ADRMOP,APPEAL,REFDIS,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:18-cv-01554-EMC

Ramos et al v. Nielsen et al Assigned to: Judge Edward M. Chen Referred to: Magistrate Judge Sallie Kim Relate Case Case: 3:19-cv-00731-EMC
Case in other court: 18-16981 Cause: 05:702 Administrative Procedure Act

Date Filed: 03/12/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Plaintiff
Crista Ramos individually and on behalf of others similarly situated

represented by Sean Ashley Commons Sidley Austin LLP 555 W. Fifth Street Suite 4000 Los Angeles, CA 90013 (213) 896-6010 Fax: (213) 896-6600 Email: scommons@sidley.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ahilan Thevanesan Arulanantham ACLU 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

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 ATTORNEY TO BE NOTICED

Amanda Robin Farfel Sidley Austin LLP 555 W. Fifth St. Suite 4000 Los Angeles, CA 90013 213-896-6601 Fax: 213-896-6600 Email: afarfel@sidley.com TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai Sidley Austin LLP 555 West 5th Street Suite 4000 Los Angeles, CA 90013 213-896-6148 Fax: 213-896-6600 Email: atalai@sidley.com ATTORNEY TO BE NOTICED
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
Jessica Karp Bansal ACLU Foundation of Southern California 1313 W. 8th St. Los Angeles, CA 90016 909-380-7501 Email: jbansal@aclusocal.org ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld Sidley Austin One South Dearborn Chicago, IL 60603 312-853-2031 Email: jfishfeld@sidley.com TERMINATED: 06/21/2019

PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent Stueve Siegel Hanson LLP 460 Nichols Road Suite 200 Kansas City, MO 64112 United Sta 816-714-7100 Fax: 816-714-7101 Email: dent@stuevesiegel.com TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe Sidley Austin 1999 Avenue of the Stars 17th Floor Los Angeles, CA 90067 United Sta 310-595-9500 Fax: 310-595-9501 Email: krowe@sidley.com TERMINATED: 07/10/2019
Marisol Ramirez Sidley Austin LLP 555 W 5th St 40th Floor Los Angeles, CA 90013 213-896-6640 Fax: 213-896-6600 Email: marisol.ramirez@sidley.com ATTORNEY TO BE NOTICED
Mark E. Haddad 699 Exposition Boulevard Los Angeles, CA 90089-0071 213-675-5957 Email: mhaddad@sidley.com ATTORNEY TO BE NOTICED
Matthew Joseph Letten Sidley Austin LLP 1501 K Street, N.W.

Washington, DC 20005 202-736-8565 Email: mletten@sidley.com TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light Shook, Hardy & Bacon L.L.P. 2049 Century Park East Suite 3000 Los Angeles, CA 90067 424-324-3428 Fax: 424-204-9093 Email: mlight@shb.com TERMINATED: 03/29/2019
Mohindra Rupram Sidley Austin LLP 555 W. Fifth Street Ste. 4000 Los Angeles, CA 91741 213-896-6000 Fax: 213-896-6600 Email: mrupram@sidley.com ATTORNEY TO BE NOTICED
Nicole Marie Ryan Sidley Austin LLP 555 California Street, 20th floor San Francisco, CA 94104 (415) 772-1200 Fax: (415) 772-7400 Email: nicole.ryan@sidley.com ATTORNEY TO BE NOTICED
Ryan M. Sandrock US Department of Justice Antitrust Division 450 Golden Gate San Francisco, CA 94102 202-316-6905 Email: ryan.sandrock@usdoj.gov TERMINATED: 06/01/2020
William S. Freeman ACLU Foundation of Northern

Plaintiff Cristina Morales

California 39 Drumm St. San Francisco, CA 94111 415 621-2493 Fax: 415 255-1478 Email: wfreeman@aclunc.org ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED

Plaintiff
Benjamin Zepeda individually and on behalf of others similarly situated

Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019
Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Orlando Zepeda

Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019
Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel

(See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address)

Plaintiff
Juan Eduardo Ayala Flores individually and on behalf of others similarly situated

TERMINATED: 03/29/2019
Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019

Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019
Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address)

Plaintiff Maria Jose Ayala Flores

TERMINATED: 06/01/2020
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address)

Plaintiff Elsy Yolanda Flores de Ayala

TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019
Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad

Plaintiff
Hnaida Cenemat individually and on behalf of others similarly situated

(See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019
Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020

ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019

Plaintiff Wilna Destin

Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address)

ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019
Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020

Plaintiff
Rilya Salary individually and on behalf of others similarly situated

William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED

Plaintiff Sherika Blanc

Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019
Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham

(See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Imara Ampie

Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019
Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED

Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019
Mohindra Rupram (See above for address)

Plaintiff Mazin Ahmed

ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED

Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED
Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019
Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020
William S. Freeman

Plaintiff Hiwaida Elarabi

(See above for address) ATTORNEY TO BE NOTICED
represented by Sean Ashley Commons (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ahilan Thevanesan Arulanantham (See above for address) ATTORNEY TO BE NOTICED
Alycia Ann Degen (See above for address) ATTORNEY TO BE NOTICED
Amanda Robin Farfel (See above for address) TERMINATED: 05/29/2020 ATTORNEY TO BE NOTICED
Andrew Brian Talai (See above for address) ATTORNEY TO BE NOTICED
Emilou MacLean (See above for address) TERMINATED: 09/19/2019
Jessica Karp Bansal (See above for address) ATTORNEY TO BE NOTICED
Jessica Johnson Fishfeld (See above for address) TERMINATED: 06/21/2019 PRO HAC VICE ATTORNEY TO BE NOTICED
Jillian Rebecca Dent (See above for address) TERMINATED: 03/26/2019 ATTORNEY TO BE NOTICED

Katelyn Rowe (See above for address) TERMINATED: 07/10/2019
Marisol Ramirez (See above for address) ATTORNEY TO BE NOTICED
Mark E. Haddad (See above for address) ATTORNEY TO BE NOTICED
Matthew Joseph Letten (See above for address) TERMINATED: 12/31/2019 PRO HAC VICE
Matthew Waters Light (See above for address) TERMINATED: 03/29/2019
Mohindra Rupram (See above for address) ATTORNEY TO BE NOTICED
Nicole Marie Ryan (See above for address) ATTORNEY TO BE NOTICED
Ryan M. Sandrock (See above for address) TERMINATED: 06/01/2020
William S. Freeman (See above for address) ATTORNEY TO BE NOTICED

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

represented by Rhett Martin U.S. Department of Justice Civil Division, Fedral Programs Branch 1100 L Street NW

Room 12510 Washington, DC 20005 202-305-7538 Email: rhett.martin@usdoj.gov TERMINATED: 05/31/2019 LEAD ATTORNEY
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 ATTORNEY TO BE NOTICED
Gary D Feldon United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street NW Room 11104 Washington, DC 20005 202-514-4686 Email: gary.d.feldon@usdoj.gov ATTORNEY TO BE NOTICED
Joseph C. Dugan United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street, NW Room 11212 Washington, DC 20005 202-514-3259 Email: joseph.dugan@usdoj.gov TERMINATED: 02/27/2019 ATTORNEY TO BE NOTICED
Kevin M Snell United States Department of Justice Civil Division, Federal Programs Branch 1100 L Street NW

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

Room 12510 Washington, DC 20005 202-305-0924 Email: Kevin.Snell@usdoj.gov ATTORNEY TO BE NOTICED
represented by Rhett Martin (See above for address) TERMINATED: 05/31/2019 LEAD ATTORNEY
Adam Kirschner (See above for address) ATTORNEY TO BE NOTICED
Gary D Feldon (See above for address) ATTORNEY TO BE NOTICED
Joseph C. Dugan (See above for address) TERMINATED: 02/27/2019 ATTORNEY TO BE NOTICED
Kevin M Snell (See above for address) ATTORNEY TO BE NOTICED
represented by Rhett Martin (See above for address) TERMINATED: 05/31/2019 LEAD ATTORNEY
Adam Kirschner (See above for address) ATTORNEY TO BE NOTICED
Gary D Feldon (See above for address) ATTORNEY TO BE NOTICED
Joseph C. Dugan (See above for address)

Defendant United States of America
V. Movant Keshav Bhattarai Movant Sajjan Pandey

TERMINATED: 02/27/2019 ATTORNEY TO BE NOTICED
Kevin M Snell (See above for address) ATTORNEY TO BE NOTICED
represented by Rhett Martin (See above for address) TERMINATED: 05/31/2019 LEAD ATTORNEY
Adam Kirschner (See above for address) ATTORNEY TO BE NOTICED
Gary D Feldon (See above for address) ATTORNEY TO BE NOTICED
Joseph C. Dugan (See above for address) TERMINATED: 02/27/2019 ATTORNEY TO BE NOTICED
Kevin M Snell (See above for address) ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Movant Sumnima Thapa
Movant Donaldo Posadas Caceres
Movant Sorayda Rodriguez Motino
Movant Denis Molina Chavez
Movant S.S. (A minor)
Movant G.D.P. (a minor)
Amicus State of California

represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Alycia Ann Degen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James F. Zahradka , II California Department of Justice Bureau of Children's Justice 1515 Clay Street, Suite 2000 Oakland, CA 94612 (510) 622-2239

Amicus County of Los Angeles

Fax: (510) 622-2121 Email: james.zahradka@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Margaret Louise Carter O'Melveny and Myers LLP 400 S. Hope Street Los Angeles, CA 90071-2899 (213) 430-7592 Fax: (213) 430-6407 Email: mcarter@omm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel R. Suvor O'Melveny & Myers LLP 400 South Hope Street Los Angeles, CA 90071 (213) 430-7669 Fax: (213) 430-6407 Email: dsuvor@omm.com ATTORNEY TO BE NOTICED

Date Filed 03/12/2018
03/12/2018 03/12/2018

# Docket Text
1 CLASS ACTION COMPLAINT against Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America (Filing fee $ 400, receipt number 0971-12179762). Filed by Sherika Blanc, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Mazin Ahmed, Maria Jose Ayala Flores, Benjamin Zepeda, Wilna Destin, Imara Ampie, Hiwaida Elarabi, Hnaida Cenemat, Orlando Zepeda, Rilya Salary, Juan Eduardo Ayala Flores. (Attachments: # 1 Civil Cover Sheet)(Commons, Sean) (Filed on 3/12/2018) Modified on 3/13/2018 (slhS, COURT STAFF). (Entered: 03/12/2018)
2 Proposed Summons. (Commons, Sean) (Filed on 3/12/2018) (Entered: 03/12/2018)
3 Certificate of Interested Entities by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de

03/12/2018 03/12/2018
03/13/2018 03/13/2018

Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda (Commons, Sean) (Filed on 3/12/2018) (Entered: 03/12/2018)
4 NOTICE by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda NOTICE OF PENDENCY OF OTHER ACTIONS (Commons, Sean) (Filed on 3/12/2018) (Entered: 03/12/2018)
5 Case assigned to Judge Edward M. Chen.
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. (bwS, COURT STAFF) (Filed on 3/12/2018) (Entered: 03/12/2018)
6 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 Case Management Statement due by 6/7/2018. Initial Case Management Conference set for 6/14/2018 09:30 AM in San Francisco, Courtroom 05, 17th Floor. (Attachments: # 1 Notice of Eligibility for Video Recording)(slhS, COURT STAFF) (Filed on 3/13/2018) (Entered: 03/13/2018)
Electronic filing error Re: 2 Proposed Summons filed by Mazin Ahmed, Hiwaida Elarabi, Hnaida Cenemat, Cristina Morales, Maria Jose Ayala Flores, Elsy Yolanda Flores de Ayala, Juan Eduardo Ayala Flores, Rilya Salary, Orlando Zepeda, Imara Ampie, Crista Ramos, Sherika Blanc, Wilna Destin, Benjamin Zepeda. Summons cannot be issued in blank (defendants have not been listed). This filing will not be processed by the clerks office. Please re-file completed form in its entirety. (slhS, COURT STAFF) (Filed on 3/13/2018) (Entered: 03/13/2018)

03/13/2018 03/15/2018 04/02/2018 04/02/2018 04/02/2018
04/02/2018
04/24/2018 05/03/2018

7 Proposed Summons. (Commons, Sean) (Filed on 3/13/2018) (Entered: 03/13/2018)
8 Summons Issued as to Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America, and U.S. Attorney. (slhS, COURT STAFF) (Filed on 3/15/2018) (Entered: 03/15/2018)
9 CERTIFICATE OF SERVICE by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda on the United States of America (Degen, Alycia) (Filed on 4/2/2018) (Entered: 04/02/2018)
10 CERTIFICATE OF SERVICE by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda on the United States Department of Homeland Security (Degen, Alycia) (Filed on 4/2/2018) (Entered: 04/02/2018)
11 CERTIFICATE OF SERVICE by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda on Kirstjen Nielsen, in her Official Capacity as Secretary of Homeland Security (Degen, Alycia) (Filed on 4/2/2018) (Entered: 04/02/2018)
12 CERTIFICATE OF SERVICE by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda on Elaine C. Duke, in her Official Capacity as Deputy Secretary of Homeland Security (Degen, Alycia) (Filed on 4/2/2018) (Entered: 04/02/2018)
13 NOTICE of Appearance by William S. Freeman (Freeman, William) (Filed on 4/24/2018) (Entered: 04/24/2018)
14 Joint Discovery Letter Brief filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Attachment A, # 2 Certificate/Proof

05/07/2018 05/07/2018 05/10/2018 05/17/2018
05/18/2018 05/21/2018

of Service Certificate of Service)(Degen, Alycia) (Filed on 5/3/2018) (Entered: 05/03/2018)
Set/Reset Hearing Motion Hearing re 14 Joint Discovery Letter Brief set for 5/17/2017 01:30 PM. Initial Case Management Conference reset for 5/17/2018 at 1:30 PM (6/14/18 date is vacated). Joint Case Management statement to be filed by end of day 5/10/2018. Hearing to be held in San Francisco, Courtroom 05, 17th Floor. (emclc1, COURT STAFF) (Filed on 5/7/2018) (Entered: 05/07/2018)
15 NOTICE of Appearance by Rhett Martin on behalf of Defendants (Martin, Rhett) (Filed on 5/7/2018) (Entered: 05/07/2018)
16 JOINT CASE MANAGEMENT STATEMENT filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Degen, Alycia) (Filed on 5/10/2018) (Entered: 05/10/2018)
17 Minute Entry for proceedings held before Judge Edward M. Chen: Discovery Hearing held on 5/17/2018. Further Case Management Conference set for 6/22/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor. Case Management Statement due by 6/15/2018. Motion to Dismiss Hearing set for 6/22/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Motion for Preliminary Injunction Hearing set for 9/27/2018 01:30 PM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Total Time in Court: 1 hour. Court Reporter: Belle Ball. (bpfS, COURT STAFF) (Date Filed: 5/17/2018) (Entered: 05/17/2018)
18 TRANSCRIPT ORDER for proceedings held on 05/17/2018 before Judge Edward M. Chen by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda, for Court Reporter Belle Ball. (Degen, Alycia) (Filed on 5/18/2018) (Entered: 05/18/2018)
19 Transcript of Proceedings held on May 17, 2018, before Judge Edward M. Chen. Court Reporter Belle Ball, CSR, CRR, RDR, telephone number (415)373-2529, belle_ball@cand.uscourts.gov. 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

05/21/2018
05/23/2018
05/31/2018 06/04/2018
06/05/2018 06/08/2018 06/11/2018

through the Court Reporter 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 18 Transcript Order, ) Release of Transcript Restriction set for 8/20/2018. (Related documents(s) 18 ) (ballbb15S, COURT STAFF) (Filed on 5/21/2018) (Entered: 05/21/2018)
20 MOTION to Dismiss Complaint filed by Kirstjen Nielsen, United States Department of Homeland Security, United States of America. Motion Hearing set for 6/22/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Responses due by 6/4/2018. Replies due by 6/10/2018. (Martin, Rhett) (Filed on 5/21/2018) Modified on 5/23/2018 (bpfS, COURT STAFF). (Entered: 05/21/2018)
21 CLERK'S NOTICE re: 20 MOTION to Dismiss Complaint. Opposition due by 6/4/2018. Reply due by 6/11/2018. Motion Hearing set for 6/22/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. (This is a text-only entry generated by the court. There is no document associated with this entry.), (bpfS, COURT STAFF) (Filed on 5/23/2018) (Entered: 05/23/2018)
22 Clerk's Notice of Video Recording Request. Video Camera hearing set for 6/22/2018 10:30 AM. Objections to Video Recording due 6/7/2018. (bpfS, COURT STAFF) (Filed on 5/31/2018) (Entered: 05/31/2018)
23 OPPOSITION/RESPONSE (re 20 MOTION to Dismiss Complaint ) filed byMazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Proposed Order)(Degen, Alycia) (Filed on 6/4/2018) (Entered: 06/04/2018)
24 NOTICE of Change of Address by Mark E. Haddad (Haddad, Mark) (Filed on 6/5/2018) (Entered: 06/05/2018)
25 Clerk's Notice CONSENTING TO Video Recording re: 22 Clerk's Notice of Video Recording Request. (Related documents(s) 22 )(bpfS, COURT STAFF) (Filed on 6/8/2018) (Entered: 06/08/2018)
26 REPLY in Support (re 20 MOTION to Dismiss Complaint ) filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Martin, Rhett) (Filed on 6/11/2018) Modified on 6/12/2018 (slhS, COURT STAFF). (Entered: 06/11/2018)

06/12/2018 06/15/2018 06/19/2018 06/21/2018
06/21/2018
06/22/2018 06/25/2018

27 TRANSCRIPT ORDER for proceedings held on 5/17/2018 before Judge Edward M. Chen by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America, for Court Reporter Belle Ball. (Martin, Rhett) (Filed on 6/12/2018) (Entered: 06/12/2018)
28 Joint Discovery Letter Brief filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Degen, Alycia) (Filed on 6/15/2018) (Entered: 06/15/2018)
29 ORDER RE: Supplemental Briefing by Plaintiffs due Thursday June 21, 2018 at 12p.m. Signed by Judge Edward M. Chen on June 19, 2018. (emclc1, COURT STAFF) (Filed on 6/19/2018) (Entered: 06/19/2018)
30 Supplemental Brief re 20 MOTION to Dismiss Complaint (filed in Opposition) filed byMazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Related document(s) 20 ) (Degen, Alycia) (Filed on 6/21/2018) (Entered: 06/21/2018)
31 ERRATA re 30 Supplemental Brief, filed in Opposition to Defendants' Motion to Dismiss by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Exhibit A)(Degen, Alycia) (Filed on 6/21/2018) (Entered: 06/21/2018)
32 TRANSCRIPT ORDER for proceedings held on 5/17/2018 before Judge Edward M. Chen for Court Reporter Belle Ball. (rjdS, COURT STAFF) (Filed on 6/22/2018) (Entered: 06/22/2018)
33 TRANSCRIPT ORDER for proceedings held on June 22, 2018 before Judge Edward M. Chen by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda, for Court Reporter Jo Ann Bryce. (Degen, Alycia) (Filed on 6/25/2018) (Entered: 06/25/2018)

06/25/2018 06/25/2018
06/26/2018 06/27/2018 06/28/2018 06/28/2018
07/02/2018

34 ORDER - ABBREVIATED ORDER by Judge Edward M. Chen Denying 20 Defendants' Motion to Dismiss. (emcsec, COURT STAFF) (Filed on 6/25/2018) (Entered: 06/25/2018)
35 Minute Entry for proceedings held before Judge Edward M. Chen: Motion Hearing held on 6/22/2018 re 20 MOTION to Dismiss Complaint filed by Kirstjen Nielsen, United States of America, United States Department of Homeland Security. Under submission. Total Time in Court: 2 hours 15 minutes. Court Reporter: JoAnn Bryce. (bpfS, COURT STAFF) (Date Filed: 6/25/2018) (Entered: 06/25/2018)
36 ORDER RE: Supplemental Briefing on Equal Protection Claim due Monday July 2, 2018. Signed by Judge Edward M. Chen on June 26, 2018. (emclc1, COURT STAFF) (Filed on 6/26/2018) (Entered: 06/26/2018)
37 TRANSCRIPT ORDER for proceedings held on 6/22/2018 before Judge Edward M. Chen by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America, for Court Reporter Jo Ann Bryce. (Martin, Rhett) (Filed on 6/27/2018) (Entered: 06/27/2018)
38 TRANSCRIPT ORDER for proceedings held on 06/22/2018 before Judge Edward M. Chen for Court Reporter Jo Ann Bryce. (rjdS, COURT STAFF) (Filed on 6/28/2018) (Entered: 06/28/2018)
39 Transcript of Proceedings held on 6/22/18, before Judge Edward M. Chen. Court Reporter Jo Ann Bryce, telephone number 510-910-5888, joann_bryce@cand.uscourts.gov. 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 until the deadline for the Release of Transcript Restriction after 90 days. 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 33 Transcript Order, ) Release of Transcript Restriction set for 9/26/2018. (Related documents(s) 33 ) (jabS, COURTSTAFF) (Filed on 6/28/2018) (Entered: 06/28/2018)
40 Supplemental Brief re 36 Order re: Supplemental Briefing filed byMazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Related

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07/20/2018 07/20/2018 07/24/2018 07/24/2018

document(s) 36 ) (Degen, Alycia) (Filed on 7/2/2018) (Entered: 07/02/2018)
41 Supplemental Brief re 36 Order for Supplemental Briefing re: Equal Protection Claim filed byElaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Related document(s) 36 ) (Martin, Rhett) (Filed on 7/2/2018) (Entered: 07/02/2018)
42 STIPULATION ENLARGING TIME TO ANSWER COMPLAINT filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Martin, Rhett) (Filed on 7/6/2018) (Entered: 07/06/2018)
43 Joint Discovery Letter Brief filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18)(Degen, Alycia) (Filed on 7/17/2018) (Entered: 07/17/2018)
44 ORDER REFERRING DISCOVERY AND JOINT LETTER DISCOVERY BRIEF to Magistrate Judge Sallie Kim. Signed by Judge Edward M. Chen on 7/20/2018. (tlhS, COURT STAFF) (Filed on 7/20/2018) (Entered: 07/20/2018)
CASE REFERRED to Magistrate Judge Sallie Kim for Discovery (ahm, COURT STAFF) (Filed on 7/20/2018) (Entered: 07/20/2018)
45 STIPULATION to Enlarge Time to Answer the Complaint filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Martin, Rhett) (Filed on 7/24/2018) (Entered: 07/24/2018)
46 STATEMENT OF RECENT DECISION pursuant to Civil Local Rule 7-3.d filed byMazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Exhibit)(Commons, Sean) (Filed on 7/24/2018) (Entered: 07/24/2018)

07/30/2018
08/01/2018
08/01/2018 08/02/2018 08/02/2018 08/02/2018

47 Letter Brief (Joint) filed byMazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Commons, Sean) (Filed on 7/30/2018) (Entered: 07/30/2018)
48 CLERK'S NOTICE Setting Telephonic Hearing: Notice is given that a Telephonic Motion Hearing Re: 47 Discovery Letter Brief is set for 8/2/2018 08:00 AM in San Francisco, Courtroom A, 15th Floor before Magistrate Judge Sallie Kim. (This is a text-only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Filed on 8/1/2018) (Entered: 08/01/2018)

49 ORDER REGARDING JOINT LETTER BRIEF (docket nos. 43 and 47 ). Signed by Magistrate Judge Sallie Kim on 8/1/2018. (mklS, COURT STAFF) (Filed on 8/1/2018) (Entered: 08/01/2018)

50 NOTICE of Appearance by Kevin M Snell (Snell, Kevin) (Filed on 8/2/2018) (Entered: 08/02/2018)

51

PDF with attached Audio File. Court Date & Time [ 8/2/2018

8:00:39 AM ]. File Size [ 17344 KB ]. Run Time [ 00:36:08 ].

(courtspeak). (Entered: 08/02/2018)

52 Minute Entry for proceedings held before Magistrate Judge Sallie Kim: Telephonic Motion Hearing held on 8/2/2018 re 43 and 47 Joint Discovery Letter Briefs. By Monday 8/6/2018, Plaintiffs shall provide the Court with a list in order of importance containing the names of the seven additional custodians and search terms being requested. Also by Monday 8/6/2018, Defendants shall file a letter brief explaining the protocol being used in applying the search terms. As soon as possible, both sides should file a list identifying ten documents from the privilege log for the Court to review in camera. Defense counsel may then email the documents identified to the Court for review. The Court will issue a written order on the discovery letter brief. (FTR Time: 8:00-8:36.)

Attorneys for Plaintiffs: Sean Commons. Attorney for Defendants: Kevin Snell.

(This is a text-only entry generated by the court. There is no document associated with this entry.) (mklS, COURT STAFF) (Date

08/02/2018 08/03/2018 08/06/2018 08/06/2018 08/06/2018 08/06/2018
08/07/2018 08/07/2018
08/08/2018

Filed: 8/2/2018) Modified on 8/23/2019: Matter transcribed by Joan Columbini. (rjdS, COURT STAFF). (Entered: 08/02/2018)
53 SECOND ORDER REGARDING DISCOVERY LETTER BRIEF (docket nos. 43 and 47 ) by Magistrate Judge Sallie Kim. (mklS, COURT STAFF) (Filed on 8/2/2018) (Entered: 08/02/2018)
54 Letter from Plaintiffs re: In Camera Review. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Commons, Sean) (Filed on 8/3/2018) (Entered: 08/03/2018)
55 ORDER Denying 20 Defendants' Motion to Dismiss. Signed by Judge Edward M. Chen on 8/6/2018. (emcsec, COURT STAFF) (Filed on 8/6/2018) (Entered: 08/06/2018)
56 Letter from Defendants Regarding Search Protocol. (Snell, Kevin) (Filed on 8/6/2018) (Entered: 08/06/2018)
57 NOTICE of Appearance by Katelyn Rowe on behalf of Plaintiffs (Rowe, Katelyn) (Filed on 8/6/2018) (Entered: 08/06/2018)
58 Letter Brief re 53 Order on Discovery Letter Brief filed byMazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Related document(s) 53 ) (Commons, Sean) (Filed on 8/6/2018) (Entered: 08/06/2018)
59 Letter from Sean A Commons . (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Commons, Sean) (Filed on 8/7/2018) (Entered: 08/07/2018)
60 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 26BF9325.) Filing fee previously paid on 08/07/2018 filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Certificate of Good Standing)(Fishfeld, Jessica) (Filed on 8/7/2018) (Entered: 08/07/2018)
61 Letter Brief re Deliberative Process filed byElaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Attachments: # 1 Exhibit, # 2 Exhibit)(Martin, Rhett) (Filed on 8/8/2018) (Entered: 08/08/2018)

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08/10/2018
08/13/2018 08/13/2018 08/13/2018
08/13/2018 08/13/2018

62 Letter Brief Regarding Deliberative Process Documents filed byElaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Martin, Rhett) (Filed on 8/10/2018) (Entered: 08/10/2018)
63 ORDER RE: JOINT LETTER BRIEF. Signed by Magistrate Judge Sallie Kim on 8/10/2018. (mklS, COURT STAFF) (Filed on 8/10/2018) (Entered: 08/10/2018)
64 Emergency MOTION to Expedite , Emergency MOTION to Stay re 63 Order filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. Motion Hearing set for 8/10/2018 06:30 PM before Judge Edward M. Chen. Responses due by 8/10/2018. Replies due by 8/10/2018. (Kirschner, Adam) (Filed on 8/10/2018) (Entered: 08/10/2018)
65 STIPULATION WITH PROPOSED ORDER to Modify Hearing Schedule filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Proposed Order)(Arulanantham, Ahilan) (Filed on 8/10/2018) (Entered: 08/10/2018)
66 STIPULATION AND ORDER re 65 Motion for Preliminary Injunction Briefing Schedule filed by Mazin Ahmed, etc. Preliminary Injunction Hearing reset for 9/25/2018 01:30 PM. Signed by Judge Edward M. Chen on 8/13/18. (bpfS, COURT STAFF) (Filed on 8/13/2018) (Entered: 08/13/2018)
67 ORDER by Judge Edward M. Chen Denying 64 Defendants' Emergency Motion to Stay Discovery Order. (emcsec, COURT STAFF) (Filed on 8/13/2018) (Entered: 08/13/2018)
68 CLERK'S NOTICE. Plaintiff's Motion for Preliminary Hearing reset from 1:30 p.m. to 10:30 a.m. on 9/25/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. (Due to plaintiff's counsel unavailability). (This is a text-only entry generated by the court. There is no document associated with this entry.) (bpfS, COURT STAFF) (Filed on 8/13/2018) (Entered: 08/13/2018)
69 ORDER by Judge Edward M. Chen granting 60 Motion for Pro Hac Vice. (bpfS, COURT STAFF) (Filed on 8/13/2018) (Entered: 08/13/2018)
70 NOTICE of Appearance by Mohindra Rupram (Rupram, Mohindra) (Filed on 8/13/2018) (Entered: 08/13/2018)

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08/14/2018
08/14/2018 08/14/2018 08/15/2018 08/15/2018
08/15/2018

71 NOTICE of Appearance by Joseph C Dugan (Dugan, Joseph) (Filed on 8/13/2018) (Entered: 08/13/2018)
72 ADMINISTRATIVE MOTION for Page Extension filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. Responses due by 8/17/2018. (Attachments: # 1 Proposed Order)(Martin, Rhett) (Filed on 8/13/2018) (Entered: 08/13/2018)
73 MOTION for Review of Magistrate Judge Discovery Order re 63 Order, 67 Order on Motion to Expedite, Order on Motion to Stay filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. Responses due by 8/15/2018. (Dugan, Joseph) (Filed on 8/13/2018) (Entered: 08/13/2018)
74 NOTICE by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America re 73 MOTION Review of Magistrate Judge Discovery Order re 63 Order, 67 Order on Motion to Expedite, Order on Motion to Stay (Notice of Supplemental Authority) (Attachments: # 1 Exhibit)(Dugan, Joseph) (Filed on 8/14/2018) (Entered: 08/14/2018)
75 NOTICE by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America of Errata (Attachments: # 1 Errata)(Martin, Rhett) (Filed on 8/14/2018) (Entered: 08/14/2018)
76 ANSWER to Complaint byElaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Dugan, Joseph) (Filed on 8/14/2018) (Entered: 08/14/2018)
77 NOTICE of Appearance by Matthew Waters Light (Light, Matthew) (Filed on 8/15/2018) (Entered: 08/15/2018)
78 OPPOSITION/RESPONSE (re 73 MOTION Review of Magistrate Judge Discovery Order re 63 Order, 67 Order on Motion to Expedite, Order on Motion to Stay ) filed byMazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Commons, Sean) (Filed on 8/15/2018) (Entered: 08/15/2018)
79 ORDER denying 73 Defendants' Motion for Relief from Magistrate Judge's Discovery Order. Signed by Judge Edward M. Chen on

08/16/2018 08/16/2018 08/17/2018 08/17/2018 08/17/2018 08/20/2018
08/20/2018 08/21/2018

08/15/2018. (emclc2, COURT STAFF) (Filed on 8/15/2018) (Entered: 08/15/2018)
80 NOTICE of Appearance by Gary D Feldon (Feldon, Gary) (Filed on 8/16/2018) (Entered: 08/16/2018)
81 NOTICE by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America re 79 Order (Notice of Presentation of White House Deliberation Documents for In Camera Review and Request for Administrative Stay) (Dugan, Joseph) (Filed on 8/16/2018) (Entered: 08/16/2018)
82 STIPULATION WITH PROPOSED ORDER Regarding Defendants' Production of White House Deliberation Documents filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Dugan, Joseph) (Filed on 8/17/2018) (Entered: 08/17/2018)
83 RESPONSE to 81 Notice (Other), in Opposition to Defendants' Notice of Presentation by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Commons, Sean) (Filed on 8/17/2018) (Entered: 08/17/2018)
84 ORDER REGARDING PRODUCTION OF DOCUMENTS. Signed by Magistrate Judge Sallie Kim on 8/17/2018. (mklS, COURT STAFF) (Filed on 8/17/2018) (Entered: 08/17/2018)
85 STIPULATION WITH PROPOSED ORDER Regarding Enlargement of Page Limits for Preliminary Injunction Briefing filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Proposed Order Enlarging Page Limitations)(Commons, Sean) (Filed on 8/20/2018) (Entered: 08/20/2018)
86 STIPULATION re: Deposition of James D. Nealon filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Attachments: # 1 Declaration)(Feldon, Gary) (Filed on 8/20/2018) Modified on 8/21/2018 (slhS, COURT STAFF). (Entered: 08/20/2018)
87 ORDER granting 86 Stipulation Regarding Deposition of James D. Nealon. Signed by Judge Sallie Kim on 8/21/2018. (mklS, COURT STAFF) (Filed on 8/21/2018) (Entered: 08/21/2018)

08/23/2018 08/23/2018
08/23/2018 08/23/2018 08/23/2018 08/23/2018 08/23/2018

88 Clerk's Notice of Video Recording Request. Video Camera hearing set for 9/25/2018 10:30 AM. Objections to Video Recording due 8/30/2018. (afmS, COURT STAFF) (Filed on 8/23/2018) (Entered: 08/23/2018)
89 MOTION for Preliminary Injunction filed by Mazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. Motion Hearing set for 9/25/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Responses due by 9/6/2018. Replies due by 9/11/2018. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion for Preliminary Injunction)(Degen, Alycia) (Filed on 8/23/2018) (Entered: 08/23/2018)
90 Declaration of Leon Rodriguez in Support of 89 MOTION for Preliminary Injunction filed byMazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Related document(s) 89 ) (Degen, Alycia) (Filed on 8/23/2018) (Entered: 08/23/2018)
91 Declaration of Ebtihal Abdalla in Support of 89 MOTION for Preliminary Injunction filed byMazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Related document(s) 89 ) (Degen, Alycia) (Filed on 8/23/2018) (Entered: 08/23/2018)
92 Declaration of Elsy Yolanda Flores de Ayala in Support of 89 MOTION for Preliminary Injunction filed byMazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Related document(s) 89 ) (Degen, Alycia) (Filed on 8/23/2018) (Entered: 08/23/2018)
93 Declaration of Hiwaida Elarabi in Support of 89 MOTION for Preliminary Injunction filed byMazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Related document(s) 89 ) (Degen, Alycia) (Filed on 8/23/2018) (Entered: 08/23/2018)
94 Declaration of Imara Ampie in Support of 89 MOTION for Preliminary Injunction filed byMazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Related document(s) 89 ) (Degen, Alycia) (Filed on 8/23/2018) (Entered: 08/23/2018)

08/23/2018 08/23/2018

95 Declaration of Wilna Destin in Support of 89 MOTION for Preliminary Injunction filed byMazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Related document(s) 89 ) (Degen, Alycia) (Filed on 8/23/2018) (Entered: 08/23/2018)
96 *** EXHIBITS 8, 14, AND 68 FILED IN ERROR WITH CONFIDENTIAL INFORMATION. DOCUMENT LOCKED. DOCUMENT TO BE REFILED LATER. *** Declaration of Alycia A. Degen in Support of 89 MOTION for Preliminary Injunction filed byMazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67, # 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102, # 103 Exhibit 103, # 104 Exhibit 104, # 105 Exhibit 105, # 106 Exhibit 106, # 107 Exhibit 107, # 108 Exhibit 108, # 109 Exhibit 109, # 110 Exhibit 110, # 111 Exhibit 111, # 112 Exhibit 112, # 113 Exhibit 113, # 114 Exhibit 114, # 115 Exhibit 115, # 116 Exhibit 116, # 117 Exhibit 117, # 118 Exhibit 118, # 119 Exhibit 119, # 120 Exhibit 120, # 121 Exhibit 121, # 122 Exhibit 122, # 123 Exhibit 123)(Related document(s) 89 ) (Degen, Alycia) (Filed on

8/23/2018) Modified on 8/24/2018 (fff, COURT STAFF). Modified on 9/4/2018 (ewn, COURT STAFF). (Entered: 08/24/2018)

08/24/2018

97 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-12623406.) filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Certificate of Good Standing)(Dent, Jillian) (Filed on 8/24/2018) (Entered: 08/24/2018)

08/24/2018

98 EXHIBITS re 96 Declaration in Support by Alycia A. Degen of Plaintiffs' Motion for Preliminary Injunction filed byMazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Attachments: # 1 Exhibit 8, # 2 Exhibit 14)(Related document(s) 96 ) (Degen, Alycia) (Filed on 8/24/2018) (Entered: 08/24/2018)

08/24/2018

99 MOTION for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971-12625307.) filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Exhibit Certificate of Good Standing)(Letten, Matthew) (Filed on 8/24/2018) (Entered: 08/24/2018)

08/27/2018

100 Order by Judge Edward M. Chen granting 85 Stipulation Re Page Limitations.(afmS, COURT STAFF) (Filed on 8/27/2018) (Entered: 08/27/2018)

08/27/2018

101 Order by Judge Edward M. Chen granting 97 Motion for Pro Hac Vice.(afmS, COURT STAFF) (Filed on 8/27/2018) (Entered: 08/27/2018)

08/27/2018

102 Order by Judge Edward M. Chen granting 99 Motion for Pro Hac Vice.(afmS, COURT STAFF) (Filed on 8/27/2018) (Entered: 08/27/2018)

08/30/2018

103 MOTION to File Amicus Curiae Brief of the States of California, the District of Columbia, Massachusetts, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, and Washington filed by State of California. Responses due by 9/13/2018. Replies due by 9/20/2018. (Attachments: # 1 Exhibit 1, # 2 Proposed Order Granting Unopposed Motion to File Amicus Brief)(Zahradka, James) (Filed on 8/30/2018) (Entered: 08/30/2018)

08/30/2018

104 NOTICE of Appearance by Margaret Louise Carter As Counsel for Proposed Amicus Curiae County Of Los Angeles (Carter, Margaret) (Filed on 8/30/2018) (Entered: 08/30/2018)

08/30/2018

105 NOTICE of Appearance by Daniel R. Suvor As Counsel for Proposed Amicus Curiae County Of Los Angeles (Suvor, Daniel) (Filed on 8/30/2018) (Entered: 08/30/2018)

08/30/2018

106 MOTION for Leave to File Brief of Amici Curiae 28 Cities and 6 Counties in Support of Plaintiffs' Motion for Preliminary Injunction filed by County of Los Angeles. (Attachments: # 1 Proposed Amicus Brief, # 2 Proposed Order)(Carter, Margaret) (Filed on 8/30/2018) (Entered: 08/30/2018)

08/31/2018

107 Order by Judge Edward M. Chen granting 103 Motion to File Amicus Curiae Brief.(afmS, COURT STAFF) (Filed on 8/31/2018) (Entered: 08/31/2018)

08/31/2018

108 Order by Judge Edward M. Chen granting 106 Motion for Leave to File Amicus Brief.(afmS, COURT STAFF) (Filed on 8/31/2018) (Entered: 08/31/2018)

08/31/2018

109 Clerk's Notice CONSENTING TO Video Recording re: 88 Clerk's Notice of Video Recording Request. (Related documents(s) 88 )(afmS, COURT STAFF) (Filed on 8/31/2018) (Entered: 08/31/2018)

09/04/2018

110 EXHIBITS to re 96 Declaration in Support of Motion for Preliminary Injunction - Exhibit 68 to the Declaration of Alycia A. Degen in Support of Plaintiffs' Motion for Preliminary Injunction filed by Mazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Attachments: # 1 Exhibit 68)(Related document(s) 96 ) (Degen, Alycia) (Filed on 9/4/2018) (Entered: 09/04/2018)

09/05/2018

111 NOTICE by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America of Filing of Administrative Record (Attachments: # 1 Exhibit Administrative Record for Sudan)(Martin, Rhett) (Filed on 9/5/2018) (Entered: 09/05/2018)

09/05/2018

112 NOTICE by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America of Filing of Administrative Record for Nicaragua (Attachments: # 1 Exhibit Administrative Record for Nicaragua (Part I), # 2 Exhibit Administrative Record for Nicaragua (Part II))(Martin, Rhett) (Filed on 9/5/2018) (Entered: 09/05/2018)

09/05/2018

113 NOTICE by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America of Filing of Administrative Record for Haiti (Attachments: # 1 Exhibit Administrative Record for Haiti (Part I), # 2 Exhibit Administrative Record for Haiti (Part II))(Martin, Rhett) (Filed on 9/5/2018) (Entered: 09/05/2018)

09/05/2018

114 NOTICE by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America of Filing of Administrative Record for El Salvador (Attachments: # 1 Exhibit Administrative Record for El Salvador)(Martin, Rhett) (Filed on 9/5/2018) (Entered: 09/05/2018)

09/06/2018

115 NOTICE OF ERRATA by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America re 114 Notice Correcting Administrative Record for El Salvador (Attachments: # 1 Exhibit Corrected Administrative Record for El Salvador)(Martin, Rhett) (Filed on 9/6/2018) Modified on 9/7/2018 (slhS, COURT STAFF). (Entered: 09/06/2018)

09/06/2018

116 OPPOSITION/RESPONSE (re 89 MOTION for Preliminary Injunction ) filed byElaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Kirschner, Adam) (Filed on 9/6/2018) (Entered: 09/06/2018)

09/06/2018

117 Declaration of Rhett P. Martin in Support of 116 Opposition/Response to Motion for Preliminary Injunction filed byElaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit)(Related document(s) 116 ) (Martin, Rhett) (Filed on 9/6/2018) (Entered: 09/06/2018)

09/11/2018

118 REPLY in Support (re 89 MOTION for Preliminary Injunction ) filed by Mazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Degen, Alycia) (Filed on 9/11/2018) (Entered: 09/11/2018)

09/11/2018

119 Supplemental Declaration of Alycia A. Degen in Support of 89 MOTION for Preliminary Injunction filed by Mazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Attachments: # 1 Exhibit 124, # 2 Exhibit 125, # 3 Exhibit 126, # 4 Exhibit 127, # 5 Exhibit 128, # 6 Exhibit 129, # 7 Exhibit 130, # 8 Exhibit 131, # 9 Exhibit 132, # 10 Exhibit 133, # 11 Exhibit 134, # 12 Exhibit 135, # 13 Exhibit 136, # 14 Exhibit 137,

# 15 Exhibit 138, # 16 Exhibit 139, # 17 Exhibit 140, # 18 Exhibit 141, # 19 Exhibit 142)(Related document(s) 89 ) (Degen, Alycia) (Filed on 9/11/2018) Modified on 9/13/2018 (slhS, COURT STAFF). (Entered: 09/11/2018)

09/20/2018

120 MOTION for Preliminary Injunction (CORRECTION OF DOCKET # 89 ) filed by Mazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. Motion Hearing set for 9/25/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor before Judge Edward M. Chen. Responses due by 9/6/2018. Replies due by 9/11/2018. (Attachments: # 1 Proposed Order Granting Plaintiffs' Motion for Preliminary Injunction)(Degen, Alycia) (Filed on 9/20/2018) Modified on 9/21/2018 (slhS, COURT STAFF). (Entered: 09/20/2018)

09/20/2018

121 ADMINISTRATIVE MOTION (Unopposed) to File Corrected Amicus Brief re 103 MOTION to File Amicus Curiae Brief of the States of California, the District of Columbia, Massachusetts, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Minnesota, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, a motion filed by State of California. Responses due by 9/24/2018. (Attachments: # 1 Exhibit 1: States' Amicus Brief, # 2 Proposed Order)(Zahradka, James) (Filed on 9/20/2018) (Entered: 09/20/2018)

09/20/2018

122 Declaration of Alycia A. Degen in Support of 89 MOTION for Preliminary Injunction (CORRECTION OF DOCKET # 96 ) filed by Mazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Orlando Zepeda. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57, # 58 Exhibit 58, # 59 Exhibit 59, # 60 Exhibit 60, # 61 Exhibit 61, # 62 Exhibit 62, # 63 Exhibit 63, # 64 Exhibit 64, # 65 Exhibit 65, # 66 Exhibit 66, # 67 Exhibit 67,

# 68 Exhibit 68, # 69 Exhibit 69, # 70 Exhibit 70, # 71 Exhibit 71, # 72 Exhibit 72, # 73 Exhibit 73, # 74 Exhibit 74, # 75 Exhibit 75, # 76 Exhibit 76, # 77 Exhibit 77, # 78 Exhibit 78, # 79 Exhibit 79, # 80 Exhibit 80, # 81 Exhibit 81, # 82 Exhibit 82, # 83 Exhibit 83, # 84 Exhibit 84, # 85 Exhibit 85, # 86 Exhibit 86, # 87 Exhibit 87, # 88 Exhibit 88, # 89 Exhibit 89, # 90 Exhibit 90, # 91 Exhibit 91, # 92 Exhibit 92, # 93 Exhibit 93, # 94 Exhibit 94, # 95 Exhibit 95, # 96 Exhibit 96, # 97 Exhibit 97, # 98 Exhibit 98, # 99 Exhibit 99, # 100 Exhibit 100, # 101 Exhibit 101, # 102 Exhibit 102, # 103 Exhibit 103, # 104 Exhibit 104, # 105 Exhibit 105, # 106 Exhibit 106, # 107 Exhibit 107, # 108 Exhibit 108, # 109 Exhibit 109, # 110 Exhibit 110, # 111 Exhibit 111, # 112 Exhibit 112, # 113 Exhibit 113, # 114 Exhibit 114, # 115 Exhibit 115, # 116 Exhibit 116, # 117 Exhibit 117, # 118 Exhibit 118, # 119 Exhibit 119, # 120 Exhibit 120, # 121 Exhibit 121, # 122 Exhibit 122, # 123 Exhibit 123)(Related document(s) 89 ) (Degen, Alycia) (Filed on 9/20/2018) Modified on 9/21/2018 (slhS, COURT STAFF). (Entered: 09/20/2018)

09/20/2018

123 Order by Judge Edward M. Chen granting 121 Administrative Motion to File Corrected Amicus Brief re 103 MOTION to File Amicus Brief.(afmS, COURT STAFF) (Filed on 9/20/2018) (Entered: 09/20/2018)

09/25/2018 124 Minute Entry for proceedings held before Judge Edward M. Chen:

Motion Hearing held on 9/25/2018 re 120 MOTION for Preliminary Injunction CORRECTION OF DOCKET # 89 filed by Mazin Ahmed, Hiwaida Elarabi, Cristina Morales, Maria Jose Ayala Flores, Elsy Yolanda Flores de Ayala, Orlando Zepeda, Imara Ampie, Sherika Blanc, Wilna Destin. Motion taken under submission.

Total Time in Court: 2 Hrs. 17 Min. Court Reporter: JoAnn Bryce.

Plaintiff Attorneys: Emi MacLean, Ahilan Arulanantham, Nicole Ryan, Sean Commons, Andrew Talai, Jessica Bansal. Defendant Attorney: Adam Kirschner.

