Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 1 of 26
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:18−cv−10340−DJC

Centro Presente et al v. Trump et al Assigned to: Judge Denise J. Casper Cause: 05:7703 Discrimination − Review of Agency Act
Plaintiff

Date Filed: 02/22/2018 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: U.S. Government Defendant

Centro Presente a membership organization

represented by Allison S. Ercolano Choate, Hall & Stewart Two International Place 100−150 Oliver Street Boston, MA 02110 617−248−5000 Email: aercolano@choate.com ATTORNEY TO BE NOTICED

Anna Shipley Roy Choate, Hall & Stewart Two International Place 100−150 Oliver Street Boston, MA 02110 617−248−5051 Email: aroy@choate.com ATTORNEY TO BE NOTICED

Carlos J. Perez−Albuerne Choate, Hall & Stewart Two International Place 100−150 Oliver Street Boston, MA 02110 617−248−5000 Fax: 617−248−4000 Email: cperez@choate.com ATTORNEY TO BE NOTICED

Eric J. Marandett Choate, Hall & Stewart Two International Place 100−150 Oliver Street Boston, MA 02110 617−248−5000 Fax: 617−248−4000 Email: EMarandett@choate.com ATTORNEY TO BE NOTICED

Ivan Espinoza−Madrigal Lawyers Committee for Civil Rights and Economic Justice 61 Batterymarch St, 5th Floor Boston, MA 02210 (617) 482−1145 PRO HAC VICE ATTORNEY TO BE NOTICED

Justin J. Wolosz Choate, Hall & Stewart LLP Two International Place Boston, MA 02110 617−248−5000 Fax: 617−248−4000

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 2 of 26
Email: jwolosz@choate.com ATTORNEY TO BE NOTICED
Kevin P. O'Keefe Choate, Hall & Stewart Two International Place 100−150 Oliver Street Boston, MA 02110 617−248−4025 Email: kokeefe@choate.com TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED
Leah R. Milbauer Choate, Hall & Stewart Two International Place 100−150 Oliver Street Boston, MA 02110 617−248−4731 Email: lmilbauer@choate.com ATTORNEY TO BE NOTICED
Margaret J. Burnside Choate, Hall & Stewart Two International Place 100−150 Oliver Street Boston, MA 02110 617−248−4771 Email: mburnside@choate.com TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED
Natalia Smychkovich Choate, Hall & Stewart Two International Place 100−150 Oliver Street Boston, MA 02110 617−248−5017 Email: nsmychkovich@choate.com ATTORNEY TO BE NOTICED
Oren N. Nimni 61 Batterymarch Street 5th Floor Boston, MA 02110 206−200−9088 Email: onimni@lawyerscom.org ATTORNEY TO BE NOTICED
Oren M. Sellstrom Lawyers' Committee for Civil Rights and Economic Justic Fifth Floor 61 Batterymarch Street Boston, MA 02110 617−988−0608 Email: osellstrom@lawyerscom.org ATTORNEY TO BE NOTICED
Xing−Yin Ni Choate, Hall & Stewart Two International Place 100−150 Oliver Street Boston, MA 02110 617−246−4783 Email: xni@choate.com

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 3 of 26

ATTORNEY TO BE NOTICED

Plaintiff Juan Carlos Vidal

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED

Carlos J. Perez−Albuerne (See above for address) ATTORNEY TO BE NOTICED

Eric J. Marandett (See above for address) ATTORNEY TO BE NOTICED

Ivan Espinoza−Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Xing−Yin Ni (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Anne Christine Nicolas

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 4 of 26

(See above for address) ATTORNEY TO BE NOTICED

Carlos J. Perez−Albuerne (See above for address) ATTORNEY TO BE NOTICED

Eric J. Marandett (See above for address) ATTORNEY TO BE NOTICED

Ivan Espinoza−Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Xing−Yin Ni (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Chris Jean Baptiste

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED

Carlos J. Perez−Albuerne (See above for address) ATTORNEY TO BE NOTICED

Eric J. Marandett

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 5 of 26

(See above for address) ATTORNEY TO BE NOTICED

Ivan Espinoza−Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Xing−Yin Ni (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Mercedes Mata

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED

Carlos J. Perez−Albuerne (See above for address) ATTORNEY TO BE NOTICED

Eric J. Marandett (See above for address) ATTORNEY TO BE NOTICED

Ivan Espinoza−Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 6 of 26

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Xing−Yin Ni (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Carolina Mata

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED

Carlos J. Perez−Albuerne (See above for address) ATTORNEY TO BE NOTICED

Eric J. Marandett (See above for address) ATTORNEY TO BE NOTICED

Ivan Espinoza−Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 7 of 26

Plaintiff Will Arias

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED
Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED
Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED
Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED
Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED
Xing−Yin Ni (See above for address) ATTORNEY TO BE NOTICED
represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED
Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED
Carlos J. Perez−Albuerne (See above for address) ATTORNEY TO BE NOTICED
Eric J. Marandett (See above for address) ATTORNEY TO BE NOTICED
Ivan Espinoza−Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED
Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED
Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED
Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED
Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 8 of 26

ATTORNEY TO BE NOTICED

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Xing−Yin Ni (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Juan Amaya

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED

Carlos J. Perez−Albuerne (See above for address) ATTORNEY TO BE NOTICED

Eric J. Marandett (See above for address) ATTORNEY TO BE NOTICED

Ivan Espinoza−Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren N. Nimni (See above for address)

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 9 of 26

ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Xing−Yin Ni (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Maria Guerra

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED

Carlos J. Perez−Albuerne (See above for address) ATTORNEY TO BE NOTICED

Eric J. Marandett (See above for address) ATTORNEY TO BE NOTICED

Ivan Espinoza−Madrigal (See above for address) PRO HAC VICE ATTORNEY TO BE NOTICED

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren N. Nimni (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Xing−Yin Ni (See above for address)

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 10 of 26

ATTORNEY TO BE NOTICED

Plaintiff Haitian−Americans United, Inc.

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jose Dorfeuille

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 11 of 26

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Natacha Dorfeuille

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Yesy Patricia Carbajal

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 12 of 26

Plaintiff Juan Guerrero
Plaintiff Jaime Yanes

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED
Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED
Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED
represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED
Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED
Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED
Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED
Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED
Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED
Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED
Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED
represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED
Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED
Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED
Kevin P. O'Keefe (See above for address)

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 13 of 26

TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

Plaintiff Jose Omar Rodriguez Varela

represented by Allison S. Ercolano (See above for address) ATTORNEY TO BE NOTICED

Anna Shipley Roy (See above for address) ATTORNEY TO BE NOTICED

Justin J. Wolosz (See above for address) ATTORNEY TO BE NOTICED

Kevin P. O'Keefe (See above for address) TERMINATED: 06/15/2020 ATTORNEY TO BE NOTICED

Leah R. Milbauer (See above for address) ATTORNEY TO BE NOTICED

Margaret J. Burnside (See above for address) TERMINATED: 08/22/2019 ATTORNEY TO BE NOTICED

Natalia Smychkovich (See above for address) ATTORNEY TO BE NOTICED

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED

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

represented by Adam Kirschner U.S. Department of Justice 1100 L Street, NW Washington, DC 20530 (202) 353−9265

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 14 of 26

Email: Adam.Kirschner@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Joseph C. Dugan United States Department of Justice, Civil Division 1100 L Street NW Washington, DC 20005 (202) 514−3259 Email: joseph.dugan@usdoj.gov TERMINATED: 02/27/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kevin Snell U.S. Department of Justice 1100 L Street NW Room 12510 Washington, DC 20530 (202) 305−0924 Email: kevin.snell@usdoj.gov ATTORNEY TO BE NOTICED

Rayford A. Farquhar United States Attorney's Office John Joseph Moakley Federal Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3100 Fax: 617−748−3971 Email: rayford.farquhar@usdoj.gov ATTORNEY TO BE NOTICED

Defendant
United States Department of Homeland Security

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

Joseph C. Dugan (See above for address) TERMINATED: 02/27/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Rayford A. Farquhar (See above for address) ATTORNEY TO BE NOTICED

Defendant
Kirstjen Nielsen Secretary of the Department of Homeland Security in her official capacity

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

Joseph C. Dugan (See above for address) TERMINATED: 02/27/2019 LEAD ATTORNEY

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 15 of 26

ATTORNEY TO BE NOTICED

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

Rayford A. Farquhar (See above for address) ATTORNEY TO BE NOTICED

Defendant
Elaine Costanzo Duke Deputy Secretary of the Department of Homeland Security in her official capacity

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

Joseph C. Dugan (See above for address) TERMINATED: 02/27/2019 LEAD ATTORNEY ATTORNEY TO BE NOTICED

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

Rayford A. Farquhar (See above for address) ATTORNEY TO BE NOTICED

Amicus
COMMONWEALTH OF MASSACHUSETTS Attorney General's Office One Ashburton Place 18th Floor Boston, MA 02108

represented by Andrew J. Haile Office of the Attorney General One Ashburton Place 18th Floor Boston, MA 02108 617−963−2816 Email: andrew.haile@state.ma.us ATTORNEY TO BE NOTICED

Date Filed 02/22/2018
02/22/2018 02/22/2018 02/22/2018

# Docket Text
1 COMPLAINT against All Defendants Filing fee: $ 400, receipt number 0101−7019446 (Fee Status: Filing Fee paid), filed by Juan Amaya, Will Arias, Centro Presente, Maria Guerra, Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Juan Carlos Vidal. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Category Sheet)(Sellstrom, Oren) (Attachment 2 replaced on 2/22/2018) (McKillop, Matthew). (Entered: 02/22/2018)
2 NOTICE of Appearance by Oren N. Nimni on behalf of Juan Amaya, Will Arias, Centro Presente, Maria Guerra, Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Juan Carlos Vidal (Nimni, Oren) (Entered: 02/22/2018)
3 ELECTRONIC NOTICE of Case Assignment. Judge Denise J. Casper assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge M. Page Kelley. (Pacho, Arnold) (Entered: 02/22/2018)
4 Summons Issued as to Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service.

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 16 of 26

03/05/2018
03/05/2018 03/05/2018 03/05/2018 03/05/2018 03/05/2018 03/07/2018
03/30/2018
03/30/2018 03/30/2018 03/30/2018 03/30/2018 03/30/2018 04/13/2018 05/01/2018

(McKillop, Matthew) (Entered: 02/22/2018)
5 MOTION for Leave to Appear Pro Hac Vice for admission of Ivan Espinoza−Madrigal Filing fee: $ 100, receipt number 0101−7034933 by Juan Amaya, Will Arias, Centro Presente, Maria Guerra, Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Juan Carlos Vidal. (Attachments: # 1 Affidavit of Ivan Espinoza−Madrigal)(Sellstrom, Oren) (Entered: 03/05/2018)
6 NOTICE of Appearance by Eric J. Marandett on behalf of Juan Amaya, Will Arias, Centro Presente, Maria Guerra, Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Juan Carlos Vidal (Marandett, Eric) (Entered: 03/05/2018)
7 NOTICE of Appearance by Carlos J. Perez−Albuerne on behalf of Juan Amaya, Will Arias, Centro Presente, Maria Guerra, Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Juan Carlos Vidal (Perez−Albuerne, Carlos) (Entered: 03/05/2018)
8 NOTICE of Appearance by Kevin P. O'Keefe on behalf of Juan Amaya, Will Arias, Centro Presente, Maria Guerra, Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Juan Carlos Vidal (O'Keefe, Kevin) (Entered: 03/05/2018)
9 NOTICE of Appearance by Xing−Yin Ni on behalf of Juan Amaya, Will Arias, Centro Presente, Maria Guerra, Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Juan Carlos Vidal (Ni, Xing−Yin) (Entered: 03/05/2018)
ELECTRONIC NOTICE of Duplicate Filing Fee and Credit for Refund, for $100.00 paid on 03/05/2018, receipt number 0101−7034879. (Tran, Henry) (Entered: 03/14/2018)
10 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 5 Motion for Leave to Appear Pro Hac Vice Added Ivan Espinoza−Madrigal. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (McKillop, Matthew) (Entered: 03/07/2018)
11 SUMMONS Returned Executed as to US Attorney by Carolina Mata, Anne Christine Nicolas, Will Arias, Maria Guerra, Juan Carlos Vidal, Juan Amaya, Centro Presente, Chris Jean Baptiste, Mercedes Mata. Elaine Costanzo Duke served on 3/6/2018, answer due 5/7/2018; Kirstjen Nielsen served on 3/6/2018, answer due 5/7/2018; Donald J. Trump served on 3/6/2018, answer due 5/7/2018; United States Department of Homeland Security served on 3/6/2018, answer due 5/7/2018. (O'Keefe, Kevin) (Entered: 03/30/2018)
12 SUMMONS Returned Executed Donald J. Trump served on 3/14/2018, answer due 5/7/2018. (O'Keefe, Kevin) (Entered: 03/30/2018)
13 SUMMONS Returned Executed Kirstjen Nielsen served on 3/9/2018, answer due 5/7/2018. (O'Keefe, Kevin) (Entered: 03/30/2018)
14 SUMMONS Returned Executed Elaine Costanzo Duke served on 3/9/2018, answer due 5/7/2018. (O'Keefe, Kevin) (Entered: 03/30/2018)
15 SUMMONS Returned Executed United States Department of Homeland Security served on 3/9/2018, answer due 5/7/2018. (O'Keefe, Kevin) (Entered: 03/30/2018)
16 SUMMONS Returned Executed by Carolina Mata, Anne Christine Nicolas, Will Arias, Maria Guerra, Juan Carlos Vidal, Juan Amaya, Centro Presente, Chris Jean Baptiste, Mercedes Mata. (O'Keefe, Kevin) (Entered: 03/30/2018)
17 NOTICE of Appearance by Joseph C. Dugan on behalf of Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security (Dugan, Joseph) (Entered: 04/13/2018)
18 Assented to MOTION for Extension of Time to 5/14/18 to File Dispositive Motion , Assented to MOTION for Leave to File Excess Pages ( Responses due by 5/15/2018) by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security.(Dugan, Joseph) (Entered: 05/01/2018)

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 17 of 26

05/07/2018 05/07/2018 05/09/2018
05/09/2018 05/11/2018 05/23/2018
05/23/2018 05/25/2018 05/30/2018
05/31/2018
05/31/2018
06/05/2018 06/06/2018 06/06/2018

19 MOTION to Dismiss for Lack of Jurisdiction by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 05/07/2018)
20 MEMORANDUM in Support re 19 MOTION to Dismiss for Lack of Jurisdiction filed by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Dugan, Joseph) (Entered: 05/07/2018)
21 AMENDED COMPLAINT against All Defendants, filed by Juan Amaya, Will Arias, Centro Presente, Maria Guerra, Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Juan Carlos Vidal, Haitian−Americans United, Inc., Jose Dorfeuille, Natacha Dorfeuille, Yesy Patricia Carbajal, Juan Guerrero, Jaime Yanes, Jose Omar Rodriguez Varela.(Sellstrom, Oren) (Entered: 05/09/2018)
22 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 18 Motion for Extension of Time to 5/14/18 to file responsive pleading and granting in part 18 Motion for Leave to File Excess Pages. Briefs not to exceed 30 pages in length. (Hourihan, Lisa) (Entered: 05/09/2018)
23 Assented to MOTION for Leave to File Excess Pages by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security.(Dugan, Joseph) (Entered: 05/11/2018)
24 MOTION to Dismiss for Lack of Jurisdiction , MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM ( Responses due by 6/6/2018) by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 05/23/2018)
25 MEMORANDUM in Support re 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Dugan, Joseph) (Entered: 05/23/2018)
26 Judge Denise J. Casper: ELECTRONIC ORDER entered denying as moot 23 Motion for Leave to File Excess Pages (McKillop, Matthew) (Entered: 05/25/2018)
27 Joint MOTION for Extension of Time to June 20, 2018 to File Response/Reply as to 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 25 Memorandum in Support of Motion, and for Leave to File a Reply Brief by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes.(O'Keefe, Kevin) (Entered: 05/30/2018)
28 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 27 Motion for Extension of Time to File Response/Reply re 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 19 MOTION to Dismiss for Lack of Jurisdiction Responses due by 6/20/2018 (Hourihan, Lisa) (Entered: 05/31/2018)
29 ELECTRONIC NOTICE Setting Hearing on Motion 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 19 MOTION to Dismiss for Lack of Jurisdiction : Motion Hearing set for 6/29/2018 11:00 AM in Courtroom 11 before Judge Denise J. Casper. Any reply brief to be filed by 6/26/18.(Hourihan, Lisa) (Entered: 05/31/2018)
30 Joint MOTION to Modify Schedule for Motion Hearing by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security.(Dugan, Joseph) (Entered: 06/05/2018)
31 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 30 Motion for Modification Scheduled Hearing Date (Hourihan, Lisa) (Entered: 06/06/2018)
32 ELECTRONIC NOTICE Resetting Hearing on Motion 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM , 19 MOTION to Dismiss for Lack of Jurisdiction : Motion Hearing set for 7/12/2018

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 18 of 26

06/08/2018 06/11/2018 06/20/2018 06/22/2018 06/22/2018 06/25/2018
06/25/2018 06/26/2018 07/02/2018
07/05/2018

02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 06/06/2018)
33 NOTICE of Appearance by Allison S. Ercolano on behalf of Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes (Ercolano, Allison) (Entered: 06/08/2018)
34 NOTICE of Appearance by Natalia Smychkovich on behalf of Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes (Smychkovich, Natalia) (Entered: 06/11/2018)
35 Opposition re 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (O'Keefe, Kevin) (Entered: 06/20/2018)
36 NOTICE of Appearance by Andrew J. Haile on behalf of COMMONWEALTH OF MASSACHUSETTS (Haile, Andrew) (Entered: 06/22/2018)
37 Assented to MOTION for Leave to File Brief of Amici States by COMMONWEALTH OF MASSACHUSETTS. (Attachments: # 1 Exhibit Brief of Amici States in Support of Plaintiffs' Opposition to the Motion to Dismiss)(Haile, Andrew) (Entered: 06/22/2018)
38 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 37 Motion for Leave to File Brief of Amici States by COMMONWEALTH OF MASSACHUSETTS; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Hourihan, Lisa) (Entered: 06/25/2018)
39 MEMORANDUM in Opposition re 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM Brief of Amici States filed by COMMONWEALTH OF MASSACHUSETTS. (Haile, Andrew) (Entered: 06/25/2018)
40 REPLY to Response to 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Dugan, Joseph) (Entered: 06/26/2018)
41 MOTION for Leave to File Sur−Reply in Further Opposition to Defenfants' Motion to Dismiss First Amended Complaint (Unopposed) by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (Attachments: # 1 Exhibit A − [Proposed] Plaintiffs' Sur−Reply in Further Opposition to Defendants' Motion to Dismiss)(O'Keefe, Kevin) (Entered: 07/02/2018)
42 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 41 Motion for Leave to File Sur−Reply in Further Opposition to Defenfants' Motion to Dismiss First Amended Complaint by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Hourihan, Lisa) (Entered: 07/05/2018)

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 19 of 26

07/05/2018 07/12/2018
07/18/2018 07/18/2018 07/23/2018 07/27/2018 08/06/2018 08/31/2018 08/31/2018 08/31/2018 09/06/2018 09/07/2018

43 SUR−REPLY to Motion re 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (O'Keefe, Kevin) (Entered: 07/05/2018)
44 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 7/12/2018 re 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM filed by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security, 19 MOTION to Dismiss for Lack of Jurisdiction filed by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. Court takes under advisement 24 MOTION to Dismiss for Lack of Jurisdiction MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM . Court takes under advisement 19 MOTION to Dismiss for Lack of Jurisdiction . (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Ivan Espinoza−Madrigal, Kevin O'Keefe, Oren N. Nimni for the plaintiffs. Joseph C. Dugan for the defendants.) (McKillop, Matthew) (Entered: 07/12/2018)
45 Transcript of Motion Hearing held on July 12, 2018, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 8/8/2018. Redacted Transcript Deadline set for 8/20/2018. Release of Transcript Restriction set for 10/16/2018. (Scalfani, Deborah) (Entered: 07/18/2018)
46 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 07/18/2018)
47 Judge Denise J. Casper: MEMORANDUM AND ORDER entered : The Court ALLOWS Defendants' motion to dismiss, D. 24, with respect only to Plaintiffs' mandamus claim (Count V), but DENIES Defendants' motion in all other respects. (McKillop, Matthew) (Entered: 07/23/2018)
48 NOTICE of Scheduling Conference Scheduling Conference set for 9/7/2018 03:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 07/27/2018)
49 ANSWER to 21 Amended Complaint, by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security.(Dugan, Joseph) (Entered: 08/06/2018)
50 JOINT SUBMISSION pursuant to Local Rule 16.1 by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes.(O'Keefe, Kevin) (Entered: 08/31/2018)
51 CERTIFICATION pursuant to Local Rule 16.1 by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes.(O'Keefe, Kevin) (Entered: 08/31/2018)
52 CERTIFICATION pursuant to Local Rule 16.1 . (Dugan, Joseph) (Entered: 08/31/2018)
53 NOTICE of Appearance by Rayford A. Farquhar on behalf of Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security (Farquhar, Rayford) (Entered: 09/06/2018)
54 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Scheduling Conference held on 9/7/2018. Arguments on limiting scope of discovery to the Administrative Record. Initial disclosures due by 9/21/18. Amendment to the

