/2018/04/26/secretary-kirstjen-m-nielsen-announcement-temporary-protected-status-nepal.

23 23 Termination of the Designation of Nepal for Temporary Protected Status, 83 Fed. Reg. 23,705

(May 22, 2018). 24 24 Designation of Honduras Under Temporary Protected Status, 64 Fed. Reg. 524,(Jan. 5, 1999);

25

Extension of the Designation of Honduras for Temporary Protected Status, 75 Fed. Reg. 24,734, 24,735 (May 5, 2010) (“Hurricane Mitch resulted in the loss of thousands of lives, displacement of

26 thousands more, collapse of physical infrastructure, and severe damage to the country’s economic system.”).

27 25 The Attorneys General and DHS Secretaries responsible for extending Honduras’s TPS

designation are Attorney General Janet Reno, Attorney General John Ashcroft, DHS Secretary Tom 28

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1 environmental, and infrastructural challenges that were not directly attributable to the hurricane.26

2 For instance, decisions to extend TPS for Honduras cited environmental disasters that occurred after 3 Hurricane Mitch,27 a “deteriorating economy,” and a “political crisis” that “significantly reduc[ed]

4 economic activity.”28

5

75. In terminating Honduras’s TPS, DHS applied its new standard. The Secretary

6 assessed only whether Honduras had recovered from Hurricane Mitch and did not consider

7 intervening conditions.

8

76. For example, the Honduras decision memo explicitly dismissed “current challenges”

9 because they “cannot be directly tied to damage from the storm 20 years ago.”

10

11

12 Ridge, DHS Secretary Michael Chertoff, DHS Secretary Janet Napolitano, and DHS Secretary Jeh

Johnson. See Extension of the Designation of Honduras for Temporary Protected Status, 82 Fed. 13 Reg. 59,630 (Dec. 15, 2017); Extension of the Designation of Honduras for Temporary Protected

14 Status, 81 Fed. Reg. 30,331 (May 16, 2016); Extension of the Designation of Honduras for Temporary Protected Status, 79 Fed. Reg. 62,170 (Oct. 16, 2014); Extension of the Designation of

15 Honduras for Temporary Protected Status, 78 Fed. Reg. 20,123 (Apr. 3, 2013); Extension of the

Designation of Honduras for Temporary Protected Status, 76 Fed. Reg. 68,488 (Nov. 4, 2011);

16 Extension of the Designation of Honduras for Temporary Protected Status, 75 Fed. Reg. 24,734

(May 5, 2010); Extension of the Designation of Honduras for Temporary Protected Status, 73 Fed. 17 Reg. 57,133 (Oct. 1, 2008); Extension of the Designation of Honduras for Temporary Protected

18 Status, 72 Fed. Reg. 29,529 (May 29, 2007); Extension of the Designation of Honduras for Temporary Protected Status, 71 Fed. Reg. 16,328 (Mar. 31, 2006); Extension of the Designation of

19 Honduras for Temporary Protected Status, 69 Fed. Reg. 64,084 (Nov. 3, 2004); Extension of the

Designation of Honduras for Temporary Protected Status, 68 Fed. Reg. 23,744 (May 5, 2003); 20 Extension of the Designation of Honduras for Temporary Protected Status, 67 Fed. Reg. 22,451

21

(May 3, 2002); Extension of the Designation of Honduras for Temporary Protected Status, 66 Fed. Reg. 23,269 (May 8, 2001); Extension of the Designation of Honduras for Temporary Protected

22 Status, 65 Fed. Reg. 30,438 (May 11, 2000). 26 See, e.g., Extension of the Designation of Honduras Under the Temporary Protected Status

23 Program, 68 Fed. Reg. 23,744 (May 5, 2003). 27 See, e.g., id. (“[R]ecent droughts as well as flooding from Hurricane Michelle in 2001 have added
24 to the humanitarian, economic, and social problems initially brought on by Hurricane Mitch in

25

1998.”); Extension of the Designation of Honduras Under the Temporary Protected Status Program, 75 Fed. Reg. 24,734, 24,735 (May 5, 2010) (“[O]ther natural disasters have occurred since Hurricane

26 Mitch, including flooding in October 2008 and an earthquake in May 2009, which have further delayed the recovery from Hurricane Mitch.”).

27 28 Extension of the Designation of Honduras Under the Temporary Protected Status Program, 75

Fed. Reg. 24,734, 24,735 (May 5, 2010). 28

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1

77. The DHS press release announcing the Secretary’s decision explained, “[T]he

2 Secretary determined that the disruption of living conditions in Honduras from Hurricane Mitch that

3 served as the basis for its TPS designation has decreased to a degree that it should no longer be

4 regarded as substantial. . . . Thus, as required under the applicable statute, the current TPS 5 designation must be eliminated.”29

6

78. On the same day that DHS publicly announced the termination of TPS for Honduras

7 (and about six weeks after the filing of Ramos, challenging the new practice as unlawful), an

8 addendum was added to the Honduras decision memo. The addendum provides supplemental

9 information on environmental conditions related to problems caused by pine beetles and coffee rust.

10 The Federal Register Notice announcing the termination of TPS for Honduras, published on June 5,

11 2018, similarly mentions pine beetles and coffee rust, along with a range of other factors.

12

79. The addendum and similar information in the Federal Register notice were added as

13 post hoc justifications for DHS’s decision to terminate TPS for Honduras. They do not reflect the

14 narrower range of factors—based solely on the impact of Hurricane Mitch—actually considered by

15 DHS in deciding to terminate.

16

80. In a May 11, 2018 memorandum, members of the Senate Foreign Relations

17 Committee complained that Defendants “deliberately disregarded the counsel and expertise of

18 officials at the State Department and the U.S. Embassies in [Honduras, El Salvador, and Haiti], 19 which uniformly argued for an extension of the TPS designations.”30 As the memorandum observed, 20 the termination “was the result of an overtly political process.”31

21

22

23

24 29 Press Release, U.S. Dep’t of Homeland Security, Secretary of Homeland Security Kirstjen M. Nielsen Announcement on Temporary Protected Status for Honduras (May 4, 2018) (emphasis
25 added), https://www.dhs.gov/news/2018/05/04/secretary-homeland-security-kirstjen-m-nielsenannouncement-temporary-protected.
26 30 Memorandum from the Senate Foreign Relations Comm. Democratic Staff to Interested Parties (May 11, 2018),
27 https://www.nationalimmigrationproject.org/PDFs/practitioners/our_lit/impact_litigation/2018_15M ay_tps-haiti-senatememo.pdf
28 31 Id.
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1

THE CHANGES TO THE TPS CRITERIA AND THE ULTIMATE TERMINATIONS

2

WERE MOTIVATED BY RACIAL ANIMUS

3

81. The Secretary’s adoption of a new standard for TPS decisions and the termination of

4 TPS for Honduras and Nepal, like the previous Trump-era TPS terminations, were motivated in

5 significant part by racial and national-origin animus. As the court found in Ramos, there is evidence

6 that the terminations were designed to further a predetermined presidential agenda to end TPS

7 influenced by the President’s racial animus against non-white, non-European immigrants. This

8 animus is evidenced by numerous statements made by President Trump and other officials in his

9 administration expressing disdain for non-white, non-European immigrants.