Attachment: Minute Order. (afmS, COURT STAFF) (Date Filed: 9/25/2018) (Entered: 09/25/2018)

09/26/2018

125 TRANSCRIPT ORDER for proceedings held on 6/25/2018 before Judge Edward M. Chen by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America, for

Court Reporter Jo Ann Bryce. (Martin, Rhett) (Filed on 9/26/2018) (Entered: 09/26/2018)

09/26/2018

126 TRANSCRIPT ORDER for proceedings held on September 25, 2018 before Judge Edward M. Chen by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda, for Court Reporter Jo Ann Bryce. (Degen, Alycia) (Filed on 9/26/2018) (Entered: 09/26/2018)

09/28/2018

127 Transcript of Proceedings held on 9/25/18, before Judge Edward M. Chen. Court Reporter Jo Ann Bryce, telephone number 510-910-5888, joann_bryce@cand.uscourts.gov. 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 until the deadline for the Release of Transcript Restriction after 90 days. 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 125 Transcript Order, ) Release of Transcript Restriction set for 12/27/2018. (Related documents(s) 125 ) (jabS, COURTSTAFF) (Filed on 9/28/2018) (Entered: 09/28/2018)

10/03/2018

128 ORDER by Judge Edward M. Chen Granting 120 Plaintiffs' Motion for Preliminary Injunction. Case Management Statement due by 10/19/2018. Further Case Management Conference set for 10/26/2018 10:30 AM. (emcsec, COURT STAFF) (Filed on 10/3/2018) (Entered: 10/03/2018)

10/05/2018

Set/Reset Hearing Further Case Management Conference set for 10/26/2018 10:30 AM in San Francisco, Courtroom 05, 17th Floor. (afmS, COURT STAFF) (Filed on 10/5/2018) (Entered: 10/05/2018)

10/11/2018

129 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. Appeal of 128 Order on Motion for Preliminary Injunction (Appeal fee FEE WAIVED.) (Martin, Rhett) (Filed on 10/11/2018) Modified on 10/12/2018 (slhS, COURT STAFF). (USCA Case No. 1816981) (Entered: 10/11/2018)

10/12/2018

Electronic filing error Re: 129 Notice of Appeal filed by Kirstjen Nielsen, United States of America, Elaine C. Duke, United States Department of Homeland Security. Document not properly linked. [err102] Corrected by Clerk's Office. No further action is necessary. (slhS, COURT STAFF) (Filed on 10/12/2018) (Entered: 10/12/2018)

10/12/2018

130 NOTICE of Change of Address by Joseph C Dugan , Adam Kirschner, Rhett Martin, Kevin Snell, and Gary Feldon (counsel for Defendants) (Dugan, Joseph) (Filed on 10/12/2018) (Entered: 10/12/2018)

10/18/2018

131 STIPULATION WITH PROPOSED ORDER re 128 Order on Motion for Preliminary Injunction, to Extend Time to File Report and CMC Statement filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Martin, Rhett) (Filed on 10/18/2018) (Entered: 10/18/2018)

10/19/2018

132 (DISREGARD. SEE 133 )Order by Judge Edward M. Chen granting 131 Stipulation re 128 Order on Motion for Preliminary Injunction, to Extend Time to File Report and CMC Statement. Case Management Statement due by 11/2/2018. Further Case Management Conference also set for 11/8/2018 01:30 PM in San Francisco, Courtroom 05, 17th Floor.(afmS, COURT STAFF) (Filed on 10/19/2018) Modified on 10/19/2018 (afmS, COURT STAFF). Modified on 10/19/2018 (afmS, COURT STAFF). (Entered: 10/19/2018)

10/19/2018

133 ORDER granting 131 STIPULATION WITH PROPOSED ORDER re 128 Order on Motion for Preliminary Injunction, to Extend Time to File Report and CMC Statement filed by Kirstjen Nielsen, United States of America, Elaine C. Duke, United States Department of Homeland Security. CMC statement due 11/2/2018; further case management conference set for 10/26/2018 at 10:30 a.m. and alternative date set for 11/8/2018 at 1:30 p.m. Signed by Judge Edward M. Chen on 10/18/2018. (afmS, COURT STAFF) (Filed on 10/19/2018) (Entered: 10/19/2018)

10/19/2018

134 USCA Case Number 18-16981 for 129 Notice of Appeal filed by Kirstjen Nielsen, United States of America, Elaine C. Duke, United States Department of Homeland Security. (slhS, COURT STAFF) (Filed on 10/19/2018) (Entered: 10/19/2018)

10/23/2018

135 STATUS REPORT re Compliance with Preliminary Injunction by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Attachments: # 1 Declaration of Donald W. Neufeld, # 2 Declaration of Robert E. Perez, # 3 Declaration Joseph D. Simon)(Martin, Rhett) (Filed on 10/23/2018) (Entered: 10/23/2018)

10/25/2018

136 CLERK'S NOTICE VACATING FURTHER CASE MANAGEMENT CONFERENCE SET FOR 10/26/2018: Pursuant to Stipulation by both parties, the Further Case Management Conference set for 10/26/2018 at 10:30 a.m. is VACATED. (This is a

text-only entry generated by the court. There is no document associated with this entry.) (afmS, COURT STAFF) (Filed on 10/25/2018) (Entered: 10/25/2018)

10/26/2018

137 STIPULATION WITH PROPOSED ORDER to Stay Proceedings filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. (Martin, Rhett) (Filed on 10/26/2018) (Entered: 10/26/2018)

10/26/2018

138 Order by Judge Edward M. Chen granting 137 Stipulation to Stay District Court Proceedings Pending Appellate Review of Preliminary Injunction.(afmS, COURT STAFF) (Filed on 10/26/2018) (Entered: 10/26/2018)

11/02/2018

139 STIPULATION WITH PROPOSED ORDER to Vacate November 8, 2018 Case Management Conference filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Attachments: # 1 Proposed Order Vacating November 8, 2018 Case Management Conference)(Degen, Alycia) (Filed on 11/2/2018) (Entered: 11/02/2018)

11/02/2018

140 Order by Judge Edward M. Chen granting 139 Stipulation Vacating Further Case Management Conference set for November 8, 2018.(afmS, COURT STAFF) (Filed on 11/2/2018) (Entered: 11/02/2018)

02/15/2019

141 MOTION to Relate Case filed by Keshav Bhattarai, Sajjan Pandey, Sumnima Thapa, Donaldo Posadas Caceres, Sorayda Rodriguez Motino, Denis Molina Chavez, S.S. (A minor), G.D.P. (a minor). (Attachments: # 1 Proposed Order)(Degen, Alycia) (Filed on 2/15/2019) (Entered: 02/15/2019)

02/26/2019

142 RELATED CASE ORDER. Caes 19-cv-00731-JST related. Signed by Judge Edward M. Chen on 2/25/2019. (afmS, COURT STAFF) (Filed on 2/26/2019) (Entered: 02/26/2019)

02/27/2019

143 MOTION to Withdraw as Attorney filed by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America. Responses due by 3/13/2019. Replies due by 3/20/2019. (Dugan, Joseph) (Filed on 2/27/2019) (Entered: 02/27/2019)

02/27/2019

144 Order by Judge Edward M. Chen granting 143 Motion to Withdraw as Attorney.. (afmS, COURT STAFF) (Filed on 2/27/2019) (Entered: 02/27/2019)

03/26/2019

145 NOTICE by Mazin Ahmed, Imara Ampie, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Rilya Salary, Benjamin Zepeda, Orlando Zepeda Notice of Withdrawal of Counsel (Dent, Jillian) (Filed on 3/26/2019) (Entered: 03/26/2019)

03/28/2019

146 MOTION to Withdraw as Attorney filed by Crista Ramos. Responses due by 4/11/2019. Replies due by 4/18/2019. (Light, Matthew) (Filed on 3/28/2019) (Entered: 03/28/2019)

03/29/2019

147 Order by Judge Edward M. Chen granting 146 Motion to Withdraw as Attorney. Matthew W. Light relieved as counsel of record.(afmS, COURT STAFF) (Filed on 3/29/2019) (Entered: 03/29/2019)

05/31/2019

148 NOTICE by Elaine C. Duke, Kirstjen Nielsen, United States Department of Homeland Security, United States of America (Martin, Rhett) (Filed on 5/31/2019) (Entered: 05/31/2019)

06/21/2019

149 NOTICE of Withdrawal of Attorney Jessica Johnson Fishfeld filed by Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (Fishfeld, Jessica) (Filed on 6/21/2019) Modified on 6/24/2019 (slhS, COURT STAFF). (Entered: 06/21/2019)

07/10/2019

150 NOTICE of Withdrawal of Counsel by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda (Rowe, Katelyn) (Filed on 7/10/2019) Modified on 7/15/2019 (slhS, COURT STAFF). (Entered: 07/10/2019)

08/21/2019

151 ORDER of USCA to submit supplemental briefs as to 129 Notice of Appeal, filed by Kirstjen Nielsen, United States of America, Elaine C. Duke, United States Department of Homeland Security (amgS, COURT STAFF) (Filed on 8/21/2019) (Entered: 08/21/2019)

08/22/2019

152 TRANSCRIPT ORDER for proceedings held on 08/02/2018 before Magistrate Judge Sallie Kim by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda, for Court Reporter FTR - San Francisco. (Commons, Sean) (Filed on 8/22/2019) (Entered: 08/22/2019)

09/04/2019

153 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)

09/19/2019

154 NOTICE of Withdrawal of Attorney filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. (MacLean, Emilou) (Filed on 9/19/2019) Modified on 9/19/2019 (slhS, COURT STAFF). (Entered: 09/19/2019)

09/19/2019

Electronic filing error Re: 154 MOTION to Withdraw as Attorney filed by Mazin Ahmed, Hiwaida Elarabi, Hnaida Cenemat, Cristina Morales, Maria Jose Ayala Flores, Elsy Yolanda Flores de Ayala, Juan Eduardo Ayala Flores, Rilya Salary, Orlando Zepeda, Imara Ampie, Crista Ramos, Sherika Blanc, Wilna Destin, Benjamin Zepeda. 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)

12/31/2019

155 MOTION to Withdraw as Attorney Matthew J. Letten filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. Responses due by 1/14/2020. Replies due by 1/21/2020. (Letten, Matthew) (Filed on 12/31/2019) (Entered: 12/31/2019)

12/31/2019

156 Order by Judge Edward M. Chen granting 155 Motion to Withdraw as Attorney. Matthew Letten terminated for plaintiffs.(afmS, COURT STAFF) (Filed on 12/31/2019) (Entered: 12/31/2019)

05/27/2020 157 MOTION to Withdraw as Attorney filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika

Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. Responses due by 6/10/2020. Replies due by 6/17/2020. (Farfel, Amanda) (Filed on 5/27/2020) (Entered: 05/27/2020)

05/29/2020

158 Order by Judge Edward M. Chen granting 157 Motion to Withdraw as Attorney. (afmS, COURT STAFF) (Filed on 5/29/2020) (Entered: 05/29/2020)

06/01/2020

159 MOTION to Withdraw as Attorney Ryan M. Sandrock filed by Mazin Ahmed, Imara Ampie, Juan Eduardo Ayala Flores, Maria Jose Ayala Flores, Sherika Blanc, Hnaida Cenemat, Wilna Destin, Hiwaida Elarabi, Elsy Yolanda Flores de Ayala, Cristina Morales, Crista Ramos, Rilya Salary, Benjamin Zepeda, Orlando Zepeda. Responses due by 6/15/2020. Replies due by 6/22/2020. (Attachments: # 1 Proposed Order)(Sandrock, Ryan) (Filed on 6/1/2020) (Entered: 06/01/2020)

06/01/2020

160 Order by Judge Edward M. Chen granting 159 Motion to Withdraw as Attorney. (afmS, COURT STAFF) (Filed on 6/1/2020) (Entered: 06/01/2020)

09/14/2020

161 ORDER of USCA as to 129 Notice of Appeal, filed by Kirstjen Nielsen, United States of America, Elaine C. Duke, United States Department of Homeland Security (elyS, COURT STAFF) (Filed on 9/14/2020) (Entered: 09/14/2020)

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 Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 1 of 39

1 Ahilan T. Arulanantham, SBN 237841

aarulanantham@aclusocal.org

2 Jennifer Poon, SBN 5468095 (New York)*

jpoon@aclusocal.org

3 ACLU OF SOUTHERN CALIFORNIA

1313 West 8th Street

4 Los Angeles, CA 90017

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

5
Emilou MacLean, SBN 319071

6 emi@ndlon.org

Jessica Karp Bansal, SBN 277347

7 jbansal@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 Mark E. Haddad, SBN 205945

11

mhaddad@sidley.com Alycia A. Degen, SBN 211350

12

adegen@sidley.com Sean A. Commons, SBN 217603

13

scommons@sidley.com SIDLEY AUSTIN LLP

14

555 West Fifth Street, Suite 4000 Los Angeles, CA 90013

15 Telephone: (213) 896-6000/Fax: (213) 896-6600

16

Attorneys for Plaintiffs [Additional Counsel Listed on Next Page]

17

UNITED STATES DISTRICT COURT

18

NORTHERN DISTRICT OF CALIFORNIA

19 CRISTA RAMOS, individually and on behalf Case No. 3:18-cv-1554

20

of others similarly situated; CRISTINA MORALES; BENJAMIN ZEPEDA,

CLASS ACTION COMPLAINT

21

individually and on behalf of others similarly situated; ORLANDO ZEPEDA; JUAN

22

EDUARDO AYALA FLORES, individually and on behalf of others similarly situated;

23

MARIA JOSE AYALA FLORES; ELSY YOLANDA FLORES DE AYALA; HNAIDA

24

CENEMAT, individually and on behalf of others similarly situated; WILNA DESTIN;

25

RILYA SALARY, individually and on behalf of others similarly situated; SHERIKA

26

BLANC; IMARA AMPIE; MAZIN AHMED; and HIWAIDA ELARABI,

27

Plaintiffs,

28

COMPLAINT – CASE NO. 3:18-CV-1554

Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 2 of 39

1

v.

2 KIRSTJEN NIELSEN, in her official capacity
as Secretary of Homeland Security; ELAINE
3 C. DUKE, in her official capacity as Deputy
Secretary of Homeland Security; UNITED
4 STATES DEPARTMENT OF HOMELAND
SECURITY; and UNITED STATES OF
5 AMERICA,

6

Defendants.

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

COMPLAINT – CASE NO. 3:18-CV-1554

Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 3 of 39
1 Additional Counsel for Plaintiffs 2 Nicole M. Ryan, SBN 175980
nicole.ryan@sidley.com
3 Ryan M. Sandrock, SBN 251781
rsandrock@sidley.com
4 SIDLEY AUSTIN LLP
555 California Street, Suite 2000
5 San Francisco, CA 94104
Telephone: (415) 772-1200
6 Fax: (415) 772-7400 7 Amanda R. Farfel, SBN 288126
afarfel@sidley.com
8 Andrew B. Talai, SBN 300053
atalai@sidley.com
9 Marisol Ramirez, SBN 307069
marisol.ramirez@sidley.com
10 SIDLEY AUSTIN LLP
555 West Fifth Street, Suite 4000
11 Los Angeles, CA 90013
Telephone: (213) 896-6000
12 Fax: (213) 896-6600 13 Attorneys for Plaintiffs 14 * pro hac vice application forthcoming 15 16 17 18 19 20 21 22 23 24 25 26 27 28
COMPLAINT – CASE NO. 3:18-CV-1554

Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 4 of 39

1

INTRODUCTION

2

1. Plaintiffs in this case are U.S. citizen children, their non-citizen parents, and other

3 non-citizen adults who are in the United States legally, and who have lived in this country

4 lawfully for years, in some cases decades. They challenge the Department of Homeland

5 Security’s (“DHS”) new rule for deciding whether to terminate Temporary Protected Status

6 (“TPS”) designations for countries facing armed conflict, natural disasters, or other crises that

7 make the return of people from those countries untenable. Since President Donald J. Trump took

8 office in January 2017, the Administration has announced four such terminations, each one for a

9 country in Latin America, the Caribbean, or Africa.

10

2. As a result of the Department of Homeland Security’s unlawful actions, over

11 200,000 individuals who hold TPS face the imminent loss of their right to live and work lawfully

12 in this country. Many of them have lived in this country for over twenty years. In addition, over

13 200,000 U.S. citizen children, each of them with a parent or parents who are TPS holders, face an

14 impossible choice between leaving the only home they have ever known, and growing up without

15 one or both parents.

16

3. TPS is a form of humanitarian immigration relief that allows individuals from

17 designated countries to live and work lawfully in the United States when they cannot return safely

18 to their country of origin due to armed conflict, natural disaster or other “extraordinary

19 circumstances.” See 8 U.S.C. § 1254a. Congress created TPS to establish formal criteria and

20 procedures to replace more ad hoc practices the Executive Branch had used for decades to provide

21 similar relief. Although some countries are designated for TPS only for short periods, others have

22 been designated for many years, including El Salvador (designated since 2001), Nicaragua

23 (designated since 1999), Sudan (designated since 1997), and Haiti (designated since 2010).

24

4. Under previous administrations, DHS regularly considered natural disasters and

25 social or economic crises that occurred after a country was originally designated for TPS in

26 deciding whether to continue or instead terminate a country’s designation. But after President

27 Trump took office, DHS—without any formal announcement or other explanation—adopted a

28

1 COMPLAINT – CASE NO. 3:18-CV-1554

Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 5 of 39

1 new, novel interpretation of the TPS statute that eschews consideration of any intervening country

2 conditions.

3

5. The Administration’s new legal rule has dramatically altered the lives of many

4 Americans. More than 270,000 U.S. citizen children have at least one parent with TPS. Many of

5 them are still in school. This country is their home in every legal and practical sense of that word.

6 Yet their parents will shortly lose the right to continue living and working lawfully in this country.

7

6. Currently, more than 400,000 individuals from ten different countries have TPS.

8 Whether or not they have children, many TPS holders came to this country at a young age and

9 have lived here for most of their lives. They have homes, spouses, jobs, and other profound social

10 ties to their communities that now entwine their lives with this country.

11

7. Since President Trump took office, DHS has applied its new rule for making TPS

12 determinations to terminate the TPS designations of El Salvador, Haiti, Nicaragua, and Sudan.

13 Through this lawsuit, Plaintiffs challenge the legality of that change on several bases.

14

8. First, Defendants’ new rule violates the constitutional rights of school-age United

15 States citizen children of TPS holders, by presenting them with an impossible choice: they must

16 either leave their country or live without their parents. It is well established that a U.S. citizen has

17 an absolute right to reside in this country. It is equally well established that families have a

18 fundamental right to live together without unwarranted government interference. The Secretary

19 has not even considered the impact on U.S. citizen children of TPS holders, let alone advanced a

20 valid reason for compelling them to make the impossible choice of forgoing one of these rights for

21 the other.

22

9. Second, Defendants’ new rule violates the Fifth Amendment’s Due Process Clause

23 in two related respects. The rule violates the Equal Protection guarantee of the Due Process

24 Clause because it was motivated by intentional race- and national-origin-based animus against

25 individuals from what President Trump has referred to as “shithole countries.” It arises from the

26 Trump Administration’s repeatedly-expressed racism toward non-white, non-European people

27 from other countries.

28

2 COMPLAINT – CASE NO. 3:18-CV-1554

Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 6 of 39

1

10. The new rule also violates the due process protection against arbitrary government

2 invasion of personal liberty. The new rule constitutes an arbitrary, unexplained abandonment of

3 the government’s longstanding interpretation of the TPS statute, on which several hundred

4 thousand people have come to rely. The Due Process Clause does not permit the government to

5 engage in such arbitrary action when individual liberty interests are at stake.

6

11. Finally, Defendants’ sudden and unexplained departure from decades of consistent

7 interpretation and corresponding practice violates the Administrative Procedure Act. This sub

8 silentio departure from existing practice, with complete disregard for the reliance interests that

9 years of peaceful residence in this country had engendered, failed to meet the minimum standards

10 of considered judgment that the APA requires.

11

JURISDICTION AND VENUE

12

12. This Court has jurisdiction under 28 U.S.C. § 1331 because this action arises under

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

14 the Declaratory Judgment Act, see 28 U.S.C. § 2201 et seq., and the Administrative Procedure

15 Act, 5 U.S.C. §§ 701–706.

16

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

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

18 870 F.2d 518, 525 (9th Cir. 1989). Sovereign immunity does not bar claims against federal

19 officials seeking solely to prevent future violations of federal law (rather than monetary relief).

20 See, e.g., Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 697–99 & nn.18–19

21 (1949); Shields v. Utah Idaho Cent. R.R. Co., 305 U.S. 177, 183–84 (1938).

22

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

23 because at least one plaintiff resides in this judicial district and each defendant is an agency of the

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

25

INTRADISTRICT ASSIGNMENT

26

15. For purposes of Civil Local Rule 3-2(d) and 3-5(b), a majority of the claims of the

27 named plaintiffs arise in Alameda, Contra Costa, and Marin Counties and, thus, this case should

28 be assigned to the San Francisco division.

3 COMPLAINT – CASE NO. 3:18-CV-1554

Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 7 of 39

1

THE PARTIES

2 Plaintiffs

3

16. Plaintiff Crista Ramos, fourteen years old, is a U.S. citizen who was born in

4 Northern California and raised in San Pablo, California, where she now lives. Her mother is a

5 TPS holder from El Salvador, Plaintiff Cristina Morales. Crista has a younger U.S. citizen

6 brother.

7

17. Plaintiff Cristina Morales, thirty-seven years old, was born in El Salvador, and has

8 lived in the United States since 1993. She has held TPS status since 2001. Her two children were

9 born and raised in the United States. She and her family live in San Pablo, California.

10

18. Plaintiff Benjamin Zepeda, fourteen years old, is a U.S. citizen who was born and

11 raised in Los Angeles, California, where he now lives. His parents are TPS holders from El

12 Salvador, including his father Plaintiff Orlando Zepeda, and he has a younger sister.

13

19. Plaintiff Orlando Zepeda, fifty-one years old, was born in El Salvador and has lived

14 in the United States since 1984, thirty-four years ago. He has been a TPS holder since 2001. He

15 is the father of two U.S. citizen children who are twelve and fourteen years old. They live in Los

16 Angeles, California.

17

20. Plaintiff Juan Eduardo Ayala Flores, thirteen years old, is a U.S. citizen who was

18 born and raised in Washington, D.C. His mother, Plaintiff Elsy Yolanda Flores de Ayala, is a TPS

19 holder from El Salvador. He has two older sisters. One is a TPS holder, Plaintiff Maria Jose

20 Ayala Flores, while the other sister, Joanna Gabriela, is also a U.S. citizen. He lives in

21 Washington, D.C.

22

21. Plaintiff Maria Jose Ayala Flores, nineteen years old, was born in El Salvador and

23 moved with her parents to Washington, D.C. as a baby. She has held TPS status since she was

24 about two years old. She has two younger siblings who were born and raised in the United States.

25 Maria lives in Washington, D.C. with her family and attends Montgomery College.

26

22. Plaintiff Elsy Yolanda Flores de Ayala, thirty-eight years old, was born in El

27 Salvador and has lived in the United States since 2000. She and her husband have held TPS status

28

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Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 8 of 39

1 since 2001. They have three children, two of whom are U.S. citizens and one of whom is a TPS

2 holder, Plaintiff Maria Jose Ayala Flores. They live in Washington, D.C.

3

23. Plaintiff Hnaida Cenemat, fourteen years old, is a U.S. citizen who was born and

4 raised in Orlando, Florida, where she now lives. Her younger brother is a U.S. citizen, and her

5 mother, Plaintiff Wilna Destin, is a TPS holder from Haiti.

6

24. Plaintiff Wilna Destin, forty-three years old, was born in Haiti, has lived in the

7 United States since 2000, and has held TPS status since 2010. She is the mother of two U.S.

8 citizen children. Her husband also has TPS, and her father and brothers live in the United States

9 and are either U.S. citizens, lawful permanent residents, or TPS holders. Wilna lives with her

10 family in Orlando, Florida.

11

25. Plaintiff Rilya Salary, five years old, is a U.S. citizen who was born in Rockledge,

12 Florida. She now lives in Valrico, Florida. Her two younger sisters also are U.S. citizens, and her

13 mother, Plaintiff Sherika Blanc, is a TPS holder from Haiti who has lived in the United States

14 since arriving as a child.

15

26. Plaintiff Sherika Blanc, twenty-seven years old, immigrated to the United States

16 from Haiti with her parents and two brothers when she was eight years old. She currently holds

17 TPS and has held either TPS or Deferred Action for Childhood Arrivals (“DACA”) status for the

18 last eight years. She is the mother of three U.S. citizen daughters, all under the age of six. She

19 and her family live in Valrico, Florida.

20

27. Plaintiff Imara Ampie, forty-five years old, was born in Nicaragua and has lived in

21 the United States since 1998. She and her husband have held TPS status since 1999. Their two

22 sons, fourteen and eight years old, are U.S. citizens. She and her family live in Contra Costa

23 County, California.

24

28. Plaintiff Mazin Ahmed, nineteen years old, is Sudanese and has lived in the United

25 States since he was fourteen years old. He came into the country as a child with his mother and

26 two younger siblings. All have had TPS since 2013 and live in Westbrook, Maine. Mazin is a

27 student at the University of Southern Maine.

28

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Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 9 of 39

1

29. Plaintiff Hiwaida Elarabi, fifty-five years old, is Sudanese and has lived in the

2 United States since 1997. She has had TPS for more than twenty years, since November 1997.

3 She lives in Newton, Massachusetts with her aunt and her aunt’s family, all of whom are U.S.

4 citizens.

5 Defendants

6

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

7 of Homeland Security. Defendant Nielsen assumed office on or around December 6, 2017. As

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

9 “establishing national immigration enforcement policies and priorities.” 6 U.S.C. § 202(5). On or

10 about January 18, 2018, Defendant Nielsen terminated the designation of TPS for El Salvador.

11

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

12 Secretary of Homeland Security, and served as Acting Secretary of Homeland Security from

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

14 Defendant Duke is responsible for the administration and enforcement of the immigration laws of

15 the United States. On or about January 18, 2018, Defendant Duke terminated the designation of

16 TPS for Haiti; on or about December 15, 2017, Defendant Duke terminated the designation of

17 TPS for Nicaragua; and, on or about October 11, 2017, Defendant Duke terminated the

18 designation of TPS for Sudan.

19

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

20 the Executive Branch of the federal government, and is an “agency” within the meaning of 5

21 U.S.C. § 551(1). DHS includes various component agencies, like the U.S. Citizenship and

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

23 Immigration and Customs Enforcement (“ICE”). DHS, together with all of its component

24 agencies, is responsible for administering and enforcing the nation’s immigration laws and

25 policies, including the TPS program.

26

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

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

28 the TPS program.

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1

STATUTORY FRAMEWORK

2

34. Congress established the Temporary Protected Status (“TPS”) program through the

3 Immigration Act of 1990.1 TPS is a form of humanitarian relief, providing lawful immigration

4 status to eligible foreign nationals who cannot safely return home to war-torn or disaster-stricken

5 countries. By enacting the TPS statute, which is codified at 8 U.S.C. § 1254a, Congress

6 established formal criteria for relief and set forth predictable procedures.2

7

35. Under the TPS statute, the Secretary of Homeland Security3 makes a “designation”

8 determination for a given country. After consulting with “appropriate” government agencies, the

9 Secretary may designate a foreign state, or any part of that state, for TPS based on: (A) an

10 “ongoing armed conflict within the state” that would “pose a serious threat” to the “personal

11 safety” of the foreign nationals of that state; (B) an “earthquake, flood, drought, epidemic, or other

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

13 conditions,” which makes the foreign state “unable, temporarily, to handle adequately the return to

14 the state” of its nationals, and where the foreign state has “officially” requested a designation; or

15 (C) the existence of “extraordinary and temporary conditions in the foreign state” that prevent

16 foreign nationals from safely returning, and where the temporary presence of those foreign

17 nationals in the United States is not “contrary to the national interest of the United States.”4

18

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

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

20

21

1 Pub. L. No. 101-649, § 302, 104 Stat. 4978, 5030–36. 2 The Executive Branch previously used ad hoc enforcement mechanisms to allow individuals to

22

remain in the United States for humanitarian reasons. See Adam B. Cox & Cristina Rodríguez, The President and Immigration Law, 119 Yale L.J. 458, 501–02 (2009) (discussing use of the

23

“parole power,” which is currently codified at 8 U.S.C. § 1182(d)(5)). Presidents have occasionally exercised their discretion to designate countries for “Extended Voluntary Departure”

24

and “Deferred Enforced Departure.” Somewhat like TPS, both of those delayed-departure practices allowed foreign nationals to lawfully remain and work in the United States while

25 conditions in their homeland were unsafe or return was impracticable.

26

3 References to the Attorney General in provisions describing functions transferred from the Department of Justice to the Department of Homeland Security “shall be deemed to refer to the

27

Secretary” of Homeland Security. See 6 U.S.C. § 557. 4 8 U.S.C. § 1254a(b)(1).

28 5 8 U.S.C. § 1254a(b)(2), (b)(3)(C).

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

2 the designation, and a tally of eligible foreign nationals.

3

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

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

5 for immigration status under the program. To be eligible for TPS, however, individuals from a

6 designated country must meet stringent requirements. These requirements include, among other

7 things, continued physical presence and continued residence in the United States from the most

8 recent date of designation; satisfaction of the criteria for admissibility as an immigrant; lack of

9 disqualifying criminal history; and submission of an application, extensive documentation, and

10 fees.6

11

38. Congress ensured that individuals who are ultimately granted protected status could

12 enjoy the freedom to live and work in the United States without fear of deportation. Under the

13 statute, as enacted by Congress, an individual who receives and maintains TPS shall be authorized

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

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

16 the Department of Homeland Security.7

17

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

18 designations. At least 60 days before a particular designation expires, the Secretary must “review

19 the conditions in the foreign state . . . for which a designation is in effect” and determine whether

20 the country still meets the conditions for TPS.8 If the Secretary does not terminate TPS for a

21 particular country, then—by default—the designation will be extended for a period of six months,

22 or by discretion of the Secretary, for a period of twelve or eighteen months.9 This periodic-review

23

24

25 6 8 U.S.C. § 1254a(c)(1); 8 C.F.R. §§ 244.2, 244.4, 244.9. 26 7 8 U.S.C. § 1254a(a)(1), (d)(4). 27 8 8 U.S.C. § 1254a(b)(3).
9 8 U.S.C. § 1254a(b)(3)(C).
28

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1 requirement also entails consultation with appropriate government agencies and, ultimately,

2 publication of notice in the Federal Register.

3

40. When a designation for a particular country is terminated, the individual TPS

4 holder’s status will typically revert back to his or her original immigration status.10

5

DEPORTATION OF TPS HOLDERS WILL IMPOSE

6

EXTRAORDINARY HARM ON THEIR MINOR U.S. CITIZEN

7

CHILDREN, AS WELL AS ON THE

8

TPS HOLDERS THEMSELVES AND THEIR COMMUNITIES.

9

41. Under the Fourteenth Amendment, children born in the United States, including

10 those of TPS holders, are U.S. citizens with an absolute right to remain in the United States.

11

42. As with any child, their well-being and future development are tied to nurturing and

12 stable relationships with their parents.11 Science confirms this common sense understanding. The

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

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

15 between child and parent.12 The parent-child relationship promotes healthy brain development

16 and provides the buffering protection necessary to prevent children from experiencing toxic

17 responses to stress.13

18

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

19 deportation. The fear of deportation is directly tied to the prevalence of stress-related illness in

20 children, including higher levels of anxiety and trauma, depression, and family instability. The

21 “fear of massive deportations”14 also diminishes the quality of day-to-day relationships between

22 parents and their children, including because the threat of deportation deters parents from taking

23

10 8 C.F.R. § 244.19.
24 11 Center on the Developing Child at Harvard University, Three Principles to Improve Outcomes

25 for Children and Families 3–4 (2017), http://www.developingchild.harvard.edu.

26

12 Id. 13 Id.

27 14 M. Leiner et al., Fear of Massive Deportations in the United States: Social Implications on
Deprived Pediatric Communities, 5 Front. Pediatr. 177, 177–78 (2017).
28

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1 children to school or social events, seeking urgent or preventative health care for themselves and

2 their children, pursuing opportunities for better housing, or reporting fraud, crimes, or abuse.

3

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

4 massive. TPS holders are the parents of more than 270,000 U.S. citizen children,15 including

5 approximately 192,700 U.S. citizen children with parents who are Salvadoran TPS holders, and

6 27,000 U.S. citizen children with parents who are Haitian TPS holders.16

7

45. All told, approximately 400,000 TPS holders currently reside in the United States.17

8 They live in all fifty states, as well as the District of Columbia and the U.S. territories. At least ten

9 states are home to more than 10,000 TPS holders each.

10

46. Many TPS holders have resided in the United States for many years. Over half of

11 Salvadoran TPS holders, and about sixteen percent of Haitian TPS holders, have lived and worked

12 in the United States for more than two decades.18 Many TPS holders also arrived in the U.S. at a

13 young age.19 Roughly twenty percent of TPS holders from El Salvador, and thirty percent from

14 Haiti, arrived before they turned sixteen years old.

15

47. TPS holders are part of the economic and social fabric of American communities,

16 and give back to this country in many ways. They are active in civic life and volunteer at schools,

17 neighborhood and work organizations, and religious institutions.20 They pay federal, state, and

18 local taxes, and support government social welfare programs. Experts estimate that, without

19

20

21

22

15 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.

23 Sec. 577, 578 (Aug. 2017)

24

16 Id. at 581. 17 Id. at 578; see also Jill H. Wilson, Cong. Research Serv., RS20844, Temporary Protected

25 Status: Overview and Current Issues 4–5 (2018).

26

18 Warren & Kerwin, supra note 15, at 581. 19 Wilson, supra note 17, at 11.

27 20 Celia Mejívar, Ctr. for Migration Research, Univ. of Kan., Temp. Protected Status in the U.S.:
The Experiences of Honduran & Salvadoran Immigrants 19 (2017).
28

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1 Salvadoran and Haitian TPS holders alone, the U.S. Gross Domestic Product would shrink by at

2 least $132.6 billion21 and Social Security would lose over $42.5 billion22 over the next ten years.

3

48. The net positive economic contributions of TPS holders is not surprising in light of

4 their consistently high employment rate: Eighty-eight percent of Salvadoran TPS holders and

5 eighty-one percent of Haitian TPS holders are employed. About eleven percent are entrepreneurs,

6 creating jobs for themselves and their communities.23 About thirty percent of households where

7 TPS holders reside have mortgages, including 45,500 households with Salvadoran TPS holders

8 and 6,200 households with Haitian TPS holders.24 More than half of TPS recipients from El

9 Salvador (fifty-six percent) and Haiti (fifty-seven percent) have health insurance.25

10

49. In light of the overwhelming evidence of the contributions of TPS holders,

11 bipartisan groups of mayors and legislators,26 business leaders,27 labor unions,28 and faith leaders29

12

21 Ctr. for Am. Progress, TPS Holders in the United States 1–2 (2017) (estimating that $109.4
13 billion would be lost from GDP over 10 years without Salvadoran TPS workers, and $23.2 billion

would be lost from Haitian TPS workers).
14 22 Amanda Baran, et al., Immigrant Legal Resource Ctr., Economic Contributions by Salvadoran,

15 Honduran, and Haitian TPS Holders 5–7 (2017).

16

23 Warren & Kerwin, supra note 15, at 582–83. 24 Id. at 577; Ctr. for Am. Progress, supra note 21, at 1, 2.

17 25 Warren & Kerwin, supra note 15, at 583.

18

26 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

19

coalition 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);

20

Letter from 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

21

Kirsten Gillibrand, U.S. Senator, et al. to Rex Tillerson, Sec’y of State, & John F. Kelly, Sec’y of Homeland Sec. (July 18, 2017) (letter from 26 U.S. Senators).

22 27 Letter from Neil L. Bradley, Senior Vice President & Chief Policy Officer, U.S. Chamber of

Commerce, to Elaine C. Duke, Acting Sec’y of Homeland Sec. (Oct. 26, 2017); Letter from

23 Embassy Suites Miami Airport, et al. to Marco Rubio, U.S. Senator (Nov. 3, 2017); Letter from

Tex. Agric. Irrigation Ass’n, et al. to John Cornyn, U.S. Senator (Nov. 3, 2017).

24 28 See, e.g., Press Release, UNITE HERE!, Labor Unions Launch Nearly One Million Dollar

25

Campaign to Save TPS (Nov. 16, 2017); Terry O‘Sullivan and Stephen Sandherr, Trump Immigration Acts Will Hurt Families, Slow Hurricane Recovery, Houston Chronicle Feb. 23, 2018

26

(General President of Laborers’ International Union of North America, which represents half a million workers, calls for extension of TPS).

27 29 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
28

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1 recognize the need to maintain the TPS program. To not extend the TPS program “would harm

2 [U.S.] national security interests by undermining the fragile security in these countries,” as well as

3 “negatively impact hundreds of thousands of American children.”30

4

U.S. CITIZEN CHILDREN OF TPS HOLDERS

5

FACE AN IMPOSSIBLE CHOICE BETWEEN THE CARE

6

AND SUPPORT OF THEIR PARENTS,

7

AND THE RIGHTS AND BENEFITS OF U.S. CITIZENSHIP.

8

50. The U.S. citizen children of TPS holders, including the plaintiff children in this case,

9 confront an impossible choice. On one hand, they can continue to live with their parents, but only

10 by relocating to a foreign country, leaving behind their schools, their communities, and the

11 benefits of living in the U.S.—the only country they have ever known. On the other hand, they

12 can choose to remain in the U.S., but then must give up living with one or both parents, which in

13 many cases would involve their becoming a ward of the state subject to foster care, or otherwise

14 subject to the supervision of persons who are not their parents.

15

51. Plaintiff Crista Ramos, fourteen years old, is the eldest child of TPS holder Plaintiff

16 Cristina Morales. Crista was born in Marin, California, and is now an eighth grade student at

17 Saint Raphael School. She is currently applying to high school and dreams of being an

18 immigration lawyer. She lives with her mother, father, and her eleven-year-old brother Diego in

19 San Pablo, California. Crista worries about what will happen if her mother loses her TPS status

20 and is deported because she depends on her. She has never lived in or traveled to El Salvador.

21

52. Plaintiff Benjamin Zepeda, fourteen years old, is the eldest child of TPS holder

22 Plaintiff Orlando Zepeda and TPS holder Lorena Arana. Benjamin was born and raised in Los

23 Angeles, California, and currently is a ninth grade student at St. John Bosco High School. He has

24

25

C. Duke, Acting Sec’y of Homeland Sec. (Sept. 17, 2017) (560 faith leaders and 129 national, state, and local faith-based organizations); Letter from the U.S. Conference of Catholic Bishops Migration

26 and Refugee Services et al. to Elaine C. Duke, Acting Sec’y of Homeland Sec. (Oct. 26, 2017).

27

30 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-

28

releases/lawmakers-call-for-reversal-of-administration-decision-to-expose-thousands-todangerous-deportations.

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1 a younger sister, twelve-year-old Lizbeth. He and his sister depend on their parents for emotional,

2 psychological, educational, spiritual, and material support. He has never visited El Salvador and

3 cannot imagine moving there. He also struggles to consider how much his life would be upended

4 if his parents lost their TPS status and did not have documentation in the United States, moved to

5 El Salvador, or were deported there.

6

53. Plaintiff Juan Eduardo Ayala Flores, thirteen years old, is the youngest son of TPS

7 holder Plaintiff Elsy Yolanda Flores de Ayala and TPS holder Juan Amilcar Ayala Rovira. He has

8 two older sisters, TPS holder Plaintiff Maria Jose Ayala Flores, nineteen years old, who is a

9 college student, and Joanna Gabriela Ayala Flores, seventeen years old, who was born in

10 Washington, D.C. Juan is a seventh grade student at Washington Latin Public Charter School.

11 Juan’s parents are from El Salvador, but he has only been to El Salvador once, in 2009, for about

12 one month to visit his grandmother. He was born in Washington, D.C., and has lived there his

13 entire life.

14

54. Plaintiff Hnaida Cenemat, fourteen years old, is the eldest child of TPS holder

15 Plaintiff Wilna Destin, who was raised in Haiti and has lived in the United States for eighteen

16 years. Hnaida’s younger brother, John, is ten years old. Hnaida was born in Orlando, Florida, and

17 has lived there her entire life. She visited Haiti only once for a brief period when she was one

18 year old. Hnaida is a motivated high school freshman at Dr. Phillips High School. She is

19 consistently on the honor roll and very active in her school and church. Her favorite subjects in

20 school are math and science, and she aspires to become an obstetrician/gynecologist because she

21 wants to help people. She plans to join the Student Council next year, and wants to be on the

22 cheerleading and flag football teams. Outside of school, she is in her church choir. Prior to

23 Defendants’ decision to end TPS, Hnaida did not understand that it was a legal status that could be

24 terminated. She is afraid of moving to Haiti with her mother and living in a country that she does

25 not know, but she is also afraid of remaining in the United States with a foster family. She, her

26 brother, and their parents have spent a lot of time speaking about TPS.

27

55. Plaintiff Rilya Salary, five years old, was born in Rockledge, Florida and is the

28 eldest child of TPS holder Plaintiff Sherika Blanc and Jermaine Salary, who is a U.S. citizen. She

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1 has two younger sisters: Alaya, who is three years old, and Amara, who is less than one year old.

2 Rilya is in kindergarten at Kingswood Elementary School. Rilya has never been to Haiti.

3

TPS HOLDERS FACE IRREPARABLE HARM FROM BEING

4

FORCED TO RETURN TO COUNTRIES THEY FLED DECADES AGO.

5

56. TPS holders have built lives in the U.S. over the course of decades, building families

6 and contributing to their communities. The circumstances of the plaintiffs here who hold TPS

7 illustrate the irreparable harm that inevitably will occur if they (and other TPS holders) are

8 deported.

9

57. Plaintiff Cristina Morales, thirty-seven years old, was born in San Miguel, El

10 Salvador. She came to the United States from El Salvador at the age of twelve as an

11 unaccompanied minor. Her mother had escaped domestic violence and fled to the United States

12 before her, and Cristina followed. Cristina currently does not have family in El Salvador with

13 whom she is in contact. Cristina’s mother advised her to apply for TPS soon after she graduated

14 from high school, immediately after El Salvador was designated for TPS. Cristina has now lived

15 in the United States for twenty-six years and had TPS for seventeen years. Cristina and her

16 husband met when she was in high school, and they have been married since 2008. They have

17 two children, fourteen-year-old Crista, and eleven-year-old Diego. Cristina and her family live in

18 San Pablo, California in a home they have owned since 2008. She is currently the director of the

19 extended care program at the Saint Raphael School, a private Catholic school in Marin County.

20 Cristina struggled to complete the applications for her daughter’s high school because of the stress

21 she feels due to the looming expiration of TPS for El Salvador. She is afraid that her family will

22 be divided again, and that she will be forced to return to El Salvador where she has no family and

23 which she fled as a child.

24

58. Plaintiff Orlando Zepeda, fifty-one years old, came to the United States from his

25 birth country of El Salvador in 1984, at the age of eighteen years old. He has lived in two homes

26 in Los Angeles, California during the thirty-four years he has lived in the United States. About

27 fifteen years ago, he and his wife, TPS holder Lorena Arana, bought the home in which they now

28 live with their two U.S. citizen children who are twelve and fourteen years old. Orlando was

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1 granted TPS in 2001, when El Salvador was designated. Orlando has worked for the past eight

2 years providing building maintenance, including with the same company for the last four years.

3 He has also volunteered as a chaplain in prisons and hospitals for nearly twenty years. His family

4 and life are in the United States, and his children and brother are U.S. citizens. He has lived in the

5 United States for nearly twice as long as he lived in El Salvador. He left El Salvador in the middle

6 of the country’s violent armed conflict and fears he would not even recognize the country now.

7

59. Plaintiff Maria Jose Ayala Flores, nineteen years old, is the oldest daughter of TPS

8 holder Plaintiff Elsy Yolanda Flores de Ayala and TPS holder Juan Amilcar Ayala Rovira. She

9 arrived in the United States when she was one year old, and has had TPS since she was about two

10 years old. She discovered she had TPS only when it came time to apply for college, when she

11 realized that her immigration status made her ineligible for many available college scholarships.

12 Since she arrived in the United States, she has only been to El Salvador once, in 2009 for

13 approximately one month to visit her grandmother. She graduated from high school in 2016 and

14 is currently a sophomore at Montgomery College in Maryland studying mathematics. She plans to

15 teach math to elementary school students. She has two younger siblings, Joanna Gabriela and

16 Plaintiff Juan Eduardo.

17

60. Plaintiff Elsy Yolanda Flores de Ayala, thirty-eight years old, was born in San

18 Miguel, El Salvador on May 15, 1979. Her mother, father, and siblings fled El Salvador during

19 the country’s brutal civil war in the 1980s, and are now all either U.S. citizens or lawful

20 permanent residents in the United States. As she was the youngest and unable to travel safely, she

21 remained in El Salvador during the war. Elsy married Juan Amilcar Ayala Rovira in 2000 in El

22 Salvador. They traveled to the United States in March 2000 with their daughter, Plaintiff Maria

23 Jose Ayala Flores, who was one year old at the time. One year later, following the earthquakes in

24 El Salvador and El Salvador’s TPS designation, Elsy, her husband, and their daughter obtained

25 TPS. She now has three children. In addition to Maria Jose, Elsy and Juan are parents to Joanna

26 Gabriela Ayala Flores, seventeen years old, and Plaintiff Juan Eduardo Ayala Flores, thirteen

27 years old. Joanna and Juan were both born and raised in the United States. Elsy has worked as a

28 domestic worker and child-care provider since 2004. She currently provides child care for two

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1 families. Since 2000, Elsy and her family have lived in Washington D.C. She has only been to El

2 Salvador once since she arrived, in 2009 to visit her mother-in-law. Elsy cannot imagine being

3 forced to return to El Salvador, where she has no family, and being separated from her family in

4 the United States, including possibly her two youngest children.

5

61. Plaintiff Wilna Destin, forty-three years old, was raised in Thomassique, a small

6 township in central Haiti. She fled Haiti in 2000 to seek a better life in the United States after

7 experiencing threats of violence in her hometown. She received TPS in 2010, following the

8 earthquake in Haiti, and has had TPS since then. Her father is a U.S. lawful permanent resident.

9 She also has two brothers in the United States. One is a U.S. citizen and the other has TPS. She is

10 married to a TPS holder and is the mother of two children, Plaintiff Hnaida, fourteen years old;

11 and John Walker, ten years old. Since 2014, she has been a labor organizer with the union

12 UNITE-HERE. She previously worked at Disney World. Wilna has lived in Florida for eighteen

13 years. For the last nine years she has owned a home in Orlando, which she shares with her family.

14 She is an active member of her community and church, and volunteered to travel to New Orleans

15 after Hurricane Katrina to support the humanitarian relief efforts and help with the cleanup.