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 20 of 26

09/21/2018 10/09/2018
10/10/2018
10/10/2018 10/11/2018 10/11/2018 10/18/2018 12/12/2018 01/09/2019 01/10/2019
01/17/2019

pleadings by 10/10/18. Parties to meet and confer and propose a revised schedule to the end of fact discovery. Expert discovery postponed until summary judgment is resolved. Joint statement to be filed by 9/21/18. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Kevin O'Keefe and Oren Nimni for the plaintiffs. Joseph Dugan for the defendants.) (Hourihan, Lisa) (Entered: 09/07/2018)
55 JOINT STATEMENT re scheduling conference pursuant to Local Rule 16.1 and Court's instructions. (O'Keefe, Kevin) (Entered: 09/21/2018)
56 Judge Denise J. Casper: ELECTRONIC ORDER entered. In light of the parties' joint statement, D. 55, the Court amends the scheduling order previously entered, D. 54, as follows: no written discovery shall be served after February 6, 2019; fact discovery shall be completed by March 8, 2019. The deadlines previously adopted in D. 54 as to initial disclosures and amendments to the pleading remain in place. The Court schedules Status Conference for 3/4/2019 02:15 PM in Courtroom 11. The Court addresses the scheduling of dispositive motions at that time.( Status Conference set for 3/4/2019 02:15 PM in Courtroom 11 before Judge Denise J. Casper.)(Hourihan, Lisa) (Entered: 10/09/2018)
57 Transcript of Scheduling Conference held on September 7, 2018, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 10/31/2018. Redacted Transcript Deadline set for 11/13/2018. Release of Transcript Restriction set for 1/8/2019. (Scalfani, Deborah) (Entered: 10/10/2018)
58 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 10/10/2018)
59 NOTICE of Change of Address or Firm Name by Joseph C. Dugan (Dugan, Joseph) (Entered: 10/11/2018)
60 STIPULATION and Proposed Order Governing Confidential Information by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Dugan, Joseph) (Entered: 10/11/2018)
61 Judge Denise J. Casper: Stipulation and Order Government Confidential Information. (Hourihan, Lisa) (Entered: 10/19/2018)
62 NOTICE of Appearance by Margaret J. Burnside on behalf of Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes (Burnside, Margaret) (Entered: 12/12/2018)
63 MOTION to Stay All Proceedings in Light of Lapse in Appropriations by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Dugan, Joseph) (Entered: 01/09/2019)
64 RESPONSE to Motion re 63 MOTION to Stay All Proceedings in Light of Lapse in Appropriations filed by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (O'Keefe, Kevin) (Entered: 01/10/2019)
65 Judge Denise J. Casper: ELECTRONIC ORDER entered. Having reviewed the motion and response, the Court grants 63 Motion to Stay All Proceedings in Light of Lapse in Appropriations by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. Stay allowed only until 2/7/19 or whatever date the Department of Justice attorneys are able to resume their usual civil litigation functions, whichever date is earlier. Counsel to file status update or to seek further stay on or before 2/7/19 if Department of Justice attorneys are still not allowed to resume

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 21 of 26

01/28/2019 02/01/2019 02/05/2019 02/07/2019
02/07/2019 02/12/2019 02/26/2019 02/27/2019 03/08/2019
03/08/2019
03/08/2019
03/22/2019

their usual civil litigation at that time. (Hourihan, Lisa) (Entered: 01/17/2019)
66 NOTICE by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security re 65 Order on Motion to Stay,, (Notice of Restoration of Appropriations) (Dugan, Joseph) (Entered: 01/28/2019)
67 STATUS REPORT by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Dugan, Joseph) (Entered: 02/01/2019)
68 Joint MOTION for Extension of Time to Complete Discovery by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security.(Dugan, Joseph) (Entered: 02/05/2019)
69 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 68 Motion for Extension of Time to Complete Discovery. Last day for service of written discovery 4/19/19. Fact discovery to be completed by 5/17/2019. Status Conference set for 5/20/19 at 2:00PM. The Court to take up schedule for dispositive motions at that time. Further joint scheduling proposal to be filed 5 days ahead of conference. (Hourihan, Lisa) (Entered: 02/07/2019)
70 ELECTRONIC NOTICE OF RESCHEDULING Status Conference set for 5/20/2019 02:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 02/07/2019)
71 NOTICE of Appearance by Leah R. Milbauer on behalf of Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes (Milbauer, Leah) (Entered: 02/12/2019)
72 NOTICE of Appearance by Adam Kirschner on behalf of Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security (Kirschner, Adam) (Entered: 02/26/2019)
73 NOTICE of Withdrawal of Appearance by Joseph C. Dugan (Dugan, Joseph) (Entered: 02/27/2019)
74 MOTION to Compel Responses to White House Discovery Requests by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes.(Ercolano, Allison) (Entered: 03/08/2019)
75 MEMORANDUM in Support re 74 MOTION to Compel Responses to White House Discovery Requests filed by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (Ercolano, Allison) (Entered: 03/08/2019)
76 DECLARATION re 75 Memorandum in Support of Motion, 74 MOTION to Compel Responses to White House Discovery Requests (Declaration of Kevin P. O'Keefe) by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (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)(Ercolano, Allison) (Entered: 03/08/2019)
77 MEMORANDUM in Opposition re 74 MOTION to Compel Responses to White House Discovery Requests filed by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Kirschner, Adam) (Entered: 03/22/2019)

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 22 of 26

03/29/2019 04/01/2019
04/03/2019 04/04/2019 04/04/2019 04/12/2019 04/16/2019 04/23/2019
05/02/2019
05/02/2019 05/15/2019 05/15/2019

78 ELECTRONIC NOTICE Setting Hearing on Motion 74 MOTION to Compel Responses to White House Discovery Requests : Motion Hearing set for 4/23/2019 03:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 03/29/2019)
79 MOTION for Leave to File Reply Memorandum In Support of Plaintiffs' Motion to Compel Responses to White House Discovery Requests by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (Attachments: # 1 Exhibit A)(Ercolano, Allison) (Entered: 04/01/2019)
80 Joint MOTION to Stay Depositions by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 04/03/2019)
81 Judge Denise J. Casper: ORDER entered granting 80 Joint Motion to Stay Depositions (Hourihan, Lisa) (Entered: 04/04/2019)
82 NOTICE of Appearance by Anna Shipley Roy on behalf of Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes (Roy, Anna) (Entered: 04/04/2019)
83 NOTICE of Appearance by Kevin Snell on behalf of Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security (Snell, Kevin) (Entered: 04/12/2019)
84 Notice of Supplemental Authorities re 74 MOTION to Compel Responses to White House Discovery Requests (Kirschner, Adam) (Entered: 04/16/2019)
85 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Motion Hearing held on 4/23/2019 re 74 MOTION to Compel Responses to White House Discovery Requests filed by Will Arias, Natacha Dorfeuille, Carolina Mata, Centro Presente, Anne Christine Nicolas, Yesy Patricia Carbajal, Juan Carlos Vidal, Juan Guerrero, Haitian−Americans United, Inc., Juan Amaya, Mercedes Mata, Jose Dorfeuille, Jaime Yanes, Chris Jean Baptiste, Maria Guerra, Jose Omar Rodriguez Varela. Arguments. Court takes under advisement 74 Motion to Compel. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Carlos Perez−Albuerne, Allison Ercolano, Eric Marandett, Anna Roy and Oren Nimni for the plaintiffs. Adam Dirschner and Rayford Farquhar for the defendants.) (Hourihan, Lisa) (Entered: 04/24/2019)
86 Transcript of Motion Hearing held on April 23, 2019, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 5/23/2019. Redacted Transcript Deadline set for 6/3/2019. Release of Transcript Restriction set for 7/31/2019. (Scalfani, Deborah) (Entered: 05/02/2019)
87 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 05/02/2019)
88 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 79 Motion for Leave to File Reply nunc pro tunc (Hourihan, Lisa) (Entered: 05/15/2019)
89 Judge Denise J. Casper: ELECTRONIC ORDER entered re 74 MOTION to Compel Responses to White House Discovery Requests. In light of Plaintiffs' motion to compel, D. 74, Defendants' opposition, D. 77, and Plaintiffs' reply, D. 79−1, and having heard oral argument on the motion, D. 85, the Court ORDERS as follows. Responses to requests for written discovery shall continue and be completed, including as to those sought from the United States Department of Homeland Security ("DHS"). After the completion of such discovery responses and the completion of the deposition of DHS

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 23 of 26

05/16/2019 05/16/2019 06/05/2019
06/18/2019
06/18/2019
06/26/2019 06/27/2019 06/27/2019 08/21/2019
08/22/2019 09/12/2019 09/20/2019

(which the Court understands, at the request of the parties, D. 80, is currently stayed, D. 81), Plaintiffs may supplement the record as to the pending motion to compel discovery from the White House, particularly as to issue of any continuing need for discovery sought from the White House after full discovery is received from DHS. Although the Court does not necessarily agree with Defendants' analysis and application of Cheney v. U.S. District Court for the District of Columbia, 542 U.S. 367 (2004), the Court concludes that this Order is an appropriate interim step in this case at this juncture. Accordingly, within two weeks after the completion of the DHS deposition, Plaintiffs may file a supplemental memorandum in support of their pending motion to compel. Defendants may then respond to such supplemental filing two weeks after the filing of the same. In light of this Order, the Court, at the moment, otherwise reserves any ruling on Plaintiffs' motion, D. 74. (Hourihan, Lisa) (Entered: 05/15/2019)
90 Joint MOTION to Continue Status Hearing to June 5, 6, 7, or 10 by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security.(Kirschner, Adam) (Entered: 05/16/2019)
91 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 90 Motion to Continue Status Conference set for 6/5/2019 03:00 PM in Courtroom 11 before Judge Denise J. Casper. (Hourihan, Lisa) (Entered: 05/16/2019)
92 Electronic Clerk's Notes for proceedings held before Judge Denise J. Casper: Status Conference held on 6/5/2019. Joint Status Update due 9/13/19. (Court Reporter: Debra Joyce at joycedebra@gmail.com.)(Attorneys present: Allison S. Ercolano, Kevin P. O'Keefe and Oren N. Nimni for the Plaintiffs. Adam Kirschner for the Defendants.) (McKillop, Matthew) (Entered: 06/05/2019)
93 Transcript of Status Conference held on June 5, 2019, before Judge Denise J. Casper. The Transcript may be purchased through the Court Reporter, viewed at the public terminal, or viewed through PACER after it is released. Court Reporter Name and Contact Information: Debra Joyce at joycedebra@gmail.com Redaction Request due 7/9/2019. Redacted Transcript Deadline set for 7/19/2019. Release of Transcript Restriction set for 9/16/2019. (Scalfani, Deborah) (Entered: 06/18/2019)
94 NOTICE is hereby given that an official transcript of a proceeding has been filed by the court reporter in the above−captioned matter. Counsel are referred to the Court's Transcript Redaction Policy, available on the court website at http://www.mad.uscourts.gov/attorneys/general−info.htm (Scalfani, Deborah) (Entered: 06/18/2019)
95 Amended MOTION for Protective Order by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security.(Kirschner, Adam) (Entered: 06/26/2019)
96 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 95 Amended Motion for Protective Order (Hourihan, Lisa) (Entered: 06/27/2019)
97 Judge Denise J. Casper: ORDER entered. Amended Stipulation and Order Government Confidential Information(Hourihan, Lisa) (Entered: 06/27/2019)
98 MOTION to Withdraw Appearance of Margaret J. Burnside by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes.(Burnside, Margaret) (Entered: 08/21/2019)
99 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 98 Motion to Withdraw Appearance of Margaret Burnside (Hourihan, Lisa) (Entered: 08/22/2019)
100 Joint MOTION for Extension of Time to 9/20/2019 to File Joint Status Report by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security.(Kirschner, Adam) (Entered: 09/12/2019)
101 STATUS REPORT , Joint, by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Kirschner, Adam) (Entered: 09/20/2019)

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 24 of 26

09/23/2019 09/24/2019 10/31/2019 11/04/2019 12/04/2019 12/09/2019 01/06/2020 01/13/2020 02/13/2020 02/14/2020 03/09/2020

102 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 100 Motion for Extension of Time to 9/20/2019 to File Joint Status Report by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security nunc pro tunc (Hourihan, Lisa) (Entered: 09/23/2019)
103 ELECTRONIC ENDORSEMENT re 101 Status Report filed by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. Further Status Report to be filed by 10/31/19 (Hourihan, Lisa) (Entered: 09/24/2019)
104 STATUS REPORT (Joint Status Report) by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (O'Keefe, Kevin) (Entered: 10/31/2019)
105 ELECTRONIC ENDORSEMENT re 104 Status Report, filed by Will Arias, Natacha Dorfeuille, Carolina Mata, Centro Presente, Anne Christine Nicolas, Yesy Patricia Carbajal, Juan Carlos Vidal, Juan Guerrero, Haitian−Americans United, Inc., Juan Amaya, Mercedes Mata, Jose Dorfeuille, Jaime Yanes, Chris Jean Baptiste, Maria Guerra, Jose Omar Rodriguez Varela. Further status report to be filed by 12/4/19 (Hourihan, Lisa) (Entered: 11/04/2019)
106 STATUS REPORT (Joint Status Report) by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (O'Keefe, Kevin) (Entered: 12/04/2019)
107 ELECTRONIC ENDORSEMENT re 106 Status Report, filed by Will Arias, Natacha Dorfeuille, Carolina Mata, Centro Presente, Anne Christine Nicolas, Yesy Patricia Carbajal, Juan Carlos Vidal, Juan Guerrero, Haitian−Americans United, Inc., Juan Amaya, Mercedes Mata, Jose Dorfeuille, Jaime Yanes, Chris Jean Baptiste, Maria Guerra, Jose Omar Rodriguez Varela. Further status report to be filed by 1/6/20. (Hourihan, Lisa) (Entered: 12/09/2019)
108 STATUS REPORT (Joint Status Report) by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (O'Keefe, Kevin) (Entered: 01/06/2020)
109 ELECTRONIC ENDORSEMENT re 108 Status Report, filed by Will Arias, Natacha Dorfeuille, Carolina Mata, Centro Presente, Anne Christine Nicolas, Yesy Patricia Carbajal, Juan Carlos Vidal, Juan Guerrero, Haitian−Americans United, Inc., Juan Amaya, Mercedes Mata, Jose Dorfeuille, Jaime Yanes, Chris Jean Baptiste, Maria Guerra, Jose Omar Rodriguez Varela. Further status report to be filed by 2/13/20. (McKillop, Matthew) (Entered: 01/13/2020)
110 STATUS REPORT (Joint Status Report) by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (O'Keefe, Kevin) (Entered: 02/13/2020)
111 ELECTRONIC ENDORSEMENT re 110 Status Report, filed by Will Arias, Natacha Dorfeuille, Carolina Mata, Centro Presente, Anne Christine Nicolas, Yesy Patricia Carbajal, Juan Carlos Vidal, Juan Guerrero, Haitian−Americans United, Inc., Juan Amaya, Mercedes Mata, Jose Dorfeuille, Jaime Yanes, Chris Jean Baptiste, Maria Guerra, Jose Omar Rodriguez Varela. Further Status Report to be filed by 3/13/20 (Hourihan, Lisa) (Entered: 02/14/2020)
112 Judge Denise J. Casper: ELECTRONIC ORDER entered. D. 74 : In light of the Court's prior interim order, D. 89, and the parties' most recent status report, D. 110 at 4, the Court DENIES the motion to compel WITHOUT PREJUDICE to renew after a decision on the Ramos appeal or when this Court may otherwise order, whichever occurs first. (McKillop, Matthew) (Entered: 03/09/2020)

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 25 of 26

03/13/2020 04/10/2020 05/05/2020 05/05/2020 05/05/2020
05/06/2020 05/08/2020 05/15/2020 05/18/2020 06/09/2020

113 STATUS REPORT (Joint Status Report) by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (O'Keefe, Kevin) (Entered: 03/13/2020)
114 Judge Denise J. Casper: ELECTRONIC ORDER entered re 113 Status Report, filed by Will Arias, Natacha Dorfeuille, Carolina Mata, Centro Presente, Anne Christine Nicolas, Yesy Patricia Carbajal, Juan Carlos Vidal, Juan Guerrero, Haitian−Americans United, Inc., Juan Amaya, Mercedes Mata, Jose Dorfeuille, Jaime Yanes, Chris Jean Baptiste, Maria Guerra, Jose Omar Rodriguez Varela. ln light of D. 113, the Court orders the parties to file a further status report by May 15, 2020.(Hourihan, Lisa) (Entered: 04/10/2020)
115 MOTION to Compel Production of Documents Improperly Withheld as Privileged by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (Attachments: # 1 Exhibit A)(Milbauer, Leah) (Entered: 05/05/2020)
116 MEMORANDUM in Support re 115 MOTION to Compel Production of Documents Improperly Withheld as Privileged filed by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (Milbauer, Leah) (Entered: 05/05/2020)
117 DECLARATION re 115 MOTION to Compel Production of Documents Improperly Withheld as Privileged (Declaration of Leah R. Milbauer) by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (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)(Milbauer, Leah) (Entered: 05/05/2020)
118 Joint MOTION for Extension of Time to 6/16/2020 to Respond to Motion to Compel and to Set Briefing Schedule for Plaintiffs' Reply due 6/30/2020 by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 05/06/2020)
119 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 118 Motion for Extension of Time to File Response to Motion to Compel. Defendants' Opposition to be filed by June 16, 2020 and Plaintiffs' Reply Memorandum to be filed by June 30, 2020. (Hourihan, Lisa) (Entered: 05/08/2020)
120 STATUS REPORT (Joint Status Report) by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (O'Keefe, Kevin) (Entered: 05/15/2020)
121 ELECTRONIC ENDORSEMENT re 120 Status Report, filed by Will Arias, Natacha Dorfeuille, Carolina Mata, Centro Presente, Anne Christine Nicolas, Yesy Patricia Carbajal, Juan Carlos Vidal, Juan Guerrero, Haitian−Americans United, Inc., Juan Amaya, Mercedes Mata, Jose Dorfeuille, Jaime Yanes, Chris Jean Baptiste, Maria Guerra, Jose Omar Rodriguez Varela. ln light of D. 113, the Court orders the parties to file a further status report by July 18, 2020. (Hourihan, Lisa) (Entered: 05/18/2020)
122 Consent MOTION for Leave to File Excess Pages for Defendants' Opposition to Plaintiffs' Motion to Compel by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Attachments: # 1 Text of Proposed Order)(Kirschner, Adam) (Entered: 06/09/2020)

Case: 1:18-cv-10340-DJC As of: 07/24/2020 05:34 PM EDT 26 of 26

06/10/2020
06/12/2020 06/12/2020 06/15/2020 06/16/2020 06/30/2020 06/30/2020
07/17/2020

123 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 122 Motion for Leave to File Excess Pages for Defendants' Opposition to Plaintiffs' Motion to Compel by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security; Counsel using the Electronic Case Filing System should now file the document for which leave to file has been granted in accordance with the CM/ECF Administrative Procedures. Counsel must include − Leave to file granted on (date of order)− in the caption of the document. (Hourihan, Lisa) (Entered: 06/10/2020)
124 NOTICE of Appearance by Justin J. Wolosz on behalf of Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes (Wolosz, Justin) (Entered: 06/12/2020)
125 MOTION to Withdraw as Attorney Unopposed by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes.(O'Keefe, Kevin) (Entered: 06/12/2020)
126 Judge Denise J. Casper: ELECTRONIC ORDER entered granting 125 Motion to Withdraw as Attorney. Attorney Kevin P. O'Keefe terminated (Hourihan, Lisa) (Entered: 06/15/2020)
127 MEMORANDUM in Opposition re 115 MOTION to Compel Production of Documents Improperly Withheld as Privileged filed by Elaine Costanzo Duke, Kirstjen Nielsen, Donald J. Trump, United States Department of Homeland Security. (Attachments: # 1 Affidavit of Scott Erickson)(Kirschner, Adam) (Entered: 06/16/2020)
128 REPLY to Response to 115 MOTION to Compel Production of Documents Improperly Withheld as Privileged filed by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (Wolosz, Justin) (Entered: 06/30/2020)
129 DECLARATION re 128 Reply to Response to Motion, by Leah Milbauer by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (Attachments: # 1 Exhibit 16, # 2 Exhibit 17, # 3 Exhibit 18 CP_00003698, # 4 Exhibit 19 CP_00003473, # 5 Exhibit 20 CP_00005306, # 6 Exhibit 21 CP_0013497 (PCN 478), # 7 Exhibit 22 CP_000132523)(Wolosz, Justin) (Entered: 06/30/2020)
130 STATUS REPORT (Joint Status Report) by Juan Amaya, Will Arias, Yesy Patricia Carbajal, Centro Presente, Jose Dorfeuille, Natacha Dorfeuille, Maria Guerra, Juan Guerrero, Haitian−Americans United, Inc., Chris Jean Baptiste, Carolina Mata, Mercedes Mata, Anne Christine Nicolas, Jose Omar Rodriguez Varela, Juan Carlos Vidal, Jaime Yanes. (Ni, Xing−Yin) (Entered: 07/17/2020)

 
 Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 1 of 37

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

CENTRO PRESENTE, a membership

)

organization; JUAN CARLOS VIDAL; ANNE )

CHRISTINE NICOLAS; CHRIS JEAN

)

BAPTISTE; MERCEDES MATA; CAROLINA )

MATA; WILL ARIAS; JUAN AMAYA; and

)

MARIA GUERRA,

)

)

Plaintiffs,

) Civil Action No. 1:18-cv-10340

)

v.

)

)

DONALD J. TRUMP, President of the United

) COMPLAINT

States in his official capacity; UNITED STATES )

DEPARTMENT OF HOMELAND SECURITY; )

KIRSTJEN NIELSEN, Secretary of the

)

Department of Homeland Security in her official )

capacity; and ELAINE COSTANZO DUKE,

)

Deputy Secretary of the Department of Homeland )

Security in her official capacity,

)

)

Defendants.