10

82. Throughout his candidacy and presidency, President Trump has repeatedly denigrated

11 non-white, non-European immigrants and has expressed his interest in resurrecting a vision of

12 American identity that privileges whiteness.

13

83. On the very first day of his presidential campaign, then-candidate Trump

14 categorically branded Mexican immigrants as criminals and rapists: “When Mexico sends its people,

15 they’re not sending their best. . . . They’re sending people that have lots of problems, and they’re

16 bringing those problems with [them]. They’re bringing drugs. They’re bringing crime. They’re

17 rapists. And some, I assume, are good people.”32

18

84. Both during his campaign and after taking office, President Trump has repeatedly

19 compared immigrants to snakes that will bite and kill anyone foolish enough to shelter them.33

20

85. President Trump has repeatedly “retweeted” avowed white nationalists, such as

21 @WhiteGenocideTM, thereby endorsing their racist views and amplifying their message.34

22

23

24 32 Wash. Post Staff, Full Text: Donald Trump announces a presidential bid, WASH. POST (June 16, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trump-
25 announces-a-presidential-bid/?utm_term=.0b727c71c4c8. 33 Dara Lind, “The Snake”: Donald Trump brings back his favorite anti-immigrant fable at CPAC,
26 VOX (Feb. 23, 2018), https://www.vox.com/policy-and-politics/2018/2/23/17044744/trump-snakespeech-cpac.
27 34 Donald J. Trump (realDonaldTrump), TWITTER (Jan. 22. 2016), https://twitter.com/realdonaldtrump/status/690562515500032000?lang=en.
28
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1

86. When a lawsuit against Trump University was assigned to Judge Gonzalo Curiel,

2 then-candidate Trump repeatedly asserted that the Judge would be biased against him due to the 3 Judge’s Mexican heritage.35

4

87. After a crowd of white nationalists marched on Charlottesville, Virginia, President

5 Trump praised some of the protesters as “very fine people.”36

6

88. President Trump often conflates large groups of immigrants, and sometimes even all

7 of them, with members of the MS-13 gang.37 In his first State of the Union address, he suggested

8 that the Deferred Action for Childhood Arrivals (“DACA”) program, recipients of which are

9 immigrants first brought to the United States as children many years ago, contributed to the spread 10 of MS-13.38

11

89. President Trump has also directed his racist remarks specifically at people who have

12 lawful status through TPS.

13

90. On or about January 11, 2018, several lawmakers gathered with the President in the

14 Oval Office of the White House to discuss a bipartisan immigration proposal. President Trump grew

15 frustrated when the conversation turned to a proposal that would grant permanent status to some

16 people with TPS protections from certain Latin American and African countries. “Why,” the 17 President asked, “are we having all these people from shithole countries come here?”39 He expressed

18 a preference, instead, for immigrants from countries “like Norway.”40

19

20

21 35 Matt Ford, Trump Attacks a ‘Mexican’ U.S. Federal Judge, THE ATLANTIC (May 28, 2016), https://www.theatlantic.com/politics/archive/2016/05/trump-judge-gonzalo-curiel/484790/.
22 36 Politico Staff, Full text: Trump’s comments on white supremacists, ‘alt-left’ in Charlottesville, POLITICO (Aug. 15, 2017), https://www.politico.com/story/2017/08/15/full-text-trump-comments-
23 white-supremacists-alt-left-transcript-241662. 37 Terry Gross, Trump Uses MS-13 To ‘Sell Draconian Overhauls of Border Issues,’ Journalist Says,
24 NPR (Feb. 15, 2018), https://www.npr.org/2018/02/15/585937834/trump-uses-ms-13-to-selldraconian-overhauls-of-border-issues-journalist-says.
25 38 Liz Robbins, Why was MS-13 Targeted in Trump’s Speech?, N.Y. TIMES (Jan. 31, 2018). 39 Josh Dawsey, Trump Derides Protections for Immigrants from ‘Shithole’ Countries, WASH. POST
26 (Jan 12, 2018), https://www.washingtonpost.com/politics/trump-attacks-protections-for-immigrantsfrom-shithole-countries-in-oval-office-meeting/2018/01/11/bfc0725c-f711-11e7-91af-
27 31ac729add94_story.html?utm_term=.06cbc70bfaec. 40 Id.
28
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1

91. Senator Dick Durbin, who was present at the January 11, 2018 meeting in the Oval

2 Office, characterized the President’s comments as “clearly racial,” “hate-filled,” and “vile.”41

3 Senator Durbin reportedly warned the President that excluding immigrants based on those grounds

4 would be “an obvious racial decision.”42 Secretary Nielsen, also present at the January 11, 2018 Oval

5 Office meeting,43 acknowledged that the President used “tough language.”44 Although she claimed

6 that she did not know whether Norway was a “predominately white country,” she admitted that she

7 “imagine[d] that is the case.”45

8

92. President Trump has repeatedly made disparaging remarks about people from Central

9 America, including Honduras.

10

93. In February 2018, President Trump gave a speech at the annual Conservative Political

11 Action Conference, where he used MS-13 to disparage immigrants more generally, comparing them

12 to snakes and animals.46 Again, in May 2018 at an immigration roundtable discussion, President

13 Trump relied on MS-13 to claim that undocumented immigrants “aren’t people. They are animals.”47

14

94. On Twitter, President Trump lamented that Honduras is “doing nothing for the United

15 States but taking our money.”48

16

95. President Trump has also made disparaging remarks about certain South Asian

17 countries and people, frequently relying on crude and derogatory stereotypes to stoke fear about

18 immigration.

19 41 Carl Hulse, Inside the Oval Office Immigration Meeting that Left a Senator Stunned, N.Y. TIMES
20 (Jan. 19, 2018), https://nyti.ms/2DiqhlM. 42 Id.
21 43 Walter Shapiro, Opinion: White People in Norway? Who Knew?, ROLL CALL (Jan. 17, 2018), https://www.rollcall.com/news/opinion/kirstjen-nielsen-trump-norway.
22 44 Id. 45 Id.
23 46 Dara Lind, “The Snake”: Donald Trump brings back his favorite anti-immigrant fable at CPAC, VOX (Feb. 23, 2018), www.vox.com/policy-and-politics/2018/2/23/17044744/trump-snake-speech-
24 cpac; see also Julie Hirschfeld Davis, Trump Calls Some Unauthorized Immigrants ‘Animals’ in Rant, N.Y. TIMES (May 16, 2018), www.nytimes.com/2018/05/16/us/politics/trump-undocumented-
25 immigrants-animals.html. 47 Miriam Valverde, In Context: Donald Trump’s comments about immigrations, ‘animals’,
26 POLITIFACT (May 17, 2018), https://www.politifact.com/truth-o-meter/article/2018/may/17/contextdonald-trumps-comments-about-immigrants-an/.
27 48 Donald J. Trump (realDonaldTrump) TWITTER (Dec. 28, 2018), https://twitter.com/realdonaldtrump/status/1078638249562775552?lang=en.
28
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1

96. For example, while studying a map of the region in preparation for a meeting with the

2 Prime Minister of India, the President deliberately “mispronounced Nepal as ‘nipple’ and laughingly 3 referred to Bhutan as ‘button.’”49 The President is also “known to fake an Indian accent to imitate

4 Indian Prime Minister Narendra Modi during Oval Office meetings.”50

5

97. President Trump has also expressed general animus toward other South Asian

6 countries and individuals.

7

98. On October 5, 2016, President Trump gave a speech discussing how “our country is

8 being infiltrated . . . by terrorists,” referring to “immigrants from high-risk regions.”51

9

99. In August of 2016, then-candidate Trump gave speeches lamenting that the United

10 States is not “smart” because of the “problem [of terrorism] across our refugee and immigration

11 programs.” President Trump used an example of “two immigrants from Pakistan who later applied

12 for and received U.S. citizenship” and who “were sentenced to decades long prison sentences for 13 plotting to detonate a bomb” in New York City.52

14

100. On June 13, 2016, President Trump remarked how the male shooter from San

15 Bernardino, California “was the child of immigrants from Pakistan and he brought his wife – the 16 other terrorist – from Saudi Arabia through another one of our easily exploited visa programs.”53 He

17 further noted that immigration from Afghanistan is increasing and that “99% of people in

18 Afghanistan support oppressive Sharia Law. We admit many more from other countries in the region 19 who share these same oppressive views.”54

20

21

22 49 Daniel Lippman, Trump’s diplomatic learning curve: Time zones, ‘Namibia’ and ‘Nipple’, POLITICO (Aug. 13, 2018), https://www.politico.com/story/2018/08/13/trump-world-knowledge-
23 diplomatic-774801. 50 Cristina Maza, Trump Fakes Indian Accent When Speaking About Indian Prime Minister Modi,
24 Report Claims, NEWSWEEK (Jan. 22, 2018), https://www.newsweek.com/trump-racist-presidentimitates-modis-indian-accent-meetings-787071.
25 51 Speech: Donald Trump in Reno, NV, FACTBASE, https://factba.se/transcript/donald-trump-speechreno-nv-october-5-2016.
26 52 Speech: Donald Trump in Green Bay, WI, FACTBASE, https://factba.se/transcript/donald-trumpspeech-green-bay-wi-august-5-2016.
27 53 Remarks: Donald Trump at Saint Anselm College in Manchester NH, FACTBASE, https://factba.se/transcript/donald-trump-remarks-manchester-nh-june-13-2016.
28 54 Id.
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1

101. The President’s repeated statements denigrating immigrants, including many directed

2 at immigrants from TPS-designated countries, were not merely hateful rhetoric. They were also a

3 call to action.