16

62. Plaintiff Sherika Blanc, twenty-seven years old, was born in Port de Paix, Haiti, and

17 immigrated to the United States with her parents and two brothers when she was eight years old.

18 Sherika discovered that she was (then) undocumented only when she graduated from high school

19 in 2009 and realized that she could not apply for financial aid to go to college because of her

20 immigration status. In 2010, soon after she graduated from high school, Haiti was designated for

21 TPS. Sherika applied shortly thereafter, and has had either TPS or DACA since 2010. Her TPS

22 status has changed her life by giving her the opportunity to work, buy a car, rent a house, and raise

23 a family. Her parents and her two brothers have all had TPS since 2010. Because she could not

24 go to university when she graduated from high school, Sherika trained successfully to become a

25 certified nursing assistant (“CAN”) and a healthy unity coordinator (“HUC”), and received her

26 license in 2011. Since 2015, she has worked as a nursing assistant and HUC at the South Florida

27 Baptist Hospital, in Plant City, Florida. Sherika is married to a U.S. citizen and together they have

28

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1 three young daughters: Plaintiff Rilya Salary, five years old; Alaya Salary, three years old; and

2 Almara Salary, eight months old.

3

63. Plaintiff Imara Ampie, forty-five years old, was born and raised in Managua,

4 Nicaragua. In August 1998, at the age of twenty-six years old, Imara traveled to the United States

5 to procure material for her mother’s tailoring business. While she was in the United States,

6 Nicaragua was devastated by Hurricane Mitch and the U.S. government designated Nicaragua for

7 TPS. She married a Nicaraguan TPS holder, and they are raising two young sons. Imara is a

8 homemaker and cares for their children. Imara has lived in the Bay Area for twenty years. She

9 and her family have owned a home in Contra Costa County in northern California since 2008. She

10 is concerned that if TPS for Nicaragua is terminated, she and her husband may be forced to return

11 to Nicaragua even though their lives and family are here, and there will be inadequate options to

12 satisfy the health care and educational needs for her family. Her children would suffer if forced to

13 relocate to Nicaragua, but would also face tremendous obstacles if forced to remain in the United

14 States without their parents.

15

64. Plaintiff Mazin Ahmed, nineteen years old, came to the United States with his

16 mother and two younger siblings in 2012, and all have had TPS since 2013. Mazin is Sudanese

17 and was born in Sudan, but lived in Qatar with his parents and siblings from 1997 until 2012. He

18 was a baby when he and his family moved from Sudan to Qatar, and left Qatar for the United

19 States with his mother and siblings when he was fourteen years old. Mazin arrived in the United

20 States in time to start high school, and graduated with honors from Westbrook High School, in

21 Westbrook, Maine where he has lived since he arrived. He is currently a sophomore majoring in

22 Human Biology at the University of Southern Maine, where he has been the recipient of a merit-

23 based President’s Scholar Award. He plans to study to be a pediatrician. He does not believe that

24 he could safely return to Sudan, has no right to return to Qatar, and has built a community and

25 excelled in his studies in the United States.

26

65. Plaintiff Hiwaida Elarabi, fifty-five years old, is from Sudan but has lived in the

27 United States since 1997 when she arrived with a visitor’s visa to visit her aunt and her family—

28 all of whom are now U.S. citizens. During the time that Hiwaida was in the United States, the

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1 security situation deteriorated in Sudan, which was in the midst of a decades-long conflict. Before

2 the expiration of her visitor’s visa, the U.S. government designated Sudan for TPS and Hiwaida

3 remained because she could not safely return. She has now lived in the United States for twenty

4 years, with her aunt’s family. She has a Bachelor’s degree in biochemistry from before she

5 arrived in the United States, and a Master’s degree in Bioinformatics from Brandeis University.

6 She lives in Newton, Massachusetts and has worked for the last four years at Western Governors

7 University as an E-Care Coordinator, providing technical support to students. Prior to that, she

8 worked for sixteen years as a Health Educator at the Massachusetts Department of Public Health.

9 Hiwaida is also an entrepreneur who opened up a restaurant in 2015. She took on extensive debt

10 to do so, and suffered from the termination of TPS. While the restaurant was doing well in its

11 early years, she made the difficult decision to sell it, at great cost, after Defendants terminated

12 TPS. She felt that her future was uncertain and she did not know whether she would be able to

13 sustain the restaurant.

14

MOTIVATED BY RACIAL ANIMUS, THE TRUMP

15

ADMINISTRATION CHANGED THE RULES GOVERNING TPS.

16

66. The Secretary’s adoption of a new rule for making TPS determinations was

17 motivated in significant part by racial and national-origin animus. This animus is evidenced by

18 numerous statements made by President Donald J. Trump and other officials in his administration.

19 A limited number of those statements are described herein, and they leave no doubt as to the

20 speaker’s racially discriminatory motives against non-white and non-European immigrants. In

21 particular, President Trump referred to countries designated for TPS as “shithole” countries a mere

22 seven days before Defendants terminated Haiti’s TPS status.

23

67. President Donald J. Trump, along with other officials in his administration, have

24 repeatedly expressed racially-discriminatory and anti-immigrant sentiments. On the first day of

25 his presidential campaign, Mr. Trump categorically labeled Mexican immigrants as criminals and

26 rapists: “When Mexico sends its people, they’re not sending their best. . . . They’re sending people

27

28

18 COMPLAINT – CASE NO. 3:18-CV-1554

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1 that have lots of problems, and they’re bringing those problems with [them]. They’re bringing

2 drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people.”31

3

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

4 compared immigrants to snakes who will bite and kill anyone foolish enough to take them in.32

5

69. President Trump has made numerous comparable racist, anti-immigrant

6 pronouncements about Haitians, Africans, and Muslims. For example, in or around June 2017, in

7 a meeting with Secretary of State Rex W. Tillerson and then-Secretary of Homeland Security John

8 F. Kelly, President Trump reportedly said of the 15,000 Haitians admitted to the United States,

9 they “all have AIDS.”33 At this same meeting, the President, after learning that 40,000 people had

10 entered the United States from Nigeria, reportedly stated that they would never “go back to their

11 huts” in Africa.34 In November 2015, then-candidate Trump disseminated a debunked story about

12 celebrations of the September 11, 2001, attacks, involving “thousands and thousands of people” in

13 New Jersey where “you have large Arab populations.”35 President Trump’s many racist

14 statements have been documented and catalogued.36

15

70. President Trump has directed his racist remarks at the TPS program. For example,

16 on or about January 11, 2018, several lawmakers gathered with the President in the Oval Office of

17 the White House to discuss a bipartisan immigration proposal. President Trump grew frustrated

18

19 31 Donald Trump Announces a Presidential Bid, Wash. Post (June 16, 2015),

20

https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trumpannounces-a-presidential-bid/?utm_term=.0b727c71c4c8.

21 32 “The Snake”: Donald Trump brings back his favorite anti-immigrant fable at CPAC (Feb 23,

2018), https://www.vox.com/policy-and-politics/2018/2/23/17044744/trump-snake-speech-cpac.

22 33 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to

23 Advance Immigration Agenda, N.Y. Times (Dec. 23, 2017), https://nyti.ms/2DEQLyv.

24

34 Id. 35 Glenn Kessler, Trump’s outrageous claim that ‘thousands’ of New Jersey Muslims celebrated

25

the 9/11 attacks, Wash. Post (Nov. 22, 2015), https://www.washingtonpost.com/news/factchecker/wp/2015/11/22/donald-trumps-outrageous-claim-that-thousands-of-new-jersey-muslims-

26 celebrated-the-911-attacks/?utm_term=.88120e0b9d60 (video embedded).

27

36 David Leonhardt & Ian Prasad Philbrick, Donald Trump’s Racism: The Definitive List, N.Y. Times (Jan. 15, 2018), https://www.nytimes.com/interactive/2018/01/15/opinion/leonhardt-trump-

racist.html.

28

19 COMPLAINT – CASE NO. 3:18-CV-1554

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1 when the conversation turned to TPS protections for foreign nationals from certain Latin

2 American and African countries. “Why,” the President asked, “are we having all these people

3 from shithole countries come here?”37 He expressed a preference, instead, for immigrants from

4 countries like Norway, which is overwhelmingly white.38 President Trump asked “Why do we

5 need more Haitians?” He insisted that lawmakers “[t]ake them out” of any potential immigration

6 deal.39

7

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

8 Office, characterized the President’s comments as “clearly racial,” “hate-filled,” and “vile.”40

9 Senator Durbin reportedly warned the President that exclusion of immigrants based on those

10 grounds would be “an obvious racial decision.”41

11

72. Secretary Nielsen, who also was present at the January 11, 2018, meeting in the

12 Oval Office,42 has acknowledged that the President used “tough language.”43 Although she

13 asserted that she did not know whether Norway was a “predominately white country,” she

14 admitted that she “imagine[d] that is the case.”44

15

73. On or about November 6, 2017, White House Chief of Staff John F. Kelly and

16 White House Homeland Security Adviser Tom Bossert repeatedly called Acting Secretary Duke

17 and pressured her to terminate the TPS designation for Honduras. A former official with

18

19

20

37 Josh Dawsey, Trump Derides Protections for Immigrants from “Shithole” Countries, Wash. Post (Jan 12, 2018), https://www.washingtonpost.com/politics/trump-attacks-protections-for-

21

immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/11/bfc0725c-f711-11e7-91af31ac729add94_story.html?utm_term=.06cbc70bfaec.

22 38 Id.

23 39 Id.
40 Carl Hulse, Inside the Oval Office Immigration Meeting that Left a Senator Stunned, N.Y.
24 Times (Jan. 19, 2018), https://nyti.ms/2DiqhlM.

25 41 Id.

26

42 Walter Shapiro, Opinion: White People in Norway? Who Knew?, Roll Call (Jan. 17, 2018), https://www.rollcall.com/news/opinion/kirstjen-nielsen-trump-norway.

27 43 Id. 28 44 Id.

20 COMPLAINT – CASE NO. 3:18-CV-1554

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1 knowledge of the exchange said, “[t]hey put massive pressure on her.” 45 Chief of Staff Kelly

2 made the call from Japan, where he was travelling with President Trump. According to reports,

3 Chief of Staff Kelly was irritated and persistent, warning Acting Secretary Duke that the TPS

4 program “prevents [the Trump Administration’s] wider strategic goal” on immigration.46 In

5 response to this pressure, Acting Secretary Duke reportedly told Chief of Staff Kelly that she

6 would resign her position.47

7

DHS’S TPS TERMINATIONS WERE BASED ON AN ARBITRARY

8

INTERPRETATION OF THE TPS STATUTE, BREAKING WITH DECADES OF

9

PRIOR PRACTICE WITHOUT EXPLANATION.

10

74. Over the past fourteen months, DHS Secretary Kirstjen Nielsen and Acting

11 Secretary Elaine Duke announced the termination of TPS for El Salvador, Haiti, Nicaragua, and

12 Sudan.

13

75. To justify those decisions, DHS has adopted a novel interpretation of the TPS

14 statute. Under prior administrations, DHS or its predecessors considered intervening natural

15 disasters, conflicts, and other serious social and economic problems as relevant factors when

16 deciding whether to continue or instead terminate a TPS designation. Although no relevant statute

17 or regulation has changed in the intervening decades, the Trump administration’s DHS has now

18 taken the position that such factors cannot be considered.

19

76. The Administration adopted the new interpretation without a formal announcement

20 to disclose its rationale for making a dramatic change to a decades-old policy. Instead, the change

21 became public during testimony by then-Secretary Kelly at a Senate hearing on June 6, 2017.

22 Secretary Kelly stated “the program [TPS] is for a specific event. In – in Haiti, it was the

23

24 45 Nick Miroff, White House Chief of Staff Tried to Pressure Acting DHS Secretary to Expel

25

Thousands of Hondurans, Officials Say, Wash. Post (Nov. 9, 2017), https://www.washingtonpost.com/world/national-security/white-house-chief-of-staff-tried-to-

pressure-acting-dhs-secretary-to-expel-thousands-of-hondurans-officials-

26 say/2017/11/09/914d3700-c54a-11e7-a441-3a768c8586f1_story.html?utm_term=.a3d52a717ec9.

27 46 Id. 28 47 Id.

21 COMPLAINT – CASE NO. 3:18-CV-1554

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1 earthquake. Yes, Haiti had horrible conditions before the earthquake, and those conditions aren’t

2 much better after the earthquake. But the earthquake was why TPS was – was granted and – and

3 that’s how I have to look at it.”48

4

77. Current Secretary Nielsen has since reiterated the view that “[t]he law does not

5 allow me to look at the country conditions of a country writ large. It requires me to look very

6 specifically as to whether the country conditions originating from the original designation

7 continue to exist.”49

8

78. The Administration has applied its new policy to its TPS decisions. In at least three

9 announcements terminating a TPS designation, the DHS Secretary explicitly stated that she

10 compared “the conditions upon which the country’s original designation was based” with “an

11 assessment of whether those originating conditions continue to exist.”50 Even where she did not

12 refer to the new policy explicitly, the Secretary’s new interpretation of the TPS statute is evident

13 in its TPS termination decisions for El Salvador, Haiti, Nicaragua, and Sudan.

14

79. El Salvador was the first country designated for TPS, as part of the Immigration Act

15 of 1990.51 Advocacy for Salvadorans denied fair asylum processes—while the United States was

16 supporting one of the warring parties in the civil war in El Salvador—was one of the primary

17 motivations for that decision.52

18

19

20

48 Hearing on the Department of Homeland Security F.Y. 2018 Budget Before the S. Comm. on Homeland Security and Governmental Affairs, 115th Cong. (June 6, 2017) (statement of Secretary

21

John F. Kelly), available at https://www.c-span.org/video/?429383-1/secretary-kelly-travel-baninjunctions-hobbling-homeland-security-screening-effort&start=5492.

22

49 Oversight of the United States Department of Homeland Security Before the S. Comm. on the Judiciary, 115th Cong. (Jan. 16, 2018) (statement of Kirstjen M. Nielsen, Secretary, U.S.

23 Department of Homeland Security).

50 Press Release, Dep’t of Homeland Sec., Sec’y of Homeland Sec. Kirstjen M. Nielsen
24 Announcement on Temp. Protected Status for El Sal. (Jan. 8, 2018); Press Release, Dep’t of

Homeland Sec., Acting Sec’y Elaine Duke Announcement on Temp. Protected Status for Haiti
25 (Nov. 20, 2017); Press Release, Dep’t of Homeland Sec., Acting Sec’y Elaine Duke

Announcement on Temp. Protected Status for Nicaragua & Honduras (Nov. 6, 2017).

26 51 Immigration Act of 1990, Pub. L. 101-649, § 303, 104 Stat. 4978,

27 52 See, e.g., Katherine Bishop, U.S. Adopts New Policy for Hearings on Political Asylum for
Some Aliens, N.Y. Times (Dec. 20, 1990), https://nyti.ms/2tEcmpB.
28

22 COMPLAINT – CASE NO. 3:18-CV-1554

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1

80. El Salvador was most recently designated for TPS on March 9, 2001 after three

2 devastating earthquakes.53 All told, various administrations continued TPS for El Salvador eleven

3 times based on a variety of factors and conditions that did not exist at the time of the original

4 designation, and that were unrelated to the earthquakes.54 Among other considerations, they cited

5 droughts and a leaf rust epidemic that caused destabilizing food insecurity and malnutrition,55

6 health emergencies,56 subsequent environmental disasters, including another earthquake in 2012,

7

8

9

10 53 A devastating, 7.6 magnitude earthquake hit El Salvador on January 13, 2001, followed by over

11

3,000 aftershocks. The earthquakes killed over 1,100 people, damaged or destroyed approximately 220,000 homes, 1,696 schools, and 856 public buildings, and affected approximately 1.5 million

12

people. Designation of El Salvador Under Temporary Protected Status, 66 Fed. Reg. 14,214 (Mar. 9, 2001).

13 54 See Extension of the Designation of El Salvador for Temporary Protected Status, 81 Fed. Reg.

44,645, 44,647 (July 8, 2016); Extension of the Designation of El Salvador for Temporary

14 Protected Status, 80 Fed. Reg. 893, 894 (Jan. 7, 2015); Extension of the Designation of El

Salvador for Temporary Protected Status, 78 Fed. Reg. 32,418, 32,419 (May 30, 2013); Extension

15 of the Designation of El Salvador for Temporary Protected Status and Automatic Extension of

Employment Authorization Documentation for Salvadoran TPS Beneficiaries, 77 Fed. Reg. 1710,
16 1711–12 (Jan. 11, 2012); Extension of the Designation of El Salvador for Temporary Protected

Status and Automatic Extension of Employment Authorization Documentation for Salvadoran
17 TPS Beneficiaries, 75 Fed. Reg. 39,556, 39,557–58 (July 9, 2010); Extension of the Designation

of El Salvador for Temporary Protected Status, 73 Fed. Reg. 57,128, 57,129 (Oct. 1, 2008);
18 Extension of the Designation of El Salvador for Temporary Protected Status, Automatic Extension

of Employment Authorization Documentation for Salvadoran TPS Beneficiaries, 72 Fed. Reg.
19 46,649, 46,649–50 (Aug. 21, 2007); Extension of the Designation of Temporary Protected Status

for El Salvador, Automatic Extension of Employment Authorization Documentation for El

20 Salvadorian TPS Beneficiaries, 71 Fed. Reg. 34,637, 34,638 (June 15, 2006); Extension of the

Designation of Temporary Protected Status for El Salvador, Automatic Extension of Employment

21 Authorization Documentation for El Salvador TPS Beneficiaries, 70 Fed. Reg. 1450, 1451 (Jan. 7,

2005); Extension of the Designation of El Salvador Under Temporary Protected Status Program,

22 Automatic Extension of Employment Authorization Documentation for El Salvador, 68 Fed. Reg.

42,071, 42,072 (July 16, 2003); Extension of the Designation of El Salvador Under the Temporary
23 Protected Status Program, Automatic Extension of Employment Authorization Documentation for

Salvadorans, 67 Fed. Reg. 46,000, 46,000–01 (July 11, 2002).
24 55 Extension of the Designation of El Salvador for Temporary Protected Status, 80 Fed. Reg. 893,

25

895 (Jan. 7, 2015); Extension of the Designation of El Salvador Under the Temporary Protected Status Program, Automatic Extension of Employment Authorization Documentation for

26 Salvadorans, 67 Fed. Reg. 46,000, 46,000–01 (July 11, 2002).

56 Extension of the Designation of El Salvador for Temporary Protected Status, 81 Fed. Reg.

27 44,645, 44,647 (July 8, 2016) (identifying that the environmental and social conditions plaguing

the country spurred an outbreak of mosquito borne illnesses, including chikugunya and dengue).

28

23 COMPLAINT – CASE NO. 3:18-CV-1554

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1 volcanic eruptions, hurricanes, mudslides and flooding,57 economic instability, and crime58 as

2 grounds for continuing TPS.

3

81. But when terminating TPS for Salvadorans in January 2018, Secretary Nielsen

4 ignored the contemporary realities of life in El Salvador by asking only whether disruptions

5 traceable to the 2001 earthquakes had abated. The Secretary relied on generic platitudes,59

6 ignoring natural and environmental disasters, pervasive gang violence, mass food insecurity, and

7 other humanitarian crises since the 2001 earthquake.

8

82. Haiti was first designated for TPS by Secretary Napolitano on January 21, 2010 after

9 a 7.0 magnitude earthquake struck the country,60 killing as many as 300,000 people.61 Since then,

10 DHS has provided protection for Haiti under the TPS program from 2011 to 2017.62 In continuing

11

12 57 Extension of the Designation of El Salvador for Temporary Protected Status, 80 Fed. Reg. 893,

13

894 (Jan. 7, 2015) (noting that Tropical Storm Barry hit El Salvador in June 2013, causing flooding, and in December 2013, the Chaparrastique volcano erupted in December 2013, forcing

14

thousands of people to evacuate their homes); Extension of the Designation of El Salvador for Temporary Protected Status, 78 Fed. Reg. 32,418, 32,419 (May 30, 2013); Extension of the

15

Designation of El Salvador for Temporary Protected Status and Automatic Extension of Employment Authorization Documentation for Salvadoran TPS Beneficiaries, 77 Fed. Reg. 1710,

16

1712 (Jan. 11, 2012); Extension of the Designation of El Salvador for Temporary Protected Status and Automatic Extension of Employment Authorization Documentation for Salvadoran TPS

17

Beneficiaries, 75 Fed. Reg. 39,556, 39,558 (July 9, 2010); Extension of the Designation of Temporary Protected Status for El Salvador, Automatic Extension of Employment Authorization

18

Documentation for El Salvadorian TPS Beneficiaries, 71 Fed. Reg. 34,637, 34,638 (June 15, 2006).

19 58 Extension of the Designation of El Salvador for Temporary Protected Status, 80 Fed. Reg. 893,
895 (Jan. 7, 2015) (considering that almost half of all Salvadorans lived in poverty, a third were
20 underemployed, and El Salvador’s annual GDP growth fell way behind its neighboring countries);
Extension of the Designation of El Salvador Under Temporary Protected Status Program,
21 Automatic Extension of Employment Authorization Documentation for El Salvador, 68 Fed. Reg.
42,071, 42,072 (July 16, 2003) (considering that a large number of returnees would “creat[e]
22 social unrest and exacerbat[e] a critical crime situation”).

23

59 Termination of the Designation of El Salvador for Temporary Protected Status, 83 Fed. Reg. 2654, 2656 (Jan. 18, 2018).

24 60 Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3476, 3477 (Jan. 21, 2010).

25

61 See Extension of the Designation of Haiti for Temporary Protected Status, 77 Fed. Reg. 59,943, 59,944 (Oct. 1, 2012).

26 62 Extension of the Designation of Haiti for Temporary Protected Status, 82 Fed. Reg. 23,830
(May 24, 2017); Extension of the Designation of Haiti for Temporary Protected Status, 80 Fed.
27 Reg. 51,582 (Aug. 25, 2015); Extension of the Designation of Haiti for Temporary Protected
Status, 79 Fed. Reg. 11,808 (Mar. 3, 2014); Extension of the Designation of Haiti for Temporary
28

24 COMPLAINT – CASE NO. 3:18-CV-1554

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1 Haiti’s status under the TPS program, Secretaries Napolitano and Johnson considered a variety of

2 factors and conditions that arose subsequent to the earthquake, many of which were wholly or

3 partially unrelated to it, including crime, poverty, unemployment, lack of adequate social

4 services,63 and successive health and environmental disasters, including destruction caused by

5 Hurricane Matthew.64

6

83. Contrary to his predecessors, when Secretary Kelly continued Haiti’s TPS

7 designation in May 2017, he did so for the minimum six months allowed by statute. He

8 simultaneously cautioned Haitian TPS recipients living in the United States to “make other

9 necessary arrangements for their ultimate departure from the United States” despite concluding,

10 after consultation with the Department of State, that “conditions in Haiti supporting its designation

11 for TPS persist.”65

12

84. On January 18, 2018, one week after President Trump’s “shithole countries”

13 comments, Deputy Secretary Duke’s decision terminating Haiti’s TPS designation was published

14 in the Federal Register.66 The justifications made no mention of intervening and ongoing

15 environmental, food, and medical disasters relied upon by prior DHS Secretaries.

16

85. Nicaragua was designated for TPS by Attorney General Janet Reno on January 5,

17 1999 after Hurricane Mitch caused severe damage to the country.67 Multiple Attorneys General

18 Protected Status, 77 Fed. Reg. 59,943 (Oct. 1, 2012); Extension and Redesignation of Haiti for

19 Temporary Protected Status, 76 Fed. Reg. 29,000 (May 19, 2011).

63 Extension of the Designation of Haiti for Temporary Protected Status, 79 Fed. Reg. 11,808,

20 11,810 (Mar. 3, 2014); Extension and Redesignation of Haiti for Temporary Protected Status, 76

Fed. Reg. 29,000, 29,001 (May 19, 2011).

21 64 Extension of the Designation of Haiti for Temporary Protected Status, 82 Fed. Reg. 23,830,

22

23,832 (May 24, 2017); Extension of the Designation of Haiti for Temporary Protected Status, 79 Fed. Reg. 11,808, 11,810 (Mar. 3, 2014); Extension of the Designation of Haiti for Temporary

23

Protected Status, 77 Fed. Reg. 59,943, 59,944 (Oct. 1, 2012); Extension and Redesignation of Haiti for Temporary Protected Status, 76 Fed. Reg. 29,000, 29,001 (May 19, 2011).

24 65 Press Release, Dep’t of Homeland Sec., Sec’y Kelly’s Statement on the Limited Extension of
Haiti’s Designation for Temp. Protected Status (May 22, 2017).
25 66 Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2648 26 (Jan. 18, 2018).
67 Hurricane Mitch killed more than 3,000 people, and destroyed an estimated 145,000 homes,
27 ninety health clinics, nearly 350 schools, and seventy percent of Nicaragua’s roads. The severe
flooding and landslides resulting from Hurricane Mitch buried entire villages and caused more
28

25 COMPLAINT – CASE NO. 3:18-CV-1554

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1 and DHS Secretaries subsequently agreed that conditions in Nicaragua warranted maintenance of

2 its TPS designation, which occurred thirteen times in all.68 Those decisions took into

3 consideration social, economic, and infrastructural challenges that were not directly attributable to

4 the hurricane.69 They cited to environmental disasters that occurred after Hurricane Mitch,70 a

5 than $1.3 billion of damage. Designation of Nicaragua for Temporary Protected Status, 64 Fed.

6

Reg. 526 (Jan. 5, 1999); Extension of the Designation of Nicaragua for Temporary Protected Status, 81 Fed. Reg. 30,325, 30,326 (May 16, 2016).

7 68 The Attorneys General and DHS Secretaries responsible for extending Nicaragua’s TPS

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

8 Tom Ridge, DHS Secretary Michael Chertoff, DHS Secretary Janet Napolitano, and DHS

Secretary Jeh Johnson. Extension of the Designation of Nicaragua for Temporary Protected Status,

9 81 Fed. Reg. 30,325 (May 16, 2016); Extension of the Designation of Nicaragua for Temporary

Protected Status, 79 Fed. Reg. 62,176 (Oct. 16, 2014); Extension of the Designation of Nicaragua
10 for Temporary Protected Status, 78 Fed. Reg. 20,128 (Apr. 3, 2013); Extension of the Designation

of Nicaragua for Temporary Protected Status and Automatic Extension of Employment
11 Authorization Documentation for Nicaraguan TPS Beneficiaries, 76 Fed. Reg. 68,493 (Nov. 4,

2011); Extension of the Designation of Nicaragua for Temporary Protected Status and Automatic
12 Extension of Employment Authorization Documentation for Nicaraguan TPS Beneficiaries, 75

Fed. Reg. 24,737 (May 5, 2010); Extension of the Designation of Nicaragua for Temporary

13 Protected Status, 73 Fed. Reg. 57,138 (Oct. 1, 2008); Extension of the Designation of Nicaragua

for Temporary Protected Status, Automatic Extension of Employment Authorization

14 Documentation for Nicaragua TPS Beneficiaries, 72 Fed. Reg. 29,534 (May 29, 2007); Extension

of the Designation of Temporary Protected Status for Nicaragua, Automatic Extension of

15 Employment Authorization Documentation for Nicaragua TPS Beneficiaries, 71 Fed. Reg. 16,333

(Mar. 31, 2006); Extension of the Designation of Temporary Protected Status for Nicaragua,
16 Automatic Extension of Employment Authorization Documentation for Nicaragua TPS

Beneficiaries, 69 Fed. Reg. 64,088 (Nov. 3, 2004); Extension of the Designation of Nicaragua
17 Under the Temporary Protected Status Program, Automatic Extension of Employment

Authorization Documentation for Nicaraguans, 68 Fed. Reg. 23,748 (May 5, 2003); Extension of
18 the Designation of Nicaragua Under the Temporary Protected Status Program, 67 Fed. Reg.

22,454 (May 3, 2002); Extension of the Designation of Nicaragua Under the Temporary Protected
19 Status Program, 66 Fed. Reg. 23,271 (May 8, 2001); Extension of Designation of Nicaragua

Under Temporary Protected Status Program, 65 Fed. Reg. 30,440 (May 11, 2000).

20 69 Extension of the Designation of Nicaragua for Temporary Protected Status, Automatic

21

Extension of Employment Authorization Documentation for Nicaragua TPS Beneficiaries, 72 Fed. Reg. 29,534 (May 29, 2007).

22 70 Extension of the Designation of Nicaragua Under the Temporary Protected Status Program, 67
Fed. Reg. 22,454, 22,454 (May 3, 2002) (“recent droughts as well as flooding from Hurricane
23 Michelle in 2001 compounded the humanitarian, economic, and social problems initially brought
on by Hurricane Mitch in 1998”); Extension of the Designation of Nicaragua Under the
24 Temporary Protected Status Program, Automatic Extension of Employment Authorization
Documentation for Nicaraguans, 68 Fed. Reg. 23,748, 23,748 (May 5, 2003) (“a prolonged
25 drought as well as flooding from Hurricane Michelle have compromised food security and
disrupted reconstruction efforts”); Extension of the Designation of Nicaragua for Temporary
26 Protected Status, Automatic Extension of Employment Authorization Documentation for
Nicaragua TPS Beneficiaries, 72 Fed. Reg. 29,534, 29,535 (May 29, 2007) (Hurricane Beta and
27 Tropical Storm Stan which jointly “severely affected thousands of people, destroying houses,
medical centers, and schools in October 2005”); Extension of the Designation of Nicaragua for
28

26 COMPLAINT – CASE NO. 3:18-CV-1554

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1 fractured economic foundation and “chronic poverty,” and problems of governance and political

2 tension.71

3

86. In December 2017, Acting Secretary Duke reversed course. With a three-paragraph

4 explanation that failed to address any of the intervening conditions considered by previous

5 administrations, the Acting Secretary abruptly terminated Nicaragua’s TPS designation.72

6

87. Sudan was first designated for TPS on November 4, 1997, in the midst of a long-

7 running civil war.73 Since that time, successive administrations reviewed Sudan’s TPS status and

8 saw fit to maintain TPS protection for the county eighteen times.74 Nine of these reviews occurred

9

Temporary Protected Status and Automatic Extension of Employment Authorization
10 Documentation for Nicaraguan TPS Beneficiaries, 75 Fed. Reg. 24,737, 24,738 (May 5, 2010);

Extension of the Designation of Nicaragua for Temporary Protected Status and Automatic
11 Extension of Employment Authorization Documentation for Nicaraguan TPS Beneficiaries, 76

Fed. Reg. 68,493, 68,494 (Nov. 4, 2011) (Tropical Storm Alma in May 2008, Tropical Depression
12 16 in 2008, Hurricane Ida in 2009, and Hurricane Felix and Tropical Storm Matthew in

2010); Extension of the Designation of Nicaragua for Temporary Protected Status, 78 Fed. Reg.

13 20,128, 20,130 (Apr. 3, 2013) (Tropical Depression 12E in 2011, which caused an extensive $445

million (USD) in damages); Extension of the Designation of Nicaragua for Temporary Protected

14 Status, 79 Fed. Reg. 62,176, 62,178 (Oct. 16, 2014) (in 2013, Hurricane Barbara, several tropical

storms, and heavy seasonal rains caused 15 deaths and affected 12,000 people); Extension of the

15 Designation of Nicaragua for Temporary Protected Status, 79 Fed. Reg. 62,176, 62,178 (Oct. 16,

2014) (a drought in 2014); Extension of the Designation of Nicaragua for Temporary Protected
16 Status, 81 Fed. Reg. 30,325, 30,325 (May 16, 2016) (Nicaragua suffered “a prolonged regional

drought” as recent as 2016).
17 71 Extension of the Designation of Nicaragua for Temporary Protected Status and Automatic

18

Extension of Employment Authorization Documentation for Nicaraguan TPS Beneficiaries, 75 Fed. Reg. 24,737, 24,738 (May 5, 2010); Extension of the Designation of Nicaragua for

19

Temporary Protected Status and Automatic Extension of Employment Authorization Documentation for Nicaraguan TPS Beneficiaries, 76 Fed. Reg. 68,493, 68,495 (Nov. 4, 2011)

20

(noting a rise in “political tension,” “including violent demonstrations and seizures of government offices” which “could hinder the efforts of already-weak local institutions to provide services and

21 help reintegrate returned Nicaraguans.”).

72 Termination of the Designation of Nicaragua for Temporary Protected Status, 82 Fed. Reg. at

22 59,636–37 (Dec. 15, 2017.). Acting Secretary Duke delayed the effective expiration date until

23

January 5, 2019 to “provide for an orderly transition.” Id. 73 Designation of Sudan for Temporary Protected Status, 62 Fed. Reg. 59737 (Nov. 4, 1997).

24 74 Extension of Designation of Sudan Under Temporary Protected Status Program, 63 Fed. Reg.
59,337 (Nov. 3, 1998); Extension and Redesignation of Sudan Under the Temporary Protected
25 Status Program, 64 Fed. Reg. at 61,128; Extension of Designation of Sudan Under the Temporary
Protected Status Program, 65 Fed. Reg. 67,407 (Nov. 9, 2000); Extension of the Designation of
26 Sudan Under the Temporary Protected Status Program, 66 Fed. Reg. 46,031 (Aug. 31, 2001);
Extension of the Designation of Sudan Under the Temporary Protected Status Program, 67 Fed.
27 Reg. 55,877 (Aug. 30, 2002); Extension of the Designation of Sudan Under the Temporary
Protected Status Program, 68 Fed. Reg. 52,410 (Sept. 3, 2003); Extension and Redesignation of
28

27 COMPLAINT – CASE NO. 3:18-CV-1554

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1 after Sudan’s civil war officially concluded in January 2005 with the signing of the

2 Comprehensive Peace Agreement. Attorneys General and Secretaries of Homeland Security

3 consistently considered intervening factors wholly or partially unrelated to the civil war, including

4 natural disasters, “perennial environmental shocks, such as flooding and droughts,” new armed

5 conflicts, growing poverty,75 criminal activity, and “deteriorating economic conditions” leading to

6 “increased food and fuel prices.”76

7

88. Nevertheless, in September 2017, Acting Secretary Duke terminated Sudan’s TPS

8 designation on the ground that “the ongoing armed conflict and extraordinary and temporary

9 conditions that served as the basis for Sudan’s most recent designation have sufficiently improved

10 such that they no longer prevent nationals of Sudan from returning in safety to all regions of

11 Sudan.” 77 The Acting Secretary did not even consider, let alone make a finding as to numerous

12 intervening factors considered by prior administrations in extending Sudan’s TPS designation.

13

CLASS ALLEGATIONS

14

89. Representative Individual Minor Plaintiffs Crista Ramos, Benjamin Zepeda, Juan

15 Eduardo Ayala Flores, Hnaida Cenemat, and Rilya Salary bring this action under Federal Rule of

16 Temporary Protected Status for Sudan, 69 Fed. Reg. 60,168 (Oct. 7, 2004); Extension of the

17

Designation of Sudan for Temporary Protected Status, Extension of Employment Authorization Documentation for Eligible TPS Beneficiaries, 70 Fed. Reg. 52,429 (Sept. 2, 2005); Extension of

18

the Designation of Sudan for Temporary Protected Status, Automatic Extension of Employment Authorization Documentation for Sudanese TPS Beneficiaries, 72 Fed. Reg. 10,541 (March 8,

19

2007); Extension of the Designation of Sudan for Temporary Protected Status, Automatic Extension of Employment Authorization Documentation for Sudanese TPS Beneficiaries, 73 Fed.

20

Reg. 47,606 (Aug. 14, 2008); Extension of the Designation of Sudan for Temporary Protected Status, 74 Fed. Reg. 69,355 (Dec. 31, 2009) (extending TPS for 18 months); Extension of the

21

Designation of Sudan for Temporary Protected Status and Automatic Extension of Employment Authorization Documentation for Sudanese TPS Beneficiaries, 76 Fed. Reg. 63,635 (Oct. 13,

22

2011); Extension and Redesignation of Sudan for Temporary Protected Status, 78 Fed. Reg. 1872 (Jan. 9, 2013); Extension of the Designation of Sudan for Temporary Protected Status, 79 Fed.

23

Reg. 52,027 (Sept. 2, 2014); Extension of the Designation of Sudan for Temporary Protected Status, 81 Fed. Reg. 4045 (Jan. 25, 2016).

24 75 Extension of the Designation of Sudan Under the Temporary Protected Status Program, 68 Fed.

25

Reg. 52,410 (Sept. 3, 2003); see also, e.g., Extension of the Designation of Sudan for Temporary Protected Status, Automatic Extension of Employment Authorization Documentation for

26

Sudanese TPS Beneficiaries, 72 Fed. Reg. 10,541 (March 8, 2007). 76 Extension of the Designation of Sudan for Temporary Protected Status, 79 Fed. Reg. 52,027

27 (Sept. 2, 2014).

28

77 Termination of the Designation of Sudan for Temporary Protected Status, 82 Fed. Reg. at 47,228.

28 COMPLAINT – CASE NO. 3:18-CV-1554

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

2 similarly situated persons.

3

90. Minor Plaintiffs seek to represent the following nationwide class: The U.S. citizen

4 children, from ages five to eighteen, of all TPS holders from El Salvador, Haiti, Nicaragua, and

5 Sudan.

6

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

7 23(a)(1) because it is so numerous that joinder of all members is impracticable.

8

92. On information and belief, there are tens of thousands of U.S. citizen children of

9 TPS holders from El Salvador, Haiti, Nicaragua, and Sudan. Given the dates of TPS designations

10 for those countries, thousands of those children are minors confronted with the possibility of

11 losing either the ability to live in their country or the care and support of a TPS-holder parent.

12

93. Due to the actions of Defendants, the U.S. citizen children of TPS holders will be

13 forced to choose between their absolute and fundamental due process right to reside in this

14 country, and their due process right to the care and support of their parents.

15

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

16 23(a)(2). Members of the class are subject to a common practice or policy: Defendants’ adoption

17 of a new rule that has caused the termination of the TPS designations for their parents’ respective

18 countries without any consideration of the impact on the class members—i.e., these American

19 children—or any valid reason justifying the harm that decision imposes on them. If the TPS

20 termination decisions take effect, these children will be forced by law to choose between their

21 right to reside in this country as citizens, and their right to reside with their parents. Whether the

22 Due Process Clause permits the government to force these children into that choice presents a

23 common legal question, resolution of which will greatly aid the efficient resolution of this case.

24

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

25 Procedure 23(a)(3) because the claims of the representative Individual Minor Plaintiffs are typical

26 of the claims of their class. Minor Plaintiffs and the proposed Citizen-Children Class members are

27 the school-aged children, from ages five to eighteen, who are U.S. citizens. Their parents will be

28 subject to removal once the TPS termination decisions take effect. Individual Minor Plaintiffs and

29 COMPLAINT – CASE NO. 3:18-CV-1554

Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 33 of 39

1 their proposed class also share the same legal claims, which challenge the legality of these

2 termination policies and practices under the Fifth Amendment.

3

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

4 Procedure 23(a)(4). Individual Minor Plaintiffs seek the same relief as the other members of the

5 class. In defending their own rights, Individual Plaintiffs will defend the rights of all proposed

6 class members fairly and adequately.

7

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

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

9 Southern California, and Sidley Austin LLP. Plaintiffs’ counsel have extensive experience

10 litigating class action lawsuits and other complex cases in federal court, including civil rights

11 lawsuits on behalf of non-citizens.

12

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

13

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

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

15 minor U.S. citizen children to reside in the United States could create inconsistent adjudications

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

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

18 TPS designations for El Salvador, Haiti, Nicaragua, and Sudan without considering the massive

19 harm that decision causes to U.S. citizen children or providing reasons to justify that harm. Thus,

20 final injunctive and declaratory relief is appropriate for the class as a whole.

21

CLAIMS FOR RELIEF

22

FIRST CLAIM

23

Violation of the Due Process Clause of the Fifth Amendment

24

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

25

100. Plaintiffs reallege and incorporate by reference each and every allegation contained

26 in the preceding paragraphs.

27

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

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

30 COMPLAINT – CASE NO. 3:18-CV-1554

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1 U.S. Const. amend. V. The guarantee against the deprivation of liberty without due process bars

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

3 procedures involved, unless the action is “narrowly tailored to serve a compelling state interest.”

4 Reno v. Flores, 507 U.S. 292, 301–02 (1993).

5

102. Three such fundamental rights are implicated here. First, the plaintiffs here who are

6 school-aged U.S. citizens have an absolute right to live in the United States. To compel them to

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

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

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

10

103. Second, for at least so long as these U.S. citizen plaintiffs remain minors, they have

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

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

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

14

104. Third, the government’s decision to end the lawful immigration status of their

15 parents impinges upon the U.S. citizen plaintiffs’ constitutionally-protected liberty interests.

16 These American children have a powerful interest in not being compelled to choose between two

17 alternatives when each alternative will deprive them of a substantial, constitutionally-protected

18 aspect of liberty. See United States v. Jackson, 390 U.S. 570 (1968); cf. New York v. United

19 States, 505 U.S. 144, 176 (1992).

20

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

21 substantial governmental interest and have failed adequately to tailor their action to promote any

22 legitimate interest they may have. Nowhere in the notices terminating the TPS designations for El

23 Salvador, Haiti, Nicaragua, and Sudan, for example, have Defendants identified any risk to the

24 interests of the United States that would follow from allowing the school-aged U.S. citizen

25 children to remain in the United States with their TPS holder parents until the children reach the

26 age of majority.

27

106. Similarly, nowhere in the notices terminating the TPS designations for El Salvador,

28 Haiti, Nicaragua, and Sudan has the Secretary adequately explained the Secretary’s new

31 COMPLAINT – CASE NO. 3:18-CV-1554

Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 35 of 39

1 interpretation of the governing statute, reconciled it with the Secretary’s longstanding prior

2 interpretation, or justified its extraordinary invasion of the U.S. citizen children’s constitutional

3 rights.

4

107. Plaintiffs and Minor Plaintiffs’ class will suffer irreparable injury resulting from the

5 termination of the TPS designations.

6

SECOND CLAIM

7

Violation of the Equal Protection Guarantee of the

8

Due Process Clause of the Fifth Amendment

9

(Against All Defendants by All TPS-Holder Plaintiffs)

10

108. Plaintiffs reallege and incorporate by reference each and every allegation contained

11 in the preceding paragraphs.

12

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

13 invalidates any official action that in part reflects a racially discriminatory intent or purpose.

14 Classifications based on race or national origin receive exacting scrutiny, and even facially neutral

15 policies and practices will be held unconstitutional when they reflect a pattern unexplainable on

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

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

18

110. Defendants’ decisions to terminate the TPS designations for El Salvador, Haiti,

19 Nicaragua, and Sudan are unconstitutional because they were motivated, at least in part, by

20 intentional discrimination based on race, ethnicity, or national origin.

21

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

22 TPS designations.

23

THIRD CLAIM

24

Violation of the Due Process Clause of the Fifth Amendment

25

(Against All Defendants by All TPS-Holder Plaintiffs)

26

112. Plaintiffs reallege and incorporate by reference each and every allegation contained

27 in the preceding paragraphs.

28

32 COMPLAINT – CASE NO. 3:18-CV-1554

Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 36 of 39

1

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

2 [non-citizens], whether their presence here is lawful, unlawful, temporary, or permanent.”

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

4 They have significant liberty interests, protected by the Due Process Clause, in a non-arbitrary

5 decision as to the continuation of their TPS status.

6

114. The “very essence” of due process is the “protection of the individual against

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

8 deprivation of liberty or property interests must, at the very least, pass a test of rationality. The

9 burden on the government is greater when, as here, the liberty interests at stake derive from well-

10 established and significant reliance interests.

11

115. The government also has not articulated, and cannot establish, any rational basis for

12 reversing course on decades of established TPS policy and ignoring the current capability of TPS

13 countries to safely receive longtime TPS holders, their families, and their U.S. citizen children.

14

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

15 TPS designations.

16

FOURTH CLAIM

17

Violation of the Administrative Procedure Act

18

(Against All Defendants by All TPS-Holder Plaintiffs)

19

117. Plaintiffs reallege and incorporate by reference each and every allegation contained

20 in the preceding paragraphs.

21

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

22 agencies are accountable to the public by providing a “right of review” to any “person suffering

23 legal wrong because of agency action, or adversely affected or aggrieved by agency action.” 5

24 U.S.C. § 702. Judicial review is generally limited to “final agency action for which there is no

25 other adequate remedy in a court.” 5 U.S.C. § 704.

26

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

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

28 discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The right of review

33 COMPLAINT – CASE NO. 3:18-CV-1554

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1 under the APA includes a right to judicial review of “executive agency action for procedural

2 correctness.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009).

3

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

4 “display awareness that it is changing position,” and may not “depart from a prior policy sub

5 silentio.” Id. at 515. The APA requires an agency to provide “more substantial justification”

6 when “its new policy rests upon factual findings that contradict those which underlay its prior

7 policy,” or “its prior policy has engendered serious reliance interests.” Id.

8

121. Defendants’ termination of the TPS designations for El Salvador, Haiti, Nicaragua,

9 and Sudan constitutes “final agency action for which there is no other adequate remedy in a court”

10 pursuant to 5 U.S.C. § 704, because the Defendants’ termination results in the TPS Holders’ loss

11 of TPS “automatically and without further notice or right of appeal,” 8 C.F.R. § 244.19.

12

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

13 was arbitrary, capricious, and contrary to law in violation of the APA because it represented a

14 sudden and unexplained departure from decades of decision-making practices and ordinary

15 procedures. By shifting the decision-governing standard for country designations without

16 explanation, Defendants have ignored a clear statutory command and engaged in procedurally

17 flawed decision-making. Further, Defendants changed their policy without taking into account the

18 serious reliance interests that their prior policy had engendered.