)

)

INTRODUCTION 1. Plaintiffs, eight recipients of Temporary Protected Status (“TPS”) from El Salvador and Haiti and a non-profit organization with TPS recipient members, bring this action seeking a declaratory judgment that the Trump Administration’s termination of TPS designation for those two countries should be set aside as unconstitutional and contrary to federal law and further enjoining the Administration from violating Plaintiffs’ Constitutional rights. The decision by Defendants President Donald J. Trump; the U.S. Department of Homeland Security (“DHS”); Kirstjen Nielsen (“Nielsen”) in her official capacity as the current Secretary of DHS; and Elaine C. Duke (“Duke”) in her official capacity as Acting Secretary of DHS, to terminate

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 2 of 37
TPS designation for Salvadorans and Haitians was impermissibly infected by invidious discrimination on the basis of race, ethnicity, and/or national origin and therefore cannot stand.
2. TPS is intended to provide safe haven in the United States for foreign nationals whose nation is experiencing a humanitarian or environmental crisis. The conditions that initially led to the TPS designations of El Salvador and Haiti are nothing short of extreme and, in many ways have only worsened over time. In 2001, El Salvador was struck by a devastating series of earthquakes. The earthquakes caused at least 1,100 deaths and displaced an estimated 1.3 million people. The earthquakes damaged or destroyed 220,000 homes, 1,696 schools, and 856 public buildings with losses across economic sectors estimated at $2.8 billion. Since 2001, recovery has been stalled and plagued by subsequent humanitarian and environmental crises, including hurricanes, mudslides, floods, and volcanic eruptions. These problems are compounded by the emergence of extreme gang violence. El Salvador remains economically stagnant and fragile.
3. Haiti’s TPS designation started in 2010 after the country experienced a cataclysmic earthquake. Reports indicate that three million Haitians were affected by the earthquake. Homes, hospitals, schools, and vital government buildings collapsed, and the country’s infrastructure, including electric and water services, was decimated. Since 2010, Haiti’s recovery has been stalled by recent natural disasters such as Hurricane Matthew. Haiti has also experienced a devastating cholera epidemic, which has killed hundreds of thousands of people to date. Gender-based violence has also emerged as a major social problem. Haiti remains economically stagnant with ill-functioning infrastructure.
4. Defendants’ stated reasons for terminating TPS for Salvadorans and Haitians ignore these conditions and are nothing but a thin and pretextual smokescreen for a racially
2

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 3 of 37
discriminatory immigration agenda -- one that the President has been astonishingly blunt about articulating. President Trump has long made clear his dislike and disregard for Latino and Black immigrants, including equating Latino immigrants with rapists, asserting that African immigrants who have seen America would never “go back to their huts,” and saying a group of Haitian immigrants “all have AIDS.” Most recently, in discussing immigration policy with Congressional leaders in January 2018, he referred to Haiti and other TPS nations as “shithole countries,” further driving home the racial motive by saying that the United States should let in more immigrants from Norway instead. The animus directed towards Latino and Black immigrants is a clear and unfortunate thread running throughout President Trump’s statements -and is actualized by his Administration’s policies, such as the ones challenged by this lawsuit.
5. The Administration’s decision to terminate TPS for El Salvador and Haiti, which is impermissibly tainted by racial animus, will be devastating for hundreds of thousands of people who currently call the United States home. There are 242,900 Salvadoran TPS recipients currently in the United States. These individuals have jobs, homes, and families, including an estimated 192,700 U.S citizen children.1 Approximately 93,500 Haitians are similarly currently under TPS protection in the United States. They too have established livelihoods and communities here, with an estimated 27,000 U.S. citizen children.2 In Massachusetts alone there are 6,058 Salvadoran TPS beneficiaries and 4,735 Haitian beneficiaries.3 The greater Boston
1 Robert Warren & Donald Kerwin, A Statistical and Demographic Profile of the US Temporary Protected Status Populations from El Salvador, Honduras, and Haiti, 5 Journal of Migration and Human Security 577, 581 (2017). 2 Id. 3 Shannon Dooling, Data Show More Than 12,000 Immigrants In Mass. Have Temporary Status, WBUR (Nov. 9, 2017), http://www.wbur.org/news/2017/11/09/temporary-status-data-update.
3

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 4 of 37
area is home to the country’s third-largest Haitian diaspora, and an estimated one in ten Haitians in Massachusetts are TPS beneficiaries.4
6. Termination of TPS for El Salvador and Haiti would wreak havoc on the lives of hundreds of thousands of people. As the individual Plaintiffs’ experiences reflect, entrepreneurs will lose their businesses; property owners will lose their family homes; and families with U.S. citizen children will be torn apart. People who have lived in the United States for decades now risk being rounded up and removed from the neighborhoods where they have built their lives, raised children, and invested in their communities. Moreover, neither El Salvador nor Haiti has the capacity to receive a massive influx of returning immigrants.
7. The Trump Administration’s decision to terminate TPS for Salvadorans and Haitians harkens back to some of the darkest and most discredited chapters in U.S. history.5 The nation has striven to move beyond a time when invidious discrimination drove immigration policy and resulted in exclusion of disfavored racial groups from legal protections. But sometimes the pendulum swings back -- and we are confronted again in Defendants’ decision to terminate TPS for Salvadorans and Haitians with governmental action impermissibly infected by racial discrimination. By this complaint, Plaintiffs ask this Court to rule that such action violates the U.S. Constitution and federal law, and to enjoin it.
4Id. 5See Act of May 6, 1882 (Chinese Exclusion Act), ch. 126, 1, 22 Stat. 58, 58 (repealed 1943) (prohibiting immigration of Chinese laborers); see also Julia Preston, Obama Lifts a Ban on Entry into U.S. By H.I.V.-Positive People, N.Y. Times (Oct. 30, 2009), http://www.nytimes.com/2009/10/31/us/politics/31travel.html (announcing the end of a 22-year ban on travel to the United States by people living with HIV).
4

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 5 of 37

A. Plaintiffs

PARTIES

8. Established in 1981, Centro Presente is a state-wide Latin American immigrant

membership organization dedicated to the self-determination and self-sufficiency of the Latin

American immigrant community of Massachusetts. The non-profit organization was founded by

Sister Rose Marie Cummings in direct response to the rapidly growing community of refugees

fleeing violence during the civil war conflicts in Central America in the 1980s. Operated and led

primarily by Central American immigrants, Centro Presente struggles for immigrant rights and

for economic and social justice. Through the integration of community organizing, leadership

development and basic services, Centro Presente strives to give members a voice and to build

community power.

9. Centro Presente has a staff of seven and provides English as a Second Language

(ESL) classes; legal services; immigration clinics; advocacy; and leadership development to over

three thousand families, youth, and children each year. Through its programming, community

outreach, and educational activities, Centro Presente serves hundreds of TPS beneficiaries –

including their families and children.

10. Today, Centro Presente has over 1,500 members. Of those members, a number

are TPS beneficiaries from El Salvador. Centro Presente’s membership also includes U.S.

citizens and non-citizens.

11. The Trump Administration’s announcement of TPS rescission has negatively

affected Centro Presente by forcing the organization to divert limited staff and scarce resources

from critical programs in order to educate and assist individuals affected by the rescission,

including helping individuals and families navigate the specter of immigration enforcement.

5

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 6 of 37
12. The organization has experienced challenges encouraging current and prospective members to seek services in its various program areas because they fear imminent deportation in light of the announcement of TPS rescission. TPS rescission has deterred Centro Presente’s members and prospective members by making them fearful to attend meetings and to participate in activities because of the specter of immigration enforcement, and the toxic anti-immigrant climate on the ground replete with discrimination and violence.
13. The Trump Administration’s announcement of TPS rescission is interfering with the organization’s essential mission and has forced Centro Presente to re-allocate its limited resources to ensure that its members feel safe and to address confusion and fear in response to discriminatory immigration policies.
14. Juan Carlos Vidal, a Salvadoran immigrant, is a successful entrepreneur and property owner residing in Revere, Massachusetts. He is currently a TPS beneficiary and has been since 2001.
15. Mr. Vidal has two U.S. citizen children -- 5 and 7 years-old -- both born in Massachusetts.
16. Rising through the ranks from kitchen assistant to chef, Mr. Vidal worked for more than a decade at Blue Fin, a restaurant in Cambridge, Massachusetts. Through hard work and thrift, Mr. Vidal opened his first restaurant. A successful restaurateur, Mr. Vidal is now coowner of four restaurants located in Massachusetts contributing substantially to the local economy.
17. Anne Christine Nicolas is a 25 year-old Haitian immigrant who lives in Boston, Massachusetts. She is currently a TPS beneficiary and has been since 2010.
6

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 7 of 37
18. Ms. Nicolas is a successful college graduate. With a deep commitment to teaching and learning, she currently works at the intersection of education and arts. She earned a Bachelor of Fine Arts from Lesley University in Cambridge, Massachusetts. Before it was announced that TPS designation for Haiti would be rescinded, she was preparing for the future and exploring master’s degree programs in arts and education.
19. Chris Jean Baptiste is a 19 year-old Haitian immigrant who lives in Boston, Massachusetts. He is currently a TPS beneficiary and has been since 2010.
20. Mr. Jean Baptiste graduated from Milton High School in Milton, Massachusetts, and is currently enrolled in Bunker Hill Community College. He also works as the manager of a franchise of one of the largest American restaurant chains.
21. Mercedes Mata is a Salvadoran immigrant residing in Leominster, Massachusetts, where she purchased her home approximately six months ago. She is currently a TPS beneficiary and has been since 2001.
22. Ms. Mata is a clerk in the Fitchburg Municipal Office. In Fitchburg, a community that is nearly 25 percent Latino,6 she is one of a handful of bilingual employees in the municipal office with the linguistic competence to serve a burgeoning Spanish-speaking Latino population.
23. Ms. Mata has two children, who were both born in Massachusetts. Her 21 yearold U.S. citizen daughter is enrolled in Mount Wachusett Community College in Gardner, Massachusetts. Her 7 year-old U.S. citizen son is in first grade in elementary school.
24. Ms. Mata is active in her church and in community affairs. 25. Ms. Mata is an active member of Centro Presente.
6 Census Reporter, Fitchburg, Massachusetts, https://censusreporter.org/profiles/16000US2523875-fitchburg-ma/.
7

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 8 of 37
26. Carolina Mata is a Salvadoran immigrant residing in Leominster, Massachusetts. She is currently a TPS beneficiary and has been since 2001.
27. Ms. Mata has two children, both born in Massachusetts. Her 19 year-old U.S. citizen son is a first-year college student at Fitchburg State University in Fitchburg, Massachusetts. Her 11 year-old U.S. citizen daughter is in fifth grade in elementary school.
28. Ms. Mata is an active member of Centro Presente. 29. Will Arias is Salvadoran immigrant residing in Everett, Massachusetts. He is currently a TPS beneficiary and has been since 2001. 30. Mr. Arias is a custodian at the John Adams Courthouse where the Massachusetts Supreme Judicial Court sits in Boston. 31. Mr. Arias and his wife, in 2016, purchased a home in Everett, Massachusetts, where they are raising two children born in Massachusetts: their 2 year-old U.S. citizen son; and a 16 year-old U.S. citizen son who is currently in 11th grade in Everett High School. As a junior in high school, their eldest son has college aspirations and is beginning to explore college options. 32. Juan Amaya, a Salvadoran immigrant, is a resident of Lynn, Massachusetts. He is currently a TPS beneficiary and has been since 2001. 33. Mr. Amaya is a high-rise window washer. Rappelling off skyscrapers, he cleans the glass façades of gleaming towers across Boston’s skyline. 34. Mr. Amaya has four children. His eldest children both graduated from Lynn Vocational Technical Institute and are DACA recipients. His youngest children are both U.S. citizens born in Massachusetts. His U.S. citizen daughter is 10 years-old. His U.S. citizen son,
8

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 9 of 37
an 11th grade student at Lynn Classical High School in Lynn, Massachusetts, would like to go to college and is starting to explore options for higher education.
35. Maria Guerra is a Salvadoran immigrant residing in Somerville, Massachusetts, where she purchased her home over a decade ago. She is currently a TPS beneficiary and has been since 2001.
36. Ms. Guerra is a domestic worker, and takes care of children as a nanny for a family in Arlington, Massachusetts.
37. Ms. Guerra has four children. Her two eldest children -- 25 and 22 years-old -are DACA recipients. Both her eldest sons work in information technology services at Harvard University. Her 22 year-old son is also studying at Bunker Hill Community College. Her youngest children -- 17 and 19 years-old -- are U.S. citizens both born in Massachusetts. They are attending high school, and looking forward to graduating and studying in college.
38. Ms. Guerra is an active community member in Somerville. B. Defendants
39. Defendant Donald J. Trump is currently President of the United States, a position he has held since January 20, 2017. As chief executive, President Trump oversees all executive agencies and cabinet members including Defendants.
40. Defendant Department of Homeland Security is a department of the Executive Branch of the United States government. DHS and its component agencies, U.S. Customs and Border Protection (“CBP”), U.S. Immigration and Customs Enforcement (“ICE”), and U.S. Citizenship and Immigration Services (“USCIS”), have the authority to administer and enforce U.S. immigration laws and policies, including the TPS program at issue here.
41. Defendant Kirstjen Nielsen has been Secretary of Homeland Security since December 6, 2017, and is currently DHS’ senior official. She was appointed to the position by
9

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 10 of 37
President Trump. Defendant Nielsen is responsible for DHS oversight and for implementing and enforcing immigration laws and policies. Defendant Nielsen authorized the rescission of El Salvador’s TPS designation on January 18, 2018. She is sued in her official capacity.
42. Defendant Elaine Costanzo Duke was appointed by President Trump as Acting Secretary of Homeland Security from July 31, 2017, to December 6, 2017. Defendant Duke currently serves as Deputy Secretary of DHS. As Acting Secretary, Defendant Duke was responsible for DHS oversight and for implementing and enforcing immigration laws and policies. Defendant Duke authorized the rescission of Haiti’s TPS designation on November 20, 2017. She is sued in her official capacity.
JURISDICTION AND VENUE 43. This Court has proper jurisdiction over this matter under 28 U.S.C § 1331. 44. Venue is proper in this Court under 28 U.S.C § 1391.
FACTS The TPS Program 45. The purpose of the TPS program is to provide safe haven in the United States for foreign nationals whose nation is experiencing a humanitarian or environmental crisis. TPS is promulgated under Section 244(c)(2) of the Immigration and Nationality Act (“INA”) and 8 U.S.C. § 1254a. The program is designed to address serious concerns that arise when civil unrest, armed conflict, extreme violence, or natural disasters compromise the ability of foreign nationals in the United States to safely return to their native country.
10

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 11 of 37
46. When the Secretary of Homeland Security7 finds that conditions in a foreign country prevent its nationals from returning safely or where a foreign country is unable to adequately handle the return of its nationals, the Secretary, after consultation with the appropriate federal agencies including the U.S. Department of State, may grant TPS status to foreign nationals of that country.
47. Foreign nationals from such countries may then apply for TPS status and must meet rigorous qualifications, including having no serious criminal record.
48. Foreign nationals under TPS protection cannot be removed from the United States. A foreign national who is granted TPS receives proof of registration and a work authorization document.
49. The Secretary of Homeland Security may grant TPS protection to foreign nationals if the Secretary determines that: (a) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the foreign state resulting in a substantial, but temporary, disruption of living conditions in the area affected; the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state; and the foreign state officially has requested TPS designation; or (b) there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.8
50. The Secretary of Homeland Security may issue TPS for periods of six to eighteen months. After the initial designation, the Secretary must review the conditions in the foreign 7 Under 8 U.S.C. § 1254a, the Attorney General was originally authorized to administer the TPS program. With the formation of the Department of Homeland Security, the authority to designate countries and administer the TPS program was transferred from the Attorney General to the Secretary of Homeland Security in 2003. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002). 8 8 U.S.C. § 1254a(b)(1).
11

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 12 of 37
state for which the designation is in effect and must determine whether the conditions for such designation continue to be met. If the Secretary determines that a foreign state continues to meet the conditions for designation under the TPS statute, the nation may be re-designated, or the period of designation may be extended for up to eighteen months. Provided that such conditions are met, there is no statutory limit for how many times TPS designation may be extended.
51. The Secretary’s decision to extend, re-designate, or terminate TPS protection must be published in the Federal Register. The timing of the Secretary’s publication has important implications for TPS recipients because of the notice it provides regarding their immigration status and because of the protections attached to TPS such as employment authorization.
El Salvador’s TPS Designation 52. On March 1, 2001,9 former Attorney General John Ashcroft designated El Salvador for TPS, making TPS protection available to Salvadoran nationals “continuously physically present” in the United States since March 9, 2001, and who have “continuously resided” in the United States since February 13, 2001.10 This initial designation was set to run through September 9, 2002. 53. Attorney General Ashcroft’s TPS designation was based on the urgent request of the Salvadoran government and the following findings indicating that El Salvador was “unable, temporarily, to handle adequately the return of its nationals”:
a. El Salvador suffered a “devastating earthquake on January 13, 2001, and experienced two more earthquakes on February 13 and 17, 2001”; 9 The notice announcing designation of El Salvador was dated March 1, 2001 and recorded in the Federal Register on March 9, 2001. 10 Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14214 (Mar. 9, 2001).
12

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 13 of 37
b. These earthquakes resulted in at least 1,100 deaths, and displaced an estimated 1.3 million people (17% of the country’s total population); and
c. The earthquakes damaged or destroyed “220,000 homes, 1,696 schools, and 856 public buildings” with losses to the housing, infrastructure, and agricultural sectors estimated at $2.8 billion.11 54. On July 11, 2002, Attorney General Ashcroft extended El Salvador’s TPS designation from September 9, 2002, to September 9, 2003.12 55. Attorney General Ashcroft based this extension on a finding that El Salvador still met all of the requirements for TPS designation, particularly because the earthquake caused substantial damage to the country’s infrastructure, including housing, roads, hospitals, and schools. Attorney General Ashcroft further noted that the situation in El Salvador had worsened in some respects from the time of its initial designation because subsequent droughts left “35,000 subsistence farming families destitute” and “200,000 people . . . threatened by ‘food insecurity.’”13 56. On July 16, 2003, former DHS Secretary Tom Ridge extended El Salvador’s TPS designation from September 9, 2003, to March 9, 2005.14
11 Id. at 14214. 12 Extension of the Designation of El Salvador Under the Temporary Protected Status Program; Automatic Extension of Employment Authorization Documentation for Salvadorans, 67 Fed. Reg. 46000 (July 11, 2002). 13 Id. at 46001. 14 Extension of the Designation of El Salvador Under Temporary Protected Status Program; Automatic Extension of Employment Authorization Documentation for El Salvador, 68 Fed. Reg. 42071 (July 16, 2003).
13

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 14 of 37
57. Secretary Ridge based this extension on a finding that El Salvador continued to meet all of the requirements that prompted its initial designation, particularly that the “economy of El Salvador [was] not yet stable enough to absorb returnees from the United States.”15
58. On January 7, 2005, former Secretary Ridge extended El Salvador’s TPS designation from March 9, 2005, to September 9, 2006.16
59. Secretary Ridge based this extension on a finding that El Salvador continued to meet all of the requirements that prompted its initial designation. He noted severe damage and slow recovery in all sectors, including housing, schools, and hospitals.17
60. On June 15, 2006, former DHS Secretary Michael Chertoff extended El Salvador’s TPS designation from September 9, 2006, to September 9, 2007.18
61. Secretary Chertoff based this extension on a finding that El Salvador continued to meet all of the requirements that prompted its initial designation. He noted that new natural disasters -- including the “eruption of the Santa Ana volcano that was immediately followed by mudslides and flooding caused by Hurricane Stan” -- had substantially slowed rebuilding efforts in El Salvador.19
15 Id. at 42072. 16 Extension of the Designation of Temporary Protected Status for El Salvador; Automatic Extension of Employment Authorization Documentation for El Salvador TPS Beneficiaries, 70 Fed. Reg. 1450 (Jan. 7, 2005). 17 Id. at 1450-51. 18 Extension of the Designation of Temporary Protected Status for El Salvador; Automatic Extension of Employment Authorization Documentation for El Salvadoran TPS Beneficiaries, 71 Fed. Reg. 34637 (June 15, 2006). 19 Id. at 34638.
14

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 15 of 37
62. On August 21, 2007, Secretary Chertoff extended El Salvador’s TPS designation from September 10, 2007, to March 9, 2009.20
63. Secretary Chertoff based this extension on a finding that El Salvador continued to meet all of the requirements that prompted its initial designation. The extension was also supported by a request from the Salvadoran government, and by the fact that, despite some progress in rebuilding efforts, living conditions remained substantially disrupted in El Salvador.21
64. On October 1, 2008, Secretary Chertoff extended El Salvador’s TPS designation from March 9, 2009, to September 9, 2010.22
65. Secretary Chertoff based this extension on a finding that El Salvador continued to meet all of the requirements that prompted its initial designation. He noted that: “El Salvador has still not completed reconstruction of the infrastructure damaged by several severe 2001 earthquakes. Transportation, housing, education and health sectors are still suffering from the 2001 earthquake, the lingering effects of which limit El Salvador’s ability to absorb a large number of potential returnees.”23
66. On July 9, 2010, former DHS Secretary Janet Napolitano extended El Salvador’s TPS designation from September 9, 2010, to March 9, 2012.24
20 Extension of the Designation of El Salvador for Temporary Protected Status; Automatic Extension of Employment Authorization Documentation for Salvadoran TPS Beneficiaries, 72 Fed. Reg. 46649 (Aug. 21, 2007). 21 Id. at 46649-50. 22 Extension of the Designation of El Salvador for Temporary Protected Status, 73 Fed. Reg. 57128 (Oct. 1, 2008). 23 Id. at 57129. 24 Extension of the Designation of El Salvador for Temporary Protected Status and Automatic Extension of Employment Authorization Documentation for Salvadoran TPS Beneficiaries, 75 Fed. Reg. 39556 (July 9, 2010).
15

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 16 of 37
67. Secretary Napolitano based this extension on a finding that El Salvador continued to meet all of the requirements that that prompted its initial TPS designation. She noted that: “El Salvador also continues to suffer a public security crisis that threatens to undermine sustained development and confidence in democratic governance.” 25 Secretary Napolitano also cited the rapidly “increasing levels of violent crime” as a basis for TPS extension.26
68. On January 11, 2012, Secretary Napolitano extended El Salvador’s TPS designation from March 9, 2012, to September 9, 2013.27
69. Secretary Napolitano based this extension on a finding that El Salvador continued to meet all of the requirements that prompted its initial designation. She noted continuing infrastructural deficiencies including “reports that only about 21 percent of rural households had continuous water services.”28 She also noted that: “[r]ecovery has been slow and encumbered by Hurricanes Adrian and Stan in 2005, Hurricane Felix in 2007, Hurricane Ida in 2009, and most recently Tropical Storm Agatha in 2010.”29
70. On May 30, 2013, Secretary Napolitano extended El Salvador’s TPS designation from September 10, 2013, to March 9, 2015.30
25 Id. at 39558. 26 Id. 27 Extension 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 (Jan. 11, 2012). 28 Id. at 1712. 29 Id. 30 Extension of the Designation of El Salvador for Temporary Protected Status, 78 Fed. Reg. 32418 (May 30, 2013).
16