4

102. As described above, supra ¶¶ 43–46, 52–54, the White House repeatedly inserted

5 itself at all levels of DHS’s decision-making on TPS to influence the process to favor termination.

6 As the district court in Ramos found, “Acting Secretary Duke’s writing suggest that she, in her role

7 at DHS, was largely carrying out or conforming with a predetermined presidential agenda to end

8 TPS.”

9

103. Similarly, as to then-Secretary Kelly, the district court found that his subordinates

10 sought data on the number of TPS holders who committed crimes and relied on public assistance.

11 “The information sought by the secretary coincides with racial stereotypes – i.e., that non-whites

12 commit crimes and are on the public dole.” Indeed, the political surrogates working for then-

13 Secretary Kelly knew the request for information was improper, so they requested that the

14 preparation of the data be “kept quiet.”

15

104. The motivation and methods for terminating TPS designations reveal that the

16 President’s documented animus for non-white, non-European immigrants infected the TPS decision-

17 making process.

18

DEPORTATION OF TPS HOLDERS WILL IMPOSE

19 EXTRAORDINARY AND IRREPARABLE HARM ON TPS HOLDERS, THEIR MINOR

20

U.S.-CITIZEN CHILDREN, AND THEIR COMMUNITIES

21

105. All told, approximately 400,000 TPS holders currently reside in the United States,55

22 approximately 86,000 of whom are Honduran TPS holders and 15,000 are Nepali TPS holders. TPS

23 holders live in all fifty states, as well as in the District of Columbia and the U.S. territories. At least

24

25
26 55 Robert Warren & Donald Kerwin, A Statistical and Demographic Profile of the US Temporary Protected Status Population from El Salvador, Honduras, and Haiti, 5 J. ON MIGRATION & HUM.
27 SEC. 577, 578 (2017); see also JILL H. WILSON, CONG. RES. SERV., TEMPORARY PROTECTED STATUS: OVERVIEW AND CURRENT ISSUES 4–5 (2018).
28
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1 ten states are home to more than 10,000 TPS holders each. California, residence to over 80,000 TPS

2 holders, is home to the greatest number of TPS holders in the country.56

3

106. Children born in the United States, including those born to TPS holders, are U.S.

4 citizens with an absolute right to remain in the United States as guaranteed by the Fourteenth

5 Amendment.

6

107. The wellbeing and future development of children are tied to nurturing and stable

7 relationships with their parents.57 Science has empirically confirmed this intuitive understanding.

8 The most important factor in the development of brain architecture—the trillions of connections

9 among and across neurons in a child’s brain—is the interactive and responsive relationship between

10 child and parent.58 The parent-child relationship promotes healthy brain development and provides

11 the buffering protection necessary to prevent children from experiencing the toxic responses to

12 stress.59

13

108. Children of immigrants suffer acutely when their parents face even the possibility of

14 deportation. Fear of deportation is directly tied to stress-related illness in children, including higher

15 levels of anxiety and trauma, depression, and family instability. The “fear of massive deportations”60

16 also diminishes the quality of day-to-day relationships between parents and their children, in part

17 because the threat of deportation deters parents from accompanying children to school or social

18 events, seeking urgent or preventative health care for themselves and their children, pursuing

19 opportunities for better housing, or reporting fraud, crimes, or abuse.

20

109. U.S.-citizen children of TPS holders, including the Plaintiff children in this case,

21 confront an impossible choice. On the one hand, they may continue to live with their parents, but

22 only if they relocate to a foreign country, leaving behind their schools, their communities, and the

23

24 56 Wilson, supra at 12. 57 CTR. ON THE DEVELOPING CHILD AT HARV. UNIV., THREE PRINCIPLES TO IMPROVE OUTCOMES FOR
25 CHILDREN AND FAMILIES 3–4 (2017), https://developingchild.harvard.edu/resources/three-early-

26

childhood-development-principles-improve-child-family-outcomes/. 58 Id.

27 59 Id. 60 Marie Leiner et al., Fear of Massive Deportations in the United States: Social Implications on

28 Deprived Pediatric Communities, 5 FRONT. PEDIATR. 177, 177–78 (2017).

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1 benefits of living in the United States—the only country they have ever known. On the other hand,

2 they may choose to remain in the United States, thereby forgoing the right to live with one or both of

3 their parents, which, in many cases, would involve TPS-holder children becoming a ward of the

4 state.

5

110. Plaintiff S.S., ten years old, is the eldest son of TPS holder Plaintiff Sumnima Thapa

6 and her husband. S.S. was born in Minnesota, where he lives with his parents and younger brother.

7 S.S. is in fifth grade and his favorite subjects are math, science, and gym. He loves science because

8 he likes discovering things and doing experiments. S.S. is a yellow belt in karate and also enjoys

9 playing soccer. If S.S. and his family were forced to leave the United States and move to Nepal he

10 would miss his school and all of his friends.

11

111. Plaintiff G.D.P., nine years old, is the youngest daughter of TPS holder Plaintiff

12 Donaldo Posadas Caceres. She was born in Maryland, where she lives with her parents and older

13 siblings, and is now a fourth grade student. Her favorite subjects are math, reading, and gym. She

14 loves learning new things, especially about history. Outside of school, G.D.P.’s favorite activities are

15 playing games with her family and going out to eat together. She dreams of growing up to be

16 President because she wants to help people who come here from other countries.

17

112. The scale of the harm wrought by Defendants’ new TPS policies and practices is

18 massive. TPS holders are the parents of more than 270,000 U.S.-citizen children.61 There are more

19 than 50,000 U.S.-citizen children whose parents are Honduran or Nepali TPS holders.62

20

113. But even beyond the parent-child relationship, TPS holders have built lives in the

21 United States over the course of years or decades, establishing roots and contributing to their

22 communities. The circumstances of the TPS-holder Plaintiffs in this case vividly illustrate the

23 irreparable harm that will occur if they (and other TPS holders) lose their TPS standing.

24

114. Plaintiff Keshav Raj Bhattarai, fifty-six years old, was born in Nepal. Keshav’s home

25 was significantly damaged in the April 2015 earthquake, and he and his wife had to sleep outside in

26 a tent for about a month. In May 2015, Keshav and his wife traveled to the United States to see their

27 61 Warren & Kerwin, supra note 55, at 578.
28 62 CTR. FOR AM. PROGRESS, TPS HOLDERS IN THE UNITED STATES 1 (2017).
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1 son graduate from his medical fellowship program. About a month later, Nepal was designated for

2 TPS and Keshav and his wife successfully applied for TPS status. Since receiving TPS, Keshav has

3 worked in restaurants and gas stations. He currently lives in Sunnyvale, California, and works at a

4 Chevron gas station, where he was recently promoted to assistant manager. His son is a doctor,

5 trained in geriatrics and nephrology, and has lived and practiced in the United States for about ten

6 years.

7

115. Plaintiff Sajjan Pandey, sixty-four years old, was born in Nepal. In Nepal, he used to

8 run a restaurant and a technical school. Sajjan arrived in the United States in 2006, and has lived

9 here ever since. He lives with his cousin, who is a U.S. citizen, in Alameda, California. He is an

10 attendant and cashier at a Chevron gas station in Oakland, California. TPS is essential to his ability

11 to work and support himself. He regularly sends money back to Nepal to help family members

12 whose homes were damaged after the earthquake. Additionally, for the last twelve years Sajjan has

13 been an active volunteer and leader of Motherland Nepal, a nonprofit cultural organization based in

14 the Bay Area that creates cultural programming and fundraises for people in need.