19

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

20 TPS designations.

21 / / /

22 / / /

23 / / /

24

25

26

27

28

34 COMPLAINT – CASE NO. 3:18-CV-1554

Case 3:18-cv-01554-EMC Document 1 Filed 03/12/18 Page 38 of 39

1

PRAYER FOR RELIEF

2

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

3 grant the following relief:

4

1. Declare that Defendants’ termination of the TPS designations for El Salvador,

5

Nicaragua, Haiti, and Sudan, was unconstitutional under the Due Process Clause of

6

the Fifth Amendment and unlawful under the Administrative Procedure Act;

7

2. Vacate Defendants’ unlawful termination of the TPS designations for El Salvador,

8

Nicaragua, Haiti, and Sudan;

9

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

10

attorneys, and all other persons who are in active concern or participation with any of

11

them, from implementing or enforcing the decisions to terminate the TPS designations

12

for El Salvador, Nicaragua, Haiti, and Sudan;

13

4. Alternatively, certify this case as a class action lawsuit as proposed herein, appoint

14

Individual Minor Plaintiffs Crista Ramos Benjamin Zepeda, Juan Eduardo Ayala

15

Flores, Hnaida Cenemat, and Rilya Salary as class representatives of their class and

16

the undersigned counsel as class counsel;

17

5. And enjoin and restrain all Defendants, and their officers, agents, servants, employees,

18

attorneys, and all other persons who are in active concern or participation with any of

19

them, from rescinding the immigration status of those TPS holders who have school-

20

aged U.S. citizen children for so long as the children remain age five to eighteen;

21 / / /

22 / / /

23 / / /

24

25

26

27

28

35 COMPLAINT – CASE NO. 3:18-CV-1554

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1

6. Grant an award of attorneys’ fees and costs; and

2

7. Grant any other and further relief that this Court may deem fit and proper.

3

4 Date: March 12, 2018 5 6 7 8 9 10 11

Respectfully submitted,
SIDLEY AUSTIN LLP
/s/ Sean A. Commons* Mark E. Haddad Nicole M. Ryan Alycia A. Degen Sean A. Commons Ryan M. Sandrock Amanda R. Farfel Andrew B. Talai Marisol Ramirez

12

ACLU OF SOUTHERN CALIFORNIA

13

/s/ Ahilan T. Arulanantham

14

Ahilan T. Arulanantham Jennifer Poon

15

NATIONAL DAY LABORER

16

ORGANIZING NETWORK

17

/s/ Emilou MacLean

18

Emilou MacLean Jessica Karp Bansal

19

Attorneys for Plaintiffs
20
* Filer attests that all signatories listed, and on whose behalf the filing is submitted, concur in the
21 filing’s content and have authorized the filing.

22

23

24

25

26

27

28

36 COMPLAINT – CASE NO. 3:18-CV-1554

 
 Case 3:18-cv-01554-EMC Document 55 Filed 08/06/18 Page 1 of 57

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 CRISTA RAMOS, et al.,

Case No. 18-cv-01554-EMC

8

Plaintiffs,

9

v.

10 KIRSTJEN NIELSEN, et al.,

ORDER DENYING DEFENDANTS’ MOTION TO DISMISS
Docket No. 20

11

Defendants.

12

13

In 1990, Congress passed and President George H. W. Bush signed the Immigration Act of

14 1990, creating the ―Temporary Protected Status‖ (TPS) program. See Pub. L. 102-232 (1991).

15 The TPS statute codifies a long-standing practice: ―every Administration since and including that

16 of President Eisenhower has permitted one or more groups of otherwise deportable aliens to

17 remain temporarily in the United States out of concern that the forced repatriation of these

18 individuals could endanger their lives or safety.‖ H.R. Rep. 100-627, at 6 (1988). TPS is thus a

19 humanitarian program: it authorizes the Secretary of Homeland Security to temporarily permit

20 nationals from certain countries to live and work in the United States when an ongoing armed

21 conflict, environmental disaster, or other conditions prevent the safe return of those persons to

22 their countries of origin. See 8 U.S.C. § 1254a(b)(1)(A)-(C). Since 1990, several countries have

23 received TPS status.

24

At issue here are the designations for El Salvador, Nicaragua, Haiti, and Sudan. Sudan

25 was designated for TPS in 1997 on account of a brutal civil war. Its TPS designation was

26 extended periodically by every administration until late 2017, when Defendants announced that

27 Sudan‘s status would be terminated. Similarly, Nicaragua was designated in 1999 due to

28 Hurricane Mitch; El Salvador was designated in 2001 and Haiti in 2010, both on the basis of

Case 3:18-cv-01554-EMC Document 55 Filed 08/06/18 Page 2 of 57

United States District Court Northern District of California

1 devastating earthquakes. Each country‘s TPS designation was periodically extended on every

2 occasion until late 2017. Between October 2017 and January 2018, Defendants announced that

3 TPS status for all four countries would be terminated by November 2, 2018 (Sudan), January 5,

4 2019 (Nicaragua), July 22, 2019 (Haiti), and September 9, 2019 (El Salvador).

5

These TPS designations have given rise to a sizeable population of over 200,000 people

6 who have lived in the United States with lawful status pursuant thereto for 10-20 years. Many

7 have built careers, bought homes, married, and had children—children who are U.S. citizens.

8

Plaintiffs in this case are TPS-beneficiaries and their U.S.-citizen children. At the crux of

9 their compliant is an allegation that Defendants, under the President‘s influence, have adopted a

10 new interpretation of the TPS statute. Whereas prior administrations evaluated the severity of

11 intervening events when considering whether to extend TPS, the present administration allegedly

12 ignores those events and focuses solely on whether the original rationale for TPS continues to

13 exist.

14

Plaintiffs assert four legal claims. First, the U.S.-citizen children between the ages of 5

15 and 18 allege that Defendants‘ termination violates their substantive due process rights because

16 the Government—without good reason—is forcing them to choose between living in the United

17 States without their parents or leaving their country of citizenship to return to countries they

18 maintain are unsafe. Second, Plaintiffs allege that the termination of TPS and adoption of a new

19 interpretation of the TPS statute violates the Constitution‘s equal protection guarantee because it

20 they were based on President Trump‘s racial animus against persons from those countries and his

21 alleged disdain for non-white immigrants. Third, the TPS beneficiaries allege that Defendants

22 have violated their substantive due process rights because they have not advanced a reasonable

23 basis to terminate their TPS status of the countries in question or to change their interpretation of

24 the TPS statute. Finally, the TPS-beneficiaries allege that Defendants‘ actions violated the

25 Administrative Procedure Act (APA) because Defendants departed from long-standing policy and

26 practice without acknowledging the change or providing good reasons for it.

27

Defendants have moved to dismiss on the basis that the Court lacks jurisdcition to hear

28 Plaintiffs‘ claims or review the Secretary‘s decisions with respect to TPS. Defendants also

2

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United States District Court Northern District of California

1 maintain that, even if the Court has jurisdiction, Plaintiffs fail to state a claim on any theory.

2

A hearing was held on June 22, 2018. See Docket Nos. 35, 39. On June 25, 2018, this

3 Court issued a summary order denying the motion (Docket No. 34 ). This order elaborates on that

4 order and addresses intervening case law.

5

I.

FACTUAL BACKGROUND

6

Plaintiffs are nine persons who have permission to live and work in the United States

7 because their countries of origin have been designated for ―Temporary Protected Status‖ (TPS)

8 and four U.S.-citizen children whose parents currently hold TPS status. See Compl. ¶¶ 16-29.

9 The TPS holders come from Sudan, Nicaragua, El Salvador, and Haiti, four countries that have

10 continuously been designated for TPS since 1997, 1999, 2001, and 2010, respectively. Pursuant to

11 these TPS designations, Plaintiffs with TPS have been lawfully present in the United States from

12 approximately ten to twenty years. Despite long-standing practice periodically extending TPS

13 designations for these four countries, Defendants announced that TPS would be terminated over a

14 three month period between October 2017 and January 2018. As a result, over 200,000 residents

15 who have resided in the United States for years, some for decades, stand to lose their permission to

16 live and work in the United States and will be subject to deportation. Below, the Court

17 summarizes Plaintiffs‘ personal experiences as well as the history of TPS designations for each of

18 the four countries at issue.

19 A. Plaintiffs‘ Backgrounds

20

The following is a sample of Plaintiffs‘ backgrounds alleged in the Complaint.

21

1. Hiwaida Elarabi (Sudan)

22

Plaintiff Hiwaida Elarabi is originally Sudanese, but has lived in the United States since

23 1997 with TPS status. Compl. ¶ 29. She came to the United States with a valid visitor‘s visa in

24 1997 to visit her aunt and family (all of whom are U.S. citizens); the security situation in Sudan

25 deteriorated during her stay. Compl. ¶ 65. For that reason, the United States government

26 designated Sudan for TPS and Ms. Elarabi was permitted to remain in the United States because

27 she could not safely return to Sudan. Id. She has spent the past 20 years here because the United

28 States has extended Sudan‘s TPS designation at every relevant interval. In the United States, Ms.

3

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United States District Court Northern District of California

1 Elarabi a Master‘s degree in Bioinformatics from Brandeis University. Id. For 16 years, she

2 worked as a Health Educator at the Massachusetts Department of Public Health. Id. In 2015, she

3 borrowed money to open a restaurant. Id. After Defendants terminated Sudan‘s TPS designation,

4 she ―made the difficult decision to sell it, at great cost‖ because ―her future was uncertain and she

5 did not know whether she would be able to sustain the restaurant.‖ Id. Now, she must leave the

6 country she has lived in since 1997.

7

2. Elsy Yolanda Flores de Ayala, Maria Jose and Juan Eduardo (El Salvador)

8

Plaintiff Elsy Yolanda Flores de Ayala was born in El Salvador. Her mother, father, and

9 siblings fled El Salvador in the 1980s due to the country‘s brutal civil war, but she could not make

10 the journey because she was too young. Compl. ¶ 60. Her immediate relatives are now U.S.

11 citizens or legal permanent residents. In 2000, Ms. Flores de Ayala married, and migrated to the

12 United States with her daughter, Plaintiff Maria Jose Ayala Flores, a one-year-old at the time. Id.

13 While they were in the United States, devastating earthquakes struck El Salvador. Id. The United

14 States determined that nationals of El Salvador could not safely return and designated the country

15 for TPS. Id. Ms. Flores de Ayala and her daughter, Maria Jose, been living in the United States

16 since 2000 with TPS protection. In the United States, Ms. Flores de Ayala has worked as a

17 domestic worker and child-care provider for over fourteen years. Id.

18

Maria Jose, Ms. Flores de Ayala‘s daughter, is now 19-year-old. Compl. ¶ 59. She was

19 brought to the United States as an infant and has lived virtually her whole life here under the

20 umbrage of TPS. Id. All her schooling has taken place here. Id. In 2016, she graduated high

21 school. Id. She did not learn of her TPS status until she applied for college and realized she was

22 ineligible for many scholarships. Id. Currently, she is studying mathematics at Montgomery

23 College in Maryland and would like to teach math to elementary students. Id. However, if

24 Defendants‘ termination of TPS for El Salvador takes effect, she will be required to leave the only

25 country she has known and will be unable to complete her studies.

26

Ms. Flores de Ayala‘s youngest son, Juan Eduardo, is a U.S.-citizen. Compl. ¶ 53. He was

27 born in the United States and is also a plaintiff in this case. Id. He is currently in seventh grade.

28 Id. He may have no choice but to return to El Salvador with his parents and siblings, or be

4

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United States District Court Northern District of California

1 separated from them and placed with another family if he remains in the country of his citizenship

2 to complete his education. Id.

3

3. Hnaidi Cenemat and Wilna Destin (Haiti)

4

The plaintiffs from Nicaragua and Haiti will confront similar hardship. Plaintiff Hnaidi

5 Cenemat is also a U.S.-citizen, fourteen years old, whose mother, Plaintiff Wilna Destin, was born

6 in Haiti but has lived in the United States for 18-years after Haiti suffered from an earthquake that

7 prompted TPS designation. Compl. ¶ 54. Hnaidi is a freshman high school student in Florida,

8 where she is on the honor roll and active in her school and church communities, joining her church

9 choir and aspiring to join the cheerleading and flag football teams at her school in addition to the

10 Student Council. Id. She enjoys studying math and science and aspires to become an

11 obstetrician/gynecologist to help others. Id. She fears moving to Haiti with her mother—a

12 country she does not know—but she also fears being placed with a foster family in the United

13 States without her mother. Id. The situation is no less harrowing for her mother, Wilna. Compl. ¶

14 61. Wilna not only fears separation from her daughter, but also does not want to leave behind the

15 life she has built in the United States over the past eighteen years (eight of them with TPS status).

16 Id. She owns a home in Florida, is an active member of her community and church, and has

17 worked for a union for the past four years. Id. After Hurricane Katrina, she traveled to New

18 Orleans to volunteer with humanitarian relief efforts. Id.

19

4. Imara Ampie (Nicaragua)

20

Plaintiff Imara Ampie was born in Nicaragua, but traveled to the United States in 1998 at

21 the age of 26 to procure material for her mother‘s tailoring business. Compl. ¶ 63. While she was

22 here, Nicaragua was devastated by Hurricane Mitch. Id. The government designated Nicaragua

23 for TPS, so Ms. Ampie stayed here. Id. She married another TPS holder and they had two

24 children in the United States, who are both U.S. citizens. Id. She has lived here for twenty years.

25 Id. She owns a home in California. Id. She worries that she will have to return to Nicaragua

26 despite the lives she and her husband have built here, and that she will not be able to satisfy her

27 family‘s health care and educational needs in Nicaragua. Id. Her children would suffer whether

28 they are required to return to Nicaragua or whether they remain in the United States without their

5

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1 parents. Id. She has been here more than half of her adult life.

2

The plight of other named Plaintiffs are described in ¶¶ 50-65 of the Complaint. As noted

3 above, over 200,000 other people stand to lose their TPS status. Id. ¶ 2. Further, over 200,000

4 U.S.-citizen children have at least one parent who is a TPS holder likely to be deported. Id.

5 B. Background of TPS Designations and Terminations

6

The history of TPS designation for Haiti, El Salvador, Nicaragua, and Sudan is

7 summarized below.

8

1. Haiti

9

Haiti was originally designated for TPS on January 21, 2010 based on the 7.0-magnitude

10 earthquake on January 12, 2010 that prevented Haitians from returning safely. See Designation of

11 Haiti for Temporary Protected Status, 75 Fed. Reg. 3476 (Jan. 21, 2010). The Secretary described

12 that a third of Haiti‘s population had been affected by the earthquake and that Haiti‘s critical

13 infrastructure—including hospitals, food, water, electricity, and telephone supplies—was severely

14 impaired. Id. Haiti‘s designation was subsequently extended and re-designated four times by the 15 Obama administration and once by the Trump administration.1 Three of the designations cited

16 factors other than the original earthquakes; for example, the 2012, 2014, and 2015 extensions cited 17 subsequent ―steady rains . . . which led to flooding and contributed to a deadly cholera outbreak.‖2

18

On January 18, 2018, Acting Secretary Duke announced that Haiti‘s TPS designation

19 would be terminated effective July 22, 2019. See Termination of the Designation of Haiti for

20 Temporary Protected Status, 83 Fed. Reg. 2648-01 (Jan. 18, 2018). The termination notice states

21 that ―DHS has reviewed conditions in Haiti‖ in consultation with other federal agencies and

22

23 1 See Extension and Redesignation of Haiti for Temporary Protected Status, 76 Fed. Reg. 29,000-

24

01, 29,000 (May 19, 2011); Extension of the Designation of Haiti for Temporary Protected Status, 77 Fed. Reg. 59,943-01 (Oct. 1, 2012); Extension of the Designation of Haiti for Temporary

25

Protected Status, 79 Fed. Reg. 11,808-01, 11,808 (Mar. 3, 2014); Extension of the Designation of Haiti for Temporary Protected Status, 80 Fed. Reg. 51,582-01 (Aug. 25, 2015); Extension of the

26 Designation of Haiti for Temporary Protected Status, 82 Fed. Reg. 23,830-01 (May 24, 2017).

27

2 Extension of the Designation of Haiti for Temporary Protected Status, 77 Fed. Reg. 59,943-01 (Oct. 1, 2012); see also Extension of the Designation of Haiti for Temporary Protected Status, 79

28

Fed. Reg. 11,808-01, 11,808 (Mar. 3, 2014) (same); Extension of the Designation of Haiti for Temporary Protected Status, 80 Fed. Reg. 51,582-01 (Aug. 25, 2015) (same).

6

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1 ―determined . . . that the conditions for Haiti‘s designation for TPS—on the basis of ‗extraordinary

2 and temporary conditions‘ relating to the 2010 earthquake that prevented Haitian nationals from

3 returning safely—are no longer met.‖ Id. at 2650. The notice states that Haiti ―has made progress

4 recovering from the 2010 earthquake and subsequent effects that formed the basis for its

5 designation,‖ including that 98% of internally displaced persons sites have closed, and only

6 38,000 of the estimated 2 million Haitians who lost their homes were still living in camps in June

7 2017. Id. The United Nations had withdrawn its peacekeeping mission in October 2017. Id. It

8 held a presidential election, and the Haitian government was working to rebuild government

9 infrastructure that had been destroyed. Economic recovery ―has been generally positive.‖ Id.

10 Further, ―[a]lthough Haiti has grappled with a cholera epidemic that began in 2010 in the

11 aftermath of the earthquake, cholera is currently at its lowest level since the outbreak began.‖ Id.

12 Based on these considerations, the Acting Secretary determined that ―the conditions for the

13 designation of Haiti for TPS‖ are no longer met. Id.

14

2. El Salvador

15

El Salvador was designated for TPS on March 9, 2001 based on a series of earthquakes.

16 See Designation of El Salvador Under Temporary Protected Status, 66 Fed. Reg. 14214 (Mar. 9,

17 2001) (citing a ―devastating earthquake‖ causing displacement of 17% of the population,

18 destruction of 220,000 homes, 1,696 schools, and 856 public buildings, and causing losses in

19 excess of $2.8 billion). El Salvador‘s designation has been extended 11 times by the Bush and 20 Obama administrations,3 including due to ―a subsequent drought‖ in 2002,4 and the effects of

21

22

3 See Extension of the Designation of El Salvador Under the Temporary Protected Status Program, 67 Fed. Reg. 46,000-01, 46,000 (Jul. 11, 2002); Extension of the Designation of El

23

Salvador Under Temporary Protected Status Program, 68 Fed. Reg. 42,071-01, 42,072 (Jul. 16, 2003); Extension of the Designation of Temporary Protected Status for El Salvador, 70 Fed. Reg.

24

1450-01, 1451 (Jan. 7, 2005); Extension of the Designation of Temporary Protected Status for El Salvador, 71 Fed. Reg. 34,637-01, 34,638 (June 15, 2006); Extension of the Designation of El

25

Salvador for Temporary Protected Status, 72 Fed. Reg. 46,649-01, 46,650 (Aug. 21, 2007); Extension of the Designation of El Salvador for Temporary Protected Status, 73 Fed. Reg. 57,128-

26

01, 57,129 (Oct. 1, 2008); Extension of the Designation of El Salvador for Temporary Protected Status, 75 Fed. Reg. 39,556-01, 39,558-59 (July 9, 2010); Extension of the Designation of El

27

Salvador for Temporary Protected Status, 77 Fed. Reg. 1710-02, 1712 (Jan. 11, 2012); Extension of the Designation of El Salvador for Temporary Protected Status, 78 Fed. Reg. 32,418-01, 32,420

28

(May 30, 2013); Extension of the Designation of El Salvador for Temporary Protected Status, 80 Fed. Reg. 893-01, 894-95 (Jan. 7, 2015); Extension of the Designation of El Salvador for

7

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1 Tropical Storm Stan, the eruption of the Santa Ana volcano, subsequent earthquakes, and 2 Hurricane Ida in the 2010 notice.5

3

On January 18, 2018, Secretary Nielsen announced the termination of TPS effective

4 September 9, 2019. See Termination of the Designation of El Salvador for Temporary Protected

5 Status, 83 Fed. Reg. 2654-01 (Jan. 18, 2018). According to the notice, the Secretary ―reviewed

6 conditions in El Salvador‖ and considered input from other government agencies, and ―determined

7 that the conditions supporting El Salvador‘s 2001 designation for TPS on the basis of

8 environmental disaster due to the damage caused by the 2001 earthquakes are no longer met.‖ Id.

9 at 2655-56. The notice states that recovery efforts relating to the earthquakes have ―largely‖

10 completed, ―social and economic conditions affected by the earthquakes have stabilized,‖ and

11 ―people are able to conduct their daily activities without impediments directly related to damage

12 from the earthquakes.‖ Id. at 2656. It also notes that El Salvador has been accepting the return of

13 people removed from the United States, including 20,538 persons in 2016 and 18,838 in 2017. Id.

14 The notice also describes the international aid El Salvador has received since 2001, the completion

15 of ―many reconstruction projects,‖ including schools, hospitals, homes, and support for improving

16 water, sanitation, and roads. The notice also cites ―stead[y] improv[ement]‖ in El Salvador‘s

17 economy, including a 7% unemployment rate and increases in its gross domestic product. Id. The

18 notice acknowledges that assistance and resources for returnees are ―limited,‖ but that the

19 governments of the U.S., El Salvador, and international organizations ―are working cooperatively

20 to improve security and economic opportunities.‖ Id.

21

3. Nicaragua

22

Nicaragua was originally designated for TPS on January 5, 1999 on the basis of Hurricane

23 Mitch. See Designation of Nicaragua Under Temporary Protected Status, 64 Fed. Reg. 526-01,

24

25 Temporary Protected Status, 81 Fed. Reg. 44,645-03 (July 8, 2016).

26 4 Extension of the Designation of El Salvador Under the Temporary Protected Status Program, 27 67 Fed. Reg. 46,000-01, 46,000 (July 11, 2002).

28

5 Extension of the Designation of El Salvador for Temporary Protected Status, 75 Fed. Reg. 39,556-01, 39,558-59 (July 9, 2010).

8

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1 526 (Jan. 5, 1999) (―Hurricane Mitch swept through Central America causing severe flooding and

2 associated damage in Nicaragua,‖ including ―substantial disruption of living conditions‖).

3 Nicaragua‘s designation was extended 13 times by the Clinton, Bush, and Obama 4 administrations.6 Its status was extended several times thereafter, including based on subsequent 5 developments, such as ―recent droughts as well as flooding from Hurricane Michelle‖ in 2002,7 6 and subsequent natural disasters and storms.8

7

On December 15, 2017, Acting Secretary Duke announced that Nicaragua‘s designation

8 would terminate effective January 5, 2019. See Termination of the Designation of Nicaragua for

9 Temporary Protected Status, 82 Fed. Reg. 59636-01 (Dec. 15, 2017). The termination notice

10 states that ―DHS has reviewed conditions in Nicaragua‖ and that based on the review, ―the

11 Secretary has determined that conditions for Nicaragua‘s 1999 designation for TPS on the basis of

12 environmental disaster due to the damage caused by Hurricane Mitch are no longer met.‖ Id. at

13 59637. The Secretary found that ―[i]t is no longer the case that Nicaragua is unable, temporarily,

14 to handle adequately the return of nationals of Nicaragua,‖ that recovery efforts ―have largely been

15

16 6 See Extension of the Designation of Nicaragua Under the Temporary Protected Status Program,

17

65 Fed. Reg. 30,440-01, 30,440 (May 11, 2000); Extension of the Designation of Nicaragua Under the Temporary Protected Status Program, 66 Fed. Reg. 23,271-01, 23,272 (May 8, 2001);

18

Extension of the Designation of Nicaragua Under the Temporary Protected Status Program, 67 Fed. Reg. 22,454-01, 22,454 (May 3, 2002); Extension of the Designation of Nicaragua Under

19

Temporary Protected Status Program, 68 Fed. Reg. 23,748-01, 23,749 (May 5, 2003); Extension of the Designation of Temporary Protected Status for Nicaragua, 69 Fed. Reg. 64,088-01 (Nov. 3,

20

2004); Extension of the Designation of Temporary Protected Status for Nicaragua, 71 Fed. Reg. 16,333-01 (Mar. 31, 2006); See Extension of the Designation of Nicaragua for Temporary

21

Protected Status, 72 Fed. Reg. 29,534-01, 29,535 (May 29, 2007); Extension of the Designation of Nicaragua for Temporary Protected Status, 73 Fed. Reg. 57,138-01, 57,139 (Oct. 1, 2008);

22

Extension of the Designation of Nicaragua for Temporary Protected Status, 75 Fed. Reg. 24,73701, 24,738 (May 5, 2010); Extension of the Designation of Nicaragua for Temporary Protected

23

Status, 76 Fed. Reg. 68,493-01 (Nov. 4, 2011); Extension of the Designation of Nicaragua for Temporary Protected Status, 78 Fed. Reg. 20,128-01 (Apr. 3, 2013); Extension of the Designation

24

of Nicaragua for Temporary Protected Status, 79 Fed. Reg. 62,176-01 (Oct. 16, 2014); Extension of the Designation of Nicaragua for Temporary Protected Status, 81 Fed. Reg. 30,325-01 (May

25 16, 2016).

26

7 Extension of the Designation of Nicaragua Under the Temporary Protected Status Program, 67 Fed. Reg. 22,454-01, 22,454 (May 3, 2002).

27 8 See, e.g., Extension of the Designation of Temporary Protected Status for Nicaragua, 71 Fed.

28

Reg. 16,333-01 (Mar. 31, 2006); Extension of the Designation of Nicaragua for Temporary Protected Status, 72 Fed. Reg. 29,534-01, 29,535 (May 29, 2007).

9

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1 completed,‖ that ―[t]he social and economic conditions affected by Hurricane Mitch have

2 stabilized,‖ and that ―people are able to conduct their daily activities without impediments directly

3 related to damage from the storm.‖ Id. Furthermore, the Secretary noted that Nicaragua has

4 received significant international aid, many reconstruction projects have been completed, hundreds

5 of homes destroyed have been rebuilt, the Nicaraguan government has built new roads in many

6 areas affected by Hurricane Mitch, access to drinking water and sanitation has improved,

7 electrification of the country has increased from 50% in 2007 to 90% today, 1.5 million textbooks

8 have been provided to 225,000 primary students of the poorest regions, and Internet access is now

9 widely available. Id. In addition, the Secretary noted that Nicaragua‘s relative security has

10 attracted tourism and foreign investment, cites growth in Nicaragua‘s GDP, and notes that the

11 State Department has no current travel warning to Nicaragua. Id. Based on these considerations,

12 the Secretary ―determined . . . that Nicaragua no longer meets the conditions for designation of

13 TPS under section 244(b)(1) of the INA.‖ Id.

14

4. Sudan

15

Sudan was designated for TPS in November 1997 due to an ongoing armed conflict and

16 extraordinary conditions preventing nationals from returning safely. See Designation of Sudan

17 Under Temporary Protected Status, 62 Fed. Reg. 59737-01 (Nov. 4, 1997) (finding that ―a return

18 of aliens who are nationals of Sudan . . . would pose a serious threat to their personal safety as a

19 result of the armed conflict in that nation‖). It was periodically extended and/or re-designated for 20 TPS 15 times by the Clinton, Bush, and Obama administrations,9 often citing factors other than the

21

22

9 Extension of Designation of Sudan Under Temporary Protected Status Program, 63 Fed. Reg. 59,337-01 (Nov. 3, 1998); Extension and Redesignation of Sudan Under the Temporary Protected

23

Status Program, 64 Fed. Reg. 61,128-01, 61,128 (Nov. 9, 1999); See Extension of Designation of Sudan Under the Temporary Protected Status Program, 65 Fed. Reg. 67,407-01 (Nov. 9, 2000);

24

Extension of the Designation of Sudan Under the Temporary Protected Status Program, 66 Fed. Reg. 46,031-01 (Aug. 31, 2001); Extension of the Designation of Sudan Under the Temporary

25

Protected Status Program, 67 Fed. Reg. 55,877-01 (Aug. 30, 2002); Extension of the Designation of Sudan Under Temporary Protected Status Program, 68 Fed. Reg. 52,410-01 (Sept. 3, 2003);

26

Extension and Re-designation of Temporary Protected Status for Sudan, 69 Fed. Reg. 60,168-01, 60,169 (Oct. 7, 2004); Extension of Designation of Sudan Under the Temporary Protected Status

27

Program, 70 Fed. Reg. 52,429-01 (Sept. 2, 2005); Extension of the Designation of Sudan for Temporary Protected Status, 72 Fed. Reg. 10,541-02 (Mar. 8, 2007); Extension of the Designation

28

of Sudan for Temporary Protected Status, 73 Fed. Reg. 47,606-02 (Aug. 14, 2008); Extension of the Designation of Sudan for Temporary Protected Status, 74 Fed. Reg. 69,355-02 (Dec. 31,

10

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1 armed conflict but possibly related, such as forced relocation, human rights abuses, famine, and 2 denial of access to humanitarian agencies.10

3

On October 11, 2017, Acting Secretary Elaine C. Duke announced the termination of

4 Sudan‘s TPS status, to be effective November 2, 2018 in order to permit an orderly transition. See

5 Termination of the Designation of Sudan for Temporary Protected Status, 82 Fed. Reg. 47228-02

6 (Oct. 11, 2017). The notice explains that Sudan‘s designation was terminated because:

7

DHS and the Department of State (DOS) have reviewed the

conditions in Sudan. Based on this review and consultation, the

8

Secretary has determined that conditions in Sudan have sufficiently

improved for TPS purposes. Termination of the TPS designation of

9

Sudan is required because it no longer meets the statutory conditions

for designation. The ongoing armed conflict no longer prevents the

10

return of nationals of Sudan to all regions of Sudan without posing a

serious threat to their personal safety. Further, extraordinary and

11

temporary conditions within Sudan no longer prevent nationals from

returning in safety to all regions of Sudan. 12

13 Id. at 47230. The notice explains that conflict is limited to Darfur and the Two Areas (South

14 Kordofan and Blue Nile states), but that in the 2016-2017 timeframe, the parties in conflict

15 engaged in ―time-limited unilateral cessation of hostilities declarations‖ that ―result[ed] in a

16 reduction in violence and violent rhetoric.‖ Id. ―The remaining conflict is limited and does not

17 prevent the return of nationals of Sudan to all regions of Sudan without posing a serious threat to

18 their personal safety.‖ Id. Additionally, food security has improved, humanitarian actors have

19 been able to provide needed humanitarian aid, and conditions no longer prevent all Sudanese

20 nationals from returning in safety despite the country‘s poor human rights record. Id. The notice

21 concludes that, in consideration of these factors, ―the Secretary has determined that the ongoing

22 armed conflict and extraordinary and temporary conditions that served as the basis for Sudan‘s

23

24

2009); Extension of the Designation of Sudan for Temporary Protected Status, 76 Fed. Reg. 63,635-01 (Oct. 13, 2011); Extension and Redesignation of Sudan for Temporary Protected

25

Status, 78 Fed. Reg. 1872-01 (Jan. 9, 2013) (detailing the 2005 Comprehensive Peace Agreement and continuing violence); Extension of the Designation of Sudan for Temporary Protected Status,

26

79 Fed. Reg. 52,027-01, 52,029 (Sept. 2, 2014); Extension of the Designation of Sudan for Temporary Protected Status, 81 Fed. Reg. 4045-01 (Jan. 25, 2016).

27 10 See, e.g., Extension of Designation of Sudan Under the Temporary Protected Status Program,

28

65 Fed. Reg.67,407-01 (Nov. 9, 2000); Extension of the Designation of Sudan Under the Temporary Protected Status Program, 67 Fed. Reg. 55,877-01 (Aug. 30, 2002).

11

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1 most recent designation have sufficiently improved such that they no longer prevent nationals of

2 Sudan from returning in safety to all regions of Sudan.‖ Id.

3 C. Defendants‘ Termination Decisions

4

Plaintiffs question how the conditions in four countries that had been repeatedly designated

5 for TPS by multiple administrations over an eight to twenty year period improve within the span

6 of four months between October 2017 and January 2018. Plaintiffs contend Defendants ―adopted

7 a novel interpretation of the TPS statute.‖ Compl. ¶ 75. Previously, ―DHS or its predecessors

8 considered intervening natural disasters, conflicts, and other serious social and economic problems

9 as relevant factors when deciding whether to continue or instead terminate a TPS designation,‖ but

10 ―the Trump administration‘s DHS has now taken the position that such factors cannot be

11 considered.‖ Id. This change occurred without any explicit acknowledgment, announcement, or

12 explanation. Id. ¶ 76.

13

Plaintiffs cite two statements given to Congress by DHS officials as evidence to support

14 those claims. On June 6, 2017, then-DHS Secretary John Kelly stated that ―the program [TPS] is

15 for a specific event. In – in Haiti, it was the earthquake. Yes, Haiti had horrible conditions before

16 the earthquake, and those conditions aren‘t much better after the earthquake. But the earthquake

17 was why TPS was – was granted and – and that‘s how I have to look at it.‖ Id. ¶ 76. Current

18 Secretary Kirstjen Nielson more expressly stated that ―[t]he law does not allow me to look at the

19 country conditions of a country writ large. It requires me to look very specifically as to whether

20 the country conditions originating from the original designation continue to exist.‖ Id. ¶ 77.

21

Plaintiffs contend this change in approach was not a good-faith change in legal

22 interpretation of the TPS statute. Instead, they allege Defendants‘ action was motivated by racial

23 and national-origin animus. Compl. ¶ 66. They trace the animus to President Donald J. Trump

24 and others in his administration who have made statements which ―leave no doubt as to the

25 speaker‘s racially discriminatory motives against non-white and non-European immigrants.‖ Id.

26 Most relevant to the TPS terminations at issue here, in a January 11, 2018 meeting with

27 Congressional representatives concerning TPS protections for nationals from Latin American and

28

12

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1 African countries, in which at least El Salvador and Haiti were specifically discussed,11 President

2 Trump wondered aloud, ―Why are we having all these people from shithole countries come here?‖

3 Id. ¶ 70. He expressed a preference, instead, for immigrants from countries like Norway, which is

4 overwhelmingly white. Id. President Trump asked ―Why do we need more Haitians?‖ and

5 ―insisted that lawmakers ‗[t]ake them out‘ of any potential immigration deal.‖ Id.

6

Just one week after President Trump‘s comments, Deputy Secretary Duke announced the

7 decision terminating Haiti‘s TPS designation, and Secretary Nielsen announced the decision

8 terminating El Salvador‘s designation. Compl. ¶¶ 81, 84. Secretary Nielsen was allegedly present

9 at the meeting with President Trump. Id. ¶ 72.

10

The White House has allegedly exerted pressure on DHS with respect to recent TPS

11 terminations. In particular, Plaintiffs allege that in November 2017, White House Chief of Staff

12 John F. Kelly and White House Homeland Security Adviser Tom Bossert ―repeatedly called

13 Acting [DHS] Secretary Duke and pressured her to terminate the TPS designation for Honduras.‖

14 Compl. ¶ 73. One official with knowledge of the exchange stated that ―[t]hey put massive

15 pressure on [Acting Secretary Duke].‖ Id. Chief of Staff Kelly who allegedly called from Japan

16 while traveling with President Trump, ―was irritated and persistent,‖ and ―warn[ed] Acting

17 Secretary Duke that the TPS program ‗prevents [the Trump Administration‘s] wider strategic goal‘

18 on immigration.‖ Id. The pressure was so severe that Acting Secretary Duke stated she would

19 resign her position. Id.

20

II. LEGAL STANDARD

21

Defendants move to dismiss under both Rule 12(b)(1) and 12(b)(6).

22 A. Rule 12(b)(1)

23

―[A] defendant may challenge the plaintiff‘s jurisdictional allegations in one of two ways.

24

25 11 Plaintiffs‘ complaint cites a news article stating that the topic of discussion at the January 11,

26

2018 meeting was immigrants ―from Haiti, El Salvador, and African countries. See Compl. at 20, n. 37 (citing Josh Dawsey, Trump Derides Protections for Immigrants from “Shithole” Countries,

27

WASH. POST (Jan 12, 2018), https://www.washingtonpost.com/politics/trump-attacks-protectionsfor-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/11/bfc0725c-f711-11e7-

28

91af-31ac729add94_story.html. The article is incorporated by reference into the complaint. See In re NVIDIA Corp. Securities Litig., 768 F.3d 1046, 1051 (9th Cir. 2014).

13

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1 A ‗facial‘ attack accepts the truth of the plaintiff‘s allegations but asserts that they are insufficient

2 on their face to invoke federal jurisdiction. The district court resolves a facial attack as it would a

3 motion to dismiss under Rule 12(b)(6): Accepting the plaintiff‘s allegations as true and drawing

4 all reasonable inferences in the plaintiff‘s favor, the court determines whether the allegations are

5 sufficient as a legal matter to invoke the court‘s jurisdiction.‖ Leite v. Crane Co., 749 F.3d 1117,

6 1121 (9th Cir. 2014) (citations and quotations omitted).

7

―A ‗factual‘ attack, by contrast, contests the truth of the plaintiff‘s factual allegations,

8 usually by introducing evidence outside the pleadings. When the defendant raises a factual attack,

9 the plaintiff must support her jurisdictional allegations with ‗competent proof,‘ under the same

10 evidentiary standard that governs in the summary judgment context. The plaintiff bears the

11 burden of proving by a preponderance of the evidence that each of the requirements for subject-

12 matter jurisdiction has been met.‖ Id. (citations omitted).

13

Here, Defendants concede that they are mounting only a ―facial‖ attack to Plaintiffs‘

14 allegations with respect to jurisdiction. Accordingly, the Court accepts those allegations as true

15 and draws reasonable inferences in their favor.

16 B. Rule 12(b)(6)

17

In reviewing a motion to dismiss, the Court takes all allegations of material fact as true and

18 construes them in favor of the plaintiffs to determine whether a plausible legal claim has been

19 stated. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). A claim ―has facial plausibility

20 [if the plaintiffs] plead[] factual content that allows the court to draw the reasonable inference that

21 the defendant is liable for the misconduct alleged.‖ Aschroft v. Iqbal, 556 U.S. 662, 678 (2009).

22 Importantly, ―[i]f there are two alternative explanations [for the challenged conduct], one

23 advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff‘s

24 complaint survives a motion to dismiss under Rule 12(b)(6).‖ Starr v. Baca, 652 F.3d 1202, 1216

25 (9th Cir. 2011). Dismissal is only warranted if Defendants‘ ―plausible alternative explanation is

26 so convincing that [Plaintiffs‘] explanation is implausible.‖ Id. (emphasis in original).

27

III. DISCUSSION

28

Defendants argue that the Court lacks jurisdiction to review any claim related to

14

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1 Defendants‘ termination of TPS for the four countries at issue and that, even if the Court can

2 consider Plaintiffs‘ claims, they each fail on the merits. For the reasons stated in its prior

3 summary order and below, the Court denies Defendants‘ motion.

4 A. Jurisdictional Bar – Dismissal Under Rule 12(b)(1)

5

Section 1254a(b)(5)(A) of the TPS statute provides:

6

There is no judicial review of any determination of the [Secretary of

Homeland Security]12 with respect to the designation, or termination

7

or extension of a designation, of a foreign state under this

subsection.

8

9 8 U.S.C. § 1254a(b)(5)(A).

10

Defendants construe this provision broadly to preclude review not only of the Secretary‘s

11 substantive determination with respect to a particular country (e.g., whether conditions in a

12 particular foreign country have abated), but also any generally applicable process, practice, or

13 legal interpretation employed by the Secretary in making such determinations. The Court first

14 construes the scope of § 1254a and then considers whether Plaintiffs‘ claims fall within its scope.

15

1. Section 1254a Does Not Preclude Challenges to General Collateral Practices

16

Statutory interpretation begins with the text of the statute. See Los Angeles Lakers, Inc. v.

17 Fed. Ins. Co., 869 F.3d 795, 802 (9th Cir. 2017). Construction of a jurisdiction-stripping statute,

18 however, is guided by important overarching principles. ―A strong presumption exists that the

19 actions of federal agencies are reviewable in federal court.‖ KOLA, Inc. v. U.S., 882 F.2d 361, 363

20 (9th Cir. 1989); see also Sackett v. E.P.A., 566 U.S. 120, 128 (2012) (explaining that ―[t]he

21 APA . . . creates a presumption favoring judicial review of administrative action‖). Furthermore,

22 ―where Congress intends to preclude judicial review of constitutional claims its intent to do so

23 must be clear.‖ Webster v. Doe, 486 U.S. 592, 603 (1988). The presumption in favor of judicial

24 review may be overcome ―only upon a showing of ‗clear and convincing evidence‘ of a contrary

25 legislative intent.‖ Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967) (citations omitted). Such

26 indications may be ―drawn from ‗specific language,‘ ‗specific legislative history,‘ and ‗inferences

27

28

12 Section 1254a vests this authority with the Attorney General, but that power was subsequently transferred to the Secretary of Homeland Security. See 8 U.S.C. § 1103; 6 U.S.C. § 557.

15

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1 of intent drawn from the statutory scheme as a whole,‘ that Congress intended to bar review.‖

2 Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2140 (2016) (quotation omitted). Finally,

3 ―[e]ven where the ultimate result [of a statute] is to limit judicial review, . . . as a matter of the

4 interpretive enterprise itself, the narrower construction of a jurisdiction-stripping provision is

5 favored over the broader one.‖ ANA Int’l, Inc. v. Way, 393 F.3d 886, 891 (9th Cir. 2004). Giving

6 effect to provisions eliminating judicial review raises serious questions as to separation of powers,

7 and raises constitutional concerns. See Webster, 486 U.S. at 603 (explaining that a ―heightened

8 showing‖ of Congressional intent is required ―in part to avoid the ‗serious constitutional question‘

9 that would arise if a federal statute were construed to deny any judicial forum for a colorable

10 constitutional claim‖).

11

The TPS statute precludes review of the ―any determination . . . with respect to the

12 designation, or termination or extension of a designation, of a foreign state under this subsection.‖

13 8 U.S.C. § 1254a(b)(5)(A) (emphasis added). The statute does not define ―determination,‖ but it

14 is evident from the statutory context that this provision refers to the designation, termination, or

15 extension of a country for TPS. Id. The statute uses the word ―determines‖ or ―determination‖ in

16 connection with the Secretary‘s initial designation, periodic review, and termination of a TPS

17 foreign-state designation. See 8 U.S.C. § 1254a(b)(3)(A) (providing that the Secretary

18 periodically ―shall determine whether the conditions for such designation . . . continue to be met‖

19 and to timely publish ―such determination‖); id. § 1254a(b)(3)(B) (if the Secretary ―determines‖

20 the conditions are no longer met, then he ―shall terminate the designation by publishing notice . . .

21 of the determination‖); id. § 1254a(b)(3)(C). There is no clear provision stating ―determination‖

22 refers to, e.g., general procedures or criteria applied in making such country-by-country

23 determinations.

24

The Supreme Court has concluded that similar statutes which preclude review of a

25 ―determination‖ of immigration status did not preclude review of collateral practices and policies.

26 For example, McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991), concerned a jurisdiction-

27 stripping provision related to the ―Special Agricultural Workers‖ (SAW) amnesty program for

28 certain farmworkers. Under the Immigration Reform and Control Act of 1986 (―IRCA‖), alien

16

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1 farmworkers who were unlawfully present but met certain criteria could apply for adjustment of

2 status. See generally 8 U.S.C. § 1160(a). The Attorney General was responsible for administering

3 the application process, including a required interview. The plaintiffs in McNary alleged that the

4 ―interview process was conducted in an arbitrary fashion that deprived applicants of the due

5 process guaranteed by the Fifth Amendment to the Constitution‖ because, inter alia, they were not

6 apprised of or given an opportunity to challenge adverse evidence, denied the opportunity to

7 present witnesses, were denied access to competent interpreters, and because the interviews were

8 not recorded, inhibiting meaningful review of denials. Id. at 487. They did not challenge their

9 individual denials on the merits (i.e., the application of the statute‘s substantive eligibility criteria

10 to their individual case), but rather collaterally challenged the process under which their denials

11 were determined.

12

The government argued that the McNary plaintiffs‘ claims were precluded from bringing

13 suit because the statute (similar to the TPS statute here) provided that ―[t]here shall be no

14 administrative or judicial review of a determination respecting an application for adjustment of

15 status under this section except [as provided under 8 U.S.C. § 1160(e)(3)(A) of ‗an order of

16 exclusion or deportation‘].‖ 8 U.S.C. § 1160(e). The Supreme Court held that ―the reference to ‗a

17 determination‘ describes a single act rather than a group of decisions or a practice or procedure

18 employed in making decisions.‖ Id. at 492 (emphasis added). The court found that its

19 interpretation was bolstered by the fact that the statute limited judicial review of such

20 ―determinations‖ to a narrow process; that review was limited to an administrative record related

21 to an individual‘s eligibility for relief, and was thus inadequate ―to address the kind of procedural

22 and constitutional claims‖ asserted by the plaintiffs. Id. at 493. The Supreme Court noted that,

23 ―had Congress intended the limited review provisions . . . to encompass challenges to INS

24 procedures and practices, it could easily have used broader statutory language,‖ such as ―all

25 causes . . . arising under‖ the statute, or ―all questions of law and fact. Id. at 494. In short, the

26 Supreme Court held that ―[w]e agree . . . this language [describes] the process of direct review of

27 individual denials of SAW status, rather than as referring to general collateral challenges to

28 unconstitutional practices and policies used by the agency in processing applications.‖ 498 U.S. at

17

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1 492.

2

The Supreme Court applied McNary in Reno v. Catholic Social Servs., Inc., 509 U.S. 43

3 (1993) (―CSS‖). In Reno, the Supreme Court considered a challenge to regulations promulgated

4 by the AG pursuant to IRCA with respect to another amnesty program permitting certain aliens to

5 adjust their immigration status. A similar set of jurisdiction-stripping provisions collectively

6 provided that ―a determination respecting an application for adjustment of status‖ could only be

7 reviewed in a single level of administrative appellate review and then ―only in the judicial review

8 of an order of deportation.‖ See 8 U.S.C. §§ 1255a(f)(1), 1255a(f)(3)(A), 1255a(f)(4)(A),

9 1255a(f)(1). Although the suit in Reno was not the judicial review authorized by the statute, the

10 Court permitted the case to proceed because the plaintiffs‘ challenge was to the AG‘s regulations

11 interpreting the statute, rather than an individual determination. The Supreme Court thus held that 12 the jurisdiction-stripping provision did not apply.13

13

Here, Plaintiffs challenge, inter alia, DHS‘s change in interpretation of the TPS statute (a

14 general procedural issue), not an individual determination.14 The Department‘s general

15 interpretation of the TPS statute is a question distinct from the Department‘s designation or

16 termination of a particular country‘s TPS status.

17

Contrary to Defendants‘ argument, the statute‘s reference to ―any determination‖ does not

18 subsume ―any‖ general policies or practices. Rather, the word ―any‖ must be understood in its

19 grammatical context: ―any determination . . . with respect to the designation, or termination or

20

21 13 The Supreme Court then determined that several plaintiffs‘ claims may not be ripe because they 22 had not yet applied for and been denied adjustment of status under the regulation they challenged.
Defendants do not challenge the ripeness of Plaintiffs‘ claims in this case. Moreover, no such 23 problem appears. In CSS, the plaintiffs were unlawfully present in the United States and would
not be affected by the problematic regulation unless they applied for adjustment of status and then 24 were denied on the basis of the challenged regulation (rather than on other grounds). In contrast,
here, Plaintiffs and others similarly situated have permission to remain in the United States and 25 Defendants‘ actions will, if undisturbed, strip them of that status.

26 14 See also Immigrant Assistance Project of AFL-CIO v. I.N.S., 306 F.3d 842, 862-63 (9th Cir.
2002) (applying McNary to hold that a statute depriving aliens applying for amnesty of ―judicial 27 review of a determination respecting an application for adjustment‖ did not preclude district court

28

jurisdiction over the plaintiffs‘ ―procedural rather than substantive‖ challenge); Proyecto San Pablo v. I.N.S., 189 F.3d 1130, 1138-41 (9th Cir. 1999) (same).