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 17 of 37
71. Secretary Napolitano based this extension on a finding that El Salvador continued to meet all of the requirements that prompted its initial designation. She noted that: “recovery in the affected areas of El Salvador has been slow and disrupted by subsequent natural disasters.”31
72. On January 7, 2015, former DHS Secretary Jeh Charles Johnson extended El Salvador’s designation from March 10, 2015, to September 9, 2016.32
73. Secretary Johnson based this extension on a finding that El Salvador continued to meet all of the requirements that prompted its initial designation. He noted that recent “environmental disasters” had substantially stalled recovery efforts. He also noted that: “In June 2013, Tropical Storm Barry caused flooding in El Salvador, and in December 2013, the eruption of the Chaparrastique volcano . . . forced thousands of people . . . to evacuate their homes.”33 Against a backdrop of high unemployment rates and severe food insecurity, Secretary Johnson noted that: “a large influx of returning citizens at this time would overwhelm the labor market and the government’s fiscal ability to extend basic services to its citizens.”34
74. On July 8, 2016, Secretary Johnson extended El Salvador’s TPS designation from September 10, 2016, to March 9, 2018.35
75. Secretary Johnson based this extension on a finding that El Salvador continued to meet all of the requirements that prompted its initial designation. He noted a substantial rise in violence, crime, gangs, and general insecurity. The United Nations Development Program
31 Id. at 32419. 32 Extension of the Designation of El Salvador for Temporary Protected Status, 80 Fed. Reg. 893 (Jan. 7, 2015). 33 Id. at 894. 34 Id. 35 Extension of the Designation of El Salvador for Temporary Protected Status, 81 Fed. Reg. 44645 (July 8, 2016).
17

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 18 of 37
reported finding that in 2014, “Salvadoran citizens paid $756 million in extortion payments to gangs.”36 Secretary Johnson also cited a weak judicial system, which created an “environment of impunity” for corruption, violent crimes, and gang activity.37
Trump Administration Announces Termination of El Salvador’s TPS 76. Despite extensions of the TPS program for El Salvador over the course of multiple administrations under both political parties, and despite the lingering effects of compounded environmental and humanitarian crises, on January 18, 2018, the Trump Administration terminated El Salvador’s TPS designation effective September 9, 2019.38 77. Defendant Nielsen’s assertion, in announcing the Trump Administration’s decision to terminate TPS for El Salvador, that country conditions have “stabilized” is pretext for invidious discrimination and belied by well-established facts. 78. Defendant Nielsen’s stated reasoning for the Trump Administration’s termination of El Salvador’s TPS designation represents a sharp departure from DHS’s ordinary decisionmaking process, furthering the inference of invidious discrimination. 79. Under 8 U.S.C. § 1254a, DHS is required to consider “the conditions in the foreign state . . . for which a designation is in effect under this subsection and . . . determine whether the conditions for such designation under this subsection continue to be met.” 80. Previously, consistent with that statutory mandate, the Attorney General and DHS Secretaries have conducted careful reviews to determine whether conditions in El Salvador
36 Id. at 44647. 37 Id. 38 Termination of the Designation of El Salvador for Temporary Protected Status, 83 Fed. Reg. 2654 (Jan. 18, 2018); see also Press Release, Secretary of Homeland Security Kirstjen M. Nielson Announcement on Temporary Protected Status for El Salvador (Jan. 8, 2018), https://www.dhs.gov/news/2018/01/08/secretary-homeland-security-kirstjen-m-nielsenannouncement-temporary-protected.
18

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 19 of 37
continued to reflect problems with respect to housing, food, infrastructure, education, access to health care, and gang violence that have characterized El Salvador since the 2001 earthquake and that justified El Salvador’s TPS designation. In stark contrast to the extensions of El Salvador’s TPS status in other Administrations, Defendants failed to assess country conditions that were documented over the course of nearly two decades. In particular, Defendants failed to mention the numerous natural disasters that El Salvador recently experienced, the ongoing food scarcity, or the persistence of extreme gang violence, corruption and judicial inefficacy.
81. Defendant Nielsen’s flawed analysis of conditions in El Salvador conflicts sharply with the federal government’s own reports and analysis released by the U.S. Department of State, which consistently reflect the conditions described in the Federal Register for El Salvador’s prior TPS extensions. For example, the U.S. Department of State has released numerous reports documenting that in El Salvador “violent crime, such as murder, assault, rape, and armed robbery is common. Gang activity such as extortion [and] violent street crime . . . is widespread. Local police may lack the resources to respond effectively . . . .”39
82. Consistent with the determinations made by prior Administrations in extending TPS protections to El Salvador, the U.S. Department of State has frequently noted that El Salvador experiences “widespread corruption; weak rule of law, which contribute[s] to high levels of impunity and government abuse, including unlawful killings by security forces, discrimination . . . [and] violence against women and girls.”40
39 U.S. Dep’t of State Travel Advisory on El Salvador (Jan. 10, 2018), https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/el-salvador-traveladvisory.html. 40 U.S. Dep’t of State, El Salvador 2016 Human Rights Report (updated Apr. 12, 2017), https://www.state.gov/documents/organization/265798.pdf.
19

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 20 of 37
83. Defendant Nielsen’s reliance on El Salvador’s increased GDP as a reason for termination also raises the inference of pretext. As the World Bank recently noted, external factors were responsible for the increase including “remittances which increased by $306 million since 2015.”41
84. Defendant Nielsen’s stated reasoning also gives no consideration to the ability of El Salvador to receive the thousands of TPS recipients currently living in the United States. In fact, “if all the Salvadoreans in the TPS programme were to come back . . . the country’s population would swell by 3%. El Salvador is in no state to receive and reintegrate them.”42
85. Defendant Nielsen’s purported analysis of country conditions in El Salvador also conflicts with DHS’s own reports, released as recently as January 2018, documenting that El Salvador is one of the “leading countries of nationality for persons granted either affirmative or defensive asylum” based on credible and well-founded fear of persecution or torture.43 El Salvador’s prevalence in asylum proceedings makes sense in light of the country conditions amply discussed in the Federal Register over the course of El Salvador’s TPS designation.
41 World Bank, “World Bank in El Salvador” Overview (Oct. 10, 2017), http://www.worldbank.org/en/country/elsalvador/overview. 42 See How Will El Salvador Cope With Deportees From America?, The Economist (Jan. 11, 2018), https://www.economist.com/news/americas/21734477-united-states-wants-expel-up200000-salvadoreans-both-they-and-their-home-country. 43 U.S. Dep’t of Homeland Security, Office of Immigration Statistics, Annual Flow Report (published Jan. 2018), https://www.dhs.gov/sites/default/files/publications/Refugees_Asylees_2016_0.pdf.
20

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 21 of 37
Haiti’s TPS Designation 86. TPS protection for Haiti was published in the Federal Register on January 21, 2010, pursuant to former Secretary of DHS Janet Napolitano’s designation. Haiti’s initial TPS designation ran from January 21, 2010, to July 22, 2011.44 87. Secretary Napolitano found that the requisite “extraordinary and temporary conditions” in Haiti warranted the TPS designation. This determination was based on the following findings:
a. “On January 12, 2010 Haiti was struck by a 7.0-magnitude earthquake . . . its strongest earthquake in 200 years.”45
b. The earthquake destroyed most of the capital city, Port-au-Prince.46 c. Reports indicated that “three million people -- one-third of Haiti’s population -- had been affected by the earthquake.”47 d. Hospitals, schools, and vital government buildings collapsed, or were severely damaged, and the country’s infrastructure including electric, water, and telephone services were severely affected.48 88. Haiti was re-designated for TPS and its TPS protection was extended in the Federal Register on May 19, 2011, by Secretary Napolitano. The extension and new designation began on July 23, 2011, and continued until January 22, 2013.49
44 Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3476 (Jan. 21, 2010). 45 Id. at 3477. 46 Id. 47 Id. 48 Id. 49 Extension of the Designation of Haiti Under the Temporary Protected Status Program, 76 Fed. Reg. 29000 (May 19, 2011).
21

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 22 of 37
89. Secretary Napolitano based this re-designation and extension on a finding that Haiti still met all of the requirements for TPS designation, particularly because the earthquake exacerbated Haiti’s position as “one of the poorest [countries] in the world.”50 The earthquake substantially damaged all levels of infrastructure in the country including housing, roads, hospitals, and schools. Secretary Napolitano noted that 80% of Haiti’s population was living below the poverty line, that an estimated 230,000 people died in the earthquake, and that 1 million people had been made homeless.51 In support of the extension and re-designation Secretary Napolitano cited the 800,000 internally displaced children, the rise of gender-based violence, and the outbreak of a cholera epidemic in the country with nearly 200,000 reported cases at the time.52
90. On October 1, 2012, Secretary Napolitano extended Haiti’s TPS designation from January 23, 2013, to July 22, 2014.53
91. Secretary Napolitano based this extension on a finding that Haiti continued to meet all of the requirements that prompted its initial designation, including crippling infrastructural problems, a high number of internally displaced persons, a rise in gender-based violence, and the deadly cholera outbreak.54
50 Id. at 29001. 51 Id. 52 Id. 53 Extension of the Designation of Haiti Under the Temporary Protected Status Program, 77 Fed. Reg. 59943 (Oct. 1, 2012). 54 See id. at 59944.
22

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 23 of 37
92. On March 3, 2014, former Secretary Johnson extended Haiti’s TPS designation from July 23, 2014, to January 22, 2016.55
93. Secretary Johnson based this extension on a finding that Haiti continued to meet all of the requirements that prompted its initial designation. He particularly noted the heightened risks to human rights and security in the country. He cited the slow pace of economic recovery, and new disasters such as Tropical Storm Isaac and Hurricane Sandy, which caused additional damage, displacement, and death.56
94. On August 25, 2015, Secretary Johnson extended Haiti’s TPS designation from January 23, 2016, to July 22, 2017.57
95. Secretary Johnson based this extension on a finding that Haiti continued to meet all of the requirements that prompted its initial designation, particularly because of the lingering infrastructural damage, and high rates of food insecurity. He noted that as of January 12, 2015, “Haiti was left without a functioning legislative branch or duly elected local authorities” and that the country continued to lack health, sanitation, and emergency services necessary to accept its nationals living in the United States with TPS.58
96. On May 24, 2017, former DHS Secretary John Kelly extended Haiti’s TPS designation for six months from July 23, 2017, to January 22, 2018.59
55 Extension of the Designation of Haiti Under the Temporary Protected Status Program, 79 Fed. Reg. 11808 (Mar. 3, 2014). 56 Id. at 11809-10. 57 Extension of the Designation of Haiti Under the Temporary Protected Status Program, 80 Fed. Reg. 51582 (Aug. 25, 2015). 58 Id. at 51584. 59 Extension of the Designation of Haiti Under the Temporary Protected Status Program, 82 Fed. Reg. 23830 (May 24, 2017).
23

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 24 of 37
97. Secretary Kelly based this extension on a finding that Haiti continued to meet the requirements that prompted its initial designation, and particularly because of the high number of internally displaced persons, high levels of gender-based violence, and the debilitating cholera epidemic. He noted that recovery efforts were compromised by new disasters -- Hurricane Matthew, flooding, and landslides -- that struck Haiti killing, displacing, and starving its populace.60
Trump Administration Announces Termination of TPS for Haiti 98. Despite extensions of the TPS program for Haiti over the course of almost a decade and the lingering effects of multiple environmental and humanitarian crises, on November 20, 2017, Defendant Duke abruptly announced the termination of Haiti’s TPS designation effective July 22, 2019.61 99. The termination of Haiti’s TPS designation was recorded in the Federal Register on January 18, 2018.62 Defendants cited some improvements in the numbers of internally displaced persons as a purported justification for rescinding Haiti’s TPS designation.63 100. Defendant Duke’s assertion, in announcing the Trump Administration’s decision to terminate TPS for Haiti, that country conditions have made “progress” is pretext for invidious discrimination and belied by well-established facts.
60 Id. at 23832. 61 Termination of the Designation of Haiti Under the Temporary Protected Status Program, 83 Fed. Reg. 2648 (January 18, 2018). 62 Id. 63 Id. at 2650.
24

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 25 of 37
101. Defendant Duke’s stated reasoning for the Administration’s termination of Haiti’s TPS designation represents a sharp departure from DHS’s ordinary decision-making process, furthering the inference of invidious discrimination.
102. Under 8 U.S.C. § 1254a, DHS is required to consider “the conditions in the foreign state . . . for which a designation is in effect under this subsection and . . . determine whether the conditions for such designation under this subsection continue to be met.”
103. Previously, consistent with that statutory mandate, DHS conducted a careful review to determine whether conditions in Haiti continued to reflect the severe problems with respect to housing, food security, infrastructure, access to health care, and gender-based violence that have characterized Haiti since the 2010 earthquake and that justified Haiti’s TPS designation. Unlike the extensions of Haiti’s TPS protection in other Administrations, Defendants failed to mention the numerous natural disasters Haiti recently experienced, the slow process of economic and infrastructural recovery described in recent extensions, the remaining food scarcity, or the persistent reports of gender-based violence.
104. Defendants’ analysis of the situation in Haiti also conflicts sharply with the federal government’s own reports and analysis released by the Department of State which consistently reflect the conditions described in the Federal Register for Haiti’s TPS extensions. For example, the Department of State has noted that in Haiti “violent crime such as armed robbery, is common. Local police may lack resources to respond effectively to serious crimes or emergencies.”64
105. The U.S. Department of State has been clear that the situation in Haiti is destitute. The U.S. Department of State notes that gender-violence such as “rape . . . and societal
64 U.S. Dep’t of State, Travel Advisory on Haiti (last updated Aug. 2, 2017).
25

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 26 of 37
discrimination against women” remains a serious problem. Haiti still contains a high number of internally displaced persons including “14,000 people displaced by Hurricane Matthew” and “several thousand street children” in Port-Au-Prince alone.65 Against this background, the country’s reconstruction and development is far from complete and will take many years.
106. Defendants’ reliance on the withdrawal of United Nations forces from Haiti is not supported factually and, therefore, contributes to an inference of discrimination. The presence of United Nations peace-keeping forces in Haiti has been the subject of significant controversy and scandal, and their departure cannot be fairly attributed to alleged progress in country conditions.66
Termination of TPS Designations for El Salvador and Haiti is the Result of Impermissible Racial, Ethnic and/or National Origin Discrimination 107. Defendant Trump has made numerous statements reflecting bias and prejudice against immigrants of color, particularly Latino and Haitian immigrants. Evidence of this bias further supports an inference that Defendants’ actions in terminating TPS for El Salvador and Haiti were motivated by racism and racial, ethnic, and/or national origin discrimination. 108. When then-candidate Trump announced his presidential campaign, he equated Latino immigrants from Mexico with rapists, stating: “‘When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re
65 U.S. Dep’t of State, Haiti 2016 Human Rights Report 1, 24 (2016). 66 See Jonathan M. Katz, U.N. Admits Role in Cholera Epidemic in Haiti, N.Y. Times (Aug. 17, 2016), https://www.nytimes.com/2016/08/18/world/americas/united-nations-haiti-cholera.html; see also AP Report Documents Child Sexual Abuse by U.N. Peacekeepers in Haiti, NPR (Apr. 13, 2017 4:33PM), https://www.npr.org/2017/04/13/523804480/ap-report-documents-childsexual-abuse-by-u-n-peacekeepers-in-haiti.
26

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 27 of 37
bringing crime. They’re rapists. And some, I assume, are good people . . . It’s coming from more than Mexico. It’s coming from all over South and Latin America.’”67
109. At the first Republican presidential debate, then-candidate Trump again
reaffirmed his negative views of Latino immigrants: “‘[T]he Mexican government is much
smarter, much sharper, much more cunning. . . . They send the bad ones over, because they don’t want to pay for them, they don’t want to take care of them.’”68
110. After an incident on August 21, 2015, when two men urinated on a sleeping
Latino man and beat him with a metal pole, the perpetrators stated: “Donald Trump was right; all
these illegals need to be deported.” When interviewed about the racially motivated crime, then-
candidate Trump stated that they were “passionate.” Specifically, he noted: “‘[i]t would be a
shame . . . I will say that people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate.’”69
111. In October 2016, during a presidential debate, then-candidate Trump responded to
a question about immigration policy by saying: “‘We have some bad hombres here and we’re going to get them out.’”70
67 Washington Post Staff, Full Text: Donald Trump announces a presidential bid (June 16, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donaldtrump-announces-a-presidential-bid/?utm_term=.80d503a2ff9a. 68 Andrew O’Reilly, At GOP debate, Trump says ‘stupid’ U.S. leaders are being duped by Mexico, Fox News (Aug. 6, 2015), http://www.foxnews.com/politics/2015/08/06/at-republicandebate-trump-says-mexico-is-sending-criminals-because-us.html. 69 Adrian Walker, ‘Passionate’ Trump fans behind homeless man’s beating?, Boston Globe (Aug. 21, 2015), https://www.bostonglobe.com/metro/2015/08/20/after-two-brothers-allegedlybeat-homeless-man-one-them-admiringly-quote-donald-trump-deportingillegals/I4NXR3Dr7litLi2NB4f9TN/story.html. 70 Katie Zezima, Trump on immigration: There are ‘bad hombres’ in the United States, Wash. Post (Oct. 19, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/10/19/trumpon-immigration-there-are-bad-hombres-in-the-united-states/?utm_term=.1ee17064298f.
27

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 28 of 37
112. In December 2016, referring to an article about a crime wave on Long Island,
President-Elect Trump said, “‘They come from Central America. They’re tougher than any
people you’ve ever met. They’re killing and raping everybody out there. They’re illegal. And
they are finished.’”71
113. On August 25, 2017, President Trump pardoned former Maricopa County Sheriff
Joe Arpaio,72 who was to be sentenced for criminal contempt for failing to comply with a federal
judge’s order to stop racially profiling Latinos.73
114. President Trump has made numerous similarly biased statements against Black
immigrants. He articulated his antipathy towards Haitians in particular in June 2017. During a
meeting in the Oval Office with then-Homeland Security Secretary Kelly and Secretary of State
Tillerson, President Trump reportedly reacted to a document listing how many immigrants had
received visas to enter the United States in 2017. Upon learning that 15,000 Haitian people had
received such visas, President Trump is reported to have stated they “all have AIDS.”74
71 Michael Scherer, 2016 Person of the Year Donald Trump, Time (2016), http://time.com/timeperson-of-the-year-2016-donald-trump. 72 Julie Hirschfield Davis & Maggie Haberman, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration, N.Y. Times (Aug. 25, 2017), https://www.nytimes.com/2017/08/25/us/politics/joe-arpaio-trump-pardon-sheriff-arizona.html. 73 Arpaio had been detaining people ostensibly because they had violated the law. But in practice, his office detained huge numbers of individuals solely because they looked Latino, without any reasonable suspicion of illegal conduct. See generally Findings of Fact & Conclusions of Law, Melendres v. Arpaio, No. 07-CV-02513, (D. Ariz. May 24, 2013, ECF No. 579. After a federal court enjoined that practice in 2011, Arpaio continued his unlawful and discriminatory practices unabated, “announc[ing] to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.” Findings of Fact & Conclusions of Law, United States v. Arpaio, No. 16-CR-01012, (D. Ariz. July 31, 2017), ECF No. 210 at 13. On July 31, 2017, a federal court held Arpaio in criminal contempt, holding that he had willfully acted in “flagrant disregard” of the injunction. Id. at 13-14. 74 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times (Dec. 23, 2017), https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html. President Trump’s
28

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 29 of 37
115. In January 2018, a bipartisan group of six U.S. senators met to negotiate an
immigration plan to present to Congress and the President. On January 11, 2018, they reached
an agreement in principle that addressed four immigration priorities of the White House: border security, the diversity visa lottery, so-called “chain migration,” and the Dream Act.75
116. The diversity visa lottery program, established by the Immigration Act of 1990,
makes available 50,000 immigrant visas per year to applicants from countries with low rates of
immigration to the U.S. INA § 203(c). The visas are distributed among six regions: (i) Africa;
(ii) Asia; (iii) Europe; (iv) North America (other than Mexico); (v) Oceania; and (vi) South
America, Mexico, Central America, and the Caribbean. INA § 203(c)(1)(F). The majority of diversity visa lottery recipients have been nationals of African countries.76
inflammatory and atavistic remark improperly demonizes and stigmatizes Haitians. It perpetuates the discrimination experienced by the Haitian community at the height of the HIV/AIDS epidemic in the early 1980s. At that time, the Centers of Disease Control (CDC) announced that they were purportedly at major risk for HIV. Wayne Biddle & Margot Slade, A Wider Risk of AIDS Feared, N.Y. Times (May 22, 1983), http://www.nytimes.com/1983/05/22/weekinreview/ideas-trends-a-wider-risk-of-aidsfeared.html. The Haitian community was the only group identified based on nationality rather than specific behavioral factors. The CDC removed Haitians from the list in 1985, but the stigma of the classification remains and clearly continues to improperly influence President Trump’s policymaking and legislative decisions. See Edwidge Danticat, Trump Reopens an Old Wound for Haitians, The New Yorker (Dec. 29, 2017), https://www.newyorker.com/news/newsdesk/trump-reopens-an-old-wound-for-haitians (President Trump’s “remark about Haiti and AIDS cut deep, reopening a painful wound that goes back several decades” and “re-stigmatizes both Haitians and people living with H.I.V./AIDS by pegging them as undesirables.”). 75 Sen. Jeff Flake, Bipartisan Senators Reach Agreement on Immigration, Press Releases (Jan. 11, 2018), https://www.flake.senate.gov/public/index.cfm/2018/1/bipartisan-senators-reachagreement-on-immigration. 76 See generally U.S. Dep’t of State, Diversity Visa Program Statistics, https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-programentry/diversity-visa-program-statistics.html.
29