15

116. Plaintiff Sumnima Thapa, thirty-five years old, was born in Nepal and arrived in the

16 United States in 2002. She spent most of her childhood in Thailand, where she moved with her

17 family at the age of four. Sumnima obtained her bachelor’s degree in business management from

18 Saint Catherine’s College and her master’s degree in project management from Saint Mary’s

19 University. Since March 2017, she has worked as a research specialist at Omni Data Retrieval, and

20 she also previously volunteered with Lutheran Social Services. Sumnima lives in Apple Valley,

21 Minnesota with her husband, also a TPS holder, and their two U.S.-citizen children, aged six and ten.

22 Her youngest son has never been to Nepal, and her eldest son has visited Nepal only twice, once as

23 an infant. Neither of Sumnima’s sons speak Nepali fluently. She and her husband own their home in

24 Minnesota, and without TPS Sumnima will be unable to work and will have difficulty paying her

25 mortgage. She is frightened to think about bringing her family back to Nepal, a country she barely

26 knows and where few of her family members live.

27

117. Plaintiff Donaldo Posadas Caceres, forty-four years old, was born in Santa Rica

28 Copan, Honduras. When he was young, in 1994, his brother was murdered in Honduras, leading
26 COMPLAINT – CASE NO. 19-CV-731

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1 Donaldo to drop out of school for his protection and move to another city. He, his wife, and his

2 eldest son, who was then a baby, entered the United States in July 1998. They have held TPS since

3 1999. Donaldo currently works as a bridge painter and is a member of the International Union of

4 Painters and Allied Trades, commonly known as IUPAT. He owns his home in Baltimore, Maryland,

5 where he lives with his wife and children. In addition to their eldest son, Donaldo and his wife have

6 two U.S.-citizen daughters, aged eighteen and nine. His eldest daughter has been to Honduras only

7 once, to visit her ailing grandfather, and his youngest daughter only twice, to visit her ailing

8 grandfather and to attend her aunt’s funeral.

9

118. Plaintiff Sorayda Betzabe Rodriguez Motiño, thirty-six years old, was born in

10 Honduras, where she was raised by her grandmother from a young age. A few days after Sorayda

11 turned sixteen, she and her siblings came to the United States to look for their mother. They

12 presented themselves at a port of entry on or around Christmas Eve of 1998 and Sorayda was placed

13 in a shelter for unaccompanied minors. About two weeks later, Honduras was designated for TPS

14 and Sorayda was released to her mother. She has held TPS ever since. Sorayda lives in

15 Harrisonburg, Virginia with her husband, also a TPS holder, and two U.S.-citizen children. Her

16 eldest child is autistic. She works at Great Eastern Resort as a supervisor of housekeeping. Sorayda

17 is terrified at the thought of having to bring her children to Honduras, a place they have never been.

18 Her children do not speak Spanish.

19

119. Plaintiff Denis Alen Molina Chavez, fifty-two years old, was born in Honduras. He

20 entered the United States in July 1997 and has had TPS since 1999. After a short time in New Jersey,

21 he settled in Bridgeport, Connecticut, where he has lived ever since. Denis is a widow and the single

22 father of two U.S.-citizen children, a thirteen-year-old son and a twelve-year-old daughter. Denis’s

23 wife passed away in 2013 from ovarian cancer. Denis is the lead pastor at the Church of Jude Mount

24 Zion (Iglesia de Juda Monte de Sion) in Bridgeport, which has forty-five active members. He gives

25 sermons on Wednesdays, Fridays, Saturdays, and Sundays, in partnership with three assistant

26 pastors, and provides religious teaching for children and youth. Denis has been a pastor since he was

27 twenty-four years old and has been an active member of the church since he was a child. Denis also

28 works as a mechanic at Service My Auto in Bridgeport, where he has been employed for the past
27 COMPLAINT – CASE NO. 19-CV-731

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1 eight years. Denis is very worried about what will happen to his life and the lives of his children if

2 TPS is terminated. Denis is a homeowner; he and his wife bought their house less than a year and a

3 half before she passed away. He relies on TPS to afford his mortgage, pay for the children’s

4 necessities, to work, and to serve as a pastor. Connecticut is the only home his children have ever

5 known. They have never been to Honduras.

6

120. TPS holders are an integral part of the economic and social fabric of American

7 communities, and they give back to this country in countless ways. They are active in civic life and 8 volunteer at schools, neighborhood and work organizations, and religious institutions.63 They pay

9 federal, state, and local taxes, and support government social welfare programs. Experts estimate

10 that without Honduran TPS holders alone, the U.S. Gross Domestic Product would shrink by at least

11 $31.3 billion.64

12

121. The net positive economic contributions of TPS holders are not surprising in light of

13 their consistently high employment rate: eighty-five percent of Honduran TPS holders are employed.

14 About seventeen percent are entrepreneurs, creating jobs not just for themselves but also for their 15 communities.65 About thirty percent of TPS-holder households have mortgages, including 9,500 16 households with Honduran TPS holders.66 More than half of Honduran TPS holders have resided in 17 the United States for twenty years or more.67

18

19

20

21

22

23

24
25 63 CELIA MEJÍVAR, CTR. FOR MIGRATION RES., UNIV. OF KAN., TEMP. PROTECTED STATUS IN THE U.S.: THE EXPERIENCES OF HONDURAN & SALVADORAN IMMIGRANTS 19 (2017).
26 64 CTR. FOR AM. PROGRESS, supra note 62, at 2. 65 Warren & Kerwin, supra note 55, at 582–83.
27 66 CTR. FOR AM. PROGRESS, supra note 62, at 2. 67 Warren & Kerwin, supra note 55, at 581.
28
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1

122. In light of the overwhelming evidence of the contributions of TPS holders, bipartisan

2 groups of mayors and legislators,68 business leaders,69 labor unions,70 and faith-based leaders71

3 recognize the need to maintain the TPS program. To not extend TPS “would harm [U.S.] national

4 security interests by undermining the fragile security in those countries,” as well as “negatively

5 impact hundreds of thousands of American children.”72

6

CLASS ALLEGATIONS

7

123. Minor Plaintiffs S.S. and G.D.P. bring this action under Federal Rule of Civil

8 Procedure 23(b)(1)(A) and (b)(2), on behalf of themselves and a nationwide class of all similarly

9 situated persons.

10

124. Minor Plaintiffs seek to represent the following nationwide class: U.S.-citizen

11 children, from ages five to eighteen, of all TPS holders from Honduras and Nepal.

12

13

14

68 Letter from Ed Pawlowski, Mayor of Allentown, Penn., et al. to Kirstjen Nielsen, Sec’y of Homeland Sec. (Jan. 3 2018) (letter from 19 U.S. mayors and Cities for Action, a national coalition

15 of more than 175 cities and counties); Letter from Ben Cardin, U.S. Senator, et al. to Rex Tillerson, Sec’y of State, & Elaine C. Duke, Acting Sec’y of Homeland Sec. (Oct. 19, 2017); Letter from

16 James P. McGovern, Member of Congress, et al. to Elaine C. Duke, Acting Sec’y of Homeland Sec.

(Sept. 11, 2017) (bipartisan letter from 116 Members of Congress); Letter from Kirsten Gillibrand, 17 U.S. Senator, et al. to Rex Tillerson, Sec’y of State, & John F. Kelly, Sec’y of Homeland Sec. (July

18

18, 2017) (letter from 26 U.S. Senators). 69 Letter from Neil L. Bradley, Senior Vice President & Chief Policy Officer, U.S. Chamber of

19 Commerce, to Elaine C. Duke, Acting Sec’y of Homeland Sec. (Oct. 26, 2017); Letter from Embassy Suites Miami Airport, et al. to Marco Rubio, U.S. Senator (Nov. 3, 2017); Letter from Tex.

20 Agric. Irrigation Ass’n, et al. to John Cornyn, U.S. Senator (Nov. 3, 2017). 70 See, e.g., Press Release, Rachel Gumpert, UNITE HERE!, Labor Unions Launch Nearly One
21 Million Dollar Campaign to Save TPS (Nov. 16, 2017), http://unitehere.org/press-releases/labor-

22 unions-launch-nearly-one-million-dollar-campaign-to-save-tps/; Terry O’Sullivan & Stephen Sandherr, Trump Immigration Acts Will Hurt Families, Slow Hurricane Recovery, HOUSTON CHRON.