18

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1 extension of a designation, of a foreign state.‖ 8 U.S.C. § 1254a(b)(5)(A) (emphasis added). See

2 Small v. U.S., 544 U.S. 385, 388 (2005) (holding that statutory phrase ―convicted in any court‖ did

3 not include foreign courts); U.S. v. Alvarez-Sanchez, 511 U.S. 350, 357 (1994) (holding that

4 ―respondent errs in placing dispositive weight on the broad statutory reference to ‗any‘ law

5 enforcement officer or agency without considering the rest of the statute‖). In context, ―any

6 determination‖ means the determination to designate, the determination to terminate, and the

7 determination to extend a designation. ―Any‖ modifies but does not define ―determinations.‖

8

The government cites a House Judiciary Committee report which states that ―none of the

9 [Secretary‘s] decisions with regard to granting, extending, or terminating TPS will be subject to

10 judicial review,‖ H.R. Rep. No. 101-245 (1989), at 14. That citation is inapt for two reasons.

11 First, this committee report concerns the ―Chinese Temporary Protected Status Act of 1989,‖

12 House Resolution 2929 (101st Congress), which was never passed. Although the judicial review

13 provision in that proposed legislation is similar to the language ultimately included in the general

14 TPS statute passed and codified at 8 U.S.C § 1254a, the latter was part of the Immigration Act of

15 1990, Pub. L. No. 101-649, Nov. 29, 1990. Defendants have not identified other relevant

16 legislative history pertaining to the legislation actually passed by Congress. In any case, the

17 language cited in this committee report would not provide additional guidance even if it pertained

18 to the TPS statute at issue here. It merely echoes the language of the statute, using the word

19 ―decisions‖ instead of ―determinations.‖ That is not clear and convincing evidence of

20 Congressional intent to strip jurisdiction of the courts to review generally applicable policies and

21 practices which transcend individual TPS determination for a particular country.

22

Finally, the fact that Plaintiffs‘ challenge might result in vacating the four TPS

23 determinations at issue in this case is not dispositive to the interpretation question at hand. The

24 same was true in McNary and CSS; both had the effect of vacating individual determinations and

25 requiring the agency to re-consider them after correcting procedural deficiencies and applying the

26 correct legal standard. Similarly, if Plaintiffs prevail here, Defendants would not be compelled to

27 extend each country‘s TPS designation. Instead, Defendants may make a new determination

28 whether TPS should be extended or terminated once they correct any legal errors identified by the

19

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1 Court.

2

2. Section 1254a Does Not Preclude Colorable Constitutional Claims

3

Plaintiffs‘ constitutional claims do challenge, inter alia, DHS‘s determinations to terminate

4 each of the four country‘s TPS status on grounds that do not depend on DHS‘s general

5 interpretation of the TPS statute. For example, the U.S.-citizen children allege that Defendants‘

6 termination of their parents‘ TPS status violates their substantive due process rights because

7 ―Defendants have articulated no substantial governmental interest and have failed to adequately

8 tailor their action to promote any legitimate interest they may have,‖ and the TPS termination

9 notices do not ―identif[y] any risk to the interests of the United States that would follow from

10 allowing the school-aged U.S. citizen children to remain in the United States with their TPS holder

11 parents until the children reach the age of majority.‖ Compl. ¶ 105. Similarly, Plaintiffs‘ equal

12 protection claim alleges that ―Defendants‘ decisions to terminate the TPS designations for El

13 Salvador, Haiti, Nicaragua, and Sudan are unconstitutional because they were motivated, at least

14 in part, by intentional discrimination based on race, ethnicity, or national origin.‖ Compl. ¶ 110.

15 Finally, the TPS-holder Plaintiffs allege that their due process rights have been violated because

16 ―[t]he government also has not articulated, and cannot establish, any rational basis for . . . ignoring

17 the current capability of TPS countries to safely receive longtime TPS holders, their families, and

18 their U.S. citizen children.‖ Compl. ¶ 115.

19

These challenges are not collateral challenges to broad policies. Rather, they directly

20 attack the determinations themselves. Thus, McNary and Reno do not apply to these challenges.

21 Nevertheless, as noted above, ―where Congress intends to preclude judicial review of

22 constitutional claims its intent to do so must be clear.‖ Webster, 486 U.S. at 603. This

23 ―heightened showing‖ is required ―in part to avoid the ‗serious constitutional question‘ that would

24 arise if a federal statute were construed to deny any judicial forum for a colorable constitutional

25 claim.‖ Id. (citation and quotation omitted).

26

Here, Plaintiffs argue that the phrase ―under this subsection‖ in Section 1254a(b)(5)(A)

27 means that the provision does not preclude a legal claim arising under the Constitution or other

28 statutes. See 8 U.S.C. § 1254a(b)(5)(A) (―There is no judicial review of any determination of the

20

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1 Attorney General . . . under this subsection.‖ (emphasis added)). This argument is not persuasive.

2 Under Plaintiffs‘ interpretation, the statute only precludes a cause of action arising directly under §

3 1254a; but there is no direct cause of action under § 1254a, so Plaintiffs‘ interpretation would

4 render the phrase meaningless. Rather, as the Government contends, ―under this subsection‖ is

5 more reasonably read to describe the ―determinations‖ for which review is precluded, i.e., specific

6 TPS determinations made by the Secretary under the statute.

7

However, there is no ―clear and convincing‖ evidence that Congress intended to preclude

8 the Court from reviewing constitutional challenges of the nature alleged here. Indeed, as Plaintiffs

9 point out, where Congress otherwise intended to preclude review of all constitutional claims in the

10 INA, it said so explicitly. See 8 USC 1252(b)(9) (―Judicial review of all questions of law and fact,

11 including interpretation and application of constitutional and statutory provisions, arising from

12 any action taken or proceeding brought to remove an alien . . . shall be available only in judicial

13 review of a final order under this section.‖ (emphasis added)); see also McNary, 509 U.S. at 494. 14 Such a clear expression of intent is absent in the TPS statute.15 Constitutional concerns counsel

15 for a narrow interpretation of jurisdiction-limiting statutes. Thus, absent clear evidence of

16 Congressional intent, the jurisdiction-stripping provision should be construed to preclude review

17 only of claims challenging a determination for reasons that are ―closely tied to the application and

18 interpretation of statutes‖ which are committed by statute to the Secretary‘s discretion. See

19 Cuozzo, 136 S.Ct. at 2141-42 (holding that lawsuit challenging U.S. Patent and Trademark

20 Office‘s decision to institute inter partes review based on the alleged insufficiency of the petition

21

22

15 The government cites only one case to support its interpretation that § 1254a precludes review of constitutional claims, Krua v. U.S. Dept. of Homeland Sec., 729 F.Supp.2d 452, 455 (D. Mass.

23

2010) (holding that pro se Liberian national‘s claim that Secretary‘s TPS designation violated the equal protection guarantee because it arbitrarily distinguished between Libyans present in the U.S.

24

before and after Oct. 1, 2002 was precluded from review). The Krua court did not undertake a reasoned analysis in construing Section 1254a‘s jurisdiction-stripping provision so is not

25

persuasive. In any event, it is not necessarily inconsistent with the Court‘s holding. Arguably, the Secretary‘s decision with respect to eligibility cut-off dates for TPS protection is ―closely related‖

26

to administration of the TPS statute and therefore unreviewable under Cuozzo. See 8 U.S.C. § 1254a(b)(2)(A) (TPS designation of a foreign state ―take[s] effect upon the date of

27

publication . . . or such later date as the Attorney General may specify‖). Thus, the plaintiff‘s equal protection challenge based on the differential treatment of Liberians arriving before and

28

after a particular cut-off date established by law could be precluded. In contrast, Congress did not charge the Secretary with making termination decisions on the basis of racial animus.

21

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1 for review was precluded by jurisdiction-stripping statute, but expressly holding that ―we do not

2 categorically preclude review of a final decision where . . . there is a due process problem with the

3 entire proceeding, nor does our interpretation enable the agency to act outside its statutory limits‖).

4

Applying that principle here, Section 1254a does not reflect a clear Congressional intent to

5 preclude this Court from reviewing Plaintiffs‘ constitutional challenges to the Secretary‘s

6 determinations. The substance of Plaintiffs‘ constitutional challenges is far afield of fact-based

7 criteria that are ―closely tied‖ to administration of the TPS statute. While the Secretary‘s

8 evaluation of particular facts based on statutory criteria under 8 U.S.C. § 1254a(b)(1)(A)-(C) may

9 be ―closely tied to the application and interpretation of statutes related to‖ the Secretary‘s

10 decisions, ascertaining whether the decision is driven by unconstitutional racial animus is not.

11 Nor is the purely legal question regarding the scope of a person‘s substantive due process interests

12 against removal (i.e., how to balance an individual‘s interests with the Government‘s interests).

13 Unlike, e.g., a challenge to the Secretary‘s determination to terminate TPS for a particular country

14 being allegedly arbitrary because the country is not in fact safe, the constitutional claims at issue

15 here do not focus on the factual accuracy of the Secretary‘s evaluation of specific country

16 conditions, an evaluation which Section 1254a was intended to insulate. Instead, these

17 constitutional challenges are predicated on facts outside the considerations prescribed (and

18 committed to the Secretary‘s evaluation) by the TPS statute.

19

Defendants argue that the Webster presumption in favor of judicial review of colorable

20 constitutional claims does not apply here because Congress did not preclude all judicial review but

21 ―simply channel[ed] review of a constitutional claim to a particular court.‖ Elgin v. Dept. of 22 Treasury, 567 U.S. 1, 9 (2012).16 Defendants‘ argument rests on the assumption that an alien

23

24

16 In its Reply brief, the Government cites the plurality opinion in Patchak v. Zinke, 138 S. Ct. 897 (2018). In that case, the plaintiff sued the Secretary of the Interior for taking land into trust on

25

behalf of an Indian tribe; after the suit was instituted, Congress passed a statute stripping the district courts of jurisdiction over lawsuits relating to the land. Id. at 902. The plaintiff argued

26

that Congress violated Article III of the Constitution by improperly directing the results of pending litigation. Id. at 904. The Supreme Court explained that ―Congress violates Article III

27

when it ‗compel[s] . . . findings or results under old law,‘‖ but not ―when it ‗changes the law.‘‖ Id. at 905 (citations omitted, alteration in original). The court interpreted the new statute stripping

28

jurisdiction as a change in law that was not problematic. In so doing, the court explained that ―Congress generally does not infringe the judicial power when it strips jurisdiction because, with

22

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1 ordered removed may seek judicial review in the context of removal proceedings of constitutional 2 claims challenging termination of a country‘s TPS status under 8 U.S.C. § 1252(a)(2)(D).17 The

3 argument is flawed for several reasons.

4

First, Defendants do not concede that review of constitutional claims through those

5 procedures would be available to aliens ordered removed: Defendants therefore seem to doubt

6 their own premise.

7

Second, the TPS statute was passed in 1990; the TPS statute did not purport to ―channel‖

8 review of constitutional claims arising out of TPS country determinations to a particular forum.

9 Congress did not create the judicial review provisions of 8 U.S.C. § 1252(a)(2)(D) until a decade

10 later, when it passed the REAL ID Act of 2005, Pub. L. 109-13, in response to the Supreme

11 Court‘s decision in INS v. St. Cyr., 533 U.S. 289 (2001). The Act eliminated district court habeas

12 jurisdiction over orders of removal‖ and ―addressed Suspension Clause concerns raised in St. Cyr.

13 by allowing (i.e., reinstating) review in courts of appeal of final removal orders of aggravated

14 felons for ‗constitutional claims or questions of law.‘‖ Iasu v. Smith, 511 F.3d 881, 886 (9th Cir.

15 2007) (quoting 8 U.S.C. § 1252(a)(2)(D)). The REAL ID Act reflects Congress‘s intent to

16 channel constitutional challenges to a removal order; it does not reflect a Congressional purpose

17 to circumvent constitutional challenges to TPS country determinations; nor was it intended to limit

18 challenges brought by a person who is not facing removal (e.g., a U.S.-citizen).

19

Third, U.S.-citizen children cannot seek judicial review through that process because they

20 are not aliens who would be ordered removed; Congress therefore could not have intended to

21 channel their claims to appeals from a removal proceeding.

22

Finally, even for aliens ordered removed, judicial review in removal proceedings would be

23

24

limited exceptions, a congressional grant of jurisdiction is a prerequisite to the exercise of judicial power.‖ Id. at 907. The plurality opinion‘s language is inapposite because, as explained above,

25

Congress has not clearly expressed its intent to strip the Court of jurisdiction over Plaintiffs‘ claims here. Thus, the question whether Congress could strip the district court of jurisdiction over

26 constitutional claims is not necessarily at issue here.

27

17 See 8 U.S.C. § 1252(a)(2)(D) (providing that ―[n]othing . . . in any other provision of this chapter . . . which limits or eliminates judicial review, shall be construed as precluding review of

28

constitutional claims or questions of law raised upon a petition for review [of a final order of removal] filed with an appropriate court of appeals in accordance with this section‖).

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1 ineffective because it would be limited to ―the administrative record on which the order of

2 removal is based.‖ See 8 U.S.C. § 1252(b)(4)(A). Plaintiffs would not have an opportunity to

3 develop a record regarding their constitutional claims to support review.

4

For these reasons, Congress has not clearly indicated an intent to preclude jurisdiction over

5 colorable constitutional challenges related to TPS determinations.

6 B. Motion to Dismiss

7

Plaintiffs bring four claims. First, they allege that Defendants‘ adoption of a new

8 interpretation of the TPS statute violates the Administrative Procedure Act insofar as it departed

9 sub silentio from a past practice (Count Four). Second, Plaintiffs bring two separate due process

10 claims on behalf of the TPS-holding parents and the U.S.-citizen children on the basis that

11 Defendants have not advanced a sufficient rationale to justify infringing on their protected liberty

12 and/or property interests (Counts One and Three). Finally, Plaintiffs allege that Defendants‘

13 termination of TPS violates the equal protection guarantee of the Due Process Clause because it

14 was motivated, at least in part, by racial or national-origin animus. The Court analyzes each claim

15 on which Defendants seek dismissal substantively under Rule 12(b)(6).

16

1. APA Claim (Count Four)

17

a. Legal Standard

18

Under the APA, agency action may be set aside if it is arbitrary or capricious. See 5

19 U.S.C. § 706(2)(A). Under this standard, an agency must ―examine the relevant data and

20 articulate a satisfactory explanation for its action.‖ Motor Vehicle Mfrs. Assn. of United States,

21 Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). But ―a court is not to

22 substitute its judgment for that of the agency‖ and ―should uphold a decision of less than ideal

23 clarity if the agency‘s path may reasonably be discerned.‖ F.C.C. v. Fox Television Stations, Inc.,

24 556 U.S. 502, 513-14 (2009) (citation and quotation omitted).

25

The APA constrains an agency‘s ability to change its practices or policies without

26 acknowledging the change or providing an explanation. ―[T]he requirement that an agency

27 provide reasoned explanation for its action would ordinarily demand that [an agency] display

28 awareness that it is changing position.‖ Id. at 515 (emphasis in original). Thus, agencies ―may

24

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1 not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books,‖

2 and ―must show that there are good reasons for the new policy.‖ Id. (emphasis in original). An

3 agency need not demonstrate that ―the reasons for the new policy are better than the reasons for

4 the old one; it suffices that the new policy is permissible under the statute, that there are good

5 reasons for it, and that the agency believes it to be better, which the conscious change of course

6 adequately indicates.‖ Id. (emphasis in original).

7

This constraint on changes to agency policy is not limited to formal rules or official

8 policies. It applies to practices implied from the agency conduct. For example, in California

9 Trout v. F.E.R.C., 572 F.3d 1003 (9th Cir. 2009), the plaintiffs challenged the Federal Energy

10 Regulatory Commission‘s (FERC) denial of their untimely attempt to intervene in a proceeding

11 concerning the renewal of an operating license for a dam and power plant. In essence, the

12 plaintiffs argued that FERC‘s decision to grant late intervention requests in three prior

13 adjudications had given rise to an implicit rule that FERC would always grant late requests in

14 certain circumstances, and that FERC was required to offer a reasoned explanation before

15 abandoning that practice. Although it ultimately held against the plaintiffs, the Ninth Circuit

16 agreed that the alleged change in adjudicative practice was subject to the APA‘s requirements for

17 reasoned decision-making. It explained that ―while an agency may announce new principles in an

18 adjudicatory proceeding, it may not depart, sub silentio, from its usual rules of decision to reach a

19 different, unexplained result in a single case.‖ Id. at 1022(quotation and citation omitted)).

20 Rather, ―‗if [an agency] announces and follows—by rule or by settled course of adjudication—a

21 general policy by which its exercise of discretion will be governed, an irrational departure from

22 that policy (as opposed to an avowed alteration of it) could constitute action that must be

23 overturned as ‗arbitrary, capricious, [or] an abuse of discretion‘ within the meaning of the

24 Administrative Procedure Act.‘‖ Id. at 1023 (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 32

25 (1996)) (emphasis added, alteration in original). The court proceeded to consider the claim on the

26 merits and held that the agency‘s prior decisions had not ―establish[ed] a broad principle that the

27 Commission will allow untimely intervention.‖ Id. at 1024.

28

Thus, California Trout establishes that a shift in agency practice (as opposed to a formal

25

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1 rule or policy) is also reviewable under the APA. Courts have also looked, in part, to whether an

2 agency‘s past practice evinces the existence of an implicit rule or policy. See, e.g., Northwest Env.

3 Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668 (9th Cir. 2007) (holding that BPA‘s decision

4 to stop funding Fish Passage Center and to divert its responsibilities to two other entities after

5 nearly two decades was arbitrary and capricious where no reasoned explanation was provided);

6 Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 927 (D.C. Cir. 2017) (after

7 ―longstanding practice‖ of treating certain land as if it were part of the Wild Horse Territory,

8 agency‘s unexplained change in practice was arbitrary-and-capricious, particularly where it

9 ―fail[ed] even to acknowledge its past practice . . . let alone to explain its reversal of course in the

10 2013 decision‖).

11

b. Plaintiffs Plausibly Allege a Change in Practice or Policy

12

Plaintiffs allege that to justify the termination of TPS for El Salvador, Haiti, Nicaragua,

13 and Sudan, ―DHS has adopted a novel interpretation of the TPS statute. Under prior

14 administrations, DHS or its predecessors considered intervening natural disasters, conflicts, and

15 other serious and social economic problems as relevant factors when deciding whether to continue

16 or instead terminate a TPS designation. . . . [T]he Trump administration‘s DHS has now taken the

17 position that such factors cannot be considered.‖ Compl. ¶ 75. Plaintiffs more specifically cite

18 former Secretary Kelly‘s June 6, 2017 Senate testimony that ―the [TPS] program is for a specific

19 event. In – in Haiti, it was the earthquake. Yes, Haiti had horrible conditions before the

20 earthquake, and those conditions aren‘t much better after the earthquake. But the earthquake was

21 why TPS was – was granted and – and that‘s how I have to look at it.‖ Compl. ¶ 76.

22 Additionally, as noted above, Secretary Nielsen later stated that ―[t]he law does not allow me to

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

24 whether the country conditions originating from the original designation continue to exist.‖ Id. ¶

25 77. Plaintiffs also cite three press releases issued by DHS with respect to TPS for El Salvador,

26 Haiti, Nicaragua, and Honduras where the Secretary stated that she compared ―the conditions upon

27 which the country‘s original designation was based‖ with ―an assessment of whether those

28 originating conditions continue to exist.‖ Id. ¶ 78.

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1

Defendants argue that a facial comparison between the termination notices here and prior

2 notices shows that they are in fact consistent, not that any radical change has occurred. Indeed, to

3 state a claim, Plaintiffs must plausibly allege not only that Defendants considered only the

4 ―originating conditions‖ in terminating TPS here, but also that Defendants‘ prior practice was to

5 the contrary. They have done so here. Prior to October 2017, extension and/or re-designation

6 notices indicate that DHS consistently considered, at the very least, whether intervening events

7 had frustrated or impeded recovery efforts from the originating conditions in Sudan, Haiti,

8 Nicaragua, and El Salvador. For example, in notices regarding Sudan, DHS emphasized both the

9 persistence of the armed conflict prompting the original designation and consequential problems 10 beyond the conflict itself, which together prevented the safe return of Sudanese nationals.18 The

11

12 18 Sudan:

13

 Extension and Redesignation of Sudan Under the Temporary Protected Status Program, 64 FR 61128-01, 1999 WL 1008419 (Nov. 9, 1999) (finding that the armed conflict is

14

ongoing and extraordinary and temporary conditions continue to exist);  Extension of Designation of Sudan Under the Temporary Protected Status Program, 65

15

Fed. Reg.67,407-01 (Nov. 9, 2000) (noting that the civil war continues and highlighting some of its effects, including forced relocation, destruction of indigenous trading and

16

production systems, and a risk of famine);  Extension of the Designation of Sudan Under the Temporary Protected Status Program, 66

17

Fed. Reg. 46,031-01 (Aug. 31, 2001) (noting that the civil war continues and associated impact, including human rights abuses, displacement, insecurity, and famine);

18

 Extension of the Designation of Sudan Under the Temporary Protected Status Program, 67 Fed. Reg. 55,877-01 (Aug. 30, 2002) (noting ongoing civil war, failure of peace

19

negotiations, and associated human rights abuses, forced displacement, denial of access to humanitarian agencies, and so on);

20

 Extension of the Designation of Sudan Under Temporary Protected Status Program, 68 Fed. Reg. 52,410-01 (Sept. 3, 2003) (same);

21

 Extension and Re-designation of Temporary Protected Status for Sudan, 69 Fed. Reg.60,168-01, 60,169 (Oct. 7, 2004) (same);

22

 Extension of the Designation of Sudan for Temporary Protected Status, 76 Fed. Reg. 63635-01 (Oct. 13, 2011) (concluding that ―because the armed conflict is ongoing,

23

although there have been a few improvements . . . the extraordinary and temporary conditions that prompted . . . redesignation persist‖);

24

 Extension and Redesignation of Sudan for Temporary Protected Status, 78 Fed. Reg. 187201 (Jan. 9, 2013) (same because ―the conditions in Sudan that prompted the TPS

25

designation not only continue to be met but have deteriorated‖ and ―[t]here continues to be a substantial, but temporary, disruption of living conditions in Sudan based upon ongoing

26

armed conflict and extraordinary and temporary conditions‖);  Extension of the Designation of Sudan for Temporary Protected Status, 79 Fed. Reg.

27

52,027-01, 52,029 (Sept. 2, 2014) (same);  Extension of the Designation of Sudan for Temporary Protected Status, 81 Fed. Reg. 4045-

28

01 (Jan. 25, 2016) (same).

27

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1 same is generally true of Nicaragua and Hurricane Mitch,19 El Salvador‘s earthquake,20 and Haiti‘s

2

3

19 Nicaragua:  Extension of the Designation of Nicaragua Under the Temporary Protected Status

4

Program, 65 Fed. Reg. 30,440-01, 30,440 (May 11, 2000) (―The conditions which led to the original designation are less severe, but continue to cause substantial disruption to

5

living conditions in Nicaragua.‖);  Extension of the Designation of Nicaragua Under the Temporary Protected Status

6

Program, 66 Fed. Reg. 23,271-01, 23,272 (May 8, 2001) (―sufficient damage from Hurricane Mitch persists‖);

7

 Extension of the Designation of Nicaragua Under the Temporary Protected Status Program, 67 Fed. Reg. 22,454-01, 22,454 (May 3, 2002) (“[R]ecent droughts as well as

8

flooding from Hurricane Michelle in 2001 compounded the humanitarian, economic, and social problems initially brought on by Hurricane Mitch in 1998” (emphasis

9

added));  Extension of the Designation of Nicaragua Under Temporary Protected Status Program,

10

68 Fed. Reg. 23,748-01, 23,749 (May 5, 2003) (same);  Extension of the Designation of Temporary Protected Status for Nicaragua, 69 Fed. Reg.

11

64,088-01 (Nov. 3, 2004) (―Reconstruction of infrastructure damaged by Hurricane Mitch continues.‖);

12

 Extension of the Designation of Temporary Protected Status for Nicaragua, 71 Fed. Reg. 16,333-01 (Mar. 31, 2006) (―While progress has been made in reconstruction from

13

Hurricane Mitch, Nicaragua has not been able to fully recover, in part due to followon natural disasters that have severely undermined progress towards an economic

14

recovery that would enable Nicaragua to adequately handle the return of its nationals.” (emphasis added));

15

 Extension of the Designation of Nicaragua for Temporary Protected Status, 72 Fed. Reg. 29,534-01, 29,535 (May 29, 2007) (concluding no recovery from Hurricane Mitch and

16

noting that subsequent storms have caused the country to remain vulnerable);  Extension of the Designation of Nicaragua for Temporary Protected Status, 73 Fed. Reg.

17

57,138-01, 57,139 (Oct. 1, 2008) (concluding that disruption from Hurricane Mitch persists and noting that subsequent economic crises and natural disasters have exacerbated

18

issues caused by Hurricane Mitch);  Extension of the Designation of Nicaragua for Temporary Protected Status, 75 Fed. Reg.

19

24,737-01, 24,738 (May 5, 2010) (country ―has not fully recovered from Hurricane Mitch‖ and that ―more recent natural disasters have slowed the recovery from Hurricane Mitch‖);

20

 Extension of the Designation of Nicaragua for Temporary Protected Status, 76 Fed. Reg. 68,493-01 (Nov. 4, 2011) (describing subsequent natural disasters and noting that ―[e]ach

21

of these environmental events has hampered the recovery efforts from Hurricane Mitch‖);  Extension of the Designation of Nicaragua for Temporary Protected Status, 78 Fed. Reg.

22

20,128-01 (Apr. 3, 2013) (―[R]ecovery from Hurricane Mitch is still incomplete‖ and ―subsequent natural disasters . . . hamper[ed] the recovery efforts‖ (emphasis added));

23

 Extension of the Designation of Nicaragua for Temporary Protected Status, 79 Fed. Reg. 62,176-01 (Oct. 16, 2014) (same);

24

 Extension of the Designation of Nicaragua for Temporary Protected Status, 81 Fed. Reg. 30,325-01 (May 16, 2016) (―Nicaragua continues to suffer from the residual effects of

25

Hurricane Mitch, and subsequent disasters have caused additional damage and added to the country‘s fragility‖ which ―exacerbated the persisting disruptions caused by

26

Hurricane Mitch‖ (emphasis added)).

27 20 El Salvador:

28

 Extension of the Designation of El Salvador Under the Temporary Protected Status Program, 67 Fed. Reg. 46,000-01, 46,000 (July 11, 2002) (concluding that ―the conditions

28

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1 earthquake.21 As the highlighted language in these footnotes demonstrates, prior administrations

2 considered subsequent, intervening events such as droughts extending TPS status. In some cases,

3 such intervening events were considered irrespective of whether they had any causal relationship

4

5

that warranted TPS designation initially continue to exist‖ but noting that the recovery ―has been further affected by a subsequent drought‖ (emphasis added));

6

 Extension of the Designation of El Salvador Under Temporary Protected Status Program, 68 Fed. Reg. 42,071-01, 42,072 (July 16, 2003) (finding that recovery from earthquake

7

was ongoing and ―the conditions that prompted designation . . . continue to be met‖);  Extension of the Designation of Temporary Protected Status for El Salvador, 70 Fed. Reg.

8

1450-01, 1451 (Jan. 7, 2005) (same);  Extension of the Designation of Temporary Protected Status for El Salvador, 71 Fed. Reg.

9

34,637-01, 34,638 (June 15, 2006) (the conditions that initially gave rise to the designation . . . continue to exist‖);

10

 Extension of the Designation of El Salvador for Temporary Protected Status, 72 Fed. Reg. 46,649-01, 46,649-50 (Aug. 21, 2007) (concluding that ―there continues to be a substantial,

11

but temporary, disruption in living conditions . . . resulting from the earthquakes that struck the country in 2001‖);

12

 Extension of the Designation of El Salvador for Temporary Protected Status, 73 Fed. Reg. 57,128-01, 57,129 (Oct. 1, 2008) (same);

13

 Extension of the Designation of El Salvador for Temporary Protected Status, 75 Fed. Reg. 39,556-01, 39,558-59 (July 9, 2010) (same, but explaining that ―[m]ore recent natural

14

disasters have delayed the recovery from the 2001 earthquakes,” including Tropical Storm Stan in October 2005, the eruption of the Santa Ana volcano, a series of earthquakes

15

in 2006, and Hurricane Ida in 2009 (emphasis added));  Extension of the Designation of El Salvador for Temporary Protected Status, 77 Fed. Reg.

16

1710-02, 1712 (Jan. 11, 2012) (noting that El Salvador was ―still rebuilding from the devastating 2001 earthquakes‖ and the efforts “have been further complicated by more

17

recent natural disasters and by sluggish economic growth” (emphasis added));  Extension of the Designation of El Salvador for Temporary Protected Status, 78 Fed. Reg.

18

32,418-01, 32,420 (May 30, 2013) (same);  Extension of the Designation of El Salvador for Temporary Protected Status, 80 Fed. Reg.

19

893-01, 894-95 (Jan. 7, 2015) (documenting a series of natural disasters that ―have caused substantial setbacks to infrastructure recovery and development since the 2001

20

earthquakes‖ (emphasis added));  Extension of the Designation of El Salvador for Temporary Protected Status, 81 Fed. Reg.

21

44,645-03 (July 8, 2016) (same).

22

21 Haiti:  Extension and Redesignation of Haiti for Temporary Protected Status, 76 Fed. Reg.

23

29,000-01, 29,000 (May 19, 2011) (concluding that ―the conditions prompting the original designation continue to be met‖);

24

 Extension of the Designation of Haiti for Temporary Protected Status, 77 Fed. Reg. 59,943-01 (Oct. 1, 2012) (concluding that ―the extraordinary and temporary conditions that

25

prompted the original January 2010 TPS designation and the July 2011 extension and redesignation persist‖ and noting that camp conditions were exacerbated by later ―steady

26

rains‖ and ongoing problems of food security);  Extension of the Designation of Haiti for Temporary Protected Status, 79 Fed. Reg.

27

11,808-01, 11,808 (Mar. 3, 2014) (same); and,  Extension of the Designation of Haiti for Temporary Protected Status, 80 Fed. Reg.

28

51,582-01 (Aug. 25, 2015) (same).

29

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1 to the original TPS designation.22

2

In sharp contrast to these prior notices—which were frequently detailed and lengthy—the

3 termination notices for Sudan, Haiti, Nicaragua, and El Salvador are curt and fail to address

4 numerous conditions that justified extensions of TPS status in the most recent notices issued by

5 prior administrations. The following chart illustrates the types of conditions cited in the prior

6 notices but not discussed in Defendants‘ termination notices in these four cases.

7

Country 8

Factors Cited to Support Prior Extensions

Termination Notices

9

El

July 8, 2016 Extension:

Salvador · ―Subsequent natural disasters and

January 2018 Termination: · No reference to subsequent

10

environmental challenges, including

natural disasters

hurricanes and tropical storms, heavy rains

11

and flooding, volcanic and seismic activity‖

· Prolonged regional drought impacting · No reference to regional

12

food security

drought and food security

13

· A housing deficit of 630,000 because · No specific reference or

340,000 houses not yet rebuilt from

numbers concerning housing

14

earthquake

deficits, but general statements about reconstruction

15

· Coffee rust epidemic

· No reference to coffee rust

epidemic

16

· More than 10 percent of population · No reference to water access

lacks access to potable water 17

· March 2016 extortion by gangs

· No reference to gang extortion

18

resulted in weeklong temporary bottled

water shortage in San Salvador

19

· Violence and insecurity impeding

· No reference to violence and

economic growth, particularly $756 in

insecurity but general statements

20

extortion payments to gangs in 2014 alone that international organizations are

21

working to provide security and economic support

22

· Corrupt police and judiciary

· No reference to corruption

· In 2014, almost a third of the work

· No specific reference to

23

force was unemployed and lived in poverty poverty and unemployment but

mentions international economic

24

support

25

26 22 See, e.g., Extension of the Designation of Haiti for Temporary Protected Status, 82 Fed. Reg.

27

23,830-01 (May 24, 2017) (noting that ―lingering effects of the 2010 earthquake remain‖ despite ―significant progress,‖ but noting that conditions warrant a brief extension due to Hurricane

28

Matthew’s October 2016 landfall and heavy rains in April 2017, though not explicitly discussing any apparent link between those events and the earthquakes).

30

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Country 1

Factors Cited to Support Prior Extensions

Termination Notices

2 Nicaragua May 16, 2016 Extension:

December 2017 Termination:

· Heavy rains and flooding in October · No specific reference to 2014-

3

2014, May 2015, and June 2015

2015 heavy rains and flooding

· Earthquakes in April and October

· No specific reference to 2014

4

2014

earthquakes

· Telica volcano erupted 426 times in · No specific reference to 2015

5

July 2015

volcanic eruptions

6

· A prolonged regional drought and

· No specific reference to coffee

coffee rust epidemic negatively impacting rust epidemic or regional drought

7

livelihoods and food security

8 Haiti 9 10 11 12 13 14 15 16 17 18 19 20 21 22

May 24, 2017 Extension (Trump Administration): · Hurricane Matthew in October 2016 damaged crops, housing ,livestock, and infrastructure · Heavy rains in late April 2017 killing people, damaging homes, and destroying crops causing food insecurity · Ongoing cholera epidemic
August 25, 2015 Extension (Prior Admin): · Cholera epidemic – as of Dec. 2014, 725,000 people affected and 8,800 deceased · Food insecurity- as of Jan. 2015, 2.5 million people could not cover basic food needs · Political instability – after expiration of local and parliamentary mandates in January 2015, protests and demonstrations have turned violent

January 2018 Termination:
· No reference to Hurricane Matthew
· No reference to heavy rains
· ―Although Haiti has grappled with a cholera epidemic that began in 2010 in the aftermath of the earthquake, cholera is currently at its lowest level since the outbreak began.‖
· Same as above
· No reference to food insecurity
· Mentions February 2017 presidential election without specific discussion of whether there are still violent protests and demonstrations

23

24

25

26

27

28 31

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Sudan 1 2 3 4 5 6 7 8 9

Jan 25, 2016 Extension: · In 2014, Sudanese government deployed a new paramilitary service carrying out a campaign that began in April 2014, was renewed December 2014, and continued into 2015, resulting in widespread civilian displacement.
· ―[A]n increase in criminal activity and intertribal conflict‖

October 2017 Termination:
· Acknowledges continuing conflict in Darfur and the Two Areas and stating that ―toward the end of 2016 and through the first half of 2017, parties to the conflict renewed a series of time-limited unilateral cessation of hostilities‖ and that ―[t]he remaining conflict is limited and does not prevent the return of nationals of Sudan to all regions of Sudan without posing a serious threat to their personal safety‖ · No reference to criminal activity

10

· ―Reports of human rights violations · ―Although Sudan‘s human

11

and abuses [which] are widespread,

rights record remains extremely

12

including . . . extrajudicial and unlawful killings‖ and ―abuse . . . of certain

poor in general, conditions on the ground no longer prevent all

13

populations, including journalists, political Sudanese nationals from returning

opposition, civil society, and ethnic and

in safety.‖

14

religious minority groups‖

· Displacement of 143,000 persons

· Acknowledges that hundreds of

15

between January and May 2015 and a

thousands have fled but that the

March 2015 report that 250,000 Sudanese remaining conflict is limited and

16

fled to South Sudan and Ethiopia

does not prevent their safe return

17

· 6.9 million people in need of

· ―Above-harvests have

humanitarian assistance. 2 million children moderately improved food security.

18

suffering from malnutrition. 550,000 from While populations in conflict-

severe malnutrition.

affected areas continue to

19

experience acute levels of food

security, there has also been some

20

improvement in access for

humanitarian actors to provide

21

much-needed humanitarian aid‖

22

23

This comparison demonstrates the plausibility of Plaintiffs‘ allegation of a shift from past

24 practice or policy. For every country (although to varying degrees), factors that were explicitly

25 considered recently by prior administrations were wholly absent from the four termination notices

26 issued between October 2017 and January 2018. That supports a plausible inference, corroborated

27 by the statements of former Secretary Kelly and Secretary Nielsen, that Defendants changed their

28 interpretation of the TPS statute so as to focus solely (or nearly solely) on the originating 32

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1 condition without considering intervening events in making TPS determinations.

2

There are only two exceptions to this observation. First, Haiti‘s designation was extended

3 once by former Secretary Kelly under the current administration. See Extension of the

4 Designation of Haiti for Temporary Protected Status, 82 Fed. Reg. 23,830-01 (May 24, 2017).

5 This does not undermine Plaintiffs‘ allegations that the change in policy occurred recently.

6 Indeed, a comparison between Secretary Kelly‘s extension and Acting Secretary Duke‘s

7 termination six months later supports an inference of an intervening change in policy or practice:

8 although Secretary Kelly explicitly considered intervening events like Hurricane Matthew in

9 October 2016 and heavy rains in late April 2017, Acting Secretary Duke did not.

10

Second, arguably the termination notice for Sudan touches, albeit indirectly and with much

11 less specificity, on nearly all of the themes discussed in the most recent extension notice.

12 However, that does not undermine the plausibility that Defendants at some point adopted a new

13 rule or policy as indicated by the discrepancies between the notices for El Salvador, Haiti, and

14 Nicaragua. The arguably more complete discussion with respect to Sudan does not defeat the

15 viability of Plaintiffs‘ APA claim challenging the change in practice itself; at most, it might affect

16 the scope of Plaintiffs‘ remedy if, for example, the new rule or policy was not instituted until after 17 Sudan‘s termination.23

18

Finally, Defendants argue that prior administrations have terminated TPS despite ongoing

19 problems in the designated countries. That fact is not dispositive to the case at bar. The question

20 is whether those ongoing problems were considered when the termination decision was made.

21

22 23 The Government cited the example of Montserrat, which was initially designated for TPS based

23

on a volcanic eruption in 1997, see 62 Fed. Reg. 45686 (Aug. 28, 1997), and then re-designated six times, see 63 Fed. Reg. 45864 (Aug. 27, 1998); 64 Fed. Reg. 48190 (Sep. 2, 1999); 65 Fed.

24

Reg. 58806 (Oct. 2, 2000); 66 Fed. Reg. 40834 (Aug. 3, 2001); 67 Fed. Reg. 47002 (Jul. 17, 2002); 68 Fed. Reg. 39106 (Jul. 1, 2003). However, its TPS designation was eventually

25

terminated in 2004 because ―the volcanic eruptions can no longer be considered temporary in nature‖ based on scientists‘ position that such eruptions ―generally last 20 years, but the volcano

26

could continue to erupt sporadically for decades.‖ See Termination of the Designation of Montserrat Under the Temporary Protected Status Program, 69 Fed. Reg. 40642-01 (Jul. 6,

27

2004). This example is inapposite, however, because the termination notice reflected a judgment that the originating condition was not ―temporary.‖ Defendants‘ terminations of TPS for Haiti,

28

Sudan, El Salvador, and Nicaragua are not based on such a finding; rather, they are based on the notion that the originating condition has abated.

33

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1 The notices confirm Plaintiffs‘ assertion that under the prior practice, intervening events were at 2 least considered.24

3

In sum, Plaintiffs‘ allegations and a facial review of the termination notices support a

4 plausible inference that Defendants have adopted a new policy or practice without any explanation

5 for the change. Accordingly, Plaintiffs have stated a claim under the APA, and thus Defendants‘

6 motion to dismiss the APA claim is DENIED.

7

2. U.S. Citizens‘ Children‘s Due Process Claim to Family Integrity (Count One)

8

The U.S.-citizen children assert that Defendants have not ―articulated [a] substantial

9 governmental interest‖ to justify intruding on their right to live in the United States, to live with

10 their parents, and against being forced to make a choice between the two, thus violating their

11 substantive due process rights. See Compl. ¶¶ 105-6.

12

―The concept of ‗substantive due process‘ . . . forbids the government from depriving a

13 person of life, liberty, or property in such a way that ‗shocks the conscience‘ or ‗interferes with

14 rights implicit in the concept of ordered liberty.‘‖ Nunez v. City of Los Angeles, 147 F.3d 867, 871

15 (9th Cir. 1998). To establish a claim, ―a plaintiff must, as a threshold matter, show a government

16 deprivation of life, liberty, or property.‖ Id. The right in question must be one of ―those

17 fundamental rights and liberties which are, objectively, deeply rooted in this Nation‘s history and

18 tradition.‖ Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (quotation omitted). ―‗The

19 protections of substantive due process have for the most part been accorded to matters relating to

20 marriage, family, procreation, and the right to bodily integrity.‘‖ Nunez, 147 F.3d at 871, n.4

21

22 24 See Termination of Designation of Angola Under the Temporary Protected Status Program, 68

23

Fed. Reg. 3896-01, 3896 (Jan. 27, 2003) (though originally designating Angola due to an armed conflict between the Angolan government and the National Union for the Total Independence of

24

Angola, the termination notice reflects that the Department also considered, inter alia, a continuing ―separate insurgency led by . . . the Front for the Liberation of the Enclave of Cabinda/Armed

25

Forces of Cabinda,‖ ―the humanitarian needs of 380,000 UNITA members and their families,‖ 4 million displaced persons, a lack of ―housing, medical services, water systems, and other basic

26

services destroyed by a 27-year-long war,‖ ―8 million landmines planted in Angolan soil‖ through 40 percent of the countryside); Termination of the Province of Kosovo in the Republic of Serbia in

27

the State of the Federal Republic of Yugoslavia (Serbia-Montenegro) Under the Temporary Protected Status Program, 65 Fed. Reg. 33,356-01, 33,356 (May 23, 2000) (terminating TPS

28

because the original armed conflict had ended, but noting that ―conditions remain difficult with bursts of ethnically-motivated violence‖).

34

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1 (citation omitted). Courts have ―always been reluctant to expand the concept of substantive due

2 process because guideposts for responsible decisionmaking in this unchartered area are scarce and

3 open-ended . . . . lest the liberty protected by the Due Process Clause be subtly transformed into

4 the policy preferences of [the courts].‖ Washington, 521 U.S. at 720 (quotation and citation

5 omitted).

6

Plaintiffs‘ assertion that the government‘s action in terminating TPS status of four

7 countries which foreshadows the deportation of parents of U.S.-citizen children places this case in

8 relatively unchartered waters.

9

The cases in which courts have referred to a U.S. citizen‘s right to enter and live in the

10 United States have generally involved direct attempts by the government to obstruct a U.S.

11 citizen‘s return from abroad, a scenario different from the case at bar. See U.S. v. Wong Kim Ark,

12 169 U.S. 649 (1898) (confirming that children born in the U.S. are citizens under 14th

13 Amendment and that, therefore, citizen could not be denied entry to the U.S.); Lee Sing Far v.

14 U.S., 94 F.3 834, 836 (9th Cir. 1899) (a U.S. citizen has the ―right to land and remain in the United 15 States‖).25 These cases did not involve indirect pressures upon a citizen resulting from action

16 taken against others. But Plaintiffs have not cited any cases addressing whether the government‘s

17 application of such indirect pressure may constitute a violation of substantive due process, and if

18 so, under what circumstances.

19

It is well-settled that children have a liberty interest in living with their parents. See, e.g.,

20 Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 2013) (―The right to live with and not be

21 separated from one‘s immediate family is a right that ranks high among the interests of the

22 individual and that cannot be taken away without procedural due process.‖ (quotation omitted)).

23 However, Plaintiffs have not cited any case where this interest was deemed sufficient to prevent

24 the enforcement of a legitimate immigration law to remove a person at the cost of family

25

26 25 Nguyen v. I.N.S., 533 U.S. 53, 67 (2001) refers to ―the absolute right to enter [the United

27

States‘] borders,‖ but the Supreme Court was reviewing whether the state could condition acquisition of citizenship of persons born abroad depending on whether citizenship derived from a

28

mother or father. The court was not squarely confronted with government action frustrating the right to enter the United States.

35

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1 separation.26 The Government cites a litany of cases rejecting the notion that immigration

2 enforcement resulting in family separation inherently violates a U.S. citizen‘s constitutional rights.

3 For instance, in Gebhardt v. Nielsen, 879 F.3d 980, 988 (9th Cir. 2018), the Ninth Circuit held that

4 U.S. citizen‘s due process rights were not violated by denial non-citizen wife and her children‘s

5 visa petitions based on his own sex offense because ―the generic right to live with family is ‗far

6 removed‘ from the specific right to reside in the United States with non-citizen family members,‖

7 and holding that ―a fundamental right to reside in the United States with [one‘s] non-citizen

8 relatives‖ ―would ―run[] headlong into Congress‘ plenary power over immigration.‖ See Morales-

9 Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1091 (9th Cir. 2010) (holding that ―lawfully

10 denying Morales adjustment of status does not violate any of his or his family‘s substantive rights

11 protected by the Due Process Clause‖ even ―when the impact of our immigration laws is to scatter

12 a family or to require some United States citizen children to move to another country with their

13 parent‖), overruled in part on other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th

14 Cir. 2012) (en banc). Cf. De Mercado v. Mukasey, 566 F.3d 810, 816 n.5 (9th Cir. 2009) (stating,

15 in dicta, that ―family unity‖ theory of due process in immigration context is ―implausible‖ because

16 ―no authority [has been identified] to suggest that the Constitution provides [alien petitioners] with

17 a fundamental right to reside in the United States simply because other members of their family 18 are citizens or lawful permanent residents‖).27

19

20

26 Plaintiffs cite cases that merely hold that a U.S. citizen has a ―protected liberty interest in marriage [that] gives rise to a right to constitutionally adequate procedures in the adjudication of

21

her husband‘s visa application.‖ Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008) (holding that U.S.-citizen spouse of Mexican national had liberty interest permitting her to

22

challenge denial of her husband‘s visa application, but it was limited to assuring that ―the reason given [for denial] is facially legitimate and bona fide‖); see also Cardenas v. U.S., 826 F.3d 1164,

23

1170-72 (9th Cir. 2016). But that liberty interest, cited to support a procedural due process claim, did not overcome the government‘s interest in either case, so long as the government had

24 identified a facially valid and bona fide reason for denying the visa.

25

27 The Government has also cited out-of-circuit cases in accord. See Payne-Barahona v. Gonzales, 474 F.3d 1, 1-2 (1st Cir. 2007) (explaining that ―[t]he circuits that have addressed the

26

constitutional issue (under varying incarnations of the immigration laws and in varying procedural postures) have uniformly held that a parent‘s otherwise valid deportation does not violate a child‘s

27

constitutional right,‖ ―[n]or does deportation necessarily mean separation since the children could be relocated during their minority‖); Ayala-Flores v. INS, 662 F.2d 444, 446 (6th Cir. 1981) (per

28

curiam) (same); Marin-Garcia v. Holder, 647 F.3d 666, 674 (7th Cir. 2011) (―If an alien could avoid the consequences of unlawful entry in to the United States by having a child, it would create

36

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1

Plaintiffs are correct that Gebhardt, Morales-Izquierdo, and De Mercado differ from the

2 instant situation in three senses. First, they involved persons who were removed or denied an

3 immigration benefit based on criminal conduct, thus heightening the government‘s interest in

4 removal. Second, they involved persons seeking a permanent right to remain in the United States

5 whereas Plaintiffs seek only temporary permission for their parents to reside until they reach

6 adulthood. Third, the children here have a stronger liberty interest because the countries to which 7 they would be forced to return are allegedly unsafe.28 But these factors do not appear to have been 8 material to the analysis in these cases.29 Accordingly, the government appears to have a

9 persuasive argument.