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 30 of 37
117. Under the proposed immigration plan, the senators sought to eliminate the diversity visa lottery and reallocate the 50,000 annual visas to individuals whose TPS would soon terminate.77
118. After the agreement in principle was reached, Senators Durbin and Graham had phone calls with President Trump on the morning of January 11 and were invited to an in-person meeting in the Oval Office at noon that day.78 During the meeting, the senators presented the terms of the bipartisan agreement, including the plan to reallocate diversity visas to TPS recipients who would be affected by the upcoming termination -- i.e. individuals from Haiti, El Salvador, Nicaragua and Sudan.
119. While being briefed on the proposal to reallocate visas to TPS recipients, President Trump is reported to have grown angry and incredulous at the terms of the proposed plan. He specifically derided individuals from terminated TPS nations, asking: “Why are we having all these people from shithole countries come here?”
120. Trump is reported to have expressed particular hostility towards Haitians, asking “Why do we need more Haitians?” and demanding that the senators “[t]ake them out” of the plan.79 The President then drew a direct contrast between the terminated TPS countries and
77 Ryan Teague Beckwith & Maya Rhodan, Here’s the Plan Trump Was Attacking When He Said ‘Shithole Countries’, Time (Jan. 12, 2018), http://time.com/5101057/donald-trump-shitholecountries-tps-daca/. 78 Josh Dawsey et al., Inside the Tense, Profane White House Meeting on Immigration, Wash. Post (Jan. 15, 2018), https://www.washingtonpost.com/politics/inside-the-tense-profane-whitehouse-meeting-on-immigration/2018/01/15/13e79fa4-fa1e-11e7-8f66-2df0b94bb98a_story.html. 79 Josh Dawsey, Trump Derides Protections For Immigrants From ‘Shithole’ Countries, Wash. Post (Jan. 12, 2018), https://www.washingtonpost.com/politics/trump-attacks-protections-forimmigrants-from-shithole-countries-in-oval-office-meeting/2018/01/11/bfc0725c-f711-11e791af-31ac729add94_story.html?utm_term=.1838b0734159.
30

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 31 of 37
predominantly white countries, stating that policies should encourage immigration from countries like Norway.80
121. As Senators Durbin and Graham left the Oval Office meeting, they were shocked
and speechless. Senator Durbin recalled that “‘it was silence in the car’” after they “‘witnessed something that neither one of us ever expected.’”81 Later, Senator Durbin described how the
President had “repeatedly” said “vile,” “vulgar” and “hate-filled things” about terminated TPS nations and African nations.82 Senator Durbin praised his colleague Senator Graham for his courage in speaking up in response to the President’s derisive comments.83
122. The morning after the meeting in the Oval Office, President Trump denied reports
about the obscene language he used during the meeting. He tweeted that “language used by me
at the DACA meeting was tough,” but that he “never said anything derogatory about Haitians other than Haiti is, obviously, a very poor and troubled country.”84
Harms and Effects of Defendants’ Discriminatorily Motivated Actions 123. If TPS rescission goes into effect, Plaintiffs, and other TPS beneficiaries will
suffer immediate and irreparable injuries to their rights under the U.S. Constitution and federal
law; to their proprietary interests; and to their dignity.
80 Id. 81 Carl Hulse, Inside the Oval Office Immigration Meeting That Left a Senator Stunned, N.Y. Times (Jan. 19, 2018), https://www.nytimes.com/2018/01/19/us/politics/trump-durbinimmigration-daca.html. 82 Jacob Pramuk, Trump repeatedly used ‘S---hole’ to describe African countries, Sen. Dick Durbin Says, CNBC (Jan. 12, 2018), https://www.cnbc.com/2018/01/12/trump-used-s--hole-todescribe-african-countries-dick-durbin-says.html. 83 Jacob Pramuk, Sen. Lindsey Graham: ‘I said my piece’ to Trump following his immigration comments, CNBC (Jan. 12, 2018), https://www.cnbc.com/2018/01/12/sen-lindsey-graham-i-saidmy-piece-to-trump-during-immigration-meeting.html. 84 @realDonaldTrump, Twitter (Jan. 12, 2018, 5:48AM), https://twitter.com/realdonaldtrump/status/951813216291708928?lang=e.
31

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 32 of 37
124. If TPS rescission goes into effect, Plaintiffs and other TPS beneficiaries will be denied work, including workplace benefits and protections. Without TPS, most beneficiaries will not have access to employment authorization which gives these immigrants (and their employers) an assurance that they may put their talents to use – something that benefits Massachusetts and the country as a whole. Without employment, many TPS beneficiaries will also lose health benefits.
125. If TPS rescission goes into effect, Plaintiffs and other TPS beneficiaries will have to prepare for imminent removal. Plaintiffs will incur costs to ensure that their property rights, family relationships, and tax obligations are protected. These financial burdens will decrease the overall resources available to TPS beneficiaries and their families.
126. Because the Trump Administration’s decision to terminate TPS for El Salvador and Haiti was infected by invidious discrimination, its rescission stigmatizes immigrants of color, as well as their children and families, and imposes a dignitary harm by denying them the dignity and respect they deserve under the U.S. Constitution and federal law. TPS rescission triggers and fuels social stigma, harassment, discrimination, and even violence against immigrants of color.
127. By labeling TPS beneficiaries from El Salvador and Haiti as undesirable and by contrasting them with immigrants from predominantly white countries such as Norway, the federal government ratifies and legitimizes the notion that immigrants of color -- particularly those deemed by President Trump to come from “shithole countries” -- are worthy of lesser social stature. This compromises their well-being and encourages discrimination against immigrants of color. In this manner, the Trump Administration’s decision to terminate TPS for
32

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 33 of 37
these countries has caused, is causing, and will continue to cause dignitary harms and psychological injuries to families and children.
CLAIMS COUNT 1 Violation of Equal Protection – Fifth Amendment 128. Plaintiffs incorporate by reference all allegations as stated above. 129. The Due Process Clause of the Fifth Amendment incorporates the equal protection principles of the Fourteenth Amendment. Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686 n.1 (2017) (involving gender discrimination in immigration context); see also United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (citing Bolling v. Sharpe, 347 U.S. 497 (1954)). 130. Defendants’ decision to rescind TPS protections for Salvadoran and Haitian immigrants living in the United States violates the Fifth Amendment because it constitutes intentional discrimination against both groups on the basis of race, ethnicity, and/or national origin. 131. The inference of race, ethnicity, and/or national origin discrimination is supported by the Trump Administration’s departure from the normal decision-making process; the fact that the decision bears more heavily on one race than another; the sequence of events leading to the decision; the contemporaneous statements of decision-makers; and the historical background of the decision. The Supreme Court has recognized these factors as probative of intentional discrimination. See Vill. of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252, 266-68 (1977). 132. The inference of race, ethnicity, and/or national origin discrimination is supported by the departure of Defendants’ analysis from previous TPS determinations. The consistent
33

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 34 of 37
practice of previous officials demonstrates the normal decision-making process for TPS decisions. Defendants sharply deviated from that normal decision-making process in deciding to terminate TPS status for El Salvador and Haiti.
133. The inference of race, ethnicity, and/or national origin discrimination is also supported by Defendants’ deviation from INA § 244(b)(3)’s and 8 U.S.C. § 1254a’s requirement that DHS undertake a genuine, good faith review of the conditions in a foreign country designated for TPS to determine whether the conditions for designation continue to be met.
134. The inference of race, ethnicity, and/or national origin discrimination is also supported by President Trump’s comments as listed in paragraphs 105-119 and which informed practice in executive agencies.
135. As a direct and proximate result of the rescission of TPS by Defendants and/or their agents, Plaintiffs have been deprived of their rights under the Fifth Amendment to the U.S. Constitution.
COUNT 2 Violation of Due Process – Fifth Amendment 136. Plaintiffs incorporate by reference all allegations as stated above. 137. The Due Process Clause of the Fifth Amendment also prohibits irrational government action. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 532-33 (1973). 138. Defendants have failed to carry out their duties consistent with the Due Process requirements of the Fifth Amendment to the U.S. Constitution. 139. The Defendants’ discriminatory decision to rescind TPS for Salvadorans and Haitians deprives Plaintiffs of the appropriate and non-discriminatory process due to them under the law.
34

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 35 of 37
COUNT 3 Mandamus 28 U.S.C. § 1361 140. Plaintiffs incorporate by reference all allegations as stated above. 141. Defendants have failed to carry out their mandatory and non-discretionary duties owed to Plaintiffs, including the duties established in 8 U.S.C. § 1254a(b)(3). 28 U.S.C. § 1361. 142. Defendants’ failure to carry out their mandatory and non-discretionary duties owed to Plaintiffs irrevocably harm Plaintiffs.
COUNT 4 Declaratory Judgment 28 U.S.C. § 2201 143. Plaintiffs incorporate by reference all allegations as stated above. 144. For the reasons stated above, Defendants have violated the U.S. Constitution and other laws. 145. Plaintiffs seek a declaration to that effect. 146. Defendants’ illegal actions have injured and will continue to injure all Plaintiffs and those similarly situated in numerous ways including the dignitary harms that attach to the invidious discrimination visited upon them by Defendants.
PRAYER FOR RELIEF Wherefore the Plaintiffs respectfully request that the Court grant the following relief: 1. Declaratory Relief.
a. Declare that Defendants’ actions to terminate TPS designation for El Salvador violate the Fifth Amendment of the U.S. Constitution and the Administrative Procedures Act and are, therefore, void and without legal force or effect;
35

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 36 of 37
b. Declare that Defendants’ actions to terminate TPS designation for Haiti violate the Fifth Amendment of the U.S. Constitution and the Administrative Procedures Act and are, therefore, void and without legal force or effect; 2. Injunctive Relief.
a. Enjoin and restrain Defendants, their agents, servants, employees, attorneys and all persons in active concert with them from implementing or enforcing the termination of El Salvador’s TPS status and from taking any further action to terminate El Salvador’s TPS status in violation of the U.S. Constitution or other applicable laws.
b. Enjoin and restrain Defendants, their agents, servants, employees, attorneys and all persons in active concert with them from implementing or enforcing the termination of Haiti’s TPS status and from taking any further action to terminate Haiti’s TPS status in violation of the U.S. Constitution or other applicable laws. 3. Mandamus. Plaintiffs ask this Court to issue a writ of mandamus compelling Defendants to carry out all nondiscretionary duties required by the U.S. Constitution, and applicable federal law with respect to the TPS program, its administration, and execution. 4. Award Plaintiffs reasonable attorneys’ fees and the cost of maintaining this action such as court costs, expert fees and other expenses. 5. All other necessary and appropriate relief that justice may require.
36

Case 1:18-cv-10340 Document 1 Filed 02/22/18 Page 37 of 37

Dated: February 22, 2018

Respectfully submitted,
/s/ Oren Sellstrom Oren Sellstrom (BBO# 569045) Oren Nimni (BBO #691821) Iván Espinoza-Madrigal (Pro Hac Vice To Be Filed) Lawyers’ Committee for Civil Rights and Economic Justice 61 Batterymarch Street, 5th Floor Boston, MA 02110 (617) 988-0624

37 8534926v34

 
 Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 1 of 81

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

CENTRO PRESENTE, a membership

)

organization; HAITIAN-AMERICANS UNITED, )

INC., a membership organization; JUAN

)

CARLOS VIDAL; ANNE CHRISTINE

)

NICOLAS; CHRIS JEAN BAPTISTE;

)

MERCEDES MATA; CAROLINA MATA;

)

WILL ARIAS; JUAN AMAYA; MARIA

)

GUERRA; JOSUE DORFEUILLE; NATACHA )

DORFEUILLE; YESY PATRICIA CARBAJAL; )

JUAN GUERRERO; JAIME YANES; and JOSE )

OMAR RODRIGUEZ VARELA,

)

)

Plaintiffs,

) )

Civil Action No. 1:18-cv-10340-DJC

v.

)

)

DONALD J. TRUMP, President of the United

)

States in his official capacity; UNITED STATES )

DEPARTMENT OF HOMELAND SECURITY; )

KIRSTJEN NIELSEN, Secretary of the

)

Department of Homeland Security in her official )

capacity; and ELAINE COSTANZO DUKE,

)

Deputy Secretary of the Department of Homeland )

Security in her official capacity,

)

)

Defendants.

)

)

FIRST AMENDED COMPLAINT

LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE 61 Batterymarch Street, 5th Floor Boston, Massachusetts 02210 (617) 482-1145

CHOATE, HALL & STEWART LLP Two International Place Boston, Massachusetts 02210 (617) 248-5000

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 2 of 81
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 PARTIES ........................................................................................................................................ 6
I. Plaintiffs....................................................................................................................... 6 A. Organizational Plaintiffs .................................................................................. 6 B. Individual Plaintiffs ......................................................................................... 9
II. Defendants ................................................................................................................. 14 JURISDICTION AND VENUE ................................................................................................... 15 FACTS .......................................................................................................................................... 15
I. For Nearly Thirty Years, the TPS Program Has Served to Prevent Migrants from Being Compelled to Return to Dangerous and Unstable Conditions ............... 15 A. El Salvador Receives its TPS Designation, Which is Extended Through 2018 due to Continued Instability and Subsequent Natural Disasters........... 17 B. Haiti Receives its TPS Designation, Which is Extended Through 2017 due to Continued Instability and Subsequent Natural Disasters.................... 23 C. Honduras Receives its TPS Designation, Which is Extended Through 2018 due to Continued Instability and Subsequent Natural Disasters........... 26 D. Prior Administrations Apply the TPS Program to El Salvador, Haiti, and Honduras, as well as Other Countries, by Evaluating the Current, Evolving Conditions on the Ground .............................................................. 33
II. President Trump Campaigns on Promises to Discriminate Against Racial Minorities and to Obstruct Lawful Immigration, and the Administration Then Executes These Unlawful Policies Through His Subordinate Officers and Agencies .................................................................................................................... 34
III. The Administration Follows Through on its Promises and Terminates TPS at Almost Every Opportunity ........................................................................................ 42 A. The Trump Administration Terminates TPS for El Salvador........................ 42 B. The Trump Administration Terminates TPS for Haiti .................................. 51 C. The Trump Administration Terminates TPS for Honduras ........................... 59 D. The Administration’s Terminations of TPS for El Salvador, Haiti, and Honduras Are Motivated by Unlawful Discriminatory Animus ................... 65
i

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 3 of 81 E. The Terminations of TPS for El Salvador, Haiti, and Honduras Reflect the Administration’s Execution of a Substantive Rule Restricting the Scope of the TPS Statute in Contravention of the Statutory Text and Decades of Prior Practice............................................................................... 65 F. Defendants’ Discriminatorily Motivated and Unlawful Actions Have Harmed Plaintiffs........................................................................................... 69
CLAIMS ....................................................................................................................................... 71 PRAYER FOR RELIEF ............................................................................................................... 75
ii

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 4 of 81
INTRODUCTION 1. Plaintiffs, fourteen recipients of Temporary Protected Status (“TPS”) from El Salvador, Haiti, and Honduras and two non-profit organizations with TPS recipient members, bring this action seeking a declaratory judgment that the Trump Administration’s termination of TPS designation for those three countries should be set aside as unconstitutional and contrary to federal law and further enjoining the Administration from violating Plaintiffs’ Constitutional rights. The decisions by Defendants President Donald J. Trump; the U.S. Department of Homeland Security (“DHS”); Kirstjen M. Nielsen (“Nielsen”) in her official capacity as the current Secretary of DHS; and Elaine C. Duke (“Duke”) in her official capacity as former Acting Secretary of DHS, to terminate TPS designation for Salvadorans, Haitians, and Hondurans were impermissibly infected by invidious discrimination on the basis of race, ethnicity, and/or national origin and therefore cannot stand. Furthermore, they were based on a new legal rule that represents a misunderstanding and misapplication of the laws relevant to TPS, is arbitrary and capricious, and was put in place without notice and comment or other procedural protections. 2. TPS is intended to provide safe haven in the United States for foreign nationals whose nation is experiencing a humanitarian or environmental crisis. The conditions that initially led to the TPS designations of El Salvador, Haiti, and Honduras are nothing short of extreme and, in many ways have only worsened over time. 3. In 2001, El Salvador was struck by a devastating series of earthquakes. The earthquakes caused at least 1,100 deaths and displaced an estimated 1.3 million people. The earthquakes damaged or destroyed 220,000 homes, 1,696 schools, and 856 public buildings with losses across economic sectors estimated at $2.8 billion. Since 2001, recovery has been stalled and plagued by subsequent humanitarian and environmental crises, including hurricanes,
1

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 5 of 81
mudslides, floods, and volcanic eruptions. These problems are compounded by the emergence of extreme gang violence. El Salvador remains economically stagnant and fragile.
4. Haiti’s TPS designation started in 2010 after the country experienced a cataclysmic earthquake. Reports indicate that three million Haitians were affected by the earthquake. Homes, hospitals, schools, and vital government buildings collapsed, and the country’s infrastructure, including electric and water services, was decimated. Since 2010, Haiti’s recovery has been stalled by recent natural disasters such as Hurricane Matthew. Haiti has also experienced a devastating cholera epidemic, which has killed hundreds of thousands of people to date. Gender-based violence has also emerged as a major social problem. Haiti remains economically stagnant with ill-functioning infrastructure.
5. Honduras has been designated for TPS protection since 1999, after the country experienced severe flooding and mudslides due to Hurricane Mitch. The hurricane killed more than 5,000 people, damaged 440,000 homes, destroyed over 100 bridges, and washed away countless roads. The United Nations Development Programme has stated that Hurricane Mitch set Honduras back economically by 20 years. After Hurricane Mitch, Honduras experienced a series of natural disasters including droughts, flooding, earthquakes, tropical storms, as well as additional hurricanes. It remains economically and politically unstable and is regularly listed as one of the world’s most dangerous nations.
6. Defendants’ stated reasons for terminating TPS for Salvadorans, Haitians, and Hondurans ignore these conditions and are nothing but a thin and pretextual smokescreen for a racially discriminatory immigration agenda—one that the President has been astonishingly blunt about articulating. President Trump has long made clear his dislike and disregard for Latino and Black immigrants, including equating Latino immigrants with rapists, asserting that African
2

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 6 of 81
immigrants who have seen America would never “go back to their huts,” and declaring that a group of Haitian immigrants “all have AIDS.” Most recently, in discussing immigration policy with Congressional leaders in January 2018, he referred to Haiti and other TPS nations as “shithole countries,” further driving home the racial motive by saying that the United States should let in more immigrants from Norway instead. The animus directed towards Latino and Black immigrants is a clear and unfortunate thread running throughout President Trump’s statements—and is actualized by his Administration’s policies, such as the ones challenged by this lawsuit.
7. The Trump Administration’s decision to terminate TPS for El Salvador, Haiti, and Honduras, which is impermissibly tainted by racial animus, will be devastating for hundreds of thousands of people who currently call the United States home. In total, approximately 400,000 TPS holders currently reside in the United States, living in all fifty states as well as the District of Columbia and the U.S. territories.1 There are over 262,500 Salvadoran TPS recipients.2 These individuals have jobs, homes, and families, including an estimated 192,700 U.S citizen children.3 Approximately 58,550 Haitians are similarly currently under TPS protection in the United States.4 They too have established livelihoods and communities here, with an estimated
1 See Jill H. Wilson, Cong. Research Serv., RS20844, Temporary Protected Status: Overview and Current Issues 4-5, 11 (Jan. 17, 2018). 2 Id. at 5. 3 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. Sec. 577, 578, 581 (2017). 4 Wilson, supra note 1, at 5.
3

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 7 of 81
27,000 U.S. citizen children.5 Finally, there are approximately 86,000 Honduran TPS holders, who have an estimated 53,500 children who are U.S. citizens.6 In Massachusetts alone there are an estimated 6,058 Salvadoran, 4,735 Haitian, and 834 Honduran TPS beneficiaries.7 The greater Boston area is home to the country’s third-largest Haitian diaspora, and an estimated one in ten Haitians in Massachusetts are TPS beneficiaries.8
8. Termination of TPS for El Salvador, Haiti, and Honduras would wreak havoc on the lives of hundreds of thousands of people. As the individual Plaintiffs’ experiences reflect, entrepreneurs will lose their businesses; property owners will lose their family homes; and families with U.S. citizen children will be torn apart. People who have lived in the United States for decades now risk being rounded up and removed from the neighborhoods where they have built their lives, raised children, and invested in their communities. Moreover, El Salvador, Haiti and Honduras do not have the capacity to receive a massive influx of returning immigrants.
9. TPS holders have become part of the economic and social fabric of American communities, and continue to give back to this country in a myriad of ways. They are active in civic life and volunteer at schools, neighborhood and work organizations, and religious institutions.9 They pay federal, state, and local taxes, and support government social welfare programs. Experts estimate that, without Salvadoran, Haitian and Honduran TPS holders alone,
5 Warren & Kerwin, supra note 3, at 581. 6 Wilson, supra note 1, at 5; Warren & Kerwin, supra note 3, at 581. 7 Shannon Dooling, Data Show More Than 12,000 Immigrants In Mass. Have Temporary Status, WBUR (Nov. 9, 2017), http://www.wbur.org/news/2017/11/09/temporary-status-data-update. 8 Id. 9 Celia Mejívar, Ctr. for Migration Research, Temporary Protected Status in the United States: The Experiences of Honduran & Salvadoran Immigrants 19 (2017).
4

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 8 of 81
the U.S. gross domestic product would be reduced by at least $163.9 billion and Social Security and Medicare would lose over $6.9 billion over the next ten years.10
10. The Trump Administration’s decision to terminate TPS for Salvadorans, Haitians, and Hondurans harkens back to some of the darkest and most discredited chapters in U.S. history.11 The nation has striven to move beyond a time when invidious discrimination drove immigration policy and resulted in exclusion of disfavored racial groups from legal protections. But sometimes the pendulum swings back—and we are confronted again in Defendants’ decision to terminate TPS for Salvadorans, Haitians, and Hondurans with governmental action impermissibly infected by racial discrimination. By this complaint, Plaintiffs ask this Court to rule that such action violates the U.S. Constitution and federal law, and to enjoin it.
11. Moreover, these terminations reflect the sub rosa enactment of a new rule that intervening country conditions may not be considered when determining whether TPS designation is appropriate. This new rule, constraining the application of TPS, is contrary to the plain language of the TPS statute, 8 U.S.C. § 1254a; arbitrary and capricious; an abuse of discretion; and in violation of the Administrative Procedure Act (the “APA”), 5 U.S.C. § 551 et seq.
10 Ctr. for Am. Progress, TPS Holders in the United States 1–2 (2017); Amanda Baran et al., Immigrant Legal Resource Ctr., Economic Contributions by Salvadoran, Honduran, and Haitian TPS Holders 5–7 (2017). 11 See Act of May 6, 1882 (Chinese Exclusion Act), ch. 126, 1, 22 Stat. 58, 58 (repealed 1943) (prohibiting immigration of Chinese laborers); see also Julia Preston, Obama Lifts a Ban on Entry into U.S. By H.I.V.-Positive People, N.Y. Times (Oct. 30, 2009), http://www.nytimes.com/2009/10/31/us/politics/31travel.html (announcing the end of a 22-year ban on travel to the United States by people living with HIV).
5

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 9 of 81

I. Plaintiffs A. Organizational Plaintiffs

PARTIES

12. Established in 1981, Centro Presente is a state-wide Latin American immigrant

membership organization dedicated to the self-determination and self-sufficiency of the Latin

American immigrant community of Massachusetts. The non-profit organization was founded by

Sister Rose Marie Cummings in direct response to the rapidly growing community of refugees

fleeing violence during the civil war conflicts in Central America in the 1980s. Operated and led

primarily by Central American immigrants, Centro Presente struggles for immigrant rights and

for economic and social justice. Through the integration of community organizing, leadership

development and basic services, Centro Presente strives to give members a voice and to build

community power.