23 (Feb. 23, 2018) (General President of Laborers’ International Union of North America, which represents half a million workers, calls for extension of TPS).
24 71 Letter from The Evangelical Immigration Roundtable to Elaine C. Duke, Acting Sec’y of

Homeland Sec. (Nov. 1, 2017); Letter from Faith Leaders & Faith-Based Organizations to Elaine C. 25 Duke, Acting Sec’y of Homeland Sec. (Sept. 17, 2017) (560 faith leaders and 129 national, state, and

26 local faith-based organizations); Letter from the U.S. Conference of Catholic Bishops Migration and Refugee Services et al. to Elaine C. Duke, Acting Sec’y of Homeland Sec. (Oct. 26, 2017).
27 72 Letter from Dick Durbin, U.S. Senator, et al. to Elaine C. Duke, Acting Sec’y of Homeland Sec. (Nov. 9, 2017), available at https://www.durbin.senate.gov/newsroom/press-releases/lawmakers-
28 call-for-reversal-of-administration-decision-to-expose-thousands-to-dangerous-deportations.

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1

125. The proposed class satisfies the requirements of Federal Rule of Civil Procedure

2 23(a)(1), because it is so numerous that joinder of all members is impracticable.

3

126. On information and belief, there are tens of thousands of U.S.-citizen children of TPS

4 holders from Honduras and Nepal. Given the dates of TPS designations for those countries,

5 thousands of those children are minors confronted with the possibility of losing either the ability to

6 live in their native country or the care and support of one or both parents.

7

127. Due to the actions of Defendants, unsupported by any legitimate government interest,

8 U.S.-citizen children of TPS holders will be forced to choose between their absolute and

9 fundamental due process right to reside in this country and their due process right to the care and

10 support of their parents.

11

128. The class meets the commonality requirements of Federal Rule of Civil Procedure

12 23(a)(2). Members of the class are subject to a common practice or policy: Defendants’ adoption of

13 a new standard, unsupported by any legitimate government interest, that has caused the termination

14 of the TPS designations for their parents’ respective countries without any consideration of the

15 impact on the class members—i.e., these American children. If the TPS termination decisions take

16 effect, these children will be forced by law to choose between their right to reside in this country as

17 citizens and their right to reside with their parents. Whether the Due Process Clause permits the

18 government to foist this choice upon these minor children presents a common legal question,

19 resolution of which will greatly aid the efficient resolution of this case.

20

129. The proposed class meets the typicality requirements of Federal Rule of Civil

21 Procedure 23(a)(3), because the claims of the Minor Plaintiffs are typical of the claims of their class.

22 Minor Plaintiffs and the proposed class members are Honduran and Nepali TPS holders’ school-

23 aged children, from ages five to eighteen, who are U.S. citizens. Their parents will be subject to

24 removal once Defendants’ TPS termination decisions take effect. Minor Plaintiffs and their proposed

25 class also share the same legal claims, which challenge the legality of Defendants’ termination

26 policies and practices under the Fifth Amendment.

27

130. The proposed class meets the adequacy requirements of Federal Rule of Civil

28 Procedure 23(a)(4). Minor Plaintiffs seek the same relief as the other members of the class. In
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1 defending their own rights, Minor Plaintiffs will defend the rights of all proposed class members

2 fairly and adequately.

3

131. Additionally, the proposed class is represented by pro bono counsel from the National

4 Day Laborer Organizing Network (“NDLON”), the American Civil Liberties Union of Southern

5 California, Asian Americans Advancing Justice – Los Angeles, Asian Americans Advancing Justice

6 – Asian Law Caucus, and Sidley Austin LLP. Plaintiffs’ counsel have extensive experience litigating

7 class action lawsuits and other complex cases in federal court, including civil rights lawsuits on

8 behalf of non-citizens.

9

132. The members of the class are readily ascertainable through Defendants’ records.

10

133. Finally, the proposed class satisfies Federal Rule of Civil Procedure 23(b)(1)(A) and

11 (b)(2). Competing rulings as to whether Defendants must permit the TPS-holding parents of minor

12 U.S.-citizen children to reside in the United States could create inconsistent adjudications and

13 establish incompatible standards of conduct governing Defendants’ behavior. In addition,

14 Defendants have acted on grounds that are generally applicable to the class by terminating TPS

15 designations for Honduras and Nepal without considering the massive harm the decisions cause to

16 U.S.-citizen children or providing reasons to justify that harm. Thus, final injunctive and declaratory

17 relief is appropriate for the class as a whole.

18

CLAIMS FOR RELIEF

19

FIRST CLAIM

20

Violation of the Administrative Procedure Act

21

(Against All Defendants by All TPS-Holder Plaintiffs)

22

134. Plaintiffs re-allege and incorporate by reference each and every allegation contained

23 in the preceding paragraphs.

24

135. The Administrative Procedure Act, 5 U.S.C. 551 et seq., ensures that federal agencies

25 are accountable to the public by providing a “right of review” to any “person suffering legal wrong

26 because of agency action, or adversely affected or aggrieved by agency action.” 5 U.S.C. 702.

27 Judicial review is generally limited to “final agency action for which there is no other adequate

28 remedy in a court.” 5 U.S.C. 704.
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1

136. Among other things, the APA empowers federal courts to “hold unlawful and set

2 aside agency actions, finding, and conclusions” that are “arbitrary, capricious, an abuse of discretion,

3 or otherwise not in accordance with law.” 5 U.S.C. 706(2)(A). The right of review under the APA

4 includes a right to judicial review of “executive agency action for procedural correctness.” FCC v.

5 Fox Television Stations, Inc., 556 U.S. 502, 513 (2009).

6

137. To engage in procedurally appropriate decision-making, an agency must ordinarily

7 “display awareness that it is changing position,” and show “good reasons for the new policy.” Id. at

8 515 (emphasis in original). Agencies may not “depart from a prior policy sub silentio.” Id. The APA

9 requires an agency to provide even “more substantial justification” when “its prior policy has

10 engendered serious reliance interests.” Id.

11

138. Defendants’ terminations of the TPS designations for Honduras and Nepal constitute

12 “final agency action for which there is no other adequate remedy in a court” pursuant to 5 U.S.C.

13 704, because Defendants’ termination decisions trigger TPS holders’ loss of TPS “automatically and

14 without further notice or right of appeal,” 8 C.F.R. 244.19.

15

139. Defendants’ adoption of a new, drastically narrower interpretation of the TPS statute

16 was arbitrary, capricious, and contrary to law in violation of the APA, because it represents a sudden

17 and unexplained departure from decades of decision-making practices and ordinary procedures. By

18 shifting, without explanation, the decision-governing standard for country designations, Defendants

19 engaged in procedurally flawed decision-making. Further, Defendants changed their policy without

20 accounting for the serious reliance interests that their prior policy had engendered. Fox Television

21 Stations, 556 U.S. at 515.

22

140. Furthermore, Defendants’ conduct was also contrary to law, because Defendants’ new

23 and drastically narrower interpretation of the TPS statute is erroneous. The TPS statute does not

24 require the Secretary to consider only those country conditions that are directly related to the events

25 that gave rise to the initial TPS designation. The TPS statute places no such constraints on a TPS

26 decision, as years of prior decisions illustrate. “[I]t is black letter law that where an agency purports

27 to act solely on the basis that a certain result is legally required, and that legal premise turns out to be

28
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1 incorrect, the action must be set aside . . . .” Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland

2 Sec., 908 F.3d 476, 505 (9th Cir. 2018).

3

141. Plaintiffs will suffer irreparable injury resulting from the arbitrary termination of the

4 TPS designations.

5

SECOND CLAIM

6

Violation of the Equal Protection Guarantee of the

7

Due Process Clause of the Fifth Amendment

8

(Against All Defendants by All TPS-Holder Plaintiffs)

9

142. Plaintiffs re-allege and incorporate by reference each and every allegation contained

10 in the preceding paragraphs.

11

143. The Fifth Amendment contains an implicit guarantee of equal protection that

12 invalidates any official action that reflects a racially discriminatory intent or purpose. Classifications

13 based on race or national origin are subject to exacting scrutiny, and even facially neutral policies

14 and practices will be held unconstitutional when they reflect a pattern that is unexplainable on

15 grounds other than race. Bolling v. Sharpe, 347 U.S. 497, 499 (1954); Vill. of Arlington Heights v.

16 Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 (1977).