10

Plaintiffs also assert the ―unconstitutional choice‖ doctrine in advancing their due process

11 claim. See Simmons v. United States, 390 U.S. 377, 394 (1968) (it is ―intolerable that one

12 constitutional right should have to be surrendered in order to assert another‖). However, while the

13 Court recognizes that U.S.-citizen children Plaintiffs will face the difficult and unenviable choice

14 between living in the United States or abroad with their parents in a land they have never known,

15 the ―unconstitutional choice‖ doctrine appears inapt. Virtually all of the cases that Plaintiffs have

16

17 perverse incentives and undermine Congress‘s authority over immigration matters.‖).

18

28 The only case Plaintiffs cite alluding to dangerous conditions as a basis for a constitutional limitation on removal, Martinez de Mendoza v. I.N.S., 567 F.2d 1222 (3d Cir. 1977), does not in

19

fact go so far. In de Mendoza, a Colombian mother with a U.S.-citizen child had been ordered deported, but in her appellate petition identified new evidence that her and her daughter‘s safety

20

might be endangered if they were deported. The court held, on statutory grounds specific to the standard of review, that new material evidence required remand to the agency for reconsideration.

21

The court merely hinted, in dicta, in a footnote, that if the allegations of physical danger ―are correct, they may well be sufficient to raise questions of the constitutionality of such deportation.‖

22

Id. at 1225, n.8. But Plaintiffs have not cited any case in the past 44 years that has relied on this footnote to establish a constitutional rule against deportation in case of dangerous country

23 conditions.

24

29 Plaintiffs also cite Wang v. Reno, 81 F.3d 808 (9th Cir. 1996), but it is inapposite. There, the government had arranged for Wang to be paroled into the United States from China to give grand

25

jury testimony, which the government knew might have been procured through torture. When Wang arrived, he testified that Chinese authorities tortured him to obtain false testimony. Wang

26

was decided under the state-created danger doctrine: because the government ―placed Wang in danger of violating his own conscience and the federal perjury statute, or of facing torture and

27

possible execution in China,‖ id. at 819, its own actions created the danger he sought to avoid by return to China. Plaintiffs‘ allegations here are dissimilar. They do not allege the government

28

created a danger specific to Plaintiffs simply by granting temporary protective status to their parents.

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1 cited arise in the criminal prosecution context,30 or in the immigration context on the narrow

2 question of whether an alien‘s right to choose voluntary departure could be conditioned on 3 abandonment of the right to judicial review.31 Plaintiffs have not cited a case where the forced

4 choice doctrine was applied to prohibit the government from deporting a non-citizen parent from

5 their U.S.-citizen child based solely on the asserted due process interest in family integrity; even

6 though the due process interest was recognized in those cases, it was not sufficient to overcome

7 the government‘s interests. To hold that substantive due process bars deportation of parents could

8 have the effect of circumventing the holdings in Gebhardt, Morales-Izquierdo, and De Mercado.

9

In any event, the nature of Plaintiffs‘ choice here is arguably different from

10 ―unconstitutional choice‖ cases such as Simmons, Jackson, or Elian. In those cases, by asserting

11 one right, the individual necessarily extinguished the other. Here, even if a U.S.-citizen child left

12 the country to live with a parent, they would retain the right to return to and live in the U.S; they

13 would still be legally free to stay or leave. It is not clear that the forced-choice doctrine would

14 extend to this situation, where the government is not forcing a person to irretrievably relinquish

15 one right in order to exercise another.

16

17

30 See Simmons, 390 U.S. at 394 (holding that criminal defendant‘s testimony to establish standing to request exclusion of evidence under Fourth Amendment could not be admitted against

18

him to demonstrate guilt without violating Fifth Amendment or else defendant is forced to abandon one right in favor of another); United States v. Jackson, 390 U.S. 570 (1968) (holding

19

that criminal statute which conditioned unavailability of the death penalty for kidnapping on the defendant‘s abandonment of right to jury trial was unconstitutional); Lefkowitz v. Cunningham,

20

431 U.S. 801, 807-08 (1977) (invalidating New York law which provided that an officer of a political party who refused to testify before a grand jury or waive immunity against subsequent

21

criminal prosecution would lose his position and be barred from holding any other party or public office for five years unconstitutionally required choosing between First and Fifth Amendment

22

rights); Bittaker v. Woodford, 331 F.3d 715, 724 n.7 (9th Cir. 2003) (holding that defendant‘s right to bring ineffective assistance of counsel claim could not be conditioned on waiving attorney-

23

client privilege with respect to subsequent prosecution); Boyd v. United States, 116 U.S. 616, 62122 (1886) (analyzing whether the search and seizure of a man‘s papers was equivalent to

24

compelling a person to testify against themselves under the Fifth Amendment and thus an unreasonable search under the Fourth Amendment), overruled on other grounds, Warden, Md.

25

Penitentiary v. Hayden, 387 U.S. 294 (1967). Further, New York v. United States, 505 U.S. 144, 176 (1992) (holding, inter alia, that legislation regulating disposal of radioactive waste exceeded

26

Congress‘s enumerated powers insofar as it offered states a ―choice‖ between two unconstitutional alternatives), is inapposite, because it did not involve a forced choice between two constitutional

27 rights but rather the validity of two unconstitutional conditions.

28

31 See Elian v. Ashcroft, 370 F.3d 897, 900 (9th Cir. 2004); see also Contreras-Aragon v. I.N.S., 852 F.2d 1088, 1094-95 (9th Cir. 1988).

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1

The Court need not resolve these questions at this time, however. See In re Snyder, 472

2 U.S. 634, 642 (1985) (―We avoid constitutional issues when resolution of such issues is not

3 necessary for disposition of a case.‖). If the challenged action by the Administration were

4 otherwise illegitimate and unlawful, the deprivation of Plaintiffs‘ liberty interests in family

5 integrity, even if typically insufficient to defeat the government‘s interest in enforcing valid

6 immigration laws, may be unlawful where it is not be supported by a legitimate government

7 interest. Cf. Smith v. City of Fontana, 818 F.2d 1411, 1419-20 (9th Cir. 1987) (state had ―no

8 legitimate interest in interfering with [protected] liberty interest [in familial relations] through the

9 use of excessive force by police officers‖), overruled on other grounds, Hodgers-Durgin v. de la

10 Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999); Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir.

11 2011) (noting that ―a bare . . . desire to harm a politically unpopular group [is] not [a] legitimate

12 state interest‖ (citation and quotation omitted)). Because Plaintiffs have adequately pled that

13 Defendants‘ actions violate the APA and equal protection (as discussed below), Plaintiffs‘ due

14 process claim is sufficiently plausible to proceed at least on that basis.

15

3. TPS-Beneficiaries‘ Due Process Claim (Count Three)

16

The TPS-beneficiaries separately allege that, as persons lawfully present in the United

17 States, they have a significant liberty interest protected by the Due Process Clause in non-arbitrary

18 decisionmaking with respect to the continuation of TPS status. See Compl. ¶¶ 113-15. Plaintiffs

19 assert that Defendants‘ termination decisions must at least pass a rationality test, and that ―[t]he

20 government . . . has not articulated, and cannot establish, any rational basis for reversing course on

21 decades of established TPS policy and ignoring the current capability of TPS countries to safely

22 receive longtime TPS holders, their families, and their U.S. citizen children.‖ Compl. ¶ 115.

23

Plaintiffs assert two bases for the liberty interest asserted here: a ―property‖ interest

24 conferred by the TPS statute in remaining in the U.S. so long as their countries of origin are

25 unsafe, and a liberty interest based on the right to live and work in the United States conferred by

26 the TPS statute. The Court analyzes each in turn.

27

a. Property Interest

28

―[A] person receiving . . . benefits under statutory and administrative standards defining

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1 eligibility for them has an interest in continued receipt of those benefits.‖ Nozzi v. Hous. Auth.,

2 806 F.3d 1178, 1190-91 (9th Cir. 2015) (citation omitted). A statute does not give a claim of

3 entitlement, however, when availability of the benefit is entirely discretionary. See Kwai Fun

4 Wong v. United States, 373 F.3d 952, 967-68 (9th Cir. 2004) (no procedural or substantive due

5 process interest in ―temporary parole status‖ where ―the statute makes clear that whether and for

6 how long temporary parole is granted are matters entirely within the discretion of the Attorney

7 General‖); Meachum v. Fano, 427 U.S. 215, 228 (1976) (holding that a prisoner has no due

8 process interest against transfer from one prison to another within the same state system, but there

9 was no statute purporting to grant him any entitlement to a particular prison). To constitute a

10 protected property interest, an individual must have ―more than an abstract need or desire‖ or

11 ―unilateral expectation‖ for a benefit, but rather a ―legitimate claim of entitlement‖ based on, inter

12 alia, ―existing rules or understandings that stem from an independent source such as state law,‖ a

13 ―statute defining eligibility,‖ a contract ―creat[ing] and defin[ing]‖ certain terms, or some other

14 ―clearly implied promise.‖ See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576-78

15 (1972) (holding that public employee had no cognizable property interest in re-appointment for a

16 second term where contract did not provide for renewal).

17

Defendants contend that TPS designations are entirely discretionary and that Plaintiffs

18 therefore have no legitimate claim of entitlement protected by due process. That is not entirely

19 correct. The Secretary is given broad discretion in deciding whether to make an initial TPS

20 designation. See 8 U.S.C. § 1254a(b)(1) (―The [Secretary], after consultation with appropriate

21 agencies of the Government, may designate any foreign state . . . .‖ (emphasis added)). An alien

22 from an undesignated country therefore would not appear to have any legitimate entitlement to

23 receive TPS status.

24

The same is not true with respect to extensions and terminations, however. The statute

25 provides that the Secretary ―shall‖ terminate TPS status only if the Secretary ―determines . . . that

26 a foreign state . . . no longer continues to meet the conditions for designation under paragraph (1).‖

27 8 U.S.C. § 1254a(b)(3)(B). If the Secretary does not make that determination, then ―the period of

28 designation of the foreign state is extended for an additional period.‖ Id. § 1254a(b)(3)(C). That

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1 Plaintiffs are entitled to continue receiving benefits until the Secretary makes the determination to

2 terminate pursuant to the process and criteria set forth in the statute brings this case closer to Nozzi

3 than Wong and Meachum.

4

To be sure, Plaintiffs‘ statutory entitlement is narrower than they suggest. The statute does

5 not guarantee that a country will continue to be designated for TPS so long as its conditions in fact

6 warrant. Rather, it merely provides that the Secretary ―shall review the conditions . . . and shall

7 determine whether the conditions for such designation under this subsection continue to be met.‖

8 8 U.S.C. § 1254a(b)(3)(A) (emphasis added). Because Plaintiffs‘ ―reasonable expectation of

9 entitlement is determined largely by the language of the statute,‖ Wedges/Ledges of Cal., Inc. v.

10 City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994) (citation omitted), they can expect no more

11 than the statutorily-mandated ―review‖ and ―determin[ation].‖ And, as explained above, the Court

12 generally may not review the Secretary‘s factual evaluation of country conditions. Nevertheless,

13 if the Secretary‘s determination is unlawful for other reasons, Plaintiffs may state a due process

14 claim. Plaintiffs arguably have a property interest in loss of TPS status, a loss which may not be

15 justified by an unlawful government interest. Accordingly, to the extent Plaintiffs‘ challenge is

16 based on a property-entitlement theory, they have at least a plausible claim co-extensive with their

17 ability to prove that Defendants violated the APA or equal protection guarantee.

18

b. Liberty Interest

19

Plaintiffs‘ also assert a liberty interest arising from the fact that the TPS statute permits

20 them to live and work in this country. Cf. Bridges v. Wixon, 326 U.S. 135, 154 (1945) (observing

21 that deportation ―visits a great hardship on the individual and deprives him of the right to stay and

22 live and work in this land of freedom‖).

23

The Court is doubtful whether Plaintiffs can state such a viable due process claim absent

24 Defendants‘ violation of the APA or Equal Protection. In essence, Plaintiffs claim that although

25 the protection they received was ―temporary‖ in name, it became ―permanent‖ or ―long-term‖ in

26 actual administration and practice and thus gave rise to important interests protected by due

27 process. Cf. Woodby v. I.N.S., 385 U.S. 276 (1966) (highlighting ―the drastic deprivations that

28 may follow when a resident of this country is compelled by our Government to forsake all the

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1 bonds formed here and go to a foreign land where he often has no contemporary identification,‖

2 and noting that ―many resident aliens have lived in this country longer and established stronger

3 family, social, and economic ties here than some who have been naturalized citizens‖). But this

4 theory ignores the explicitly temporary nature of the TPS status.

5

Moreover, Plaintiffs‘ theory, if credited, could undermine the purpose of the TPS statute

6 by deterring this and future administrations from designating and extending TPS designations in

7 order to avoid giving rise to a permanent due process defense against removal. And it could have

8 implications for other nominally temporary immigration statuses, such as student, H-1 and H-2

9 visa holders, if the status is extended long enough for the alien to form the types of ties and

10 interests alleged here. These possible consequences, which in effect could result in a new,

11 judicially-crafted immigration status, might be a reason warranting ―reluctan[ce] to expand the

12 concept of substantive due process.‖ Washington, 521 U.S. at 720 (quotation and citation

13 omitted).

14

While the Court is dubious about whether Plaintiffs‘ asserted due process liberty interest

15 can overcome the government‘s interest in enforcing an otherwise valid immigration law, the

16 Court need not resolve the question at this time because Plaintiffs have stated a plausible due

17 process claim at least to the extent that Defendants‘ termination also violated the APA and/or the

18 equal protection guarantee for the same reasons stated above.

19

4. Equal Protection Claim (Count Two)

20

Plaintiffs allege that both: (1) the decision to terminate TPS for Haiti, Nicaragua, El

21 Salvador, and Sudan, and (2) Defendants‘ alleged change in rule, were motivated by racial animus.

22 Defendants do not deny that President Trump‘s alleged statements evidence racial animus; rather,

23 they argue the President‘s animus is irrelevant because the Secretary of Homeland Security, not

24 the President, terminated TPS for Sudan, Haiti, Nicaragua, and El Salvador. Defendants also

25 argue that in order to state an equal protection claim, Plaintiffs must allege the existence of a

26 similarly situated class of people who were treated more favorably for no rational reason. Finally,

27 Defendants contend that even if Plaintiffs are not required to allege the existence of a comparator

28 group, the Secretary‘s decisions with regard to TPS are subject only to a highly deferential form of

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1 rational basis review, rather than strict scrutiny.

2

After the Court had already issued its order denying the motion to dismiss the equal

3 protection claim ruling, see Docket No. 34, the Supreme Court handed down its decision in Trump

4 v. Hawaii, 585 U.S. ___ (2018). This Court thereafter invited supplemental briefing whether to

5 reconsider its earlier holding. For the reasons stated herein, the Court affirms its denial of the

6 motion.

7

The Court first analyzes whether the President‘s animus is attributable to the Secretary.

8 Then, the Court decides whether a comparator group need be alleged. Next, the Court discusses

9 whether Trump v. Hawaii alters the legal standard or outcome in this case. Finally, the Court

10 examines whether Plaintiffs‘ allegations plausibly state a claim under the correct legal standard.

11

a. President Trump‘s Alleged Animus is Attributable to the Secretary of

12

Homeland Security

13

Plaintiffs concede that they have not alleged direct evidence of animus by Acting Secretary

14 Duke or Secretary Nielsen. Defendants claim that this failure is dispositive, notwithstanding

15 President Trump‘s alleged animus.

16

Defendants are incorrect. Even if Acting Secretary Duke and Secretary Nielsen do not

17 personally harbor animus towards TPS-beneficiaries from Haiti, El Salvador, Nicaragua, and

18 Sudan, their actions may violate the equal protection guarantee if President Trump‘s alleged

19 animus influenced or manipulated their decisionmaking process. For example, in Poland v.

20 Chertoff, 494 F.3d 1174 (9th Cir. 2007), the Ninth Circuit permitted the animus of a subordinate

21 employee to be imputed to his employer, announcing a general holding that ―if a subordinate . . .

22 sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment

23 action, the subordinate‘s bias is imputed to the employer if the plaintiff can prove that the

24 allegedly independent adverse employment decision was not actually independent because the

25 biased subordinate influenced or was involved in the decision or decisionmaking process.‖ Id. at

26 1182. Similarly, in Avenue 6E Investments, LLC v. City of Yuma, Ariz., 818 F.3d 493 (9th Cir.

27 2016), in considering an allegation that a city discriminated against a group of developers to please

28 constituents who had expressed racial animus, the Ninth Circuit held that ―[t]he presence of

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1 community animus can support a finding of discriminatory motives by government officials, even

2 if the officials do not personally hold such views.‖ Id. at 504.

3

There is no logical reason why this principle should not apply with equal force when the

4 superior entity or authority (here, the President) influences a subordinate (here, a cabinet member)

5 to perform an action charged to the latter. See Batalla-Vidal, 291 F.Supp.3d at 279 (holding that

6 ―[i]f, as Plaintiffs allege, President Trump himself directed the end of the DACA program, it

7 would be surprising if his ‗discriminatory intent [could] effectively be laundered by being

8 implemented by an agency under his control‘‖). The central question, simply put, is whether the

9 challenged decision was infected by the tainted influence.

10

Defendants appear to concede that the White House was involved in the termination

11 decisions, Reply at 9 (―Of course something of this nature would involve the White House . . .‖),

12 so they do not necessarily reject this ―cats‘ paw‖ theory of animus in principle. Instead, they

13 argue that the White House‘s involvement ―does not mean that Secretaries Duke and Nielsen did

14 not independently consider the evidence before them in making their decisions.‖ Id. Even if that

15 were the case, however, ―[i]f there are two alternative explanations, one advanced by defendant

16 and the other advanced by plaintiff, both of which are plausible, plaintiff‘s complaint survives a

17 motion to dismiss under Rule 12(b)(6).‖ Starr, 625 F.3d at 1216. Here, the claim of President

18 Trump‘s influence is plausible; as explained in more detail below, for example, President Trump

19 described Haiti as a ―shithole‖ in a meeting with Secretary Nielsen where he expressed desire not

20 to welcome Haitians in the United States, just days before DHS announced it would terminate

21 Haiti‘s status. See Compl. ¶¶ 66, 720, 72, 81, 84. Whether President Trump‘s animus altered the

22 outcome of DHS‘s independent decisionmaking process is a question of fact to be resolved in this

23 litigation.

24

b. Under Arlington Heights, Plaintiffs Need Not Rely on a Comparator Group

25

and May Rely Instead on Direct Evidence of Discriminatory Intent

26

Plaintiffs bring their claim under Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,

27 429 U.S. 252 (1977). Under Arlington Heights, government action may violate equal protection if

28 a discriminatory purpose was one motivating factor. Arlington Heights, 429 U.S. at 265-66.

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1 Under this standard, the Court may look behind the stated reasons for government action to other

2 circumstantial evidence to find evidence of discriminatory purpose, such as:

3

 a decision‘s historical background ―if it reveals a series of official actions taken for

4

invidious purposes;‖

5

 ―[t]he specific sequence of events leading up [to] the challenged decision;‖

6

 ―[d]epartures from the normal procedural sequence;‖

7

 ―[s]ubstantive departures . . . particularly if the factors usually considered important

8

by the decisionmaker strongly favor a decision contrary to the one reached;‖ and,

9

 ―[t]he legislative or administrative history . . . especially where there are

10

contemporary statements by members of the decisionmaking body, minutes of its

11

meetings, or reports.‖

12 Arlington Heights, 429 U.S. at 267-78.

13

The Government argues that Plaintiffs must identify a group of similarly situated persons

14 who were treated more favorably to state an equal protection claim. That is incorrect. Plaintiffs

15 may state a claim by alleging that ―defendants acted with an intent or purpose to discriminate

16 against the plaintiff based upon membership in a protected class.‖ Lee v. City of Los Angeles, 250

17 F.3d 668, 686 (9th Cir. 2001) (quotation and citation omitted). While one method alleging a

18 viable claim of discrimination is for the plaintiff to allege that the defendants (i) withheld a benefit

19 from the plaintiff (ii) for which he or she was qualified (iii) which was extended to other similarly

20 situated persons (iv) and that the defendants had no reasonable basis for treating plaintiff

21 differently, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973), there are alternate

22 paths to proving discrimination. A plaintiff need not satisfy the McDonnell Douglas framework;

23 Arlington Heights permits more generally ―a sensitive inquiry into such circumstantial and direct

24 evidence of intent [to discriminate] as may be available.‖ 429 U.S. at 266. As the Ninth Circuit

25 explained in Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158-59 (9th Cir.

26 2013), ―[o]ur cases clearly establish that plaintiffs who allege disparate treatment under statutory

27 anti-discrimination laws need not demonstrate the existence of a similarly situated entity who or

28 which was treated better than the plaintiffs in order to prevail. [That] is only one way to survive

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1 summary judgment on a disparate treatment claim.‖ (Emphasis in original.) See Ave. 6E

2 Investments, LLC v. City of Yuma, Ariz., 818 F.3d 493, 504-507 (9th Cir. 2016) (holding that

3 plaintiffs stated a claim that city‘s denial of development permit violated Equal Protection Clause

4 based on statements evidencing racial animus without allegation that similarly-situated developers

5 were treated more favorably). See also U.S. Department of Justice, Title VI Legal Manual, ¶ B,

6 available at https://www.justice.gov/crt/fcs/T6Manual6#PID (explaining that Arlington Heights

7 and McDonnell Douglas are alternative frameworks for proving intentional discrimination).

8

Thus, Plaintiffs need only plausibly plead direct or circumstantial evidence of

9 discriminatory intent; they do not need specifically to plead that a group of similarly situated

10 persons were treated more favorably to demonstrate discriminatory intent.

11

c. AADC Does Not Apply to This Case

12

The Government argues that, under Reno v. Am.-Arab Anti-Discrimination Comm., 525

13 U.S. 471 (1999) (―AADC‖), strict scrutiny does not apply in the immigration context even where a

14 claim of animus against a protected group is plausibly alleged. In AADC, a group of aliens alleged

15 that the Attorney General had selectively initiated removal proceedings against them on the basis

16 of their political beliefs and affiliations in violation of the First Amendment. The Supreme Court

17 explained that ―[a]s a general matter . . . an alien unlawfully in this country has no constitutional

18 right to assert selective enforcement as a defense against his deportation.‖ 525 U.S. at 488-89.

19 However, it did not ―rule out the possibility of a rare case in which the alleged basis of

20 discrimination is so outrageous that the foregoing considerations can be overcome.‖ Id. at 491.

21

Importantly, the AADC standard confining discrimination claims to ―outrageous‖ cases is

22 limited to challenges to the exercise of prosecutorial discretion, i.e., the ―discretion to choose to

23 deport one person rather than another.‖ Kwai Fun Wong v. U.S., 373 F.3d 952, 970 (9th Cir.

24 2004). The reason for this limitation stems from the purpose of the AADC rule itself: namely, that

25 ―in deportation proceedings the consequence [of invading prosecutorial discretion] is to permit and

26 prolong a continuing violation of United States law,‖ and ―[t]he contention that a violation must

27 be allowed to continue because it has been improperly selected is not powerfully appealing.‖

28 AADC, 525 U.S. at 490-91. Thus, Kwai Fun Wong held that AADC did not apply where an alien

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1 challenged the discriminatory denial of adjustment of status and revocation of parole rather than

2 the decision to pursue removal. See also Batalla Vidal v. Nielsen, 291 F.Supp.3d 260, 275

3 (E.D.N.Y. 2018) (―Rather than alleging that they in particular are being targeted for removal

4 because of their race—in which case judicial review of their suit would presumably be limited by

5 [the AADC standard]—Plaintiffs allege that the categorical decision to end the DACA program,

6 which provided them with some limited assurance that they would not be deported, was motivated

7 by unlawful animus.‖).

8

This case is similar to Kwai Fun Wong. The challenge here is not to a specific removal

9 decision, where the continued presence of the alien in the U.S. prolongs an established continuing

10 violation of law and the only thing that stands in the way of removal is a claim of prosecutorial

11 misconduct in the selection of persons for removal. Rather, as in Kwai Fun Wong, the challenge

12 here is several steps removed from the prosecutorial decision to seek removal of any particular 13 individual.32 Moreover, the challenge here is on a programmatic level; it does not challenge an

14 individualized prosecutorial decision.

15

Although the Government contends that even programmatic challenges to immigration

16 policies independent of prosecutorial discretion in selecting individuals for removal are subject to

17 review under AADC, citing Kandamar v. Gonzales, 464 F.3d 65 (1st Cir. 2006) and Hadayat v.

18 Gonzales, 458 F.3d 659 (7th Cir. 2006), these cases do not support the Government‘s argument.

19 In Kandamar, a Moroccan petitioner was placed in removal proceedings based on statements he

20 made indicating that he had overstayed his visa in an interview required by the National Security

21 Entry-Exit Registration System (―NSEERS‖) program. NSEERS required young male

22 nonimmigrant aliens from certain designated countries, including Morocco, to ―appear before,

23 register with, answer questions from, and present documents . . . to DHS.‖ Kandamar, 464 F.3d at

24 67. In his removal proceedings, Kandamar filed a motion to suppress his NSEERS interview

25 statements arguing, in part, that NSEERS ―constitutes racial profiling and discrimination based on

26 national origin‖ and was fundamentally unfair because it was used ―to entrap nationals of certain

27

28

32 Apart from TPS status, affected individual may have claims for, e.g., adjustment of status, asylum, or otherwise.

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1 countries.‖ Id. at 68. Tellingly, the First Circuit did not apply AADC‘s narrow standard of review

2 to Kandamar‘s programmatic attack on NSEERS. Rather, it applied the traditional level of review

3 under the equal protection doctrine for Congressional line-drawing with respect to ―immigration

4 criteria based on an alien‘s nationality or place of origin,‖ id. at 72, the rational basis test. The

5 Court did not apply the specialized AADC test to the challenge to the NSEERS program.

6

Separate from this programmatic challenge in the context of his motion to suppress,

7 Kandamar argued that he was ordered removed based on national origin; the First Circuit agreed

8 that ―a person in the same situation [as Kandahar] but not from one of the NSEERS countries

9 would not have been placed in removal proceedings.‖ Id. at 74. But because this aspect of

10 Kandamar‘s challenge pertained to the decision to remove him (rather than the decision to

11 interview him pursuant to NSEERS), the First Circuit followed AADC and held that ―[t]here is

12 nothing in this record to demonstrate outrageous discrimination.‖ Id. Thus, the AADC standard

13 was only applied to the challenge to the decision to pursue removal.

14

In Hadayat, the Seventh Circuit considered a similar claim by an Indonesian petitioner

15 alleging that he was placed in removal because of NSEERS whereas a similarly situated person

16 from another country would not have been. In that context, the Seventh Circuit applied AADC to

17 conclude that ―Hadayat‘s conclusory comments regarding the allegedly discriminatory effect of

18 NSEERS do not come close to meeting [AADC‘s] high burden.‖ 458 F.3d at 665 (emphasis

19 added). The AADC standard was applied because the programmatic attack arose in the context of

20 his challenge to removal. Hadayat contended ―he was unconstitutionally targeted for registration

21 and removal based on his ethnicity and religion‖ id. at 664-65.

22

Thus, Kandamar and Hadayat are inapposite because they did not apply AADC beyond the

23 narrow context of direct challenges to the exercise of prosecutorial discretion in removing 24 individuals from this country.33 Cf. Wong, 373 F.3d at 974, 974, n.29 (refusing to ―countenance

25

26 33 The Government‘s reliance on Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016)

27

is also inapposite because it has to do with the doctrine of consular nonreviewability with respect to the denial of a visa application, for which judicial review is limited to confirming that the

28

executive branch has cited a ―facially legitimate and bona fide reason.‖ This case does not involve the denial of visa applications and the doctrine consular nonreviewability.

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1 that the Constitution would permit immigration officials to engage in such behavior as rounding

2 up all immigration parolees of a particular race solely because of a consideration such as skin

3 color,‖ without ―address[ing] the question whether racial, ethnic, or religious discrimination

4 against immigration parolees is tested by the usual heightened scrutiny applicable to such

5 classifications‖).

6

d. Trump v. Hawaii Does Not Require a Different Outcome

7

In light of the Supreme Court‘s decision in Trump v. Hawaii, 585 U.S. ___, 138 S.Ct. 2392

8 (2018), the Court must determine whether Trump alters that analysis by mandating deferential

9 rational basis review rather than traditional strict scrutiny under Arlington Heights even where

10 government conduct is motivated by race, color, or ethnicity. The Court is not persuaded that

11 Trump‘s standard of deferential review applies here.

12

In Trump, the President had issued a Proclamation which ―placed entry restrictions on the

13 nationals of eight foreign states whose systems for managing and sharing information about their

14 nationals the President deemed inadequate‖ for purposes of ―assess[ing] whether nationals of

15 particular countries present ‗public safety threats.‘‖ Id. at 2404. The President declared that the

16 restrictions ―were necessary to ‗prevent the entry of those foreign nationals about whom the

17 United States Government lacks sufficient information‘; ‗elicit improved identity-management

18 and information-sharing protocols and practices from foreign governments‘; and otherwise

19 ‗advance [the] foreign policy, national security, and counter-terrorism‘ objectives of the United

20 States. Id. at 2405. Further, the restrictions ―would be the ‗most likely to encourage cooperation‘

21 [of foreign governments] while ‗protect[ing] the United States until such time as improvements

22 occur.‘‖ Id. The Proclamation purported to be an exercise of statutory authority under 8 U.S.C. §

23 1182(f), which permits the President to ―suspend the entry of all aliens or any class of aliens‖

24 whenever he ―finds‖ that their entry ―would be detrimental to the interests of the United States.‖ 8

25 U.S.C. § 1182(f).

26

Notwithstanding the facially neutral text of the proclamation, the Trump plaintiffs alleged

27 in part that the President‘s vitriolic anti-Muslim statements prior to taking the oath of office and

28 thereafter demonstrated that the proclamation was motivated by religious animus in violation of

49

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1 the First Amendment‘s establishment clause. The principal question on review was what level of

2 scrutiny would apply to the President‘s Proclamation in light of the alleged religious animus.

3

The Supreme Court explained that two factors informed the standard of review applied in

4 Trump: that ―plaintiffs seek to invalidate a national security directive regulating the entry of aliens

5 abroad,‖ and that the executive order was ―facially neutral toward religion‖ and thus required

6 ―prob[ing] the sincerity of the stated justifications for the policy by reference to extrinsic

7 statements.‖ Id. at 2418 (emphasis added). The court noted that ―[f]or more than a century, this

8 Court has recognized that the admission and exclusion of foreign nationals is a ‗fundamental

9 sovereign attribute exercised by the Government‘s political departments largely immune from

10 judicial control.‘‖ Id. (emphasis added). ―Because decisions in these matters may implicate

11 ‗relations with foreign powers,‘ . . . such judgments are ‗frequently of a character more

12 appropriate to either the Legislature or the Executive.‘‖ Id. (quoting Mathews v. Diaz, 426 U.S.

13 67, 81 (1976)). Moreover, because the persons in question were foreign nationals abroad seeking

14 admission with ―no constitutional right to entry,‖ the scope of review was already

15 ―circumscribed‖—review was available only to the extent that denial of the alien‘s admission

16 imposed ―burdens [on] the constitutional rights of a U.S. citizen.‖ Id. at 2419. Taking these

17 factors together, the Supreme Court concluded that ―[t]he upshot . . . in this context is clear: ‗Any

18 rule of constitutional law that would inhibit the flexibility‘ of the President ‗to respond to

19 changing world conditions should be adopted only with the greatest caution,‘ and our inquiry into

20 matters of entry and national security is highly constrained.‖ Id. at 2419-20 (quoting Mathews,

21 426 U.S. at 81-82 (holding that Congress may condition an alien‘s eligibility for participation in

22 federal medical insurance on duration of residency and permanent resident status)). Further, the

23 proposed inquiry could ―intrud[e] on the President‘s constitutional responsibilities in the area of

24 foreign affairs.‖ Id. at 2419.

25

Applying these considerations—the entry of aliens from outside the United States, express

26 national security concerns and active involvement of foreign policy—the Supreme Court applied a

27 standard of review ―considers whether the entry policy is plausibly related to the Government‘s

28 stated objective to protect the country and improve vetting procedures.‖ Id. at *21. The Supreme

50

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1 Court ―assume[d] that [it] may look behind the face of the Proclamation to the extent of applying

2 rational basis review‖ including consideration of ―plaintiffs‘ extrinsic evidence [of President

3 Trump‘s anti-Muslim statements].‖ Id. at 2420. It held, however, that taking these statements into

4 consideration, it would ―uphold the policy so long as it can reasonably be understood to result

5 from a justification independent of unconstitutional grounds.‖ Id.

6

The case at bar is distinguishable from Trump in several respects. First, Defendants herein

7 did not cite national security as a basis for terminating TPS. Rather, the stated basis purports to be

8 nothing more than a factual determination that conditions in the ground in four countries no longer

9 meet the statutory criteria of the TPS statute and thus the humanitarian (not national security)

10 purposes underpinning TPS status have been obviated.

11

Second, unlike the Proclamation in Trump, Defendants have not claimed that TPS has been

12 terminated for foreign policy reasons. The government‘s decision to terminate TPS status was not

13 intended to induce the cooperation or action of a foreign government. Compare Trump, 138 S.Ct.

14 at 2421 (noting that Proclamation was ―expressly premised on legitimate purposes: preventing

15 entry of nationals who cannot be adequately vetted and inducing other nations to improve their

16 practices‖).

17

Third, the TPS-beneficiaries here, unlike those affected by the Proclamation in Trump, are

18 already in the United States. They are not aliens abroad seeking entry or admission who ―have no 19 constitutional right of entry‖ id. at 2419;34 TPS-beneficiaries have been admitted to the United

20 States. See Ramirez v. Brown, 852 F.3d 954, 958-61 (9th Cir. 2017). As Plaintiffs currently

21 reside lawfully in the United States, id., this case is unlike Trump; it does not implicate ―the

22 admission and exclusion of foreign nationals,‖ Trump, 138 S.Ct. at 2418, who have ―no

23 constitutional rights regarding [their] application‖ in light of the ―sovereign prerogative‖ ―to admit

24 or exclude aliens.‖ Landon v. Plasencia, 459 U.S. 21, 32 (1982). Hence, the basis for invoking

25

26

27

34 Thus, their situation is unlike persons physically present at a United States port of entry who had not been admitted but sought to be paroled. See Nadarajah v. Gonzales, 443 F.3d 1069, 1082-

28

83 (9th Cir. 2006) (reviewing agency‘s discretion to grant parole to alien under a deferential ―facially legitimate and bona fide‖ reasons standard).

51

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1 broad judicial deference to executive action in excluding aliens does not apply.35

2

Fourth, relatedly, aliens within the United States have greater constitutional protections

3 than those outside who are seeking admission for the first time. See Zadvydas v. Davis, 533 U.S.

4 678, 693 (2001) (explaining that ―certain constitutional protections available to persons inside the

5 United States are unavailable to aliens outside of our geographic borders,‖ id., ―[b]ut once an alien

6 enters the country, the legal circumstance changes, for the Due Process Clause applies to all

7 ‗persons‘ within the United States, including aliens‖). The aliens affected by the President‘s

8 Proclamation in Trump were outside the United States and had ―no constitutional rights regarding

9 [their] application,‖ Landon, 459 U.S. at 32; the courts could therefore only ―engage[] in a

10 circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights

11 of a U.S. citizen.‖ Trump, 138 S.Ct. at 2419. TPS-beneficiaries in the United States in contrast

12 have ties to the United States, many with deep, long-term ties. For example, 88% of Salvadoran

13 and 81% of Haitian TPS holders are employed, 11% are entrepreneurs, and 30% (45,500

14 households with Savaldoran TPS holders and 6,200 with Haitian TPS holders) have mortgages.

15 Compl. ¶ 48. See Landon, 459 U.S. at 32 (―[O]nce an alien gains admission to our country and

16 begins to develop the ties that go with permanent residence his constitutional status changes

17 accordingly.‖). Although Landon refers to permanent resident aliens, the alien‘s ties to the United

18 States, not his or her formal immigration status, confer increased constitutional protection. See

19 U.S. v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (―[A]liens receive constitutional protections

20 when they have come within the territory of the United States and developed substantial

21 connections with this country.‖); Johnson v. Eisentrager, 339 U.S. 763, 770 (1950) (―The alien, to

22 whom the United States has been traditionally hospitable, has been accorded a generous and

23 ascending scale of rights as he increases his identity with our society. Mere lawful presence in the

24 country creates an implied assurance of safe conduct and gives him certain rights[.]‖); see also

25 Ibrahim v. Dep’t of Homeland Security, 669 F.3d 983, 997 (9th Cir. 2012) (holding that alien with

26 nonimmigrant student visa had ―established ‗significant voluntary connection‘ with the United

27

28

35 Indeed, TPS benefits may only be extended to admissible aliens, unless the Government extends a waiver to inadmissibility. See 8 U.S.C. § 1254a(c)(1)(A)(iii); id. § 1254a(c)(2)(A).

52

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1 States such that she has the right to assert claims under the First and Fifth Amendments,‖ even

2 though she had left the country and been denied re-entry while outside the country).

3

Fifth, the executive order at issue in Trump was issued pursuant to a very broad grant of

4 statutory discretion: Section 1182(f) ―exudes deference to the President in every clause‖ by

5 ―entrust[ing] to the President the decisions whether and when to suspend entry . . .; whose entry to

6 suspend . . .; for how long . . .; and on what conditions.‖ Trump, 138 S.Ct. at 2408. In contrast,

7 Congress has not given the Secretary carte blanche to terminate TPS for any reason whatsoever.

8 Rather, the TPS statute empowers the Secretary of Homeland Security discretion to initiate,

9 extend, and terminate TPS in specific enumerated circumstances. 8 U.S.C. § 1254a(b). Even

10 though the statute circumscribes judicial review, see supra, Congress prescribed the discretion of

11 the Secretary in administering TPS. Cf. Trump, 138 S.Ct. at 2424 (Kennedy, J., concurring)

12 (“There are numerous instances in which the statements and actions of Government officials are

13 not subject to judicial scrutiny or intervention. That does not mean those officials are free to

14 disregard the Constitution and the rights it proclaims and protects.”).

15

For these reasons, the facts, legal posture, and legal issues in Trump are substantially and

16 materially different from the present case. Trump did not address the standard of review to be

17 applied under the equal protection doctrine when steps are taken to withdraw an immigration

18 status or benefit from aliens lawfully present and admitted into the United States for reasons

19 unrelated to national security or foreign affairs. Trump therefore does not alter the Ninth Circuit‘s

20 refusal to ―countenance that the Constitution would permit immigration officials to . . . round[] up

21 all immigration parolees of a particular race solely because of a consideration such as skin color.‖

22 Wong, 373 F.3d at 974, 974, n. 29. The equal protection guarantee applies with its conventional

23 force to all persons in the United States. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)

24 (explaining that the Fourteenth Amendment‘s ―provisions are universal in their application, to all

25 persons within the territorial jurisdiction, without regard to any differences of race, of color, or of

26 nationality‖ and holding that the administration of a race-neutral law in a prejudicial manner

27 violates Equal Protection Clause). TPS beneficiaries residing in the United States are such

28 persons. Accordingly, the deferential standard of review in Trump does not apply.

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1

e. Application to Plaintiffs‘ Allegations

2

Having clarified that the Arlington Heights framework applies to review of Defendants‘

3 actions and that President Trump‘s stated animus may be attributed to the Secretary if he

4 influenced an otherwise independent decision-making process, the Court now reviews whether

5 Plaintiffs‘ factual allegations plausibly state a claim.

6

Plaintiffs chiefly rely on a set of anti-immigrant, anti-Muslim comments made by President

7 Trump to support their claim of animus. As set forth in detail above, President Trump has

8 allegedly expressed animus toward ―non-white, non-European people,‖ Compl. ¶ 9, including by

9 labeling Mexican immigrants as criminals and rapists, id. ¶ 67, ―compar[ing] immigrants to snakes

10 who will bite and kill anyone foolish enough to take them in,‖ id. ¶ 68, complaining that 40,000

11 Nigerians in the United States ―would never ‗go back to their huts‘ in Africa,‖ id. ¶ 69, and

12 ―disseminat[ing] a debunked story about celebrations of the September 11, 2001, attacks [by

13 Arabs living in New Jersey],‖ id. President Trump also specifically made derogatory comments

14 about Haitians, including that the 15,000 admitted to the United States ―all have AIDS,‖ id. One

15 week before TPS was terminated, President Trump asked aloud regarding Latin American and

16 African countries, including Haiti and El Salvador, ―Why are we having all these people from

17 shithole countries come here?‖ He expressed a preference instead for Norwegians, who are

18 overwhelmingly white. Id. ¶ 70. The President also asked ―Why do we need more Haitians?‖ and

19 insisted they be removed from an immigration deal. Id. ¶ 70. Plaintiffs characterize these

20 statements and other evidence as evidence of ―racial and national-origin animus.‖ Compl. ¶ 66.

21 These allegations are more than sufficient to support a plausible inference of the President‘s

22 animus based on race and/or national origin/ethnicity against non-white immigrants in general and 23 Haitians, Salvadoreños, Nicaraguans, and Sudanese people in particular. 36

24

25

36 Insofar as Plaintiffs allege national origin discrimination, see Compl. ¶ 111, the Court construes it as a reference to ethnicity in light of the nature of the President‘s alleged comments relying on

26

stereotypes about the physical or cultural characteristics of persons from the countries in question. Cf. Wong, 373 F.3d at 968, n.21 (construing allegation of national origin discrimination as being

27

based on ethnicity); cf. 29 C.F.R. § 1606.1 (defining ―national origin discrimination‖ under Title VII of the Civil Rights Act of 1964 to include ―denial of equal employment opportunity because

28

of an individual‘s, or his or her ancestor‘s place of origin; or because an individual has the physical, cultural or linguistic characteristics of a national origin group‖ (emphasis added)).

54

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1

Moreover, Plaintiffs plausibly allege that President Trump‘s animus was a factor in the

2 TPS termination decisions in question. According to Plaintiffs‘ allegations, President Trump

3 repeatedly expressed his animus towards non-white immigrants on the campaign trail and after

4 entering office, and explicitly linked those sentiments to his proposed immigration policies and

5 priorities. Most directly, at a meeting about TPS on January 11, 2018, President Trump expressed 6 his disdain for persons from Haiti and El Salvador,37 and his administration then took action to

7 terminate TPS status for those countries a mere 7 days later. Compl. ¶ 70. Although the

8 termination of Sudan and Nicaragua in October and December 2017 pre-date the January 11, 2018

9 meeting, they post-date the other statements made by President Trump reflecting animus against

10 non-white immigrants and other persons of Latino or African origin. See Compl. ¶¶ 67

11 (categorical labels of Mexican immigrants as criminals and rapists), 69 (complaining that migrants

12 from Nigeria would never ―go back to their huts‖ in Africa); id. (disseminating a false anti-Arab

13 rumor about celebrations of the September 11, 2001 attacks in New Jersey). Thus, Plaintiffs

14 plausibly allege that President Trump harbored racial and national origin/ethnic animus as of the

15 time of all four TPS decisions challenged in this case.

16

Further, Plaintiffs plausibly allege that President Trump influenced DHS‘s decision to

17 terminate TPS status. Most directly, Secretary Nielsen was present at the January 11, 2018

18 meeting where the President referred to Haiti and El Salvador (at least) as ―shithole countries‖ and

19 questioned why the United States would welcome their people here. Compl. ¶ 72. Haiti and El

20 Salvador‘s TPS designations were terminated seven days later. Id. ¶¶ 81, 84. Further, Plaintiffs‘

21 allege that on November 6, 2017, with respect to Honduras—which is not at issue in this case—

22 the White House Chief of Staff John F. Kelly and White House Homeland Security Adviser Tom

23 Bossert ―repeatedly called Acting Secretary Duke and pressured her to terminate the TPS

24 designation for Honduras.‖ Id. ¶ 73. Kelly was reportedly traveling with President Trump at the

25

26

37 President Trump did not merely call Haiti and El Salvador ―shithole countries.‖ He asked ―Why are we having all these people from shithole countries come here?‖ and ―Why do we need

27

more Haitians?‖ Compl. ¶ 70. These are not merely comments about a place, but can reasonably be understood as comments about the people who come from those places and their intrinsic

28

worth. It is reasonable to infer racial or national-origin/ethnic animus from these statements, as confirmed by the reaction of listeners who were present. Id. ¶ 71

55

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1 time. Id. Another news article cited by Plaintiffs (and thus incorporated into the complaint) notes

2 that as early as June 2017 President Trump was ―berating his most senior advisers,‖ including

3 then-DHS Secretary John Kelly, about immigrants who had entered the country that year from

4 Afghanistan, Haiti, and Nigeria. Id. ¶ 69, n.33. Together, these allegations support a plausible

5 inference that the White House has proactively inserted itself into DHS‘s TPS termination

6 decisions during the relevant time period of October 2017 to January 2018 when the termination

7 decisions were announced as part of its broader agenda on immigration. Indeed, Defendants

8 effectively concede that President Trump has insinuated himself into the TPS process. See Reply

9 at 9 (―Of course something of this nature would involve the White House . . .‖).

10

In light of the allegations above, Plaintiffs have plausibly pled that President Trump‘s

11 racial and national-origin/ethnic animus was a motivating factor in DHS‘s TPS termination

12 decisions and thus have plausibly stated an equal protection claim. Defendants‘ motion to dismiss

13 is DENIED.

14

IV. CONCLUSION

15

In sum, the Court holds that Section 1254a does not preclude judicial review of

16 Defendants‘ APA claim to the extent Plaintiffs challenge the sub silentio departure from a prior

17 practice or policy. Further, Section 1254a does not preclude judicial review of Plaintiffs‘

18 constitutional due process and equal protection claims. Defendants‘ motion to dismiss under Rule

19 12(b)(1) is DENIED.