13. Centro Presente has a staff of seven and provides English as a Second Language

(ESL) classes; legal services; immigration clinics; advocacy; and leadership development to over

three thousand families, youth, and children each year. Through its programming, community

outreach, and educational activities, Centro Presente serves hundreds of TPS beneficiaries –

including their families and children.

14. Today, Centro Presente has over 1,500 members. Of those members, a number

are TPS beneficiaries from El Salvador and Honduras. Centro Presente’s membership also

includes U.S. citizens and non-citizens.

15. The Trump Administration’s announcement of TPS rescission has negatively

affected Centro Presente by forcing the organization to divert limited staff and scarce resources

from critical programs in order to educate and assist individuals affected by the rescission,

including helping individuals and families navigate the specter of immigration enforcement.

6

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 10 of 81
16. The organization has experienced challenges encouraging current and prospective members to seek services in its various program areas because they fear imminent deportation in light of the announcement of TPS rescission. TPS rescission has deterred Centro Presente’s members and prospective members by making them fearful to attend meetings and to participate in activities because of the specter of immigration enforcement, and the toxic anti-immigrant climate on the ground replete with discrimination and violence.
17. The Trump Administration’s announcement of TPS rescission is interfering with the organization’s essential mission and has forced Centro Presente to re-allocate its limited resources to ensure that its members feel safe and to address confusion and fear in response to discriminatory immigration policies.
18. Haitian-Americans United, Inc. (H.A.U.) is a non-profit organization founded in the Commonwealth of Massachusetts to improve the quality of life for Haitians and HaitianAmericans through education, community empowerment, and cultural development.
19. H.A.U. is the leading Haitian community-based advocacy organization dedicated to empowering immigrants and refugees in Greater Boston, home to the third-largest Haitian and Haitian-American community in the United States. As a focal point for the Haitian-American community, the organization hosts frequent events, programs, and activities that are widely attended.
20. H.A.U. has thousands of members in Massachusetts. Of those members, a number are TPS beneficiaries from Haiti. The organization’s membership includes U.S. citizens and non-citizens. Dozens of community-based groups, including churches and organizations, are also affiliated with H.A.U. Many of these affiliated groups provide services to TPS
7

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 11 of 81
beneficiaries, and H.A.U. plays a key role facilitating and coordinating collaboration among organizations serving the Haitian and Haitian-American community in Massachusetts.
21. H.A.U. promotes civic education and community empowerment; advocates for consumer protection; bolsters Haitian cultural, academic, and artistic activities; raises awareness of Haitian history; and creates programming for youth in the Haitian-American community.
22. Through active advocacy, education, training, cultural programming, social support, and other services, the organization helps Haitian and Haitian-American individuals and families enhance their quality of life.
23. The Trump Administration’s announcement of TPS rescission has adversely affected H.A.U. and its affiliated community-based groups by forcing the diversion of scarce resources from critical programs in order to educate and assist individuals affected by the rescission, including helping individuals and families navigate the specter of immigration enforcement.
24. The organization has experienced challenges encouraging current and prospective members to seek services in its various program areas because they fear imminent deportation in light of the announcement of TPS rescission. TPS rescission has deterred H.A.U.’s members and prospective members by making them fearful to attend meetings and to participate in activities because of the specter of immigration enforcement, and the toxic anti-immigrant climate on the ground replete with discrimination and violence.
25. The Trump Administration’s announcement of TPS rescission is interfering with the organization’s essential mission and has forced H.A.U. to re-allocate its limited resources to ensure that its members feel safe and to address confusion and fear in response to discriminatory immigration policies.
8

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 12 of 81
B. Individual Plaintiffs 26. Juan Carlos Vidal, a Salvadoran immigrant, is a successful entrepreneur and
property owner residing in Revere, Massachusetts. He is currently a TPS beneficiary and has been since 2001.
27. Mr. Vidal has two U.S. citizen children—5 and 7 years-old—both born in Massachusetts.
28. Rising through the ranks from kitchen assistant to chef, Mr. Vidal worked for more than a decade at Blue Fin, a restaurant in Cambridge, Massachusetts. Through hard work and thrift, Mr. Vidal opened his first restaurant. A successful restaurateur, Mr. Vidal is now coowner of four restaurants located in Massachusetts contributing substantially to the local economy.
29. Anne Christine Nicolas is a 25 year-old Haitian immigrant who lives in Boston, Massachusetts. She is currently a TPS beneficiary and has been since 2010.
30. Ms. Nicolas is a successful college graduate. With a deep commitment to teaching and learning, she currently works at the intersection of education and arts. She earned a Bachelor of Fine Arts from Lesley University in Cambridge, Massachusetts. Before it was announced that TPS designation for Haiti would be rescinded, she was preparing for the future and exploring master’s degree programs in arts and education.
31. Chris Jean Baptiste is a 19 year-old Haitian immigrant who lives in Boston, Massachusetts. He is currently a TPS beneficiary and has been since 2010.
32. Mr. Jean Baptiste graduated from Milton High School in Milton, Massachusetts, and is currently enrolled in Bunker Hill Community College. He also works as the manager of a franchise of one of the largest American restaurant chains.
9

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 13 of 81
33. Mercedes Mata is a Salvadoran immigrant residing in Leominster, Massachusetts, where she purchased her home approximately six months ago. She is currently a TPS beneficiary and has been since 2001.
34. Ms. Mercedes Mata is a clerk in the Fitchburg Municipal Office. In Fitchburg, a community that is nearly 25 percent Latino,12 she is one of a handful of bilingual employees in the municipal office with the linguistic competence to serve a burgeoning Spanish-speaking Latino population.
35. Ms. Mercedes Mata has two children, who were both born in Massachusetts. Her 21 year-old U.S. citizen daughter is enrolled in Mount Wachusett Community College in Gardner, Massachusetts. Her 7 year-old U.S. citizen son is in first grade in elementary school.
36. Ms. Mercedes Mata is active in her church and in community affairs. 37. Ms. Mercedes Mata is an active member of Centro Presente. 38. Carolina Mata is a Salvadoran immigrant residing in Leominster, Massachusetts. She is currently a TPS beneficiary and has been since 2001. 39. Ms. Carolina Mata has two children, both born in Massachusetts. Her 19 year-old U.S. citizen son is a first-year college student at Fitchburg State University in Fitchburg, Massachusetts. Her 11 year-old U.S. citizen daughter is in fifth grade in elementary school. 40. Ms. Carolina Mata is an active member of Centro Presente. 41. Will Arias is Salvadoran immigrant residing in Everett, Massachusetts. He is currently a TPS beneficiary and has been since 2001.
12 Census Reporter, Fitchburg, Massachusetts, https://censusreporter.org/profiles/16000US2523875-fitchburg-ma/.
10

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 14 of 81
42. Mr. Arias is a custodian at the John Adams Courthouse where the Massachusetts Supreme Judicial Court sits in Boston.
43. Mr. Arias and his wife, in 2016, purchased a home in Everett, Massachusetts, where they are raising two children born in Massachusetts: their 2 year-old U.S. citizen son; and a 16 year-old U.S. citizen son who is currently in 11th grade in Everett High School. As a junior in high school, their eldest son has college aspirations and is beginning to explore college options.
44. Juan Amaya, a Salvadoran immigrant, is a resident of Lynn, Massachusetts. He is currently a TPS beneficiary and has been since 2001.
45. Mr. Amaya is a high-rise window washer. Rappelling off skyscrapers, he cleans the glass façades of gleaming towers across Boston’s skyline.
46. Mr. Amaya has four children. His eldest children both graduated from Lynn Vocational Technical Institute and are DACA recipients. His youngest children are both U.S. citizens born in Massachusetts. His U.S. citizen daughter is 10 years-old. His U.S. citizen son, an 11th grade student at Lynn Classical High School in Lynn, Massachusetts, would like to go to college and is starting to explore options for higher education.
47. Maria Guerra is a Salvadoran immigrant residing in Somerville, Massachusetts, where she purchased her home over a decade ago. She is currently a TPS beneficiary and has been since 2001.
48. Ms. Guerra is a domestic worker, and takes care of children as a nanny for a family in Arlington, Massachusetts.
49. Ms. Guerra has four children. Her two eldest children—25 and 22 years-old—are DACA recipients. Both her eldest sons work in information technology services at Harvard
11

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 15 of 81
University. Her 22 year-old son is also studying at Bunker Hill Community College. Her youngest children—17 and 19 years-old—are U.S. citizens both born in Massachusetts. They are attending high school, and looking forward to graduating and studying in college.
50. Ms. Guerra is an active community member in Somerville. 51. Josue Dorfeuille and Natacha Dorfeuille are Haitian immigrants residing in Norwood, Massachusetts, where they purchased their home approximately two years ago. They are both TPS beneficiaries and have been since 2010. 52. Mr. Dorfeuille is an energy specialist working for a major state-wide energy efficiency company. He inspects homes and helps build a clean energy future for families in Massachusetts. Mrs. Dorfeuille is an activity coordinator in an adult day-center providing critical services to older adults, one of the largest and fastest-growing segments of the Commonwealth’s population. 53. Mr. and Mrs. Dorfeuille have three children. The eldest is a TPS recipient and a senior at Norwood High School. She has been admitted to several universities, including the Boston campus of the University of Massachusetts. The two youngest are twins, both born in the United States and have always called this country their home. The twins are enrolled in the Norwood Public School system. Before it was announced that TPS would be rescinded for Haiti, the Dorfeuille family was preparing for their future together as engaged community members in Massachusetts. 54. Yesy Patricia Carbajal is an Honduran immigrant residing in Revere, Massachusetts. She is a TPS beneficiary and has been since 1999. Many of Ms. Carbajal’s nuclear and extended family are also TPS beneficiaries, including her mother, sister, uncle, nieces, and nephews.
12

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 16 of 81
55. Ms. Carbajal has worked in the construction industry for many years, helping through her labor to build the Commonwealth’s infrastructure.
56. Ms. Carbajal has a bright and talented four-year old U.S. citizen daughter born in Massachusetts.
57. Ms. Carbajal is active in her community. 58. Ms. Carbajal is an active member of Centro Presente. 59. Juan Guerrero is an Honduran immigrant residing in Leominster, Massachusetts. He is a TPS beneficiary and has been since 1999. 60. Mr. Guerrero is a baker working for a small business in Massachusetts. 61. Mr. Guerrero has four children, including a three-year old U.S. citizen born in Massachusetts. 62. Jaime Yanes is an Honduran immigrant residing in Lynn, Massachusetts, where he lives with his Salvadoran wife, who is also a TPS beneficiary. Mr. Yanes has been a TPS beneficiary since 1999. 63. Mr. Yanes is a truck driver for a major commercial transport company serving prominent clients in secure locations, including government offices and military bases. Through his work, Mr. Yanes accelerates commerce. His wife manages the family’s affairs as a homemaker. 64. Mr. Yanes and his wife have four U.S. citizen children. Their three youngest U.S. citizen children—ages 8, 13, and 14—attend Lynn Public Schools. The family is extremely tight-knit and has deep roots in their community. 65. Jose Omar Rodriguez Varela is an Honduran immigrant residing in Framingham, Massachusetts, where he is a homeowner. He has been a TPS beneficiary since 1999.
13

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 17 of 81
66. Mr. Rodriguez Varela is a partner in a small business that paints and repairs vehicles. As a successful entrepreneur, he contributes to the economic growth of our Commonwealth.
67. Mr. Rodriguez Varela is active in his community. 68. Mr. Rodriguez Varela is an active member of Centro Presente. II. Defendants 69. Defendant Donald J. Trump is currently President of the United States, a position he has held since January 20, 2017. As chief executive, President Trump oversees all executive agencies and cabinet members including Defendants. 70. Defendant Department of Homeland Security is a department of the Executive Branch of the United States government. DHS and its component agencies, U.S. Customs and Border Protection (“CBP”), U.S. Immigration and Customs Enforcement (“ICE”), and U.S. Citizenship and Immigration Services (“USCIS”), have the authority to administer and enforce U.S. immigration laws and policies, including the TPS program at issue here. 71. Defendant Kirstjen Nielsen has been Secretary of Homeland Security since December 6, 2017, and is currently DHS’s senior official. She was appointed to the position by President Trump. Defendant Nielsen is responsible for DHS oversight and for implementing and enforcing immigration laws and policies. Defendant Nielsen authorized the rescission of El Salvador’s TPS designation on January 18, 2018. Defendant Nielsen announced the rescission of Honduras’ TPS designation on May 4, 2018. She is sued in her official capacity. 72. Defendant Elaine Costanzo Duke was appointed by President Trump as Acting Secretary of Homeland Security from July 31, 2017, to December 6, 2017. Defendant Duke served as Deputy Secretary of DHS until her retirement on April 15, 2018. As Acting Secretary, Defendant Duke was responsible for DHS oversight and for implementing and enforcing
14

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 18 of 81
immigration laws and policies. Defendant Duke authorized the rescission of Haiti’s TPS designation on November 20, 2017. She is sued in her official capacity.
JURISDICTION AND VENUE 73. This Court has proper jurisdiction over this matter under 28 U.S.C § 1331. 74. Venue is proper in this Court under 28 U.S.C § 1391.
FACTS I. For Nearly Thirty Years, the TPS Program Has Served to Prevent Migrants from
Being Compelled to Return to Dangerous and Unstable Conditions 75. The purpose of the TPS program is to provide safe haven in the United States for foreign nationals whose nation is experiencing a humanitarian or environmental crisis. The TPS program is promulgated under Section 244(c)(2) of the Immigration and Nationality Act (“INA”) and codified at 8 U.S.C. § 1254a. The program is designed to address serious concerns that arise when civil unrest, armed conflict, extreme violence, or natural disasters compromise the ability of foreign nationals in the United States to safely return to their native country. 76. When the Secretary of Homeland Security13 finds that conditions in a foreign country prevent its nationals from returning safely or where a foreign country is unable to adequately handle the return of its nationals, the Secretary, after consultation with the appropriate federal agencies including the U.S. Department of State, may grant TPS to foreign nationals of that country. 77. Foreign nationals from such countries may then apply for TPS and must meet rigorous individual qualifications, including having no serious criminal record.
13 Under 8 U.S.C. § 1254a, the Attorney General was originally authorized to administer the TPS program. With the formation of the Department of Homeland Security, the authority to designate countries and administer the TPS program was transferred from the Attorney General to the Secretary of Homeland Security in 2003. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002).
15

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 19 of 81
78. Foreign nationals under TPS protection cannot be removed from the United States. A foreign national who is granted TPS receives proof of registration and may apply for a work authorization document.
79. The Secretary of Homeland Security may grant TPS protection to foreign nationals if the Secretary determines that: (a) there is an ongoing armed conflict within the foreign state, such that return of aliens who are nationals of that state would pose a serious threat to their personal safety; (b) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the foreign state resulting in a substantial, but temporary, disruption of living conditions in the area affected; the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state; and the foreign state officially has requested TPS designation; or (c) there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety.14
80. The Secretary of Homeland Security may issue TPS for periods of six to eighteen months. After the initial designation, the Secretary must review the conditions in the foreign state for which the designation is in effect at least 60 days prior to the termination of the TPS designation and must determine whether the conditions enumerated under the TPS statute continue to be met. TPS designations extend automatically until the Secretary affirmatively determines that the conditions for TPS designation under the statute are no longer met. If that determination is not made, the law requires TPS designations to be extended. There is no statutory limit for how many times TPS designation may be extended.
14 8 U.S.C. § 1254a(b)(1).
16

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 20 of 81
81. Termination of TPS designation may only occur if the Secretary determines that the country in question “no longer continues to the conditions for designation . . . .” In making that determination, the Secretary is not limited to considering only the conditions that led to the original designation, but rather is required to determine based on current circumstances whether the conditions for designation are satisfied.
82. The Secretary’s decision to extend, re-designate, or terminate TPS protection must be published in the Federal Register. The timing of the Secretary’s publication has important implications for TPS recipients because of the notice it provides regarding their immigration status and because of the protections attached to TPS such as employment authorization. A. El Salvador Receives its TPS Designation, Which is Extended Through 2018 due to
Continued Instability and Subsequent Natural Disasters 83. On March 1, 2001,15 former Attorney General John Ashcroft designated El Salvador for TPS, making TPS protection available to Salvadoran nationals “continuously physically present” in the United States since March 9, 2001, and who have “continuously resided” in the United States since February 13, 2001.16 This initial designation was set to run through September 9, 2002. 84. Attorney General Ashcroft’s TPS designation was based on the urgent request of the Salvadoran government and the following findings indicating that El Salvador was “unable, temporarily, to handle adequately the return of its nationals”:
15 The notice announcing designation of El Salvador was dated March 1, 2001 and recorded in the Federal Register on March 9, 2001. 16 Designation of El Salvador Under Temporary Protected Status Program, 66 Fed. Reg. 14,214 (Mar. 9, 2001).
17

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 21 of 81
a. El Salvador suffered a “devastating earthquake on January 13, 2001, and experienced two more earthquakes on February 13 and 17, 2001”;
b. These earthquakes resulted in at least 1,100 deaths, and displaced an estimated 1.3 million people (17% of the country’s total population); and
c. The earthquakes damaged or destroyed “220,000 homes, 1,696 schools, and 856 public buildings” with losses to the housing, infrastructure, and agricultural sectors estimated at $2.8 billion.17 85. On July 11, 2002, Attorney General Ashcroft extended El Salvador’s TPS designation from September 9, 2002, to September 9, 2003.18 86. Attorney General Ashcroft based this extension on a finding that El Salvador still met all of the requirements for TPS designation, particularly because the earthquake caused substantial damage to the country’s infrastructure, including housing, roads, hospitals, and schools. Attorney General Ashcroft further found that the situation in El Salvador had worsened in some respects from the time of its initial designation because subsequent droughts left “35,000 subsistence farming families destitute” and “200,000 people . . . threatened by ‘food insecurity.’”19
17 Id. at 14,214. 18 Extension of the Designation of El Salvador Under the Temporary Protected Status Program; Automatic Extension of Employment Authorization Documentation for Salvadorans, 67 Fed. Reg. 46,000 (July 11, 2002). 19 Id. at 46,001.
18

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 22 of 81
87. On July 16, 2003, former DHS Secretary Tom Ridge extended El Salvador’s TPS designation from September 9, 2003, to March 9, 2005.20
88. Secretary Ridge based this extension on a finding that El Salvador continued to meet all of the requirements for TPS designation, particularly that the “economy of El Salvador [was] not yet stable enough to absorb returnees from the United States.”21
89. On January 7, 2005, former Secretary Ridge extended El Salvador’s TPS designation from March 9, 2005, to September 9, 2006.22
90. Secretary Ridge based this extension on a finding that El Salvador continued to meet all of the requirements for TPS designation. He cited severe damage and slow recovery in all sectors, including housing, schools, and hospitals.23
91. On June 15, 2006, former DHS Secretary Michael Chertoff extended El Salvador’s TPS designation from September 9, 2006, to September 9, 2007.24
92. Secretary Chertoff based this extension on a finding that El Salvador continued to meet all of the requirements for TPS designation. He also found that new natural disasters— including the “eruption of the Santa Ana volcano that was immediately followed by mudslides
20 Extension of the Designation of El Salvador Under Temporary Protected Status Program; Automatic Extension of Employment Authorization Documentation for El Salvador, 68 Fed. Reg. 42,071 (July 16, 2003). 21 Id. at 42,072. 22 Extension of the Designation of Temporary Protected Status for El Salvador; Automatic Extension of Employment Authorization Documentation for El Salvador TPS Beneficiaries, 70 Fed. Reg. 1450 (Jan. 7, 2005). 23 Id. at 1450-51. 24 Extension of the Designation of Temporary Protected Status for El Salvador; Automatic Extension of Employment Authorization Documentation for El Salvadoran TPS Beneficiaries, 71 Fed. Reg. 34,637 (June 15, 2006).
19

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 23 of 81
and flooding caused by Hurricane Stan”—had substantially slowed rebuilding efforts in El Salvador.25
93. On August 21, 2007, Secretary Chertoff extended El Salvador’s TPS designation from September 10, 2007, to March 9, 2009.26
94. Secretary Chertoff based this extension on a finding that El Salvador continued to meet all of the requirements for TPS designation. The extension was also supported by a request from the Salvadoran government, and by the fact that, despite some progress in rebuilding efforts, living conditions remained substantially disrupted in El Salvador.27
95. On October 1, 2008, Secretary Chertoff extended El Salvador’s TPS designation from March 9, 2009, to September 9, 2010.28
96. Secretary Chertoff based this extension on a finding that El Salvador continued to meet all of the requirements for TPS designation. He stated that: “El Salvador has still not completed reconstruction of the infrastructure damaged by several severe 2001 earthquakes. Transportation, housing, education and health sectors are still suffering from the 2001 earthquake, the lingering effects of which limit El Salvador’s ability to absorb a large number of potential returnees.”29
25 Id. at 34,638. 26 Extension of the Designation of El Salvador for Temporary Protected Status; Automatic Extension of Employment Authorization Documentation for Salvadoran TPS Beneficiaries, 72 Fed. Reg. 46,649 (Aug. 21, 2007). 27 Id. at 46,649-50. 28 Extension of the Designation of El Salvador for Temporary Protected Status, 73 Fed. Reg. 57,128 (Oct. 1, 2008). 29 Id. at 57,129.
20