17

144. Defendants’ decisions to terminate the TPS designations for Honduras and Nepal are

18 unconstitutional because they were motivated, at least in part, by intentional discrimination based on

19 race, ethnicity, or national origin.

20

145. Plaintiffs will suffer irreparable injury resulting from the arbitrary termination of the

21 TPS designations.

22

THIRD CLAIM

23

Violation of the Due Process Clause of the Fifth Amendment

24

(Against All Defendants by All TPS-Holder Plaintiffs)

25

146. Plaintiffs re-allege and incorporate by reference each and every allegation contained

26 in the preceding paragraphs.

27

147. Due process protections extend to “all ‘persons’ within the United States, including

28 [non-citizens], whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas
33 COMPLAINT – CASE NO. 19-CV-731

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1 v. Davis, 533 U.S. 678, 693 (2001). TPS holders are lawfully present in this country. They have

2 significant property and liberty interests, protected by the Due Process Clause, in a non-arbitrary

3 decision as to the continuation of their TPS standing. Plaintiffs’ due process entitlement is based on

4 both a property interest conferred by the TPS statute in remaining in the United States so long as

5 their countries of origin are unsafe and a liberty interest based on their right under the TPS statute to

6 live and work in the United States.

7

148. The “very essence” of Due Process is the “protection of the individual against

8 arbitrary action.” Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 584 (1972). Any deprivation

9 of liberty or property interests must, at the very least, pass a test of rationality. The burden on the

10 government is greater when, as here, the liberty interests at stake derive from well-established and

11 significant reliance interests.

12

149. Defendants have not articulated, and cannot establish, any rational basis for reversing

13 course on decades of established TPS policy.

14

150. Plaintiffs will suffer irreparable injury resulting from the arbitrary termination of

15 Honduras’s and Nepal’s TPS designations.

16

FOURTH CLAIM

17

Violation of the Due Process Clause of the Fifth Amendment

18

(Against All Defendants by All U.S.-Citizen Children Plaintiffs)

19

151. Plaintiffs re-allege and incorporate by reference each and every allegation contained

20 in the preceding paragraphs.

21

152. The Due Process Clause of the Fifth Amendment to the U.S. Constitution provides

22 that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S.

23 Const. amend. V. The guarantee against the deprivation of liberty without due process bars the

24 government from infringing on certain “fundamental” liberty interests, regardless of the procedures

25 involved, unless the action is “narrowly tailored to serve a compelling state interest.” Reno v. Flores,

26 507 U.S. 292, 301–02 (1993).

27

153. Three such fundamental rights are implicated by Defendants’ actions. First, Plaintiffs

28 who are school-aged U.S. citizens have an absolute right to live in the United States. To compel
34 COMPLAINT – CASE NO. 19-CV-731

Case 3:19-cv-00731 Document 1 Filed 02/10/19 Page 37 of 39

1 them to live abroad at any time, let alone in their formative years, would deny them a core aspect of

2 their liberty protected by the Fifth Amendment. See, e.g., Nguyen v. I.N.S., 533 U.S. 53, 67 (2001);

3 Ng Fung Ho v. White, 259 U.S. 276, 284 (1922).

4

154. Second, for at least so long as these U.S.-citizen Plaintiffs remain minors, they have a

5 fundamental right protected by both the First and Fifth Amendments to live with and be raised by

6 their parents. E.g., Moore v. City of East Cleveland, 431 U.S. 494, 499 (1977); Board of Dirs. v.

7 Rotary Club, 481 U.S. 537, 545 (1987).

8

155. Third, Defendants’ decisions to end the lawful immigration status of their parents

9 impinges upon the U.S.-citizen Plaintiffs’ constitutionally protected liberty interests. These

10 American children have an interest in not being compelled to choose between two alternatives, when

11 each alternative will deprive them of a substantial, constitutionally protected aspect of their liberty.

12 See United States v. Jackson, 390 U.S. 570 (1968); cf. New York v. United States, 505 U.S. 144, 176

13 (1992).

14

156. In invading these fundamental constitutional rights, Defendants have articulated no

15 substantial government interest. Defendants may not lawfully deprive U.S.-citizen Plaintiffs of these

16 fundamental constitutional rights, as their actions advance no legitimate government interest. See

17 Smith v. City of Fontana, 818 F.2d 1411, 1419-20 (9th Cir. 1987) (holding that the government may

18 not interfere in the protected interest of family relations without demonstrating a legitimate interest),

19 overruled on other grounds by Hodgers-Durgin v. de la Vina, 199 F.3d 1037, 1040 n.1 (9th Cir.

20 1999).

21

157. U.S.-citizen Plaintiffs will suffer irreparable injury resulting from the termination of

22 the TPS designations.

23

PRAYER FOR RELIEF

24

Individual Plaintiffs, on behalf of themselves and others similar situated, ask this Court to

25 grant the following relief:

26

1. Declare that Defendants’ termination of the TPS designations for Honduras and

27 Nepal was unconstitutional under the Due Process Clause of the Fifth Amendment and unlawful

28 under the Administrative Procedure Act;
35 COMPLAINT – CASE NO. 19-CV-731

Case 3:19-cv-00731 Document 1 Filed 02/10/19 Page 38 of 39

1

2. Vacate Defendants’ unlawful termination of the TPS designations for Honduras and

2 Nepal;

3

3. Enjoin and restrain all Defendants, and their officers, agents, servants, employees,

4 attorneys, and all other persons who are in active concert or participation with any of them, from

5 implementing or enforcing the decisions to terminate the TPS designations for Honduras and Nepal;

6

4. Alternatively, certify this case as a class action lawsuit as proposed herein, appoint

7 Individual Minor Plaintiffs G.D.P. and S.S. as class representatives of their class, and the

8 undersigned counsel as class counsel;

9

5. And enjoin and restrain all Defendants, and their officers, agents, servants,

10 employees, attorneys, and all other persons who are in active concert or participation with any of

11 them, from rescinding the immigration status of those TPS holders who have school-aged U.S.-

12 citizen children for so long as the children remain age five to eighteen;

13

6. Grant an award of attorneys’ fees and costs; and

14

7. Grant any other and further relief that this Court may deem fit and proper.

15

16

17 Dated: February 10, 2019

Respectfully submitted,

18

SIDLEY AUSTIN LLP

19

/s/ Alycia A. Degen*

Alycia A. Degen

20

Sean A. Commons

Tamika Weerasingha-Cote

21

Ava Guo

Kimberly Leaman

22

Tyler Domino

Jon Dugan 23

ACLU FOUNDATION OF SOUTHERN

24

CALIFORNIA

25

/s/ Ahilan T. Arulanantham

Ahilan T. Arulanantham

26

Zoë N. McKinney

27

28
36 COMPLAINT – CASE NO. 19-CV-731

Case 3:19-cv-00731 Document 1 Filed 02/10/19 Page 39 of 39

1

NATIONAL DAY LABORER

ORGANIZING NETWORK

2

/s/ Jessica Karp Bansal

3

Jessica Karp Bansal

Emilou MacLean

4

ASIAN AMERICANS ADVANCING

5

JUSTICE – LOS ANGELES

6

/s/ Laboni Hoq

Laboni Hoq

7

Christopher Lapinig

Michelle (Minju) Cho

8

ASIAN AMERICANS ADVANCING

9

JUSTICE – ASIAN LAW CAUCUS

10

/s/ Jingni (Jenny) Zhao

Jingni (Jenny) Zhao

11

Winifred Kao

12

13

Attorneys for Plaintiffs

14

15 * Filer attests that all signatories listed, and on whose behalf the filing is submitted, concur in 16 the filing’s content and have authorized the filing