20

Defendants‘ motion to dismiss is also DENIED. Plaintiffs have plausibly alleged that

21 Defendants‘ sub silentio departure from a prior practice or policy violates the Administrative

22 Procedure Act (Fourth Claim). Plaintiffs have also plausibly pled that the TPS termination

23 decisions, as well as Defendants‘ adoption of a new interpretation of the TPS statute, were

24 motivated by racial and/or ethnic animus in violation of the equal protection guarantee of the

25 ///

26 ///

27 ///

28 ///

56

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1 constitution (Second Claim). Finally, Plaintiffs have plausibly pled that Defendants‘ termination

2 decisions violate Plaintiffs‘ substantive due process rights, at least to the extent that the decisions

3 violated the APA and/or equal protection guarantee and therefore did not involve pursuit of a

4 legitimate governmental interest.

5

This order disposes of Docket No. 20.

6

7

IT IS SO ORDERED.

8

9 Dated: August 6, 2018

10

11

______________________________________

12

EDWARD M. CHEN United States District Judge

13

14

15

16

17

18

19

20

21

22

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25

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27

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1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7

CRISTA RAMOS, et al.,

8

Plaintiffs,

9

v.

10

KIRSTJEN NIELSEN, et al.,

11

Defendants.

Case No. 18-cv-01554-EMC
ORDER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Docket No. 120

12

13

The federal government seeks to terminate the Temporary Protected Status (“TPS”)

14 designations for four countries: Haiti, Sudan, Nicaragua, and El Salvador. Under three prior

15 administrations, the TPS designations of these countries have been repeatedly extended based on

16 adverse and dangerous conditions in these countries. Under the designations, approximately

17 300,000 TPS beneficiaries have been allowed to stay and work in the United States because of

18 dangerous or unsafe conditions in their home countries.1 Without TPS designations, these

19 beneficiaries will be subject to removal from the United States.

20

Plaintiffs in this case are TPS beneficiaries (who have resided in the United States for

21 years) along with their U.S.-citizen children. In this suit, Plaintiffs challenge the Trump

22 administration’s decision to terminate TPS status for the affected countries. Currently pending

23 before the Court is Plaintiffs’ motion for a preliminary injunction. Plaintiffs seek to enjoin the

24 government from implementing or enforcing the decisions of the Secretary of the Department of

25 Homeland Security to terminate TPS designations of these countries pending a final resolution of

26

27

1 See Degen Decl., Ex. 14 (NSC Memo) (indicating that there are 5,349 TPS beneficiaries from Nicaragua; 263,282 TPS beneficiaries from El Salvador; and 58,706 TPS beneficiaries from

28

Haiti); Degen Decl., Ex. 87 (Decision Memo at 2) (indicating that there are 1,039 TPS beneficiaries from Sudan).

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1 the case on the merits.

2

As described below, absent injunctive relief, TPS beneficiaries and their children

3 indisputably will suffer irreparable harm and great hardship. TPS beneficiaries who have lived,

4 worked, and raised families in the United States (many for more than a decade), will be subject to

5 removal. Many have U.S.-born children; those may be faced with the Hobson’s choice of

6 bringing their children with them (and tearing them away from the only country and community

7 they have known) or splitting their families apart. In contrast, the government has failed to

8 establish any real harm were the status quo (which has been in existence for as long as two

9 decades) is maintained during the pendency of this litigation. Indeed, if anything, Plaintiffs and

10 amici have established without dispute that local and national economies will be hurt if hundreds

11 of thousands of TPS beneficiaries are uprooted and removed.

12

The balance of hardships thus tips sharply in favor of TPS beneficiaries and their families.

13 And Plaintiffs have made substantial showing on the merits of their claims, both on the facts and

14 the law. They have presented a substantial record supporting their claim that the Acting Secretary

15 or Secretary of DHS, in deciding to terminate the TPS status of Haiti, El Salvador, Nicaragua and

16 Sudan, changed the criteria applied by the prior administrations, and did so without any

17 explanation or justification in violation of the Administrative Procedure Act. There is also

18 evidence that this may have been done in order to implement and justify a pre-ordained result

19 desired by the White House. Plaintiffs have also raised serious questions whether the actions

20 taken by the Acting Secretary or Secretary was influenced by the White House and based on

21 animus against non-white, non-European immigrants in violation of Equal Protection guaranteed

22 by the Constitution. The issues are at least serious enough to preserve the status quo.

23

Having considered the parties’ briefs and accompanying submissions, as well as the oral

24 argument of counsel, the Court hereby GRANTS Plaintiffs’ motion. It also sets a Case

25 Management Conference for October 26, 2018 at 10:30 a.m. to discuss with the parties the

26 possibility of an expeditious adjudication of the merits.

27

28 2

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1

I.

FACTUAL & PROCEDURAL BACKGROUND

2 A. Statutory Background

3

The TPS statute is 8 U.S.C. § 1254a. Section 1254a(b) covers TPS designations. It

4 provides in relevant part as follows.

5

(1) In general. The Attorney General, after consultation with

appropriate agencies of the Government, may designate any

6

foreign state (or any part of such foreign state) under this

subsection only if – 7

(A) the Attorney General finds that there is an ongoing

8

armed conflict within the state and, due to such

conflict, requiring the return of aliens who are

9

nationals of that state to that state (or to the part of

the state) would pose a serious threat to their personal

10

safety;

11

(B) the Attorney General finds that –

12

(i) there has been an earthquake, flood, drought,

epidemic, or other environmental disaster in

13

the state resulting in a substantial, but

temporary, disruption of living conditions in

14

the area affected,

(ii) the foreign state is unable, temporarily, to

15

handle adequately the return to the state of

aliens who are nationals of the state, and

16

(iii) the foreign state officially has requested

designation under this subparagraph; or 17

(C) the Attorney General finds that there exist

18

extraordinary and temporary conditions in the foreign

state that prevent aliens who are nationals of the state

19

from returning to the state in safety, unless the

Attorney General finds that permitting the aliens to

20

remain temporarily in the United States is contrary to

the national interest of the United States. 21

22 8 U.S.C. § 1254a(b).

23

Per the statute, “the initial period of designation of a foreign state . . . is the period,

24 specified by the Attorney General, of not less than 6 months and not more than 18 months.” Id. §

25 1254a(b)(2). Thereafter, there is periodic review to see whether the TPS designation should be

26 terminated or extended. See id. Under § 1254a(b)(3)(A), “[a]t least 60 days before end of the

27 initial period designation, and any extended period of designation, . . . the Attorney General, after

28 consultation with appropriate agencies of the Government, shall review the conditions in the 3

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1 foreign state (or part of such foreign state) . . . and shall determine whether the conditions for such

2 designation under this subsection continue to be met.”

3

• “If the Attorney General determines . . . that a foreign state (or part of such foreign

4

state) no longer continues to meet the conditions for designation under paragraph

5

(1), the Attorney General shall terminate the designation . . . .” Id. §

6

1254a(b)(3)(B) (emphasis added).

7

• “If the Attorney General does not determine . . . that a foreign state (or part of such

8

foreign state) no longer meets the conditions for designation under paragraph (1),

9

the period of designation of the foreign state is extended for an additional period of

10

6 months (or, in the discretion of the Attorney General, a period of 12 or 18

11

months).” Id. § 1254a(b)(3)(C) (emphasis added).

12

Section 1254a(b)(5)(A) provides that “[t]here is no judicial review of any determination of

13 the Attorney General with respect to the designation, or termination or extension of a designation,

14 of a foreign state under this subsection.” Id. § 1254a(b)(5)(A). However, the Court previously

15 held that this provision does not bar the Court from considering Plaintiffs’ particular claims

16 brought in the instant case, including their Administrative Procedure Act (“APA”) and Equal

17 Protection claims. See Docket No. 55 (Order at 15, 20-21) (holding that this provision does not

18 preclude a challenge to general collateral practices or certain colorable constitutional claims).

19 B. General Process for TPS Designation Decision (on Periodic Review)

20

For the most part, the parties agree that the general process for a TPS designation decision

21 (on periodic review) is as follows. The decisions are formally made by the Secretary for the

22 Department of Homeland Security (“DHS”). For her review, RAIO2 (a division within USCIS)

23 provides a Country Conditions Memo. In addition, OP&S3 (another division within USCIS) drafts

24 a Decision Memo that contains USCIS’s recommendation on what to do about the TPS

25 designation. Once the Decision Memo is finalized, the USCIS Director passes it on to the DHS

26

27 2 RAIO stands for Refugee, Asylum and International Operations Directorate.
28 3 OP&S stands for Office of Policy and Strategy. 4

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1 Secretary. The State Department provides further input (e.g., country conditions,

2 recommendations). At times, input can also come from other government sources, but the above

3 is the information consistently provided to the DHS Secretary. See generally Rodriguez Decl.

4 (former USCIS director during part of the Obama administration).

5 C. General Timeline for Countries at Issue

6

Below is a general timeline of events for each of the countries at issue.

7

1. Haiti

8

“Haiti was originally designed for TPS on January 21, 2010 based on the 7.0-magnitude

9 earthquake on January 12, 2010 that prevented Haitians from returning safely.” Docket No. 55

10 (Order at 6); see also 75 Fed. Reg. 3476, 3477 (Jan. 21, 2010). “Haiti’s designation was

11 subsequently extended and re-designated four times by the Obama administration and once by the

12 Trump administration.” Docket No. 55 (Order at 6).

13

Although the Trump administration extended Haiti’s TPS designation one time (in or about

14 May 2017), the extension was for six months only, and the Federal Register Notice announcing

15 the extension emphasized that “the designation of TPS was intended by Congress to be temporary

16 in nature”; that “the Government of Haiti has expressed a desire for its nationals to return”; that

17 the DHS Secretary would – after the six months – “consider whether permitting Haitian nationals

18 to remain in the United States is contrary to the national interest of the United States”; and that

19 beneficiaries are therefore “encouraged to prepare for their return to Haiti.” 82 Fed. Reg. 23830,

20 23831 (May 24, 2017); see also Degen Decl., Ex. 45 (Decision Memo at 2) (noting that former

21 DHS Secretary Kelly “extended Haiti’s TPS designation for a limited period of 6 months, with

22 strong public messaging to the Haitian community to prepare for their return to their homeland”).

23 In short, the Notice portended the end of Haiti’s TPS designation.

24

Subsequently, on November 20, 2017, Acting Secretary Duke made the decision to

25 terminate Haiti’s TPS designation. See 83 Fed. Reg. 2648, 2650 (Jan. 18, 2018). The termination

26 was formally announced on January 18, 2018. See Docket No. 55 (Order at 6). The Federal

27 Register Notice stated that the Acting Secretary was terminating the TPS designation for Haiti as

28 of July 22, 2019, because “the conditions for Haiti’s designation for TPS – on the basis of 5

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1 ‘extraordinary and temporary conditions’ relating to the 2010 earthquake that prevented Haitian

2 nationals from returning in safety – are no longer met.” 83 Fed. Reg. 2648, 2650 (Jan. 18, 2018).

3

2. Sudan

4

“Sudan was designated for TPS in November 1997 due to an ongoing armed conflict and

5 extraordinary conditions preventing nationals from returning safely.” Docket No. 55 (Order at

6 10); see also 62 Fed. Reg. 59737 (Nov. 4, 1997). The TPS designation “was periodically extended

7 and/or re-designated . . . 15 times by the Clinton, Bush, and Obama administrations.” Docket No.

8 55 (Order at 10).

9

It appears that, in early September 2017, Acting Secretary Duke made the decision to

10 terminate Sudan’s TPS designation. See, e.g., Degen Decl., Ex. 5 (email) (discussing “edits to the

11 FRN [Federal Register Notice] announcing the termination of TPS for Sudan”).

12

“On October 11, 2017, Acting Secretary . . . Duke announced the termination of Sudan’s

13 TPS [designation] . . . .” Docket No. 55 (Order at 11). The Federal Register Notice stated that the

14 TPS designation was being terminated as of November 2, 2018, because “[t]he ongoing armed

15 conflict no longer prevents the return of nationals to Sudan to all regions of Sudan without posing

16 a serious threat to their personal safety. Further, extraordinary and temporary conditions within

17 Sudan no longer prevent nationals from returning in safety to all regions of Sudan.” 82 Fed. Reg.

18 47228, 47230 (Oct. 11, 2017).

19

3. Nicaragua

20

“Nicaragua was originally designated for TPS on January 5, 1999 on the basis of Hurricane

21 Mitch.” Docket No. 55 (Order at 8). Its “designation was extended 13 times by the Clinton, Bush,

22 and Obama administrations.” Docket No. 55 (Order at 9).

23

On or about November 5, 2017, Acting Secretary Duke made the decision to terminate

24 Nicaragua’s TPS designation. See Degen Decl., Ex. 30 (email).

25

“On December 15, 2017, Acting Secretary Duke announced that Nicaragua’s designation

26 would terminate . . . .” Docket No. 55 (Order at 9). The Federal Register Notice stated that the

27 TPS designation was being terminated as of January 9, 2019, because “conditions for Nicaragua’s

28 1999 designation for TPS on the basis of environmental disaster due to the damage caused by

6

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1 Hurricane Mitch are no longer met.” 82 Fed. Reg. 59636, 59637 (Dec. 15, 2017).

2

4. El Salvador

3

“El Salvador was designated for TPS on March 9, 2001 based on a series of earthquakes.”

4 Docket No. 55 (Order at 7). Its designation was “extended 11 times by the Bush and Obama

5 administrations.” Docket No. 55 (Order at 7).

6

It is not clear from the record when Secretary Nielsen made the actual decision to

7 terminate but it appears to have taken place some time in early to mid-January 2018. See El

8 Salvador AR at 1 (email, dated January 4, 2018, from Maj. Gen. Norman (U.S. Southern

9 Command)) (providing comments on what might happen if the TPS designation were terminated);

10 El Salvador AR at 5-01 (memo on January 5, 2018, phone call to President of El Salvador)

11 (referring to “your upcoming decision regarding the future of El Salvador’s Temporary Protected

12 Status (TPS) designation”).

13

The termination of El Salvador’s TPS designation was formally announced on January 18,

14 2018. See Docket No. 55 (Order at 8). The Federal Register Notice stated that the TPS

15 designation was being terminated as of September 9, 2019, because “the conditions supporting El

16 Salvador’s 2011 designation for TPS on the basis of environmental disaster due to the damage

17 caused by the 2001 earthquakes are no longer met.” 83 Fed. Reg. 2654, 2655-56 (Jan. 18, 2018).

18

II. DISCUSSION

19 A. Legal Standard

20

“[The] purpose of a preliminary injunction . . . is to preserve the status quo and the rights

21 of the parties until a final judgment issues in the cause.” U.S. Philips Corp. v. KBC Bank N.V.,

22 590 F.3d 1091, 1094 (9th Cir. 2010); see also Boardman v. Pac. Seafood Grp., 822 F.3d 1011,

23 1024 (9th Cir. 2016) (stating that “[t]he ‘purpose of a preliminary injunction is to preserve the

24 status quo ante litem pending a determination of the action on the merits’; ‘[s]tatus quo ante litem’

25 refers to ‘the last uncontested status which preceded the pending controversy’”). “A preliminary

26 injunction . . . is not a preliminary adjudication on the merits but rather a device for preserving the

27 status quo and preventing the irreparable loss of rights before judgment.” Sierra On-Line, Inc. v.

28 Phx. Software, Inc., 739 F.2d 1415, 1422 (9th Cir. 1984). 7

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1

A party seeking a preliminary injunction must meet one of two

variants of the same standard. Under the original Winter standard, a

2

party must show “that he is likely to succeed on the merits, that he is

likely to suffer irreparable harm in the absence of preliminary relief,

3

that the balance of equities tips in his favor, and that an injunction is

in the public interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008).

4

Under the “sliding scale” variant of the Winter standard, “if a

plaintiff can only show that there are ‘serious questions going to the

5

merits’ – a lesser showing than likelihood of success on the merits –

then a preliminary injunction may still issue if the ‘balance of

6

hardships tips sharply in the plaintiff's favor,’ and the other two

Winter factors are satisfied.” 7

8 All. for the Wild Rockies v. Pena, 865 F.3d 1211, 1217 (9th Cir. 2017).

9 B. Likelihood of Irreparable Injury/Balance of Hardships/Public Interest

10

The Court addresses first the likelihood of irreparable injury, the balance of hardships, and

11 the public interest.

12

The record evidence establishes a compelling case as to these factors in favor of Plaintiffs.

13 Plaintiffs have submitted a number of declarations which establish that, without a preliminary

14 injunction, TPS beneficiaries are likely to suffer irreparable injury. See, e.g., Docket No. 91

15 (Abdalla Decl.); Docket No. 92 (De Ayala Decl.); Docket No. 93 (Elarabi Decl.); Docket No. 94

16 (Ampie Decl). The declarants are TPS beneficiaries who have lived in the United States for a

17 significant number of years, some as many as twenty. Without a preliminary injunction, the

18 declarants risk being removed. At the hearing, the government conceded that there are

19 approximately 300,000 TPS beneficiaries registered as such and that they are likely to be subject

20 to removal.4 TPS beneficiaries thus risk being uprooted from their homes, jobs, careers, and

21 communities. They face removal to countries to which their children and family members may

22 have little or no ties and which may not be safe. Those with U.S.-citizen children will be

23 confronted with the dilemma of either bringing their children with them, giving up their children’s

24 lives in the United States (for many, the only lives they know), or being separated from their

25 children. See County/Citi Amici at 4 (noting that “[t]he beneficiaries . . . have hundreds of

26

27

4 Removal of TPS status returns beneficiaries to their former status. Those who have an independent status entitling them to stay in the U.S. are not likely to be registered under TPS

28

status. Hence, those who are so registered likely do not enjoy any other status entitling them to stay. The government essentially conceded such at the hearing.

8

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1 thousands of U.S.-citizen children, 192,000 born to Salvadoran beneficiaries alone”).

2 Understandably, this prospect is a source of great emotional distress, fear, and anxiety.

3

For example, Ebtihal Abdalla and her husband are TPS beneficiaries from Sudan. They

4 have been beneficiaries since the late 1990s. They have three children. One is a TPS beneficiary

5 and has lived in the United States since she was a baby. The other two are U.S. citizens. Once

6 Sudan’s designation is terminated, her husband will be unable to work and, as he is the primary

7 breadwinner, this will have significant impact on the family’s livelihood. Furthermore, since the

8 announcement of Sudan’s termination, Ms. Abdalla has suffered bouts of uncontrollable crying

9 and serious migraines. She has also found it difficult to eat and to leave the house. She was

10 recently diagnosed with severe depression and prescribed medications. Ms. Abdalla’s children

11 have also been impacted by the announcement of Sudan’s termination. For example, Ms.

12 Abdalla’s oldest daughter is currently at a community college. Once Sudan’s termination is

13 terminated, she will not be able to work, and she needs the work in order to help pay for tuition.

14 She is fearful that she will not be able to attend a four-year college or university, as planned, if

15 Sudan’s TPS is terminated before she completes her coursework at the community college. As for

16 Ms. Abdalla’s youngest daughter, she is only twelve and, after learning that her family’s

17 immigration status is in jeopardy, she has struggled at school, with a teacher even expressly

18 voicing concern.

19

Similar testimony is provided in the declarations of Elsy Yolanda Flores De Ayala, see De

20 Ayala Decl. (testifying about the impact of the announcement of El Salvador’s termination on her,

21 her husband, her U.S.-citizen sister who has cancer, and her three children, one who is a TPS

22 beneficiary and the other two who are U.S. citizens); Hiwaida Elarabi, see Elarabi Decl. (testifying

23 about the impact of the announcement of Sudan’s termination on him, her extended family with

24 whom she lives in the United States and whom she helps support, and her parents in Sudan whom

25 she helps support); Imara Ampie, see Ampie Decl. (testifying about the impact of the

26 announcement of Nicaragua’s termination on her, her husband, and her two U.S.-citizen children,

27 both of whom have special needs); and Wilna Destin. See Destin Decl. (testifying about the

28 impact of the announcement of Haiti’s termination on her and her two U.S.-citizen children). See 9

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1 also Docket No. 55 (Order at 3-6) (discussing Plaintiffs’ backgrounds as alleged in the complaint).

2

The amicus briefs underscore that the harms to TPS beneficiaries will also harm the public

3 interest. For example, many TPS beneficiaries are part of the workforce and have a significant

4 presence in the construction, hospitality, food service, landscaping, home health care, child care,

5 and retail industries. See, e.g., Docket No. 103-1 (State Amici at 9) (noting that “an estimated

6 37,000-70,000 construction workers are TPS holders”). Without a preliminary injunction, these

7 TPS beneficiaries will no longer be able to work, thus adversely impacting state and local

8 economies. The State Amici estimates that “loss of legal status for these TPS holders is projected

9 to cost $132.6 billion in GDP (due to lost earnings as well as decreased industry outputs), $5.2

10 billion in Social Security and Medicare contributions, and $733 million in employers’ turnover

11 costs.” Docket No. 103-1 (State Amici at 9). Also, if TPS beneficiaries cannot work, then they

12 will lose their employer-sponsored health care which will put a strain on public resources.

13 Furthermore, many TPS beneficiaries are homeowners; if these TPS beneficiaries are no longer

14 able to work, they may not be able to pay their property taxes, and their homes may become

15 subject to foreclosure. See, e.g., Docket No. 103-1 (State Amici at 10) (stating that “[t]hirty-two

16 percent of TPS holders from El Salvador and Haiti have mortgages, and almost 42 percent of

17 Nicaraguan immigrants are homeowners”; adding that “Salvadoran TPS homeowners pay an

18 estimated $100 million in property taxes annually, including up to $32 million in the Los Angeles

19 area alone”). Finally, TPS beneficiaries also contribute to their communities in other less tangible,

20 but equally important, ways. See, e.g., County/Citi Amici at 5 (noting that “a survey of TPS

21 recipients from El Salvador, Honduras, and Nicaragua found that 30 percent are civically active,

22 and about 20 percent engage in community service such as volunteering with nonprofit

23 organizations or at children’s hospitals”).

24

The government does not dispute the practical and human hardships upon TPS

25 beneficiaries and their children that will be caused if TPS status were terminated. Nor has the

26 government taken issue with the estimates of adverse impact upon the economy resulting from the

27 termination and resulting en masse removal of TPS beneficiaries.

28

Indeed, the government’s own documents reflect that public interest considerations weighs

10

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1 in favor of a preliminary injunction. Apart from adversely impacting the domestic economy,

2 terminating TPS status may have adverse ramifications internationally. For example, in a memo

3 dated October 2017, James Nealon, then-Assistant Secretary for International Affairs in OP&S

4 (and a former ambassador to Honduras), gave examples as to why terminating the TPS

5 designations for, inter alia, Nicaragua and El Salvador would be against the United States’ own

6 interest – e.g., returning aliens to these countries would put a strain on the countries’ systems and

7 “possibly spur further irregular migration to the United States.” Degen Decl., Ex. 161 (Memo at

8 2); El Salvador AR at 1 (U.S. Southern Command, making a similar point regarding El Salvador);

9 see also Degen Decl., Ex. 70 (U.S. embassy in El Salvador, recommending extension of TPS

10 designation because it was in the United States’ own interest). In an email dated September 2017,

11 the Department of Defense raised concerns that termination of Sudan’s TPS designation could

12 negatively impact the United States from a foreign policy perspective. See Degen Decl., Ex. 9

13 (email from Department of Defense, expressing concern about draft language in Federal Register

14 Notice regarding Sudan’s TPS designation; adding that “[w]e are entering a delicate phase in our

15 relationship with the Government of Sudan that may set the future trajectory of the relationship for

16 years to come, and maintaining domestic and international partner support through consistent and

17 credible messaging will be critical to achieving defense interests in Sudan”).

18

As noted, the government does not challenge the record evidence compiled by Plaintiffs

19 and amici. That is, as a factual matter, the government does not contest any of the injuries or

20 hardships catalogued above. Instead, the government offers only two legal arguments as to why

21 there is no likelihood of irreparable injury, the balance of hardships does not tip sharply in

22 Plaintiffs’ favor, and/or the public interest weighs against a preliminary injunction. Those legal

23 arguments are: (1) Plaintiffs will suffer an irreparable injury only if they prevail on the merits and

24 Plaintiffs are likely to lose on the merits and (2) Plaintiffs’ injuries “are inherent in the temporary

25 nature of TPS status” – i.e., “[a] TPS beneficiary is . . . always subject to the same uncertainties

26 and concerns that Plaintiffs allege here” because the TPS program is inherently temporary in

27 nature. Opp’n at 26. Neither of these arguments is persuasive.

28

The government’s first argument is problematic because it effectively makes the factor of

11

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1 likelihood of success on the merits dispositive. But likelihood of success on the merits is not the

2 sole consideration at the preliminary injunction phase; rather, irreparable injury and the balance of

3 hardships must also be taken into account. The government’s position cannot be squared with the

4 sliding scale test expressly endorsed by the Ninth Circuit – i.e., that the balance of hardships

5 defines the showing on the merits the plaintiff must make at the preliminary injunction stage.

6 Instead, the government’s argument assumes there is no merit to Plaintiffs’ claims and thus no

7 irreparable injury. But at this stage, the merits cannot be definitively resolved, as evident in this

8 Court’s order denying the motion to dismiss, its assessment of the merits below, and the District

9 Court’s decision in Centro Presente v. United States Dep’t of Homeland Sec., No. 18-10340, 2018

10 U.S. Dist. LEXIS 122509 (D. Mass. July 23, 2018) (in similar TPS case, largely denying

11 government’s motion to dismiss). At bottom, the government’s argument ignores the fact that “[a]

12 preliminary injunction . . . is not a preliminary adjudication on the merits but rather a device for

13 preserving the status quo and preventing the irreparable loss of rights before judgment.” Sierra

14 On-Line, 739 F.2d at 1422.

15

The government’s second argument fares no better. Although the TPS program is

16 temporary in nature, that does not mean that Plaintiffs’ injuries claimed herein are the purely result

17 of the temporary nature of the program as opposed to the government’s actions. For example, if

18 (as Plaintiffs argue) the government were to follow the APA’s procedural requirements as

19 Plaintiffs contend is mandated by law, then, at the very least, TPS beneficiaries would have

20 additional time in the United States to, e.g., work, wrap up their affairs in the United States, and

21 prepare for a return to their countries of origin. Although their stay is temporary in nature, the

22 shortening of their time in the United States and acceleration of their removal if relief is not

23 granted may constitute irreparable injury. There is also the possibility that were DHS to apply

24 properly the requisites of the APA in assessing the TPS designation at issue, and to do so free of

25 any Equal Protection taint, the Secretary might determine the extension(s) of TPS status for one or

26 more of the affected countries is justified.

27

Balanced against Plaintiffs’ injuries if a preliminary injunction were not to issue are the

28 government’s injuries if a preliminary injunction were to issue. As an initial matter, the Court 12

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1 notes that the government cannot argue in good faith that the continued presence of TPS

2 beneficiaries in the country pending a final adjudication of the merits causes any concrete harm to

3 the United States. By and large, TPS beneficiaries have been in the United States for a significant

4 number of years, and there is nothing in the record suggesting their continued presence until the

5 merits of this case can be adjudicated threatens the national interest or, e.g., national security.

6 Rather, as amici have underscored and the government has not disputed, TPS beneficiaries are

7 contributors to state and local communities.5 Moreover, the Court intends to expedite trial and

8 final adjudication on the merits without delay, thereby minimizing any prejudice to the

9 government.

10

The government nevertheless protests that it and the public “share an interest in ensuring

11 that the process established by Congress – under which the Secretary of Homeland Security is

12 vested with unreviewable discretion to carefully weigh the statutory factors governing TPS

13 designations – is followed as Congress intended.” Opp’n at 27. The government also states that

14 “the injunctive relief sought by Plaintiffs would frustrate and displace the DHS Secretary’s

15 substantive judgment as to how to implement the TPS statute.” Opp’n at 27. But these arguments

16 are lacking because they relate to jurisdictional issues upon which this Court has already ruled in

17 denying the government’s motion to dismiss – e.g., the APA claim herein focuses on process only

18 (not the actual substantive determination as to TPS status of each country), and thus judicial

19 review is not barred. While the equal protection claim could impact the ultimate determination as

20 to each country, it would do so not on the Secretary’s factual findings about country condition

21 which would be insulated from judicial review, but because of the influence of an overarching

22 unconstitutional consideration that transcends each individual determination.

23

Furthermore, the government’s argument would apply to any public injunction enjoining

24 the implementation or execution of any legislation or agency/executive policy. The risk of

25 interference with governmental actions inheres in any public injunction, but that does not

26

27

5 At the hearing, the government mentioned for the first time that there would be operational costs involved if the Court were to issue a preliminary injunction in favor of Plaintiffs. However, this

28

argument is waived as it was never presented in the government’s papers. Moreover, there is no record evidence to substantiate any “operational harm.”

13

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1 categorically bar such injunctions. While courts must exercise particular caution in issuing

2 injunctions on matters that concern immigration given Congress and the President’s extensive

3 authority in this arena, it is beyond peradventure that governmental decision, even those that

4 concern on immigration, are not immune from judicial review. See, e.g., Zadvydas v. Davis, 533

5 U.S. 678, 682 (2001) (with respect to “aliens who were admitted to the United States but

6 subsequently ordered removed,” considering “whether the post-removal-period statute authorizes

7 the Attorney General to detain a removable alien indefinitely beyond the removal period or only

8 for a period reasonably necessary to secure the alien’s removal”) (emphasis added); Osorio-

9 Martinez v. AG United States, 893 F.3d 153, 175 (3d Cir. 2018) (“recogniz[ing] that, while the

10 political branches’ plenary power over immigration is ‘by no means . . . subject to judicial review

11 in all contexts,’ it is ‘certain[ly]’ subject to judicial review in some contexts because that power ‘is

12 [not] limitless in all respects’”; thus, distinguishing between aliens seeking initial admission to the

13 country and those who had developed substantial connections with the country).

14

The bottom line is there is nothing in the record establishing the continued presence of TPS

15 beneficiaries in the United States causes harm to the country; in contrast, if the Court were to deny

16 an injunction, Plaintiffs stand to suffer substantial irreparable injury. Any ultimate adjudication on

17 the merits in their favor may come too late if they have been removed prior to final adjudication.

18 Once the TPS beneficiaries are removed, the government’s actions – if deemed unlawful in this

19 lawsuit – could not practically be undone.

20

Accordingly, the Court finds that, without a preliminary injunction, there is a strong

21 likelihood that Plaintiffs would suffer irreparable injury, with concomitant harm to state and local

22 communities as well. In addition, any harm to the government or the public if a preliminary

23 injunction were issued is strongly outweighed by the harm to Plaintiffs and their communities 24 should a preliminary injunction not issue.6 The balance of hardships tips decidedly in Plaintiffs’

25

26

6 To the extent the government argues laches (i.e., Plaintiffs should have brought their case and/or moved for a preliminary injunction earlier), that contention is without merit because Plaintiffs

27

have been diligent. Plaintiffs filed their case in March 2018, which was only a few months after decisions were made on Haiti and El Salvador. While the decisions on Sudan and Nicaragua were

28

made a little earlier, Plaintiffs’ lawsuit was still filed well in advance of the actual termination dates. As for the motion for preliminary injunction, although it was not filed until August 2018,

14

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1 favor.

2 C. Likelihood of Success on the Merits/Serious Questions Going to the Merits

3

The Court now turns to the issue of likelihood of success on the merits. Because Plaintiffs

4 have established that the balance of hardships tips sharply in their favor, they need only show

5 serious questions on the merits have been raised in order to obtain preliminary injunctive relief.

6 Plaintiffs argue that they are likely to succeed, but, at the very least, there are serious questions

7 going to the merits, on both their APA and Equal Protection claims. Each claim is addressed

8 below.

9

1. APA Claim

10

The Court previously laid out the legal standard for Plaintiffs’ APA claim in its order

11 denying the government’s motion to dismiss:

12

Under the APA, agency action may be set aside if it is arbitrary or

capricious. See 5 U.S.C. § 706(2)(A). Under this standard, an

13

agency must “examine the relevant data and articulate a satisfactory

explanation for its action.” Motor Vehicle Mfrs. Assn. of United

14

States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43

(1983). But “a court is not to substitute its judgment for that of the

15

agency” and “should uphold a decision of less than ideal clarity if

the agency’s path may reasonably be discerned.” F.C.C. v. Fox

16

Television Stations, Inc., 556 U.S. 502, 513-14 (2009) (citation and

quotation omitted). 17

The APA constrains an agency’s ability to change its practices or

18

policies without acknowledging the change or providing an

explanation. “[T]he requirement that an agency provide reasoned

19

explanation for its action would ordinarily demand that [an agency]

display awareness that it is changing position.” Id. at 515 (emphasis

20

in original). Thus, agencies “may not . . . depart from a prior policy

sub silentio or simply disregard rules that are still on the books,” and

21

“must show that there are good reasons for the new policy.” Id.

(emphasis in original). An agency need not demonstrate that “the

22

reasons for the new policy are better than the reasons for the old

one; it suffices that the new policy is permissible under the statute,

23

that there are good reasons for it, and that the agency believes it to

be better, which the conscious change of course adequately

24

indicates.” Id. (emphasis in original).

25

This constraint on changes to agency policy is not limited to formal

rules or official policies. It applies to practices implied from the

26

agency conduct. For example, in California Trout v. F.E.R.C., 572

27

28

that is because the parties first decided to litigate the 12(b)(6) issues, which included a jurisdictional issue.

15

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F.3d 1003 (9th Cir. 2009), the plaintiffs challenged the Federal

1

Energy Regulatory Commission’s (FERC) denial of their untimely

attempt to intervene in a proceeding concerning the renewal of an

2

operating license for a dam and power plant. In essence, the

plaintiffs argued that FERC’s decision to grant late intervention

3

requests in three prior adjudications had given rise to an implicit rule

that FERC would always grant late requests in certain

4

circumstances, and that FERC was required to offer a reasoned

explanation before abandoning that practice. Although it ultimately

5

held against the plaintiffs, the Ninth Circuit agreed that the alleged

change in adjudicative practice was subject to the APA’s

6

requirements for reasoned decision-making. It explained that “while

an agency may announce new principles in an adjudicatory

7

proceeding, it may not depart, sub silentio, from its usual rules of

decision to reach a different, unexplained result in a single case.”

8

Id. at 1022 (quotation and citation omitted)). Rather, “if [an agency]

announces and follows – by rule or by settled course of adjudication

9

– a general policy by which its exercise of discretion will be

governed, an irrational departure from that policy (as opposed to an

10

avowed alteration of it) could constitute action that must be

overturned as ‘arbitrary, capricious, [or] an abuse of discretion’

11

within the meaning of the Administrative Procedure Act.’” Id. at

1023 (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 32 (1996))

12

(emphasis added, alteration in original). The court proceeded to

consider the claim on the merits and held that the agency’s prior

13

decisions had not “establish[ed] a broad principle that the

Commission will allow untimely intervention.” Id. at 1024. 14

Thus, California Trout establishes that a shift in agency practice (as

15

opposed to a formal rule or policy) is also reviewable under the

APA. Courts have also looked, in part, to whether an agency’s past

16

practice evinces the existence of an implicit rule or policy. See, e.g.,

Northwest Env. Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668

17

(9th Cir. 2007) (holding that BPA’s decision to stop funding Fish

Passage Center and to divert its responsibilities to two other entities

18

after nearly two decades was arbitrary and capricious where no

reasoned explanation was provided); Am. Wild Horse Pres.

19

Campaign v. Perdue, 873 F.3d 914, 927 (D.C. Cir. 2017) (after

“longstanding practice” of treating certain land as if it were part of

20

the Wild Horse Territory, agency’s unexplained change in practice

was arbitrary-and-capricious, particularly where it “fail[ed] even to

21

acknowledge its past practice . . . let alone to explain its reversal of

course in the 2013 decision”). 22

23 Docket No. 55 (Order at 24-26). The alleged changes in policy – eliminating consideration of

24 intervening conditions not directly related to the originating condition – is substantive and highly

25 consequential; it is at least as significant and impactful as the changes in California Trout,

26 Bonneville Power Admin., and Am Wild Horse Pres. Campaign. Indeed, the significance of the

27 change was recognized by Acting Secretary Duke as “a strong break with past practice.” Degen

28 Decl., Ex. 30. See Centro Presente, 2018 U.S. Dist. LEXIS 122509, at *62 (in a similar TPS case, 16

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1 noting that “even if the alleged new policy is interpretive [rather than legislative, with only the

2 latter requiring the notice-and-comment process], Defendants would be required to provide some

3 rationale acknowledging the change in position to provide the ‘observance of procedure required

4 by law’”). Cf. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125-26 (2016) (noting that,

5 in explaining its changed position, an agency must also be cognizant that longstanding policies

6 may have “engendered serious reliance interests that must be taken into account”).

7

Based on the above legal standard, all that Plaintiffs must show to establish a likelihood of

8 success on the merits – or least serious questions going to the merits – is a change in DHS

9 practices with respect to TPS designations. There is no dispute that DHS never acknowledged any

10 change in practice and thus has not provided any explanation for any such change.

11

Recognizing the impact of the Court’s order on the motion to dismiss, the government

12 implicitly suggests that the Court should reconsider its ruling that the APA’s restrictions apply to

13 agency practices, and not just formal rules or official policies. This is evidenced by the

14 government’s attempt to distinguish the cases cited by the Court in its order on the motion to

15 dismiss. See Opp’n at 12-13 & n.11 (addressing, inter alia, three cases discussed in the Court’s

16 order – namely, California Trout, Bonneville Power, and Wild Horse). The Court rejects the

17 government’s implicit suggestion because (1) the government has not formally moved for

18 reconsideration of the Court’s order on the motion to dismiss and (2) even if it had, it has made no

19 showing that, e.g., the Court manifestly failed “to consider material facts or dispositive legal

20 arguments which were presented to the Court before” it ruled on the motion to dismiss. Civ. L.R.

21 7-9(b)(3).

22

Left with this, the government has come up with a slightly different legal argument:

23

(1) that the purpose behind the APA’s procedural requirements is “to ensure that regulated

24

entities have fair notice of permissible and impermissible regulated conduct and their

25

obligations under the law, as well as the sanctions they may incur if they breach those

26

obligations”;

27

(2) that the APA’s procedural requirements therefore kick in only when an agency

28

“change[s] the rules of the game in a way that bears directly on the rights or interests of

17

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1

regulated entities and other stakeholders”; and

2

(3) that, here, “[u]nlike regulatory administrative actions, the designation of a country for

3

[TPS] and the subsequent termination of that temporary status does not impose

4

regulatory obligations or restrictions on regulated entities, or impose penalties for the

5

violation of those obligations or restrictions.” Opp’n at 11, 13.

6

This argument is not convincing for two reasons. First, although there are cases in which

7 regulated entities have challenged regulating agency policy or practices, there are also cases in

8 which the challenging party is not a regulated entity – including California Trout, Bonneville

9 Power, and Wild Horse. For example, the plaintiffs in California Trout were organizations

10 designed to preserve California’s wild trout populations and to preserve California’s rivers; they

11 argued that an agency’s denial of their ability to intervene in a license renewal proceeding for a

12 dam operator was arbitrary and capricious. See Cal. Trout, 572 F.3d at 1011; see also Bonneville

13 Power, 477 F.3d at 672 (plaintiff-environmental groups challenging an action of the federal

14 agency that operates dams on the Columbia River – i.e., transferring the functions of the Fish

15 Passage Center to other entities); Wild Horse, 873 F.3d at 922 (plaintiff-advocates for the

16 protection of wild horses asserting that the Forest Service’s revision of the Devil’s Garden Wild

17 Horse Territory violated various federal statutes). Second, TPS beneficiaries clearly have a stake

18 in whether their countries of origin maintain their TPS designations. A person cannot become a

19 TPS beneficiary unless he or she is, in the first place, “a national . . . of a foreign state” with a TPS

20 designation. 8 C.F.R. § 244.2(a). Therefore, TPS beneficiaries have a sufficient interest – as

21 much interest as any regulated entity – to challenge the agency actions: here DHS’s decisions to

22 terminate TPS designations.

23

In its opposition, the government contends that, to the extent TPS beneficiaries are

24 regulated, the only rules to which APA procedural requirements attach are the regulations found in

25 8 C.F.R. Part 244, which expressly apply to TPS beneficiaries. See, e.g., 8 C.F.R. § 244.2

26 (providing that “an alien may in the discretion of the director be granted [TPS] if the alien

27 establishes” certain facts); id. § 244.10 (providing, inter alia, that “USCIS will grant temporary

28 treatment benefits to the applicant if the applicant establishes prima facie eligibility for [TPS]” and 18

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1 that, if TPS is denied, the alien may appeal). But the government offers no principled reason why

2 the APA’s procedural requirements attach to these regulations only. Even though these

3 regulations deal with TPS beneficiaries specifically, that does not mean that TPS beneficiaries are

4 not impacted by rules that relate to TPS designations more broadly, including the practices and

5 policies at issue here. As noted above, broader rules on TPS designations do impact TPS

6 beneficiaries since a TPS beneficiary’s status is dependent on a TPS designation.

7

The government protests that, even if Plaintiffs are allowed to challenge the process related

8 to a TPS designation, they have still failed to show that there is any new policy or practice that

9 would trigger the APA’s procedural requirements (i.e., an acknowledgment of the change in policy

10 or practice and an explanation thereof). According to the government, there have simply been

11 “variations in how different Secretaries render their fact-intensive TPS determinations” – “at most

12 a difference in emphasis rather than what could plausibly be considered a ‘new rule.’” Opp’n at

13 11. The Court disagrees. There is a wealth of record evidence to support Plaintiffs’ position that

14 the DHS changed its practices with regard to TPS designations – notably, evidence beyond a

15 comparison of the Federal Register Notices on TPS designations before and after the Trump

16 administration took over which this Court previously undertook. See Docket No. 55 (Order at 27-

17 33) (noting, inter alia, that “[p]rior to October 2017, extension and/or re-designation notices

18 indicate that DHS consistently considered, at the very least, whether intervening events had

19 frustrated or impeded recovery efforts from the originating conditions in Sudan, Haiti, Nicaragua,

20 and El Salvador”; in contrast, “the termination notices for Sudan, Haiti, Nicaragua, and El

21 Salvador [under the Trump administration] are curt and fail to address numerous conditions that

22 justified extensions of TPS status in the most recent notices issued by prior administrations”). The

23 comparative table set forth in this Court’s prior order is relevant here. See Docket No. 55 (Order

24 at 30-32).

25

Since that order, Plaintiffs have developed additional evidence of a change in DHS process

26 and policy. For example, Leon Rodriguez, a former USCIS director, testified that, both before and

27 during his tenure at USCIS, there was no agency policy or practice that precluded “consideration

28 of the full range of current country conditions” in assessing whether a TPS designation should be 19

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1 terminated or extended. Rodriguez Decl. ¶ 17 (emphasis added).

2

Rather, USCIS had broad discretion to consider current conditions

in the subject country. Intervening factors arising after a country’s

3

original TPS designation, such as subsequent natural disasters,

issues of governance, housing, health care, poverty, crime, general

4

security, and other humanitarian considerations were considered

relevant to determining whether a country continued to meet the

5

conditions for continuing TPS designation. This was true regardless

of whether those intervening factors had any connection to the event

6

that formed the basis for the original designation or to the country’s

recovery from that originating event. 7

8 Rodriguez Decl. ¶ 17 (emphasis added). See, e.g., Degen Decl., Exs. 125-26 (Decision Memos,

9 signed by Mr. Rodriguez while USCIS director) (recommending extensions for Nicaragua and El

10 Salvador because of “subsequent environmental disasters”).

11

Evidence that DHS/USCIS under the Trump administration changed the above practice –

12 now disregarding current conditions if they are not the originating condition or directly related to

13 the originating condition – is substantiated by the following:

14

• On April 14, 2017, a career USCIS staff member sent an email to a senior RAIO

15

official regarding Haiti’s TPS designation. The staff member indicated that the

16

decision regarding Haiti “was a political one . . . . Their position was that Haiti was

17

designated on account of the 2010 earthquake, and those conditions have

18

significantly improved. The extraordinary conditions Haiti currently faces are

19

longstanding, intractable problems, not ‘temporary’ as the statute requires.”

20

Degen Reply Decl., Ex. 124 (email) (emphasis added).

21

• On May 22, 2017, there was a press call on Haiti’s TPS designation. During the

22

call, there were reporter questions about, e.g., what “evidence and information that

23

the [DHS] Secretary looked at to make the decision and what went into his

24

determination that conditions were improving.” Degen Decl., Ex. 17 (email, with

25

attachment). “The most common response [from DHS] was that the Secretary was

26

doing exactly what Congress asked us to do via the INA and that is to determine

27

whether conditions that led to Haiti’s initial designation in 2010 remain.” Degen

28

Decl., Ex. 17 (email, with attachment) (emphasis added).

20

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1

• On May 23, 2017, an email was sent from USCIS to OP&S which provided

2

guidance from the DHS Secretary with respect to “drafting response letters

3

regarding TPS for Haiti.” Degen Reply Decl., Ex. 127 (email). “‘From S1 [the

4

Secretary], make case as such: Highlight temporary nature; 2010 Earthquake is the

5

only reason for TPS being granted – Not based on hurricane, or current economic

6

conditions – Not based on cholera epidemic.’ Suggested language, ‘As you know,

7

granting TPS was based solely on 2010 earthquake that ravaged Port au Prince.

8

Primarily localized damage in capital region of Port au Prince. Recovery slow but

9

steady, UN has determined their stabilization force is no longer needed. Decision

10

to rebuild palace shows economic [sic] is recovering.’” Degen Reply Decl., Ex.

11

127 (email) (emphasis added).

12

• On June 6, 2017, then-DHS Secretary Kelly testified before the Senate Homeland

13

Security and Governmental Affairs Committee and was asked whether DHS was

14

“going to look at the situation that started temporary protected status, and ask if that

15

situation has changed.” Degen Decl., Ex. 35 (Tr. at 69). Secretary Kelly

16

responded: “[O]nce someone goes on this status, they – traditionally or historically,

17

they just renew it”; “some of the Central Americans have been on status over 20

18

years, and they were put on status because of a hurricane that happened over 20

19

years ago. [¶] I can tell you that things are going better in Central America, much,

20

much better over the last 20 years, in many ways better. But no one’s every looked

21

at it. And I think that’s something – we have to do that.” Degen Decl., Ex. 35 (Tr.

22

at 70). Secretary Kelly continued: “[A]nd the program is for a specific event. In –

23

in Haiti, it was the earthquake. Yes, Haiti had horrible conditions before the

24

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

25

earthquake was why TPS was – was granted and – and that’s how I have to look at

26

it.” Degen Decl., Ex. 35 (Tr. at 70) (emphasis added).

27

• On November 6, 2017, Acting Secretary Duke wrote an email to White House

28

Chief of Staff Kelly, informing him of her decisions on TPS for Nicaragua and

21

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1

Honduras (terminate and extend for six months, respectively). She noted that her

2

decisions “will send a clear signal that TPS in general is coming to a close” – “a

3

strong break with past practice.” Degen Decl., Ex. 30 (email).