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 24 of 81
97. On July 9, 2010, former DHS Secretary Janet Napolitano extended El Salvador’s TPS designation from September 9, 2010, to March 9, 2012.30
98. Secretary Napolitano based this extension on a finding that El Salvador continued to meet all of the requirements for TPS designation. She stated that: “El Salvador also continues to suffer a public security crisis that threatens to undermine sustained development and confidence in democratic governance.”31 Secretary Napolitano also cited the rapidly “increasing levels of violent crime” as a basis for TPS extension.32
99. On January 11, 2012, Secretary Napolitano extended El Salvador’s TPS designation from March 9, 2012, to September 9, 2013.33
100. Secretary Napolitano based this extension on a finding that El Salvador continued to meet all of the requirements for TPS designation. She cited continuing infrastructural deficiencies including “reports that only about 21 percent of rural households had continuous water services.”34 She also found that: “[r]ecovery has been slow and encumbered by Hurricanes Adrian and Stan in 2005, Hurricane Felix in 2007, Hurricane Ida in 2009, and most recently Tropical Storm Agatha in 2010.”35
30 Extension of the Designation of El Salvador for Temporary Protected Status and Automatic Extension of Employment Authorization Documentation for Salvadoran TPS Beneficiaries, 75 Fed. Reg. 39,556 (July 9, 2010). 31 Id. at 39,558. 32 Id. 33 Extension 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 (Jan. 11, 2012). 34 Id. at 1712. 35 Id.
21

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 25 of 81
101. On May 30, 2013, Secretary Napolitano extended El Salvador’s TPS designation from September 10, 2013, to March 9, 2015.36
102. Secretary Napolitano based this extension on a finding that El Salvador continued to meet all of the requirements for TPS designation. She found that: “recovery in the affected areas of El Salvador has been slow and disrupted by subsequent natural disasters.”37
103. On January 7, 2015, former DHS Secretary Jeh Charles Johnson extended El Salvador’s designation from March 10, 2015, to September 9, 2016.38
104. Secretary Johnson based this extension on a finding that El Salvador continued to meet all of the requirements for TPS designation. He stated that recent “environmental disasters” had substantially stalled recovery efforts. He also found that: “In June 2013, Tropical Storm Barry caused flooding in El Salvador, and in December 2013, the eruption of the Chaparrastique volcano . . . forced thousands of people . . . to evacuate their homes.”39 Against a backdrop of high unemployment rates and severe food insecurity, Secretary Johnson stated that: “a large influx of returning citizens at this time would overwhelm the labor market and the government’s fiscal ability to extend basic services to its citizens.”40
36 Extension of the Designation of El Salvador for Temporary Protected Status, 78 Fed. Reg. 32,418 (May 30, 2013). 37 Id. at 32,419. 38 Extension of the Designation of El Salvador for Temporary Protected Status, 80 Fed. Reg. 893 (Jan. 7, 2015). 39 Id. at 894. 40 Id.
22

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 26 of 81
105. On July 8, 2016, Secretary Johnson extended El Salvador’s TPS designation from September 10, 2016, to March 9, 2018.41
106. Secretary Johnson based this extension on a finding that El Salvador continued to meet all of the requirements for TPS designation. He cited a substantial rise in violence, crime, gangs, and general insecurity. The United Nations Development Program reported finding that in 2014, “Salvadoran citizens paid $756 million in extortion payments to gangs.”42 Secretary Johnson also cited a weak judicial system, which created an “environment of impunity” for corruption, violent crimes, and gang activity.43 B. Haiti Receives its TPS Designation, Which is Extended Through 2017 due to Continued
Instability and Subsequent Natural Disasters 107. TPS protection for Haiti was published in the Federal Register on January 21, 2010, pursuant to former Secretary of DHS Janet Napolitano’s designation. Haiti’s initial TPS designation ran from January 21, 2010, to July 22, 2011.44 108. Secretary Napolitano found that the requisite “extraordinary and temporary conditions” in Haiti warranted the TPS designation. This determination was based on the following findings:
a. “On January 12, 2010 Haiti was struck by a 7.0-magnitude earthquake . . . its strongest earthquake in 200 years.”45
41 Extension of the Designation of El Salvador for Temporary Protected Status, 81 Fed. Reg. 44,645 (July 8, 2016). 42 Id. at 44,647. 43 Id. 44 Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3476 (Jan. 21, 2010). 45 Id. at 3477.
23

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 27 of 81
b. The earthquake destroyed most of the capital city, Port-au-Prince.46 c. Reports indicated that “three million people—one-third of Haiti’s population—had been affected by the earthquake.”47 d. Hospitals, schools, and vital government buildings collapsed, or were severely damaged, and the country’s infrastructure including electric, water, and telephone services were severely affected.48 109. Haiti was re-designated for TPS and its TPS protection was extended in the Federal Register on May 19, 2011, by Secretary Napolitano. The extension and new designation began on July 23, 2011, and continued until January 22, 2013.49 110. Secretary Napolitano based this re-designation and extension on a finding that Haiti still met all of the requirements for TPS designation, particularly because the earthquake exacerbated Haiti’s position as “one of the poorest [countries] in the world.”50 The earthquake substantially damaged all levels of infrastructure in the country including housing, roads, hospitals, and schools. Secretary Napolitano recited that 80% of Haiti’s population was living below the poverty line, that an estimated 230,000 people died in the earthquake, and that one million people had been made homeless.51 In support of the extension and re-designation
46 Id. 47 Id. 48 Id. 49 Extension and Redesignation of Haiti for Temporary Protected Status, 76 Fed. Reg. 29,000 (May 19, 2011). 50 Id. at 29,001. 51 Id.
24

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 28 of 81
Secretary Napolitano cited the 800,000 internally displaced children, the rise of gender-based violence, and the outbreak of a cholera epidemic in the country with nearly 200,000 reported cases at the time.52
111. On October 1, 2012, Secretary Napolitano extended Haiti’s TPS designation from January 23, 2013, to July 22, 2014.53
112. Secretary Napolitano based this extension on a finding that Haiti continued to meet all of the requirements for TPS designation, including crippling infrastructural problems, a high number of internally displaced persons, a rise in gender-based violence, and the deadly cholera outbreak.54
113. On March 3, 2014, former Secretary Johnson extended Haiti’s TPS designation from July 23, 2014, to January 22, 2016.55
114. Secretary Johnson based this extension on a finding that Haiti continued to meet all of the requirements for TPS designation. He cited in particular the heightened risks to human rights and security in the country. He cited the slow pace of economic recovery, and new disasters such as Tropical Storm Isaac and Hurricane Sandy, which caused additional damage, displacement, and death.56
52 Id. 53 Extension of the Designation of Haiti for Temporary Protected Status, 77 Fed. Reg. 59,943 (Oct. 1, 2012). 54 See id. at 59,944. 55 Extension of the Designation of Haiti for Temporary Protected Status, 79 Fed. Reg. 11,808 (Mar. 3, 2014). 56 Id. at 11,809-10.
25

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 29 of 81
115. On August 25, 2015, Secretary Johnson extended Haiti’s TPS designation from January 23, 2016, to July 22, 2017.57
116. Secretary Johnson based this extension on a finding that Haiti continued to meet all of the requirements for TPS designation, particularly because of the lingering infrastructural damage, and high rates of food insecurity. He stated that as of January 12, 2015, “Haiti was left without a functioning legislative branch or duly elected local authorities” and that the country continued to lack health, sanitation, and emergency services necessary to accept its nationals living in the United States with TPS.58 C. Honduras Receives its TPS Designation, Which is Extended Through 2018 due to
Continued Instability and Subsequent Natural Disasters 117. On January 5, 1999, former Attorney General Janet Reno designated Honduras for TPS, making TPS protection available to Honduran nationals “continuously physically present” in the United States since January 5, 1999, and who have “continuously resided” in the United States since December 30, 1998. This initial designation was set to run through July 5, 2000. 59 118. Attorney General Reno’s TPS designation was based on the official request of the Honduran government and the following findings:
a. “Hurricane Mitch swept through Central America causing severe flooding and associated damage in Honduras”;
57 Extension of the Designation of Haiti for Temporary Protected Status, 80 Fed. Reg. 51,582 (Aug. 25, 2015). 58 Id. at 51,584. 59 Designation of Honduras Under Temporary Protected Status, 66 Fed. Reg. 524 (Jan. 5, 1999).
26

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 30 of 81
b. The hurricane caused “environmental disaster and substantial disruption of living conditions”;
c. “due to this disaster . . . Honduras is unable, temporarily, to handle adequately the return of Honduran nationals.”60 119. On May 11, 2000, Attorney General Reno extended Honduras’ TPS designation from July 5, 2000, to July 5, 2001.61 120. Attorney General Reno based this extension on a finding that Honduras still met all of the requirements for the TPS designation, particularly finding that “Honduras has made little progress in recovering from Hurricane Mitch” and that the “reconstruction that has taken place has not sufficiently countered the devastation to warrant the termination of TPS.” She also recited that an estimated 30,000 to 250,000 Hondurans remained in temporary shelters, relying on provisions from the World Food Program.62 121. On May 8, 2001, former Attorney General John Ashcroft extended Honduras’ TPS designation from July 6, 2001, to July 5, 2002.63 122. Attorney General Ashcroft based this extension on a finding that the conditions in Honduras still met the requirements for TPS designation, concluding that “[d]espite indications of progress in recover efforts . . . sufficient damage from Hurricane Mitch persists.” He stated
60 Id. at 524-525. 61 Extension of Designation of Honduras Under Temporary Protected Status Program, 65 Fed. Reg. 30,438 (May 11, 2000). 62 Id. 63 Extension of the Designation of Honduras Under the Temporary Protected Status Program, 66 Fed. Reg. 23,269 (May 8, 2001).
27

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 31 of 81
that 14,000 Hurricane Mitch survivors remain in shelters and that only 18,000 of the needed 60,000 housing units have been constructed.64
123. On May 3, 2002, Attorney General Ashcroft again extended TPS protection for Honduran nationals from July 5, 2002, to July 5, 2003.65
124. Attorney General Ashcroft based this extension on a finding that the conditions in Honduras still met the requirements for TPS designation. He found that “[a]lthough there are strong indications of progress in recovery efforts, recent droughts as well as flooding from Hurricane Michelle in 2001 have added to the humanitarian, economic, and social problems initially brought on my Hurricane Mitch in 1998.” He further found that as result of repeated environmental catastrophes and delays in disbursements of foreign aid, Honduras has been unable to recover from Hurricane Mitch and “continues to lack the infrastructure to support the return of its nationals.”66
125. On May 5, 2003, former DHS Secretary Tom Ridge extended Honduras’ TPS designation from July 6, 2003, to January 5, 2005.67
126. Secretary Ridge based this extension on a finding that Honduras continued to meet all of the requirements that prompted its initial designation, finding that the “prolonged drought as well as flooding after Hurricane Michelle have compromised food security and
64 Id. at 23,270. 65 Extension of the Designation of Honduras Under the Temporary Protected Status Program, 67 Fed. Reg. 22,451 (May 3, 2002). 66 Id. at 22,452. 67 Extension of the Designation of Honduras Under Temporary Protected Status Program; Automatic Extension of Employment Authorization Documentation for Hondurans, 68 Fed. Reg. 23,744 (May 5, 2003).
28

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 32 of 81
disrupted reconstruction efforts” and that reports indicated that 38% of Hondurans suffer from chronic malnutrition.68
127. On November 3, 2004, Secretary Ridge extended Honduras’ TPS designation from January 5, 2005, to July 5, 2006.69
128. Secretary Ridge based this extension on a finding that Honduras continued to meet all of the requirements for TPS designation, finding that reconstruction efforts were ongoing and that Honduras was still recovering from damage to its water and power supplies.70
129. On March 31, 2006, former DHS Secretary Michael Chertoff extended Honduras’ TPS designation from July 5, 2006, to July 5, 2007.71
130. Secretary Chertoff based this extension on a finding that the conditions in Honduras still met the requirements for TPS designation, stating that “Honduras cannot provide adequate housing for its nationals currently residing in the U.S.” Secretary Chertoff also cited the damage done by Hurricane Beta and other serious storms in 2005 as evidence of “Honduras’ continuing vulnerability from Hurricane Mitch.”72
68 Id. at 23,745. 69 Extension of the Designation of Honduras Under Temporary Protected Status Program; Automatic Extension of Employment Authorization Documentation for Hondurans, 69 Fed. Reg. 64,084 (Nov. 3, 2004). 70 Id. at 64,085. 71 Extension of the Designation of Honduras Under Temporary Protected Status Program; Automatic Extension of Employment Authorization Documentation for Hondurans, 71 Fed. Reg. 16,328 (Mar. 31, 2006). 72 Id. at 16,329.
29

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 33 of 81
131. On May 29, 2007, Secretary Chertoff extended Honduras’ TPS designation from July 5, 2007, to January 5, 2009.73
132. Secretary Chertoff based this extension on a finding that the conditions in Honduras still met the requirements for TPS designation, stating that the government of Honduras had requested an extension due to the continued social and economic stress caused by Hurricane Mitch, with health, infrastructure, and employment problems remaining.74
133. On October 1, 2008, Secretary Chertoff extended Honduras’ TPS designation from January 5, 2009, to July 5, 2010.75
134. Secretary Chertoff based this extension on a finding that the conditions in Honduras still met the requirements for TPS designation, reciting that much of the newly built housing still lacks water and electricity, that more than 600,000 Hondurans live in areas that are at a high risk for flooding, and that much of the drinking water remains contaminated.76
135. On May 5, 2010, former DHS Secretary Janet Napolitano extended Honduras’ TPS designation from July 5, 2010, to January 5, 2012.77
73 Extension of the Designation of Honduras Under Temporary Protected Status Program; Automatic Extension of Employment Authorization Documentation for Hondurans, 72 Fed. Reg. 29,529 (May 29, 2007). 74 Id. at 29,530. 75 Extension of the Designation of Honduras for Temporary Protected Status, 73 Fed. Reg. 57,133 (Oct. 1, 2008). 76 Id. at 57,134. 77 Extension of the Designation of Honduras for Temporary Protected Status and Automatic Extension of Employment Authorization Documentation for Honduran TPS Beneficiaries, 75 Fed. Reg. 24,734 (May 5, 2010).
30

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 34 of 81
136. Secretary Napolitano based this extension on a finding that the conditions in Honduras still met the requirements for TPS designation, stating that “the government and people of Honduras continue to rely heavily on international assistance, and recovery from Hurricane Mitch is still incomplete.”78 She also cited damage from other natural disasters that occurred after Hurricane Mitch, including heavy continuous rains and flooding in 2008 and an earthquake in 2009. She further found that Honduras would not be able to support the return of its nationals and that their return would “greatly aggravate Honduras’ deteriorating economy by increasing unemployment.”79
137. On November 4, 2011, Secretary Napolitano extended Honduras’ TPS designation from January 5, 2012, to July 5, 2013.80
138. Secretary Napolitano based this extension on a finding that the conditions in Honduras still met the requirements for TPS designation, stating that “there have been a series of natural disasters in Honduras, the most recent being flooding from Tropical Storm Agatha in May 2010.” She found that:
Although the economy has begun a moderate recovery, the pace of growth has not been rapid enough to absorb large numbers of young people entering the labor force. The addition of tens of thousands of unemployed persons returning from the United States could fuel social tensions and cause an escalation in violence. The country’s security situation is critical, and its infrastructure remains fragile, which negatively affects Honduras’ ability to re-assimilate Hondurans currently in the United States with TPS.81
78 Id. at 24,735. 79 Id. 80 Extension of the Designation of Honduras Under Temporary Protected Status Program and Automatic Extension of Employment Authorization Documentation for Honduran TPS Beneficiaries, 76 Fed. Reg. 68,488 (Nov. 4, 2011). 81 Id. at 68,490.
31

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 35 of 81
139. On April 3, 2013, Secretary Napolitano extended Honduras’ TPS designation from July 5, 2013, to January 5, 2015.82
140. Secretary Napolitano based this extension on a finding that the conditions in Honduras still met the requirements for TPS designation, citing ongoing housing construction, electricity shortages, and problems with infrastructure, water, and sanitation. She further cited that Honduras has experienced several natural disasters since Hurricane Mitch, including a drought in 2012 and a tropical storm in 2011.83
141. On October 16, 2014, former DHS Secretary Jeh Charles Johnson extended Honduras’ TPS designation from January 5, 2015, to July 5, 2016.84
142. Secretary Johnson based this extension on a finding that the conditions in Honduras still met the requirements for TPS designation, citing food insecurity caused by a drought in 2014, as well as ongoing problems stemming from Hurricane Mitch and the various environmental disasters that followed.85
143. On May 16, 2016, Secretary Johnson extended Honduras’ TPS designation from July 5, 2016, to January 5, 2018.86
82 Extension of the Designation of Honduras for Temporary Protected Status, 78 Fed. Reg. 20,123 (Apr. 3, 2013). 83 Id. at 20,124-25. 84 Extension of the Designation of Honduras for Temporary Protected Status, 79 Fed. Reg. 62,170 (Oct. 16, 2014). 85 Id. at 62,172. 86 Extension of the Designation of Honduras for Temporary Protected Status, 81 Fed. Reg. 30,331 (Oct. 16, 2016).
32

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 36 of 81
144. Secretary Johnson based this extension on a finding that the conditions in Honduras still met the requirements for TPS designation, citing the “housing deficit of 1.1 million homes” and that “Honduras is one of the poorest countries in the Western Hemisphere, with over 65 percent of the population living in poverty.” He also cited the damage caused by Tropical Storm Hanna at the end of 2014, as well as the increase in mosquito-borne diseases in 2014 and 2015. Secretary Johnson also found that “climate fluctuations between heavy rainfall and prolonged drought continue to challenge recovery efforts.”87 D. Prior Administrations Apply the TPS Program to El Salvador, Haiti, and Honduras, as
well as Other Countries, by Evaluating the Current, Evolving Conditions on the Ground 145. Throughout its twenty-seven year history until the arrival of the current Administration, the Attorney General and the DHS have undertaken a comprehensive review of current conditions in TPS-designated countries when considering whether or not to extend the duration of TPS protections. Consistent with the statutory language, prior administrations have not limited consideration to the original bases for designation, but rather have reviewed all current conditions in the country when evaluating whether or not TPS should be extended or terminated. 146. Thus the reviews of the prior administrations incorporated evaluations of the disaster or conflict that precipitated the initial TPS designations for El Salvador, Haiti, and Honduras, but also considered all other facts relevant to TPS status. Subsequent natural disasters, civil unrest, political instability, and widespread and unsafe country conditions were considered each time that El Salvador, Haiti, and Honduras were considered for TPS extension or termination prior to 2017. The practice of analyzing all relevant current country conditions applied to other TPS-designated countries as well.
87 Id. at 30,333.
33

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 37 of 81
147. Prior to January 20, 2017, the TPS statute was applied in a consistent fashion that adhered to the law’s plain language, such that country conditions were not considered to revolve solely around a singular environmental catastrophe, but rather as an evolving set of circumstances that evaluated whether or not individuals could safely return to their country of origin. The TPS program served its stated purpose of humanitarian, safe-haven relief for hundreds of thousands of individuals for nearly thirty years. II. President Trump Campaigns on Promises to Discriminate Against Racial Minorities
and to Obstruct Lawful Immigration, and the Administration Then Executes These Unlawful Policies Through His Subordinate Officers and Agencies 148. Defendant Trump has made numerous statements reflecting bias and prejudice against immigrants of color, particularly Latino and Haitian immigrants. Evidence of this bias supports an inference that Defendants’ actions in terminating TPS for El Salvador, Haiti and Honduras were motivated by racism and racial, ethnic, and/or national origin discrimination. 149. When then-candidate Trump announced his presidential campaign, he equated Latino immigrants from Mexico with rapists, stating: “‘When Mexico sends its people, they’re not sending their best. They’re not sending you. They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people . . . It’s coming from more than Mexico. It’s coming from all over South and Latin America.’”88 150. At the first Republican presidential debate, then-candidate Trump again reaffirmed his negative views of Latino immigrants: “‘[T]he Mexican government is much
88 Washington Post Staff, Full Text: Donald Trump announces a presidential bid (June 16, 2015), https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donaldtrump-announces-a-presidential-bid/?utm_term=.80d503a2ff9a.
34

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 38 of 81
smarter, much sharper, much more cunning. . . . They send the bad ones over, because they don’t want to pay for them, they don’t want to take care of them.’”89
151. After an incident on August 21, 2015, when two men urinated on a sleeping Latino man and beat him with a metal pole, the perpetrators stated: “Donald Trump was right; all these illegals need to be deported.” When interviewed about the racially motivated crime, thencandidate Trump stated that they were “passionate.” Specifically, he stated: “‘[i]t would be a shame . . . I will say that people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate.’”90
152. In October 2016, during a presidential debate, then-candidate Trump responded to a question about immigration policy by saying: “‘We have some bad hombres here and we’re going to get them out.’”91
153. In December 2016, referring to an article about a crime wave on Long Island, President-Elect Trump said, “‘They come from Central America. They’re tougher than any people you’ve ever met. They’re killing and raping everybody out there. They’re illegal. And they are finished.’”92
89 Andrew O’Reilly, At GOP debate, Trump says ‘stupid’ U.S. leaders are being duped by Mexico, Fox News (Aug. 6, 2015), http://www.foxnews.com/politics/2015/08/06/at-republicandebate-trump-says-mexico-is-sending-criminals-because-us.html. 90 Adrian Walker, ‘Passionate’ Trump fans behind homeless man’s beating?, Boston Globe (Aug. 21, 2015), https://www.bostonglobe.com/metro/2015/08/20/after-two-brothers-allegedlybeat-homeless-man-one-them-admiringly-quote-donald-trump-deportingillegals/I4NXR3Dr7litLi2NB4f9TN/story.html. 91 Katie Zezima, Trump on immigration: There are ‘bad hombres’ in the United States, Wash. Post (Oct. 19, 2016), https://www.washingtonpost.com/news/post-politics/wp/2016/10/19/trumpon-immigration-there-are-bad-hombres-in-the-united-states/?utm_term=.1ee17064298f. 92 Michael Scherer, 2016 Person of the Year Donald Trump, Time (2016), http://time.com/timeperson-of-the-year-2016-donald-trump.
35