17

18

19

20

21

22

23

24

25

26

27

28
37 COMPLAINT – CASE NO. 19-CV-731

 
 Case 3:19-cv-00731-EMC Document 22 Filed 03/12/19 Page 1 of 8

1 Ahilan T. Arulanantham, SBN 237841

aarulanantham@aclusocal.org

2 Zoë N. McKinney, SBN 312877

zmckinney@aclusocal.org

3 ACLU FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street

4 Los Angeles, CA 90017

Telephone: (213) 977-5211/Fax: (213) 977-5297

5 Jessica Karp Bansal, SBN 277347

6 jbansal@ndlon.org Emilou MacLean, SBN 319071

7 emi@ndlon.org NATIONAL DAY LABORER

8 ORGANIZING NETWORK 674 S. La Layette Park Place

9 Los Angeles, CA 90057 Telephone: (213) 380-2214/Fax: (213) 380-2787

10 Alycia A. Degen, SBN 211350

11

adegen@sidley.com Sean A. Commons, SBN 217603

12

scommons@sidley.com SIDLEY AUSTIN LLP

13

555 West Fifth Street, Suite 4000 Los Angeles, CA 90013

14

Telephone: (213) 896-6000/Fax: (213) 896-6600 Attorneys for Plaintiffs

15 [Additional Counsel Listed on Next Page]

16

UNITED STATES DISTRICT COURT

17

NORTHERN DISTRICT OF CALIFORNIA

18 KESHAV BHATTARAI; SAJJAN PANDEY; Case No. 3:19-cv-00731-EMC SUMNIMA THAPA; DONALDO POSADAS

19 CACERES; SORAYDA RODRIGUEZ

STIPULATION TO STAY PROCEEDINGS

MOTIÑO; DENIS MOLINA CHAVEZ; S.S.,

20 individually and on behalf of others similarly

situated; and G.D.P., individually and on

The Honorable Edward M. Chen

21 behalf of others similarly situated,

22

Plaintiffs,

v. 23
KIRSTJEN NIELSEN, in her official capacity 24 as Secretary of Homeland Security; ELAINE
C.DUKE, in her official capacity as Deputy 25 Secretary of Homeland Security; UNITED
STATES DEPARTMENT OF HOMELAND 26 SECURITY; and UNITED STATE OF
AMERICA 27
Defendants. 28

STIPULATION TO STAY PROCEEDINGS - CASE NO. 3:19-cv-00731-EMC

Case 3:19-cv-00731-EMC Document 22 Filed 03/12/19 Page 2 of 8
1 Additional Counsel for Plaintiffs
2 Laboni Hoq, SBN 224140 lhoq@advancingjustice-la.org
3 Christopher Lapinig, SBN 322141 clapinig@advancingjustice-la.org
4 Michelle (Minju) Cho, SBN 321939 mcho@advancingjustice-la.org
5 ASIAN AMERICANS ADVANCING JUSTICE – LOS ANGELES 1145 Wilshire Blvd., 2nd Floor
6 Los Angeles, CA 90017 Telephone: (213) 977-7500/Fax: (213) 977-7500
7 Jingni (Jenny) Zhao, SBN 284684
8 jennyz@advancingjustice-alc.org Winifred Kao, SBN 241473
9 winifredk@advancingjustice-alc.org ASIAN AMERICANS ADVANCING JUSTICE – ASIAN LAW CAUCUS
10 55 Columbus Avenue San Francisco, California 94111
11 Telephone: (415) 896-1701/Fax: (415) 896-1702
12 Tami Weerasingha-Cote, SBN 995355 (Washington, D.C.) tweerasi@sidley.com
13 Ava X. Guo, SBN 1027694 (Washington, D.C.) aguo@sidley.com
14 Kimberly Leaman, SBN 85925 (Virginia) kimberly.leaman@sidley.com
15 Tyler Domino, SRN 5614631 (New York) tdomino@sidley.com
16 Jon Dugan, SBN 93480 (Virginia) jdugan@sidley.com
17 SIDLEY AUSTIN LLP 1501 K Street, NW
18 Washington D.C., 20005 Telephone: (202) 736-8000/Fax: (202) 736-8711
19
20
21
22
23
24
25
26
27
28
STIPULATION TO STAY PROCEEDINGS - CASE NO. 3:19-cv-00731-EMC

Case 3:19-cv-00731-EMC Document 22 Filed 03/12/19 Page 3 of 8

1

Pursuant to Local Rule 7-12, the parties hereby stipulate to, and respectfully request, on

2 the terms set forth in this stipulation, a stay of proceedings on the merits of Plaintiffs’ claims

3 pending either (a) final disposition of Defendants’ appeal of the preliminary injunction in Ramos

4 v. Nielsen, No. 18-01554, including through any additional appellate channels in which relief may

5 be sought, or (b) other order of this Court.

6

The basis for this stipulation is as follows:

7

1. On April 26, 2018, the Secretary of Homeland Security announced the termination

8 of Temporary Protected Status (“TPS”) for Nepal effective June 24, 2019. See 83 FR 23705 (May

9 22, 2018). On May 4, 2018, the Secretary of Homeland Security also announced the termination

10 of TPS for Honduras effective January 5, 2020. See 83 FR 26074 (June 5, 2018). Plaintiffs have

11 brought claims under the Administrative Procedure Act and the Fifth Amendment relating to those

12 terminations. Defendants believe the Court lacks jurisdiction over this matter and, otherwise,

13 believe the terminations were conducted in accordance with all applicable laws.

14

2. Plaintiffs’ claims are very similar to the claims raised by the plaintiffs in Ramos,

15 relating to termination of TPS for El Salvador, Haiti, Nicaragua, and Sudan. Defendants believe

16 the Court in Ramos lacks subject matter jurisdiction and that the terminations at issue in that case

17 were conducted in accordance with all applicable laws.

18

3. On October 3, 2018, in Ramos, this Court issued an order preliminarily enjoining

19 and restraining Defendants “from engaging in, committing, or performing, directly or indirectly,

20 by any means whatsoever, implementation and/or enforcement of the decisions to terminate

21 [Temporary Protected Status (“TPS”)] for Sudan, Haiti, El Salvador, and Nicaragua pending

22 resolution of this case on the merits.” See Ramos Order [ECF No. 128] at 42. Further, this Court

23 ordered Defendants to report within 15 days on the “administrative steps” Defendants would take

24 or have taken to comply with the preliminary injunction. See id. at 43.

25

4. On October 11, 2018, Defendants appealed the preliminary injunction in Ramos to

26 the U.S. Court of Appeals for the Ninth Circuit. Ramos [ECF No. 129]. Briefing is now complete,

27 and the parties expect the case to be scheduled for argument in the coming months.

28

1 STIPULATION TO STAY PROCEEDINGS - CASE NO. 3:19-cv-00731-EMC

Case 3:19-cv-00731-EMC Document 22 Filed 03/12/19 Page 4 of 8

1

5. Further, on October 23, 2018, pursuant to this Court’s Order, Defendants reported

2 on the administrative steps they had undertaken and planned to undertake in response to the

3 Ramos preliminary injunction. See, e.g., Ramos, Declaration of Donald Neufeld [ECF No. 135-1].

4 In addition, Defendants stipulated that TPS for the four countries would remain in effect during

5 the pendency of the appeal. See Ramos, Stipulation to Stay Proceedings [ECF No. 138] ¶ 6(c).

6 Defendants also stated that, in the event the preliminary injunction were reversed on appeal, any

7 termination of TPS for Sudan, Haiti, El Salvador, and Nicaragua would go into effect no sooner

8 than 120 days from the issuance of any appellate mandate to this Court. See Ramos, Declaration of

9 Donald Neufeld [ECF No. 135-1] ¶ 10; Ramos, Stipulation to Stay Proceedings [ECF No. 138] ¶

10 6.

11

6. The parties’ disputes in this case are similar to, and will be informed by, the disputes

12 being litigated in Ramos. The interests of justice and judicial economy would be served by treating

13 the decisions terminating TPS for Honduras and Nepal similarly to the decisions at issue in Ramos

14 during the pendency of the Ramos appeal. Specifically, Defendants hereby stipulate that they will

15 not “engag[e] in, commit[], or perform[], directly or indirectly, by any means whatsoever,

16 implementation and/or enforcement of the decisions to terminate [Temporary Protected Status

17 (“TPS”)] for” Honduras and Nepal, pending resolution of the appeal in Ramos, see Ramos, Order

18 [ECF No. 128] at 42, or by other order of the Court. Defendants reserve the right to move the

19 Court to lift this stay if the appellate decision in Ramos suggests a basis on which to distinguish

20 the Honduras and Nepal TPS terminations from the TPS terminations at issue in Ramos.