4

• On November 6, 2017, there was a moderated press call regarding Acting Secretary

5

Duke’s decisions on Nicaragua and Honduras’s TPS designations. See Degen

6

Decl., Ex. 31 (transcript). During the call, Mr. Hoffman (the Assistant Secretary of

7

Public Affairs at DHS) was asked the following question: “If you talk to immigrant

8

advocates in the Central American community, they’ll raise the issue of creasing

9

violence in Central America in the northern triangle and while that was not the

10

cause for the initial TPS, they say that that warrants continuing the program. Is that

11

a factor that you are considering?” Degen Decl., Ex. 31 (Tr. at 8). Mr. Hoffman

12

responded: “So, under the Statute, the INA restricts considerations for continuing

13

designation of TPS to the conditions on the ground as impacted by the initial event,

14

whether it’s a civil war or a natural disaster. So, the conditions on the ground and

15

how they were impacted by that event is what we have to consider under the State.

16

I will say that if individuals believe that there are other reasons that they cannot

17

return, there are other avenues available and they can apply for other immigration

18

benefits outside of TPS.” Degen Decl., Ex. 31 (Tr. at 8) (emphasis added).

19

• In January 2018, DHS Secretary Nielsen testified before the Senate Judicial

20

Committee, noting that “[w]e did not talk generally about the country conditions,

21

and I want to be very clear on this. The law does not allow me to look at the

22

country conditions of a country, writ large”; rather, “[i]t requires me to look very

23

specifically as to whether the country conditions originating from the original

24

designation continue to exist” so, for El Salvador, “we didn’t dispute the country

25

conditions are difficult . . . , but unfortunately, the law requires me, if I cannot say

26

that the conditions emanating from the earthquakes still exist, regardless of other

27

systemic conditions, I must terminate TPS.” Degen Decl., Ex. 36 (Tr. at 26)

28

(emphasis added).

22

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1

• In April 2018, DHS Secretary Nielsen testified before the House Appropriations

2

Subcommittee on Homeland Security. She was asked about the termination of

3

Haiti’s TPS designation – more specifically, “[H]ow can we possibly rationalize

4

sending 59,000 people back to those kinds of conditions?” which included

5

“political violence” and “civil unrest” such that the DOS has a “level three travel

6

advisory for Haiti, meaning that people should reconsider any plans to travel there

7

because of the conditions on the ground.” Degen Decl., Ex. 34 (Tr. at 47).

8

Secretary Nielsen responded in part as follows: “[T]he law really restricts my

9

ability to extend TPS. The law says that if the effects of the originating event, so

10

that’s a causation issue, do not continue to exist then the secretary of Homeland

11

Security must terminate.” Degen Decl., Ex. 34 (Tr. at 47) (emphasis added).

12

• The Decision Memos for the countries at issue reference recovery from the

13

originating condition as the basis for termination and, in three out of four instances,

14

explicitly reject consideration of current country conditions not directly related

15

thereto.7 See, e.g.,

16

❖ Degen Decl., Ex. 45 (Haiti Decision Memo at 1, 5) (noting that Haiti was

17

18 7 The Country Conditions Memos, which the government does not dispute were prepared by

19

career DHS/RAIO employees rather than political appointees, did not limit discussion of country conditions to those only directly related to the originating conditions for the TPS designations.

20

See, e.g., Haiti AR at 46-47 (noting that “Haiti has also experienced various setbacks that have impeded its recovery, including a cholera epidemic and the impact of Hurricane Matthew”; that

21

“Haiti ‘continues to be affected by a convergence of humanitarian needs,’ including food insecurity, internal displacement, an influx of refugees from the Dominican Republic, the

22

persistence of cholera, and the lingering impact of various natural disasters”; and that “Haiti’s recovery has also been impacted by a series of other challenges related to housing, healthcare,

23

economic growth, political instability, security, and environmental concerns”); Sudan AR at 29, 37-38 (noting that, “while armed conflict has been the primary driving force behind the

24

humanitarian needs in Sudan, poverty, floods, drought, and environmental degradation have also significantly affected the livelihoods of vulnerable people, particularly children”; also taking note

25

of “an inadequate transportation infrastructure prevents efficient access to markets,” “significant economic instability after the secession of South Sudan in 2011,” and a “cholera outbreak” that

26

began in 2016); Nicaragua AR at 17, 22 (taking note of environmental disasters occurring after Hurricane Mitch, as well as violence and conflict in the country); El Salvador AR at 52 (taking

27

note of “subsequent natural disasters and environmental concerns, including: hurricanes and tropical storms; heavy rains and flooding; volcanic and seismic activity; a coffee rust epidemic;

28

and prolonged and severe drought; and an increase in various mosquito-borne diseases”; also taking note of “widespread gang activity and one of the highest homicide rates on earth”).

23

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1

designated for TPS in 2010 “due to extraordinary and temporary conditions

2

resulting from the earthquake” that struck the country on January 12, 2010,

3

and ultimately recommending termination of TPS designation because

4

“Haiti has made significant progress in recovering from the 2010

5

earthquake and no longer continues to experience the extraordinary and

6

temporary conditions that formed the basis of Haiti’s designation and

7

redesignation of TPS”; “[a]ny current issues in Haiti are unrelated to the

8

2010 earthquake”)8;

9

❖ Degen Decl., Ex. 87 (Sudan Decision Memo at 2, 6) (noting that Sudan

10

was designated for TPS in 1997 “due to ongoing armed conflict and

11

extraordinary and temporary conditions in Sudan” and ultimately

12

recommending termination of TPS designation because, inter alia, “[t]here

13

were unilateral ceasefires in October 2016 which led to a reduction in

14

violence and rhetoric from the conflict parties” and, although “[t]here is

15

ongoing conflict in some regions, [it is] not the entire country”);

16

❖ Degen Decl., Ex. 44 (Nicaragua Decision Memo at 1, 4) (noting that

17

Nicaragua was designated for TPS in 1999 “because of the devastation

18

caused by Hurricane Mitch in October of 1998” and ultimately

19

recommending termination of TPS designation because “the country

20

suffers few remaining residual effects of Hurricane Mitch, which formed

21

the basis of Nicaragua’s designation for TPS in 1999”; “current challenges

22

cannot be directly tied to damage from the storm”);

23

❖ Degen Decl., Ex. 110 (El Salvador Decision Memo at 1, 5) (noting that El

24

Salvador was designated for TPS in 2001 “because of the devastation

25

26 8 See also Degen Decl., Ex. 52 (Haiti Decision Memo at 4) (in memo dated April 10, 2017, stating

27

that “it is not in the national interest to extend a TPS designation when the specific extraordinary and temporary conditions giving rise to a TPS designation no longer exist[;] in addition, the law

28

only permits an extension of Haiti’s TPS designation if the extraordinary and temporary conditions that prompted designation continue to exist”).

24

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1

caused by major earthquakes in January and February of that year” and

2

ultimately recommending termination of TPS designation because “El

3

Salvador suffers few remaining residual effects related to the major

4

earthquakes that led to its designation for TPS in 2001”; “current

5

challenges cannot be directly tied to damage from the earthquakes”).

6

A particularly telling communication is an internal email exchange within DHS/OP&S,

7 dated October 13, 2017. Ms. Kovarik (Chief of OP&S) stated that, with respect to the draft

8 Decision Memos for what appear to be Honduras, Nicaragua, and El Salvador, there was a

9 “problem” in that the memos “read[] as though we’d recommend an extension b/c we talk so much

10 about how bad it is, but there’s not enough in there about positive steps that have been taken since

11 it’s designation.” Degen Decl., Ex. 2 (email). A responsive email from a career employee stated:

12 “We can comb through the country conditions to try to see what else there might be, but the basic

13 problem is that it IS bad there [with respect to] all of the standard metrics. Our strongest

14 argument for termination, we thought, is just that it is not bad in a way clearly linked to the initial

15 disasters prompting the designations. We can work with RU to try to get more, and/or comb

16 through the country conditions we have again looking for positive gems, but the conditions are

17 what they are.” Degen Decl., Ex. 2 (email) (emphasis added).

18

The government makes much of the fact that Acting Secretary Duke – who made the TPS

19 decisions on Haiti, Sudan, and Nicaragua – was given information about current conditions (and

20 from many different sources), see Opp’n at 4-5; that Acting Secretary Duke was required to

21 consider current conditions per the TPS statute (e.g., in the case of an environmental disaster, to

22 assess whether the country of origin could adequately handle the return of its nationals); and that

23 Acting Secretary Duke did give current conditions weight as reflected by her November 2017

24 decision not to terminate Honduras’s TPS designation and extend it for six months.

25

However, the fact that Acting Secretary Duke received information regarding current

26 conditions, does not prove she ultimately considered and relied on those conditions in deciding to

27 terminate TPS status. The substantial record recited above strongly suggests she did not. As to

28 the government’s new claim that the Acting Secretary (or Secretary) was now required under TPS 25

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1 statute to consider country conditions other than the triggering condition, that assertion is belied

2 by the record evidence above. It is also not supported by any reference by the Acting Secretary or

3 Secretary to any document acknowledging any such requirement.

4

As to Honduras, the Court notes that (1) Honduras was given only a brief extension of six

5 months; (2) Honduras’s TPS designation was eventually terminated; (3) whether a foreign country

6 can adequately handle the return of its nationals is – at least arguably – a secondary issue, separate

7 and distinct from whether the originating condition or conditions directly related thereto persist;

8 (4) Acting Secretary Duke’s November 2017 decision did not disavow the general approach that a

9 TPS designation must ultimately be terminated if the existence of the originating condition or

10 conditions directly related do not exist; and (5) Acting Secretary Duke seemed to endorse that

11 approach, stating, in an email dated November 6, 2017, that her actions on Honduras were “a

12 strong break with past practice . . . . By not affirmatively extending, I’m stating that I’m not

13 satisfied that the country conditions remain – but not yet sure how to best end TPS for this

14 country.” Degen Decl., Ex. 30 (email). Finally, regardless of what Acting Secretary Duke did

15 with respect to Honduras, the fact remains that she did not grant any extension for Haiti, Sudan,

16 and Nicaragua and that, as reflected in the Federal Register Notices related to the termination of

17 those countries’ TPS designations, termination largely turned on whether the originating condition

18 or conditions directly related thereto persisted.

19

Accordingly, the Court concludes that not only have Plaintiffs have shown serious

20 questions going to the merits, they have demonstrated a likelihood of success on the merits for

21 their APA claim. DHS made a deliberate choice to base the TPS decision solely on whether the

22 originating conditions or conditions directly related thereto persisted, regardless of other current

23 conditions no matter how bad, and that this was a clear departure from prior administration 24 practice.9 This departure was a substantial and consequential change in practice – indeed, as the

25

26 9 In their briefs, Plaintiffs also describe other changes in the TPS decision-making process. These

27

changes are more relevant to the Equal Protection claim and therefore are addressed there. However, the Court acknowledges that the changes in the TPS decision-making process do have

28

some probative value for the APA claim as well – i.e., the changes underscore that there was a conscious choice by DHS under the Trump administration to take a different approach.

26

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1 government now argues, it could violate the TPS statute itself. The government has offered no

2 explanation or justification for this change. The evidence submitted by Plaintiffs (discussed above

3 and below) suggests this change may have been made in order to implement and justify a pre-

4 ordained result.

5

In light of the balance of hardships, which, as discussed above, tips sharply in Plaintiffs’

6 favor, Plaintiffs are entitled to a preliminary injunction based on their showing on the merits of the

7 APA claim.

8

2. Equal Protection Claim

9

Regarding the Equal Protection claim, the Court finds that there are, at the very least,

10 serious questions going to the merits, thus justifying the issuance of a preliminary injunction on an

11 independent ground.

12

a. Arlington Heights

13

In its order denying the government’s motion to dismiss, the Court held that Village of

14 Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977) – and not

15 Trump v. Hawaii, 138 S. Ct. 2392 (2018) – provides the governing legal standard. See Docket No.

16 55 (Order at 44-45). Under Arlington Heights, “[p]roof of a racially discriminatory intent or

17 purpose of required to show a violation of the Equal Protection Clause,” and, “[w]hen there is

18 proof that a discriminatory purpose has been a motivating factor in the [government’s] decision, . .

19 . judicial deference [to that decision] is no longer justified.” Arlington Heights, 429 U.S. at 265-

20 66. Arlington Heights sets forth various factors to consider in discerning whether the decision at

21 issue was based on an impermissible purpose.

22

Here, Plaintiffs have provided sufficient evidence to raise serious questions as to whether a

23 discriminatory purpose was a motivating factor in the decisions to terminate the TPS designations.

24 In particular, Plaintiffs have provided evidence indicating that (1) the DHS Acting Secretary or

25 Secretary was influenced by President Trump and/or the White House in her TPS decision-making

26 and (2) President Trump has expressed animus against non-white, non-European immigrants. As

27 this Court noted, even if the DHS Secretary or Acting Secretary did not “personally harbor animus

28 . . . , their actions may violate the equal protection guarantee if President Trump’s alleged animus 27

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1 influenced or manipulated their decisionmaking process.” Docket No. 55 (Order at 43).

2

As to the first issue, Plaintiffs have pointed to several pieces of evidence suggesting that

3 the White House was putting pressure on DHS to end TPS. For example, there is evidence that

4 “the White House was keenly interested in the [DHS] Secretary’s decisions related to TPS,”

5 Degen Decl., Ex. 12 (Nealon Depo. at 89-90), and that Stephen Miller, “an important [senior]

6 adviser to the President and the White House,” “frequently” reached out to Chad Wolf, the DHS

7 Chief of Staff, about TPS, Degen Decl., Ex. 85 (Nealon Depo. at 288, 297, 300), as well as Gene

8 Hamilton, the Senior Counselor to the DHS Secretary. On more than one occasion, Mr. Hamilton

9 stated that “Mr. Miller favored the termination of TPS.” Degen Decl., Ex. 85 (Nealon Depo. at

10 292).

11

As another example, shortly before Acting Secretary Duke was to make a decision on the

12 TPS designations for Nicaragua, Honduras, and El Salvador, a White House Principals Meeting

13 was held to discuss the TPS designations.10 It appears that attendees included high-level White

14 House officials such as Chief of Staff Kelly, then-Principal Deputy Chief of Staff Nielsen, and

15 Press Secretary Sanders. A memo distributed by the White House National Security Council in

16 advance of the meeting recommended that the TPS designations be terminated and that Congress

17 be engaged “to pass a comprehensive immigration reform to include a merit based entry system.”

18 Degen Decl., Ex. 14 (NSC Memo at 2). The National Security Council recommendation to

19 terminate TPS status was given to Acting Secretary Duke. See Degen Decl., Ex. 29 (Memo at 2).

20 In addition, White House Chief of Staff Kelly subsequently had a conversation with Acting

21 Secretary Duke about the TPS designations for the Central American countries.11 See Degen

22

23

10 A Principals Meeting is “a meeting of people at the cabinet level to coordinate policy.” Docket No. 117-4 (Martin Decl., Ex. 4) (Nealon Depo. at 340).

24 11 The Washington Post reported that White House Chief of Staff Kelly had put pressure on

25

Acting Secretary Duke to terminate Honduras’s TPS designation. See Degen Decl., Ex. 28 (Washington Post article, dated November 9, 2017). The Court acknowledges, however, that, in

26

an email that was eventually passed on to Acting Secretary Duke, White House Chief of Staff Kelly maintained that he merely told Acting Secretary Duke that the decision was hers and that he

27

would recommend a limited extension no longer than twelve months for the Central American countries. See Martin Decl., Ex. 3 (email) (White House Chief of Staff maintaining that he simply

28

conveyed that his “view was to grant limited (no more than 12 months or so [versus] the maximum 18 months allowed by the TPS program) to the Central American TPS recipients who

28

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1 Decl., Ex. 30 (email).

2

That the White House did, in fact, have influence on the TPS decisions is supported by the

3 fact that, soon after the above, Acting Secretary Duke terminated the TPS designation for

4 Nicaragua. Also, Acting Secretary Duke essentially indicated to White House Chief of Staff Kelly

5 that Honduras’s TPS designation would eventually be terminated as well, although she was not, at

6 that point, formally terminating that country’s status. See Degen Decl., Ex. 30 (email) (stating

7 that, “[b]y not affirmatively extending [Honduras’s TPS designation], I’m stating that I’m not

8 satisfied that the country conditions remain – but not yet sure how to best end TPS for this

9 country”; also stating that “[t]hese decisions along with the public statements will send a clear

10 signal that TPS in general is coming to a close”) (emphasis added).

11

Notably, Acting Secretary Duke’s writings suggest that she, in her role at DHS, was

12 largely carrying out or conforming with a predetermined presidential agenda to end TPS. For

13 example, in a November 2017 email to White House Chief of Staff Kelly, in which she reported

14 on her decision to terminate for Nicaragua and temporarily extend for Honduras, Acting Secretary

15 Duke stated that “[t]hese decisions along with the public statements will send a clear signal that

16 TPS in general is coming to a close. I believe it is consistent with the President’s position on

17 immigration . . . .” Degen Decl., Ex. 30 (email) (emphasis added). She added: “[T]his decision is

18 really just a difference in strategy to get to the President’s objectives.” Degen Decl., Ex. 30

19 (email) (emphasis added). In a subsequent email to White House Chief of Staff Kelly, Acting

20 Secretary Duke noted that Tom Bossert of the White House National Security Council had

21 “informed me of a strategy I was not previously aware of” and she had now “incorporated this 22 new information into my final decision.”12 Degen Decl., Ex. 30 (email). In a draft memo

23 regarding her TPS decisions, Acting Secretary Duke was equally direct: “The TPS program must

24 end for these countries soon . . . . [¶] This conclusion is the result of an America first view of the

25

26

have been here for 20 years,” and that he simply told Acting Secretary Duke to make a decision – and “[t]hat the decision on TPS was entirely hers”).

27 12 Cf. Degen Reply Decl., Ex. 135 (email) (Acting Secretary Duke stating that there was an

28

“internal controversy . . . at least in part because there was a WH strategy that DHS, and me as the decision maker, wasn’t informed of”).

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1 TPS decision.” Degen Decl., Ex. 29 Memo at 1 (emphasis added).

2

Because there is evidence that President Trump and/or the White House influenced the

3 DHS on the TPS decisions to at least raise serious question on the merits, the remaining issue is

4 whether there is evidence that President Trump harbors an animus against non-white, non-

5 European aliens which influenced his (and thereby the Secretary’s) decision to end the TPS

6 designation. As Plaintiffs have catalogued, there is evidence of such as reflected by statements

7 made by President Trump before, during, and after the TPS decision-making process13:

8

• In June 2015, Mr. Trump announced that he was running for President and

9

delivered remarks characterizing Mexican immigrants as drug dealers or users,

10

criminals, and rapists. See Degen Decl., Ex. 92 (Washington Post article).

11

• “In December 2015, [Mr.] Trump called for ‘a total and complete shutdown of

12

Muslims entering the United States.’” Degen Decl., Ex. 95 (New York Times

13

article).

14

• In June 2017, President Trump stated that “15,000 recent immigrants from Haiti

15

‘all have AIDS’ and that 40,000 Nigerians, once seeing the United States, would

16

never ‘go back to their huts’ in Africa.” Degen Decl., Ex. 95 (New York Times

17

article).

18

• On January 11, 2018, during a meeting with lawmakers where immigrants from

19

Haiti, El Salvador, and African countries were discussed, including with respect to

20

TPS designations that had been terminated, President Trump asked: “‘Why are we

21

having all these people from shithole countries come here?’ [He] then suggested

22

23

13 The government has objected to “hearsay excerpts from newspaper articles and similar sources.” Opp’n at 10. However, the objection lacks merit for several reasons.

24

First, Plaintiffs cited the statements in their complaint, but the government did not clearly

25

deny them in the answer. See, e.g., Ans. ¶ 66 (“Defendants aver that any such statements speak for themselves.”). Second, it is not apparent that President Trump’s statements are even hearsay in

26

the first place. See Fed. R. Evid. 801(d)(2) (providing that an opposing party’s statement, when offered against the opposing party, is not hearsay). Finally, as Plaintiffs point out, the Ninth

27

Circuit has held that “[a] district court may . . . consider hearsay in deciding whether to issue a preliminary injunction” – in fact, “‘may give even inadmissible evidence some weight, when to do

28

so serves the purpose of preventing irreparable harm before trial.’” Johnson v. Couturier, 572 F.3d 1067, 1083 (9th Cir. 2009).

30

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1

that the United States should instead bring more people from countries such as

2

Norway,” which has a predominantly white population. Degen Decl., Ex. 96

3

(Washington Post article). He also told lawmakers that immigrants from Haiti

4

“must be left out of any deal.” Degen Decl., Ex. 96 (Washington Post article).

5

• In February 2018, President Trump gave a speech at the annual Conservative

6

Political Action Conference where he used MS-13 – a gang with many members

7

having ties to Mexico and Central America – to disparage immigrants, indicating

8

that that they are criminals and comparing them to snakes. See Degen Decl., Ex.

9

93 (article from www.vox.com); see also Degen Decl., Ex. 98 (New York Times

10

article) (stating that President Trump characterized undocumented immigrants as

11

“‘animals’”).

12

• In July 2018, President Trump told European leaders that “they ‘better watch

13

themselves’ because a wave of immigration of ‘changing the culture’ of their

14

countries,’” which he characterized as being “‘a very negative thing for Europe.’”

15

Degen Decl., Ex. 99 (Washington Post article).

16 See also Centro Presente, 2018 U.S. Dist. LEXIS 122509, at *15-19 (cataloguing evidence of

17 possible animus, including but not limited to those identified above).

18

The Court also notes that not only is there direct evidence of animus, but there is also

19 circumstantial evidence of race being a motivating factor. Under Arlington Heights,

20 circumstantial evidence of a discriminatory intent can be inferred from, e.g., “[t]he impact of the

21 official action – whether it bears more heavily on one race than another”; “[t]he historical

22 background of the decision” and “[t]he specific sequence of events leading up to the challenged

23 decision”; and “[d]epartures from the normal procedural sequence.” Arlington Heights, 429 U.S.

24 at 266-67 (internal quotation marks omitted). In the instant case, consideration of these factors

25 weighs in favor of Plaintiffs.

26

First, the impact of the TPS terminations clearly bears more heavily on non-white, non-

27 European individuals; indeed, it affects those populations exclusively.

28

Also, the sequence of events leading up to the challenged decisions are irregular and

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1 suggestive of a pre-determined outcome not based on an objective assessment. The record

2 evidence indicates that, after receiving Decision Memos from career DHS employees, higher-level

3 DHS employees – i.e., the political appointees – were “repackaging” the memos in order to get to

4 the President/White House’s desired result of terminating TPS. This was especially apparent with

5 respect to the process on Sudan.

6

• On August 17, 2017, USCIS submitted a Decision Memo on Sudan to the Acting

7

DHS Secretary. (The memo was signed by James McCament, the USCIS Deputy

8

Director and then-Acting USCIS Director.) In the memo, USCIS noted that the

9

State Department had submitted a draft package to the Secretary of State and that

10

the draft package “assesses that the statutory conditions supporting Sudan’s TPS

11

designation continue to be met and recommends an 18-month extension of Sudan’s

12

designation for TPS.” Degen Decl., Ex. 40 (Decision Memo at 1). USCIS further

13

indicated that, per its own country conditions report, “the ongoing armed conflict

14

and temporary conditions that supported Sudan’s designation for TPS persist.”

15

Degen Decl., Ex. 40 (Decision Memo at 1). USCIS concluded the memo by listing

16

the Acting Secretary’s options – i.e., extend, redesignate, or terminate. Although

17

USCIS did not formally make a recommendation at that time, it did note, under the

18

extend option, that “[t]he review of conditions in Sudan indicates that it remains

19

unsafe for individuals to return to Sudan and that the statutory requirements to

20

designate a country for TPS under Immigration and Nationalit Act § 244(b)(1)(A)

21

(ongoing armed conflict) and under § 244(b)(1)(C) (extraordinary and temporary

22

conditions) continue to be met.” Degen Decl., Ex. 40 (Decision Memo at 4)

23

(emphasis added). Similarly, under the terminate option, USCIS stated: “Because

24

the conditions supporting Sudan’s TPS designation persist, termination does not

25

appear to be warranted.” Degen Decl., Ex. 40 (Decision Memo at 5) (emphasis

26

added).

27

• A week and a half later, on August 28, 2017, USCIS submitted a second Decision

28

Memo on Sudan to the Acting DHS Secretary. In the memo, USCIS reiterated

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1

largely reiterated all of the above – but in spite of such, USCIS now made a formal

2

recommendation that Sudan’s TPS designation be terminated. Degen Decl., Ex.

3

41 (Decision Memo at 5).

4

• The very next day, August 29, 2018, Frank Cissna, who would later become the

5

USCIS Director, sent an email noting that the Decision Memo “seems a bit

6

confused” – i.e., the extend and terminate options indicated that TPS should be

7

extended but the recommendation came to the opposite conclusion. Degen Decl.,

8

Ex. 1 (email). Mr. Cissna added: “The memo reads like one person who strongly

9

supports extending TPS for Sudan wrote everything up to the recommendation

10

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

11

clubbed him over the head, pushed his senseless body out of the way, and finished

12

the memo. Am I missing something?” Degen Decl., Ex. 1 (email) (emphasis

13

added).

14

• The same day, Kathy Kovarik, the Chief of OP&S (a political appointee),

15

informed Mr. Hamilton, the Senior Counselor to the DHS Secretary (and another

16

political appointee), that she was to blame: “The options memo went up, and

17

because of our rush to add recommendations, I didn’t catch the contradiction.

18

How would like you us to proceed?” Degen Decl., Ex. 48 (email). Mr.

19

Hamilton’s response was: “We need to repackage.” Degen Decl., Ex. 48 (email).

20

• On September 1, 2017, the Decision Memo was “repackaged” and included a

21

recommendation to extend Sudan’s TPS designation for six months. See Degen

22

Decl., Ex. 27 (email and attachment). In the memo, USCIS noted that the Deputy

23

Secretary of State recommended a six-month extension because “the statutory

24

conditions supporting Sudan’s TPS designation continue to be met.” Degen Decl.,

25

Ex. 27 (Decision Memo at 1). USCIS further noted that, per its own country

26

conditions report, “the ongoing armed conflict and extraordinary and temporary

27

conditions that supported Sudan’s designation for TPS persist.” Degen Decl., Ex.

28

27 (Decision Memo at 2). Finally, USCIS made its own recommendation that a

33

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1

six-month extension be given because, inter alia, the Deputy Secretary of State

2

had recommended such and because USCIS had “assesse[d] the conditions related

3

to the most recent designation continue to be met,” that is, “there is an ongoing

4

armed conflict limited to certain parts of Sudan and extraordinary and temporary

5

conditions continue to exist preventing nationals from returning in safety.” Degen

6

Decl., Ex. 27 (Decision Memo at 5). That recommendation, however, was

7

apparently not satisfactory to Mr. Hamilton, the Senior Counselor to the DHS

8

Acting Secretary. Thus, following a discussion with Mr. Hamilton, Mr.

9

McCament, the Acting USCIS Director, prepared a new Decision Memo “to

10

clearly support the AS1 decision to terminate with a delayed effective date of 12

11

months.” Degen Decl., Ex. 27 (email).

12

• In the new Decision Memo, USCIS acknowledged the recommendation of the

13

Deputy Secretary of State (a six-month extension) but now stated that its review of

14

country conditions indicated that there was “emerging progress and improvement

15

in certain areas while noted challenges remain.” Degen Decl., Ex. 87 (Decision

16

Memo at 2). Ultimately, USCIS recommended that Sudan’s TPS designation be

17

terminated with a delayed effective date by twelve months. Included as support

18

for the recommendation was the statement that “[t]here is ongoing conflict in some

19

regions, but not the entire country.” Degen Decl., Ex. 87 (Decision Memo at 6).

20

USCIS did not explain, however, whether it made an assessment of any kind as to

21

whether some TPS beneficiaries would likely be returned to those unsafe areas

22

where conflict persisted.

23

• Subsequently, DHS took steps to prepare the Federal Register Notice for the

24

termination. Following an edit of the notice by Mr. Hamilton (the Senior

25

Counselor to the Acting DHS Secretary), a DHS career employee noted that,

26

“based on what we’ve seen to date, [the] State [Department] would likely object to

27

the removal of human rights violations – pared down as the language already was

28

– that was in there. For our part, we’d just say that this could be read as taking

34

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1

another step toward providing an incomplete and lopsided country conditions

2

presentation to support termination, which may increase the likelihood of criticism

3

from external stakeholders to that effect.” Degen Decl., Ex. 5 (email).

4

• The DHS career employee rightly noted that the State Department would have

5

concerns about the Federal Register Notice. The State Department stated that it

6

believed there were “some significant mischaracterizations that are at odds with

7

the Department’s understanding of circumstances on the ground.” Degen Decl.,

8

Ex. 7 (email); see also Degen Decl., Ex. 8 (email) (State Department again

9

expressing concern about mischaracterizations and downplaying of the actual

10

situation). Mr. Hamilton responded that, while DHS would work to accommodate

11

some of the State Department’s concerns, it would not do all, deeming many of the

12

concerns as overblown and irrelevant to the legal determination for TPS

13

designation. See Degen Decl., Ex. 9 (email).

14

The TPS decision-making for the other countries underwent a similar process. For

15 example, for the decisions on Honduras, Nicaragua, and El Salvador, Ms. Kovarik, the Chief of

16 OP&S, complained that the Decision Memos “read[] as though we’d recommend an extension b/c

17 we talk so much about how bad it is, but there’s not enough in there about positive steps that have

18 been taken since its designation.” Degen Decl., Ex. 2 (email). A career DHS employee

19 responded:

20

We can comb through the country conditions to try to see what else

there might be, but the basis problem is that it IS bad wrt [with

21

respect to] all of the standard metrics. Our strongest argument for

termination, we thought, is just that it is not bad in a way clearly

22

linked to the initial disasters prompting the designations. We can

work with RU to try to get more, and/or comb through the country

23

conditions we have again looking for positive gems, but the

conditions are what they are 24

25 Degen Decl., Ex. 2 (email). After the career employee “cleaned up [the Central American] TPS

26 decisions memos,” Degen Decl., Ex. 4 (email), Ms. Kovarik was still not satisfied with the

27 repackaging, noting, e.g., that “disasters” should be changed to “challenges.” Degen Decl., Ex. 4

28 (email). 35

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1

For Haiti, the same career employee submitted a Decision Memo “written so that it could

2 support either extension or termination, but left the recommendation blank, pending further

3 discussion.” Degen Decl., Ex. 3 (email). Robert Law, a Senior Adviser to Ms. Kovarik, still

4 responded:

5

The draft is overwhelming[ly] weighted for extension which I do not

think is the conclusion we are looking for. The memo seems to

6

dismiss or downlay the positive developments that should suggest

reauthorization is inappropriate. The memo also makes no mention

7

of the substantial amount of foreign aid the U.S. and charities have

invested in Haiti since the earthquake[,] another relevant factor to

8

indicate that Haiti no longer meets the definition of TPS.

9 Degen Decl., Ex. 3 (email). Mr. Law then made edits to the Decision Memo: “I made the

10 document fully support termination and provided comment boxes where additional data should be

11 provided to back up this decision.” Degen Decl., Ex. 3.

12

And in addition to the above “repackaging,” Acting Secretary Duke expressly

13 acknowledged that the terminations of TPS designations were “a strong break with past practice,”

14 Degen Decl., Ex. 30 (email) – designed to fit the President’s objectives on immigration which

15 would put “America first.” See Degen Decl., Ex. 30 (email) (“These decisions along with the

16 public statements will send a clear signal that TPS in general is coming to a close. I believe it is

17 consistent with the President’s position on immigration . . . .”) (emphasis added); Degen Decl.,

18 Ex. 29 (memo) (“The TPS program must end for these countries soon . . . . [¶] This conclusion is

19 the result of an America first view of the TPS decision.”) (emphasis added). This begs the

20 question what “America first” means. Plaintiffs suggest this is a code word for removal of

21 immigrants who are non-white and/or non-European. When the Court asked the government’s

22 counsel at the hearing what “an America first view of the TPS decision” meant, counsel was

23 unable to provide a clear and direct response. See Docket No. 127 (Tr. at 69-70) (defense counsel

24 arguing that Acting Secretary Duke was referring to “migration and . . . drug enforcement issues

25 and a general kind of perspective” and that she was “grappling with the decision” on what to do

26 about TPS).

27

Finally, as discussed above in the context of the APA claim, there were departures from

28 the normal procedural sequence during the TPS decision-making process; that is, instead of 36

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1 considering all current country conditions as had been done in previous administrations, the DHS

2 political appointees in the current administration made TPS decisions turn on whether the

3 originating condition or conditions directly related thereto continued to exist, disregarding all

4 other current conditions no matter how bad. Moreover, at the apparent behest of then-DHS

5 Secretary Kelly, there was an effort to gather negative information about Haitian TPS beneficiaries

6 prior to the decision on Haiti’s TP designation – in particular, whether Haitian TPS beneficiaries

7 had been convicted of crimes or were on public or private relief. See Degen Decl., Ex. 84 (email).

8 There is no indication that these factors had previously been considered by DHS in making TPS

9 decisions14; indeed, the email indicated that the request for the information should be kept quiet.

10 See Degen Decl., Ex. 84 (email) (“Please keep the prep for this briefing limited to those on this

11 email. If you need a specific data set and need to ask someone to pull it, please do not indicate

12 what it is for. I don’t want this to turn into a big thing were people start prodding and things start

13 leaking out.”). The information sought by the Secretary coincides with racial stereotypes – i.e.,

14 that non-whites commit crimes and are on the public dole.

15

Accordingly, the Court holds that, at the very least, the evidence submitted by Plaintiffs

16 supports serious questions on the merits on the Equal Protection Claim. Combined with a balance

17 of hardships that tips sharply in Plaintiffs’ favor, a preliminary injunction based on the Equal

18 Protection claim (and not just the APA claim) is also warranted.

19

b. Trump v. Hawaii

20

The government protests that the above analysis is incorrect because Arlington Heights

21 does not provide the proper legal standard and that the Equal Protection claim should be evaluated

22 based on the deferential standard articulated in Trump v. Hawaii, 138 S. Ct. at 2392. But this is

23 essentially a request for reconsideration of the Court’s prior order denying the government’s

24

25

14 Although the government argues that such information is relevant to the “national interest of the United States,” 8 U.S.C. § 1254a(b), this appears to be a post-hoc justification. Cf. Degen Reply

26

Decl., Ex. 129 (email exchange, dated May 20, 2017) (in response to email recommending that, as a talking point, the agency deny having used crime and public benefits data to make the TPS

27

decision on Haiti, acknowledging that “[w]e did try to dig up some data on crime and public benefits” but proposing that “there is a fair argument that that sort of data could be considered

28

under the [TPS] statute . . . given the national interest component”). No document presented to this Court substantiates this was the purpose of the request.

37

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1 motion to dismiss. The Court shall not reconsider its earlier ruling because (1) the government has

2 not formally moved to reconsider and (2) even if it had, it has not shown that the Court manifestly

3 failed “to consider material facts or dispositive legal arguments which were presented to the Court

4 before” it ruled on the motion to dismiss. Civ. L.R. 7-9(b)(3).

5

However, even if the Court were to reconsider and take into account the government’s new

6 argument, the government would still fare no better. The Court previously held that a deferential

7 standard was applied in Trump v. Hawaii because the case involved “the entry of aliens from

8 outside the United States, express national security concerns[,] and active involvement of foreign

9 policy.” Docket No. 55 (Order at 50). The instant case was distinguishable from Trump v. Hawaii

10 because (1) there was no indication that national security or foreign policy was a reason to

11 terminate TPS designations15; (2) unlike the aliens in Trump v. Hawaii, the aliens here (i.e., the

12 TPS beneficiaries) are already in the United States and “aliens within the United States have

13 greater constitutional protections than those outside who are seeking admission for the first time”;

14 and (3) “the executive order in Trump [v. Hawaii] was issued pursuant to a very broad grant of

15 statutory discretion” whereas “Congress has not given the Secretary carte blanche to terminate

16 TPS for any reason whatsoever.” Docket No. 55 (Order at 52-53); see also Docket No. 55 (Order

17 at 53) (stating that Trump v. Hawaii “did not address the standard of review to be applied under

18 the equal protection doctrine when steps are taken to withdraw an immigration status or benefit

19 from aliens lawfully present and admitted into the United States for reasons unrelated to national

20 security or foreign affairs”) (emphasis in original). In another TPS case pending in the District of

21 Massachusetts, the district court made a similar analysis of Trump v. Hawaii. See Centro

22

23

15 The Court notes that the record evidence presented in conjunction with the preliminary injunction motion continues to reflect that national security was not tendered as a reason to

24

terminate TPS designation. As for foreign policy, although the State Department provided DHS with its evaluation of country of conditions and recommendations, and although Acting DHS

25

Secretary did appear to consider foreign policy for at least the Central American TPS designations, ultimately, the decisions to terminate (or, for Honduras, temporarily extend but with the indication

26

that termination would be forthcoming) were ultimately driven by the question of whether the originating condition or conditions directly related thereto continued to exist. Notably, the foreign

27

policy considerations appeared to warrant extension, not termination, of TPS status of the affected countries. In short, the termination decisions were not justified by foreign policy considerations.

28

In contrast to the travel ban at issue in Trump v. Hawaii, the TPS statute was enacted primarily for humanitarian reasons, not as a tool for foreign policy.

38

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1 Presente, 2018 U.S. Dist. LEXIS 122509, at *44 (stating that the Supreme Court’s “decision to

2 apply rational basis review [in Trump v. Hawaii] was based on two considerations not at issue

3 here: first, the limited due process rights afforded to foreign nationals seeking entry into the

4 United States and the particular deference accorded to the executive in making national security

5 determinations”). Applying Arlington Heights, the Massachusetts court found that there were

6 sufficient allegations in the complaint to withstand the government’s motion to dismiss. See id. at

7 *56 (“find[ing] that the combination of a disparate impact on particular racial groups, statements

8 of animus by people plausibly alleged to be involved in the decision-making process, and an

9 allegedly unreasoned shift in policy sufficient to allege plausibly that a discriminatory purpose

10 was a motivating factor in a decision”).

11

The government argues that the Court’s analysis above is inconsistent with cases cited in

12 Trump v. Hawaii, see Opp’n at 19-20 (arguing that Trump v. Hawaii “is not limited to executive

13 actions rooted in national security concerns or to actions restricting entry of foreign nationals”).

14 The Court does not agree.

15

Kleindienst v. Mandel, 408 U.S. 753 (1972), is a case that involved admission of an alien

16 into the United States, and thus is distinguishable from the instant case where the TPS

17 beneficiaries are already lawfully present and admitted into the country. In fact, the alien in

18 Mandel was actually ineligible for a visa under the Immigration and Nationality Act (because of

19 his advocacy of Communist doctrines) and could only enter the United States if he first obtained a

20 waiver from the Attorney General. See id. at 756-59.

21

Similarly, Fiallo v. Bell, 430 U.S. 787 (1977), is an admission case and is therefore

22 distinguishable. See id. at 790 n.3 (noting that appellants all sought immigrant visas on the basis

23 of a parent-child relationship where the parent was the natural father and the child the illegitimate

24 offspring). The Court acknowledges that, in Fiallo, the appellants “characterize[d] [the Supreme

25 Court’s] prior immigration cases as involving foreign policy matters and congressional choices to

26 exclude or expel groups of aliens that were specifically and clearly perceived to pose a grave

27 threat to the national security . . . or to the general welfare of this country” and that the Supreme

28 Court noted there was 39

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1

no indication in our prior cases that the scope of judicial review is a

function of the nature of the policy choice at issue. To the contrary,

2

[s]ince decisions in these matters may implicate our foreign powers,

and since a wide variety of classifications must be defined in the

3

light of changing political and economic circumstances, such

decisions are frequently of a character more appropriate to either the

4

Legislature or the Executive than to the Judiciary, and [t]he reasons

that preclude judicial review of political questions also dictate a

5

narrow standard of review of decisions made by the Congress or the

President in the area of immigration and naturalization. 6

7 Id. at 796 (internal quotation marks omitted). Fiallo also contains other broad language that could

8 be read unfavorably to Plaintiffs (i.e., suggesting limited judicial review). See Fiallo, 430 U.S. at

9 792 (“Our cases ‘have long recognized the power to expel or exclude aliens as a fundamental

10 sovereign attribute exercised by the Government’s political departments largely immune from

11 judicial control.’”). However, this language of “expel” and “exclude” appears to be a dated or

12 historical phrase, see Fong Yue Ting v. United States, 149 U.S. 698, 707 (1893) (indicating that

13 “‘[t]he control of the people within its limits, and the right to expel from its territory persons who

14 and dangerous to the peace of the State, are too clearly within the essential attributes of

15 sovereignty to be seriously contested’”), and does not detract from evolved and well-established

16 authority that aliens lawfully within the United States have rights from those seeking admission in

17 the first instance into the United States. See Zadvydas, 533 U.S. at 693 (noting that “certain

18 constitutional protections available to persons inside the United States are unavailable to aliens

19 outside of our geographic borders”); cf. Yamataya v. Fisher, 189 U.S. 86, 101 (1903) (stating that

20 “it is not competent for the Secretary of the Treasury or any executive officer, at any time within

21 the year limited by the statute, arbitrarily to cause an alien, who has entered the country, and has

22 become subject in all respects to its jurisdiction, and a part of its population, although alleged to be

23 illegally here, to be taken into custody and deported without giving him all opportunity to be heard

24 upon the questions involving his right to be and remain in the United States”).

25

In any event, this Court does not hold that Trump v. Hawaii inapplicable to the instant case

26 solely because the decisions to terminate did not rest on national security – or foreign policy –

27 concerns. Rather, the Court’s holding is predicated on an amalgam of factors: the fact that the

28 TPS beneficiaries are living and have lived in the United States for lengthy periods with 40

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1 established ties to the community, no foreign policy or national security interest has been relied

2 upon the DHS to support its decision to terminate TPS status for the affected countries, and the

3 TPS statute does not conferred unfettered authority upon the Secretary. The justification for a

4 kind of super deference advocated by the government in this case is not warranted.

5

Finally, Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008), is distinguishable from the instant

6 case as well. Although Rajah, like the instant case, is not an admission case, it is still

7 distinguishable because the aliens in Rajah were, undisputedly, deportable from the country, and

8 the only issue was whether the aliens might be able to get a reprieve from deportation because the

9 “deportation proceedings were so tainted by the [post-9/11] Program [that required nonimmigrant

10 alien males over the age of 16 from designated countries to appear for registration and

11 fingerprinting] and associated events.” Id. at 434. See, e.g., id. at 434-38 (addressing petitioners’

12 arguments that, inter alia, “the Attorney General had no statutory authority to enact the Program,”

13 that “the Program was invalidly promulgated because the relevant regulations were not subject to

14 the required public notice and comment,” and that the petitioners’ “deportation orders violate their

15 rights under . . . Equal Protection . . . because the immigration laws were selectively enforced

16 against them based on their religion, ethnicity, gender, and race”). Moreover, Rajah is

17 distinguishable because, while the case (like the instant case) involved an Equal Protection claim,

18 the claim was really one for selective prosecution/enforcement, an area in which the courts have

19 applied substantial deference to the exercise of prosecutorial discretion. See, e.g., Reno v. Am.-

20 Arab Anti-Discrim. Comm., 525 U.S. 471, 489-90 (1999) (noting that, “[e]ven in the criminal-law

21 field, a selective prosecution claim is a rara avis” because “such claims invade a special province

22 of the Executive” and therefore a “criminal defendant [must] introduce ‘clear evidence] displacing

23 the presumption that a prosecutor has acted lawfully”; adding that “[t]hese concerns are greatly

24 magnified in the deportation context” but also stating that “we need not rule out the possibility of a

25 rare case in which the alleged basis of discrimination is so outrageous that the foregoing

26 considerations can be overcome”).

27

At the very least, the above analysis indicates that there are serious questions going to the

28 merits as to whether Trump v. Hawaii governs in the instant case. Even if Trump v. Hawaii did 41

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1 provide the governing legal standard for the Equal Protection claim here, the Court nevertheless

2 finds that there are serious questions going to the merits that warrant a preliminary injunction. In

3 Trump v. Hawaii, the Supreme Court stated that the “standard of review considers whether the

4 [challenged decision] is plausibly related to the Government’s stated objective.” Trump v.

5 Hawaii, 138 S. Ct. at 2420. The Supreme Court also indicated that, in spite of this deferential

6 standard of review, it assumed a court could “look behind the face of the [challenged decision] to

7 the extent of applying rational basis review.” Id. In other words, a court could “consider [a

8 plaintiff’s] extrinsic evidence,” including statements by the President, and should “uphold [the

9 challenged decision] so long as it can reasonably be understood to result from a justification

10 independent of unconstitutional grounds.” Id. Judicial review, though more deferential than

11 traditional strict scrutiny, remains fact based. Here, considering the substantial extrinsic evidence

12 submitted by Plaintiffs, there are serious questions as to whether the terminations of TPS

13 designations could “reasonably be understood to result from a justification independent of

14 unconstitutional grounds.” Id.; see also Centro Presente, 2018 U.S. Dist. LEXIS 122509, at *58-

15 59 (in similar TPS case, stating that, “even if rational basis review were to apply, Plaintiffs’

16 claims, at this early stage of litigation, would still survive”; noting that “there is no justification,

17 explicit or otherwise, for Defendants’ switch to focusing on whether the conditions that caused the

18 initial designation had abated rather than a fuller evaluation of whether the country would be able

19 to safely accept returnees”).

20

III. CONCLUSION

21

For the foregoing reasons, the Court grants Plaintiffs’ motion for a preliminary injunction.

22

1. It is hereby ORDERED THAT Defendants, their officers, agents, employees,

23 representatives, and all persons acting in concert or participating with them, are ENJOINED AND

24 RESTRAINED from engaging in, committing, or performing, directly or indirectly, by any means

25 whatsoever, implementation and/or enforcement of the decisions to terminate TPS for Sudan,

26 Haiti, El Salvador, and Nicaragua pending resolution of this case on the merits.

27

2. It is further ORDERED that Defendants shall take all administrative actions needed

28 to preserve the status quo pending completion of discovery and a ruling on the merits of the 42

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United States District Court Northern District of California

1 action, including all steps needed to ensure the continued validity of documents that prove lawful

2 status and employment authorization for TPS holders. Defendants shall report to the Court within

3 fifteen (15) days of this Order on the administrative steps taken to comply with this paragraph and

4 otherwise preserve the status quo.

5

The preliminary injunction shall take effect immediately and shall remain in effect pending

6 resolution of this case on the merits or further order of this Court. The Court shall hold a Case

7 Management Conference on October 26, 2018 at 10:30 a.m. The parties shall file a joint case

8 management conference statement by October 19, 2018 and shall address, inter alia, the expedited

9 setting of trial or other means of adjudication of the merits.

10

This order disposes of Docket No. 120.

11

12

IT IS SO ORDERED.

13

14 Dated: October 3, 2018

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______________________________________

17

EDWARD M. CHEN United States District Judge

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