21

7. Defendants further stipulate that they will take steps with respect to TPS holders

22 from Honduras and Nepal equivalent to those that they agreed to take with respect to the TPS

23 holders at issue in Ramos. These include that TPS for Honduras and Nepal will remain in effect

24 during the pendency of this stay, that DHS will periodically issue Federal Register Notices

25 automatically extending by nine-months the appropriate TPS-related documentation for TPS

26 beneficiaries from Honduras and Nepal, with the first such notice to issue for TPS beneficiaries

27 from Nepal approximately forty five (45) days prior to June 24, 2019, and for TPS beneficiaries

28 from Honduras approximately forty five (45) days prior to January 5, 2020. These steps also

2 STIPULATION TO STAY PROCEEDINGS - CASE NO. 3:19-cv-00731-EMC

Case 3:19-cv-00731-EMC Document 22 Filed 03/12/19 Page 5 of 8

1 include in adjudicating late re-registration notices for TPS holders from Honduras and Nepal,

2 USCIS adjudicators will give presumptive weight to whether the delay in filing for re-registration

3 was due in whole or part to the termination notices. See Ramos, Stipulation to Stay Proceedings

4 [ECF No. 138] ¶ 6; Declaration of Donald W. Neufeld ¶¶ 9, 16. Further, the parties agree that, in

5 the event the Ramos preliminary injunction is reversed on appeal, any termination of TPS for

6 Honduras or Nepal will go into effect no sooner than 120 days from the issuance of any appellate

7 mandate to this Court or, to the extent Defendants move this Court to vacate the stay, 180 days

8 from vacatur of the stay by this Court. In addition, for TPS beneficiaries subject to this stipulation,

9 Defendants will take measures consistent with 8 U.S.C. § 1254a(c) and the Ramos agreement to

10 ensure the beneficiaries’ continued TPS eligibility and the continued validity of TPS-related

11 documentation. See Ramos, Declaration of Donald Neufeld [ECF No. 135-1]; Ramos, Stipulation

12 to Stay Proceedings [ECF No. 138].

13

8. The parties also stipulate to a stay of the proceedings in this case. Therefore, in

14 addition to staying production of the administrative records in this case, neither side will seek

15 discovery during the pendency of that stay. During the stay, Plaintiffs will seek no relief from this

16 Court beyond any relief needed to enforce the terms of this agreement, and Defendants will not

17 move to dismiss this case.

18

9. Both sides reserve the right to pursue any arguments in support of their positions

19 upon expiration of this agreement, including but not limited to Defendants’ arguments that this

20 Court lacks subject matter jurisdiction, that, if there is jurisdiction, then review should be limited

21 to the administrative record, and any other argument that either side could have made at this stage

22 of the litigation had they not agreed to this stipulation and stay.

23

10. This Court has the authority to issue a stay of proceedings pending the appeal in the

24 related Ramos case: “[T]he power to stay proceedings is incidental to the power inherent in every

25 court to control the disposition of the causes of its docket with economy of time and effort for

26 itself, for counsel, and for litigants.” Landis v. N. Am. Co., 299 U.S. 248, 254-55 (1936).

27

11. Accordingly, Plaintiffs and Defendants, through counsel, stipulate and request the

28 Court to order as follows:

3 STIPULATION TO STAY PROCEEDINGS - CASE NO. 3:19-cv-00731-EMC

Case 3:19-cv-00731-EMC Document 22 Filed 03/12/19 Page 6 of 8

1

(a) Further proceedings on the merits of this case, including discussions about,

2

and entry of, a schedule for resolving Defendants’ motion to dismiss and Plaintiffs’ motion

3

for preliminary injunction, shall be stayed pending final resolution of Defendants’ appeal of

4

the preliminary injunction in Ramos, including through any additional appellate channels in

5

which relief may be sought, or by other order of this Court.

6

(b) In the event that the Ramos preliminary injunction is affirmed in whole or

7

part after all appellate channels have been exhausted, the parties anticipate resuming

8

litigation in this Court. In the event that the preliminary injunction is reversed on a ground

9

that does not foreclose further discovery, nothing in this agreement forecloses Plaintiffs

10

from initiating discovery forthwith, nor does anything in this agreement foreclose

11

Defendants from opposing such discovery. Plaintiffs need not wait until the mandate issues

12

before initiating discovery in such a situation.

13

(c) Following the conclusion of the appeal of the preliminary injunction, TPS

14

will remain in effect for Honduras and Nepal for a minimum of the latter of a) 120 days

15

following the issuance of any mandate to the district court, or b) the Secretary’s previously-

16

announced effective date for the termination of TPS designations for each individual

17

country (Nepal – June 24, 2019; Honduras – January 5, 2020). To the extent that

18

Defendants move to vacate the stay in light of an appellate decision affirming the

19

preliminary injunction in Ramos that suggests a basis on which to distinguish the Honduras

20

and Nepal TPS terminations from the TPS terminations at issue in Ramos, TPS will remain

21

in effect for Honduras and Nepal for at least 180 days following an order of this Court

22

vacating the stay.

23

(d) As in Ramos, nothing in this stipulation prevents Plaintiffs from presenting

24

to the Court for resolution any issues concerning Defendants’ compliance with Defendants’

25

plan to implement the Ramos preliminary injunction, Ramos, [ECF No. 135-1], or with the

26

terms of this stipulation. Should either side for any reason fail to comply with the terms of

27

this stipulation, each side reserves the right to request that the Court lift this stay. The

28

4 STIPULATION TO STAY PROCEEDINGS - CASE NO. 3:19-cv-00731-EMC

Case 3:19-cv-00731-EMC Document 22 Filed 03/12/19 Page 7 of 8

1

parties, however, shall work in good faith to resolve the matter before they may petition the

2

Court for further guidance.

3

12. Following the exhaustion of all appeals in Ramos or order of this Court vacating the

4 stay, the parties plan to file a status report with this Court within 14 days of the issuance of the

5 mandate to this Court.

6 SO STIPULATED this 12th day of March, 2019.
7

8

Respectfully submitted,

9

SIDLEY AUSTIN LLP

10

/s/ Alycia A. Degen

11

Alycia A. Degen

Sean A. Commons

12

Tami Weerasingha-Cote

Ava Guo

13

Kimberly Leaman

Tyler Domino

14

Jon Dugan

15

ACLU OF SOUTHERN CALIFORNIA

Ahilan T. Arulanantham

16

Zoë N. McKinney

17

NATIONAL DAY LABORER

ORGANIZING NETWORK

18

Jessica Karp Bansal

19

Emilou MacLean

20

ASIAN AMERICANS ADVANCING

JUSTICE – LOS ANGELES

21

Laboni Hoq

Christopher Lapinig

22

Michelle (Minju) Cho

23

ASIAN AMERICANS ADVANCING

24

JUSTICE – ASIAN LAW CAUCUS

Jingni (Jenny) Zhao

25

Winifred Kao

26

Attorneys for Bhattarai Plaintiffs

27

28

5 STIPULATION TO STAY PROCEEDINGS - CASE NO. 3:19-cv-00731-EMC

Case 3:19-cv-00731-EMC Document 22 Filed 03/12/19 Page 8 of 8

1

JOSEPH H. HUNT

Assistant Attorney General

2

Civil Division

3

JOHN R. TYLER

Assistant Branch Director

4

/s/ Adam Kirschner

5

ADAM KIRSCHNER (IL Bar # 6286601)

Senior Trial Counsel

6

Federal Programs Branch, Civil Division

U.S. Department of Justice

7

1100 L Street, NW

Washington, DC 20005

8

Tel: (202) 353-9265

Fax: (202) 616-8460

9

Adam.Kirschner@usdoj.gov

10 Attorneys for Defendants
11

12 CIVIL LOCAL RULE 5-1(i) ATTESTATION
13 Pursuant to Local Rule 5-1(i)(3), regarding signatures, Alycia A. Degen hereby attests that
14 concurrence in the filing of this document has been obtained from counsel for Defendants.
15 /s/ Alycia A. Degen
16 [PROPOSED] ORDER
17 PURSUANT TO STIPULATION, IT IS SO ORDERED.
18

19 Dated: ______________, 2019
20 21

_________________________ The Honorable Edward M. Chen United States District Judge

22

23

24

25

26

27

28

6 STIPULATION TO STAY PROCEEDINGS - CASE NO. 3:19-cv-00731-EMC