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 39 of 81
154. On August 25, 2017, President Trump pardoned former Maricopa County Sheriff
Joe Arpaio,93 who was to be sentenced for criminal contempt for failing to comply with a federal
judge’s order to stop racially profiling Latinos.94
155. President Trump has made numerous similarly biased statements against Black
immigrants. He articulated his antipathy towards Haitians in particular in June 2017. During a
meeting in the Oval Office with then-Homeland Security Secretary Kelly and then-Secretary of
State Tillerson, President Trump reportedly reacted to a document listing how many immigrants
had received visas to enter the United States in 2017. Upon learning that 15,000 Haitian people
had received such visas, President Trump is reported to have stated they “all have AIDS.”95
93 Julie Hirschfield Davis & Maggie Haberman, Trump Pardons Joe Arpaio, Who Became Face of Crackdown on Illegal Immigration, N.Y. Times (Aug. 25, 2017), https://www.nytimes.com/2017/08/25/us/politics/joe-arpaio-trump-pardon-sheriff-arizona.html.
94 Arpaio had been detaining people ostensibly because they had violated the law. But in practice, his office detained huge numbers of individuals solely because they looked Latino, without any reasonable suspicion of illegal conduct. See generally Findings of Fact & Conclusions of Law, Melendres v. Arpaio, No. 07-CV-02513, (D. Ariz. May 24, 2013, ECF No. 579. After a federal court enjoined that practice in 2011, Arpaio continued his unlawful and discriminatory practices unabated, “announc[ing] to the world and to his subordinates that he was going to continue business as usual no matter who said otherwise.” Findings of Fact & Conclusions of Law, United States v. Arpaio, No. 16-CR-01012, (D. Ariz. July 31, 2017), ECF No. 210 at 13. On July 31, 2017, a federal court held Arpaio in criminal contempt, holding that he had willfully acted in “flagrant disregard” of the injunction. Id. at 13-14.
95 Michael D. Shear & Julie Hirschfeld Davis, Stoking Fears, Trump Defied Bureaucracy to Advance Immigration Agenda, N.Y. Times (Dec. 23, 2017), https://www.nytimes.com/2017/12/23/us/politics/trump-immigration.html. President Trump’s inflammatory and atavistic remark improperly demonizes and stigmatizes Haitians. It perpetuates the discrimination experienced by the Haitian community at the height of the HIV/AIDS epidemic in the early 1980s. At that time, the Centers of Disease Control (CDC) announced that they were purportedly at major risk for HIV. Wayne Biddle & Margot Slade, A Wider Risk of AIDS Feared, N.Y. Times (May 22, 1983), http://www.nytimes.com/1983/05/22/weekinreview/ideas-trends-a-wider-risk-of-aidsfeared.html. The Haitian community was the only group identified based on nationality rather than specific behavioral factors. The CDC removed Haitians from the list in 1985, but the stigma of the classification remains and clearly continues to improperly influence President
36

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 40 of 81
156. In January 2018, a bipartisan group of six U.S. senators met to negotiate an immigration plan to present to Congress and the President. On January 11, 2018, they reached an agreement in principle that addressed four immigration priorities of the White House: border security, the diversity visa lottery, so-called “chain migration,” and the Dream Act.96
157. The diversity visa lottery program, established by the Immigration Act of 1990, makes available 50,000 immigrant visas per year to applicants from countries with low rates of immigration to the U.S. INA § 203(c). The visas are distributed among six regions: (i) Africa; (ii) Asia; (iii) Europe; (iv) North America (other than Mexico); (v) Oceania; and (vi) South America, Mexico, Central America, and the Caribbean. INA § 203(c)(1)(F). The majority of diversity visa lottery recipients have been nationals of African countries.97
158. Under the proposed immigration plan, the senators sought to eliminate the diversity visa lottery and reallocate the 50,000 annual visas to individuals whose TPS would soon terminate.98
Trump’s policymaking and legislative decisions. See Edwidge Danticat, Trump Reopens an Old Wound for Haitians, The New Yorker (Dec. 29, 2017), https://www.newyorker.com/news/newsdesk/trump-reopens-an-old-wound-for-haitians (President Trump’s “remark about Haiti and AIDS cut deep, reopening a painful wound that goes back several decades” and “re-stigmatizes both Haitians and people living with H.I.V./AIDS by pegging them as undesirables.”). 96 Press Release, Sen. Jeff Flake, Bipartisan Senators Reach Agreement on Immigration, (Jan. 11, 2018), https://www.flake.senate.gov/public/index.cfm/2018/1/bipartisan-senators-reachagreement-on-immigration. 97 See generally U.S. Dep’t of State, Diversity Visa Program Statistics, https://travel.state.gov/content/travel/en/us-visas/immigrate/diversity-visa-programentry/diversity-visa-program-statistics.html. 98 Ryan Teague Beckwith & Maya Rhodan, Here’s the Plan Trump Was Attacking When He Said ‘Shithole Countries’, Time (Jan. 12, 2018), http://time.com/5101057/donald-trump-shitholecountries-tps-daca/.
37

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 41 of 81
159. After the agreement in principle was reached, Senators Durbin and Graham had phone calls with President Trump on the morning of January 11 and were invited to an in-person meeting in the Oval Office at noon that day.99 During the meeting, the senators presented the terms of the bipartisan agreement, including the plan to reallocate diversity visas to TPS recipients who would be affected by the upcoming termination—i.e. individuals from Haiti, El Salvador, Nicaragua and Sudan.
160. While being briefed on the proposal to reallocate visas to TPS recipients, President Trump is reported to have grown angry and incredulous at the terms of the proposed plan. He specifically derided individuals from terminated TPS nations, asking: “Why are we having all these people from shithole countries come here?”
161. Trump is reported to have expressed particular hostility towards Haitians, asking “Why do we need more Haitians?” and demanding that the senators “[t]ake them out” of the plan.100 The President then drew a direct contrast between the terminated TPS countries and predominantly white countries, stating that policies should encourage immigration from countries like Norway.101
162. As Senators Durbin and Graham left the Oval Office meeting, they were shocked and speechless. Senator Durbin recalled that “‘it was silence in the car’” after they “‘witnessed
99 Josh Dawsey et al., Inside the Tense, Profane White House Meeting on Immigration, Wash. Post (Jan. 15, 2018), https://www.washingtonpost.com/politics/inside-the-tense-profane-whitehouse-meeting-on-immigration/2018/01/15/13e79fa4-fa1e-11e7-8f66-2df0b94bb98a_story.html. 100 Josh Dawsey, Trump Derides Protections For Immigrants From ‘Shithole’ Countries, Wash. Post (Jan. 12, 2018), https://www.washingtonpost.com/politics/trump-attacks-protections-forimmigrants-from-shithole-countries-in-oval-office-meeting/2018/01/11/bfc0725c-f711-11e791af-31ac729add94_story.html?utm_term=.1838b0734159. 101 Id.
38

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 42 of 81
something that neither one of us ever expected.’”102 Later, Senator Durbin described how the President had “repeatedly” said “vile,” “vulgar” and “hate-filled things” about terminated TPS nations and African nations.103 Senator Durbin praised his colleague Senator Graham for his courage in speaking up in response to the President’s derisive comments.104
163. The morning after the meeting in the Oval Office, President Trump denied reports about the obscene language he used during the meeting. He tweeted that “language used by me at the DACA meeting was tough,” but that he “never said anything derogatory about Haitians other than Haiti is, obviously, a very poor and troubled country.”105
164. Defendant Nielsen, who was also present at the January 11 meeting in the Oval Office, similarly acknowledged that the President had used “tough language” but maintained that although she did not know whether Norway was a “predominately white country,” she “imagined that is the case.”106
102 Carl Hulse, Inside the Oval Office Immigration Meeting That Left a Senator Stunned, N.Y. Times (Jan. 19, 2018), https://www.nytimes.com/2018/01/19/us/politics/trump-durbinimmigration-daca.html. 103 Jacob Pramuk, Trump repeatedly used ‘S---hole’ to describe African countries, Sen. Dick Durbin Says, CNBC (Jan. 12, 2018), https://www.cnbc.com/2018/01/12/trump-used-s--hole-todescribe-african-countries-dick-durbin-says.html. 104 Jacob Pramuk, Sen. Lindsey Graham: ‘I said my piece’ to Trump following his immigration comments, CNBC (Jan. 12, 2018), https://www.cnbc.com/2018/01/12/sen-lindsey-graham-i-saidmy-piece-to-trump-during-immigration-meeting.html. 105 @realDonaldTrump, Twitter (Jan. 12, 2018, 5:48AM), https://twitter.com/realdonaldtrump/status/951813216291708928?lang=e. 106 Walter Shapiro, Opinion: White People in Norway? Who Knew?, Roll Call (Jan. 17, 2018), https://www.rollcall.com/news/opinion/kirstjen-nielsen-trump-norway.
39

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 43 of 81
165. In fact, Norway is indeed a predominantly white country.107 By contrast, Haiti is predominantly black.108 El Salvador and Honduras are predominantly Latino.109
166. Moreover, DHS’s animus against TPS recipients is not only evidenced by the President’s discriminatory comments, but also by the agency’s actions and numerous press releases seeking to convince the American public and Congress that a permanent legislative solution to TPS is not necessary.
167. Defendants’ animus against TPS recipients is evidenced by other actions as well. For example, in April 2017, DHS officials sought evidence regarding criminal records and welfare use of Haitians living in the United States. Upon information and belief, DHS officials attempted to manufacture such evidence to support a TPS-rescission decision. When DHS staff indicated they were unable to gather the requested information, policy chief Kathy Neubel Kovarik continued to press for the information. Kovarik wrote in an email that “I know some of it is not captured, but we’ll have to figure out a way to squeeze more data out of our system.”110
168. Shortly thereafter, Senators Menendez, Ron Wyden, Markey, Gillibrand, and Sherrod Brown wrote to then Secretary John F. Kelly “regarding the troubling news that your department has asked for information on the criminal history and public benefits use of Haitians
107 See Central Intelligence Agency, The World Factbook: Norway, https://www.cia.gov/library/publications/the-world-factbook/geos/no.html. 108 See Central Intelligence Agency, The World Factbook: Haiti, https://www.cia.gov/library/publications/the-world-factbook/geos/ha.html. 109 See Central Intelligence Agency, The World Factbook: El Salvador, https://www.cia.gov/library/publications/the-world-factbook/geos/es.html; Central Intelligence Agency, The World Factbook: Honduras, https://www.cia.gov/library/publications/the-worldfactbook/geos/ho.html. 110 Alicia A. Caldwell, AP Exclusive: US digs for evidence of Haiti immigrant crimes, AP News (May 9, 2017), https://apnews.com/740ed5b40ce84bb398c82c48884be616.
40

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 44 of 81
protected under [TPS].”111 The senators stated they were “concerned that you will use this information in your decision. Such analysis would be outside the statutory framework for deciding whether to extend TPS, and it would be a disturbing executive overreach.”112 Further, they noted that “the timing of this information request suggests that this information is pretext to deny an extension of TPS,” and urged DHS to “keep [its] review within the bounds dictated by Congress.”113
169. Review of these factors does not fall within the statutory criteria Congress enacted to govern TPS extensions, but remains consistent with the Trump Administration’s bias against TPS recipients based on their race, ethnicity and/or national origin.
170. In response to Congress’s consideration of comprehensive immigration reform, DHS issued a series of press releases criticizing specific legislative proposals that read like partisan blog posts instead of official executive agency pronouncements. Senator Lindsey Graham characterized DHS’s actions as “poisoning the well,” further stating: “Statements like these undermine confidence in DHS and make one question whether they can rationally engage with the Congress on this issue.”114
171. On February 14, 2018, a DHS press release headline read: “The McCain-Coons Proposal Would Increase Illegal Immigration, Surge Chain Migration, Continue Catch and
111 Letter from Sens. Robert Menendez, et al., to John F. Kelly, Sec’y of DHS (May 19, 2017), https://www.menendez.senate.gov/imo/media/doc/HAITI-TPS_5_19_17.pdf. 112 Id. 113 Id. 114 Press Release, Sen. Lindsey Graham, Statement from U.S. Senator Lindsey Graham (Feb. 15, 2018), https://www.lgraham.senate.gov/public/index.cfm/2018/2/statement-from-u-s-senatorlindsey-graham.
41

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 45 of 81
Release, and Give a Pathway to Citizenship to Convicted Alien Felons.”115 Although the
agency’s animus is reflected in the title of the press release alone, the agency went further and characterized the legislative proposal as a “Mass Legalization Bill.”116
172. The next day, DHS repeated its advocacy against TPS extension, and again
characterized a proposal for conditional permanent resident status for TPS recipients as part of “a Mass Amnesty Bill for Illegal Aliens of All Ages.”117
III. The Administration Follows Through on its Promises and Terminates TPS at Almost Every Opportunity
A. The Trump Administration Terminates TPS for El Salvador 173. Despite extensions of the TPS program for El Salvador over the course of
multiple administrations under both political parties, and despite the lingering effects of
compounded environmental and humanitarian crises, on January 18, 2018, the Trump Administration terminated El Salvador’s TPS designation effective September 9, 2019.118
115 Press Release, U.S. Dep’t of Homeland Security, The McCain-Coons Proposal Would Increase Illegal Immigration, Surge Chain Migration, Continue Catch and Release, and Give a Pathway to Citizenship to Convicted Alien Felons (Feb. 14, 2018), https://www.dhs.gov/news/2018/02/14/mccain-coons-proposal-would-increase-illegalimmigration-surge-chain-migration. 116 Id. 117 Press Release, U.S. Dep’t of Homeland Security, Schumer-Rounds-Collins Destroys Ability of DHS to Enforce Immigration Laws, Creating a Mass Amnesty For Over 10 Million Illegal Aliens, Including Criminals (Feb. 15, 2018), https://www.dhs.gov/news/2018/02/15/schumerrounds-collins-destroys-ability-dhs-enforce-immigration-laws-creating-mass. 118 Termination of the Designation of El Salvador for Temporary Protected Status, 83 Fed. Reg. 2654 (Jan. 18, 2018); see also Press Release, U.S. Dep’t of Homeland Security, Secretary of Homeland Security Kirstjen M. Nielson Announcement on Temporary Protected Status for El Salvador (Jan. 8, 2018), https://www.dhs.gov/news/2018/01/08/secretary-homeland-securitykirstjen-m-nielsen-announcement-temporary-protected.
42

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 46 of 81
174. In doing so, Defendants made clear their new rule that they would not consider intervening country conditions, but rather would only consider whether “the conditions supporting El Salvador’s 2001 designation for TPS on the basis of environmental disaster due to damage cause by the 2001 earthquakes are no longer met.”119 If so, Defendants asserted that “the Secretary must terminate the designation . . . .”120
175. Current conditions in El Salvador, however, render the country unable to handle a safe return for Salvadoran TPS holders. Conditions prompting both the initial designation and subsequent designations continue to exist and have worsened over time. As such, an estimated 242,900 Salvadoran TPS holders may face deportation to a country that is ill-prepared to receive them.
176. The country lacks viable infrastructure, is low on housing, and suffers from pervasive and widespread violence. High displacement of persons living in El Salvador, as well as the country’s high underemployment and poverty rates, and dim economic prospects will inhibit the integration of tens of thousands of returned workers into the country’s market. Moreover, these conditions, including several natural disasters, continue to impede recovery efforts from the 2001 earthquakes and subsequent disasters.
177. Several recent natural disasters displaced a significant number of Salvadorans and caused major infrastructure damage in the country,121 further reducing any gains made in recovering from the 2001 earthquakes. In November 2016, a 7.2-magnitude earthquake struck
119 Termination of the Designation of El Salvador for Temporary Protected Status, 83 Fed. Reg. 2654, 2655-56 (Jan. 18, 2018) 120 Id. at 2655. 121 See IDMC, Global Report on Internal Displacement (May 2017), at 114, http://www.internaldisplacement.org/global-report/grid2017/pdfs/2017-GRID.pdf.
43

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 47 of 81
El Salvador, leading to evacuations in coastal areas.122 In April 2017, a 5.1-magnitude
earthquake—the strongest of more than 50 registered earthquakes that shook the country over a 24-hour period—caused landslides and damaged homes and roads throughout the country.123
In 2017, torrential rains and storms further damaged El Salvador’s infrastructure. Flooding from
intense rains in June 2017 forced the evacuation and displacement of hundreds of people, damaged streets, highways, and bridges, and led to multiple deaths and injuries.124 Heavy rains
throughout September 2017 further exacerbated the damage to roads and homes, and caused numerous deaths and injuries.125
178. El Salvador suffers from critical housing shortages. In 2017, a United Nations organization reported a housing deficit of 360,000 homes.126 Over 30 percent of the country’s households live in poverty or extreme poverty.127
122 Guy Birchall, Tsunami Danger El Salvador Hit by Massive 7 Magnitude Earthquake as a Tsumani Warning is Issued, THE SUN, (Nov. 24, 2016), https://www.thesun.co.uk/news/2258714/el-salvador-hit-by-massive-7-2-magnitude- earthquakeas-a-tsunami-warning-is-issued/. 123 Telesur, At Least 1 Dead in El Salvador After 5.1 Magnitude Earthquake, Telesurtv.net (Apr. 10, 2017), https://www.telesurtv.net/english/news/At-Least-One-Dead-in-El-SalvadorAfter-5.1-Magnitude-Earthquake-20170410-0038.html. 124 Associated Press, 3 dead, Hundreds Displaced in El Salvador Flooding, DAILY MAIL (June 16, 2017), “http://www.dailymail.co.uk/wires/ap/article-4611600/3-dead-hundredsdisplaced-El-Salvador-flooding.html; FloodList, Central America – Deadly Floods and Landslides in Guatemala, El Salvador and Honduras (June 22, 2017), http://floodlist.com/america/floods-landslides-guatemala-el-salvador-honduras-june-2017. 125 AFP and The Tico Times, Bad Rainy Season Leaves Dozens Dead in Central America, Tico Times (Oct. 4, 2017), http://www.ticotimes.net/2017/10/04/bad-rainy-season-leaves-dozensdead-central-america. 126 Sustainable Development Goals Fund, Case Study Sustainable Urban Development in El Salvador § 2 (2017), http://www.sdgfund.org/case-study/sustainable-urban-development-elsalvador.
44

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 48 of 81
179. The country’s economic growth is stagnant as El Salvador continues to
experience persistently low levels of economic growth and the significant challenges to its economy recognized in the 2016 extension notice.128 The economy grew by only 2.1 percent in
2017, and is predicted to grow by only 1.8 percent in 2018, making it the slowest growing economy in Central America.129
180. Data on El Salvador’s labor market conditions suggests there has been no
improvement since the country’s 2016 TPS renewal and approximately 40% of the country’s labor force remains underemployed or unable to find full-time work.130
181. Remittances—money sent from Salvadoran nationals living abroad—remain
critical to El Salvador’s economy. Indeed, remittances constitute the country’s greatest single
source of income, and surpassed $4.5 billion in 2016 – approximately 17% of the country’s gross domestic product.131 Over 97% of remittances sent to El Salvador come from relatives residing in the United States, including TPS beneficiaries.132
127 Id. 128 USAID, Economic Opportunities, USAID (last updated: Jan. 2, 2018), https://www.usaid.gov/el-salvador/economic-opportunities; Extension of the Designation of El Salvador for Temporary Protected Status, 81 Fed. Reg. 44,645 (July 8, 2016). 129 The World Bank, The World Bank In El Salvador (last updated: Apr. 16, 2018), http://www.worldbank.org/en/country/elsalvador/overview. 130 Christopher Woody, Trump's Latest Immigration Crackdown Threatens the Economy — Both in the US and in El Salvador, Business Insider (Jan. 17, 2018), http://www.businessinsider.com/trump-ending-tps-el-salvador-threatens-economy-2018-1. 131 Joshua Partlow, Salvadorans fear TPS Decision Will be a Huge Economic Blow but Pin Hopes on Congress, Washington Post (Jan. 8, 2018), https://www.washingtonpost.com/world/the_americas/salvadorans-fear-tps-decision-will-be-ahuge-economic-blow-to-their-country/2018/01/08/eefd9ab4-f486-11e7-9af7a50bc3300042_story.html?utm_term=.478cbcf275ce; The World Bank, Personal Remittances, Received (% of GDP),
45

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 49 of 81
182. Other conditions continuing to plague the country include the gang and criminal
violence recognized in the 2016 extension notice. The country has one of the world’s highest
homicide rates: in 2001, the year of its initial TPS designation, six people in El Salvador were killed daily.133 The rate nearly doubled by 2017.134 A 2016 USAID report found the murder rate in El Salvador was 81 per 100,000 people.135
183. Crime levels remain critically high, and the U.S. Department of State (“DOS”)
found that nearly one out of every five families in El Salvador have been victims of violent crime.136 DOS has warned U.S. citizens that “crime and violence levels in El Salvador remain
https://data.worldbank.org/indicator/BX.TRF.PWKR.DT.GD.ZS?end=2016&locations=SV&star t=1976. 132 Christopher Woody, Trump's Latest Immigration Crackdown Threatens the Economy — Both in the US and in El Salvador, Business Insider (Jan. 17, 2018), http://www.businessinsider.com/trump-ending-tps-el-salvador-threatens-economy-2018-1. 133 Raymond Bonner, America’s Role in El Salvador’s Deterioration, The Atlantic (Jan. 20, 2018), https://www.theatlantic.com/international/archive/2018/01/trump-and-elsalvador/550955/; Reuters Staff, U.N. Finds Possible Extrajudicial Killings in El Salvador Gang Offensive, Reuters (Feb. 5, 2018), https://www.reuters.com/article/us-el-salvador-violence/u-nfinds-possible-extrajudicial-killings-in-el-salvador-gang-offensive-idUSKBN1FQ0E1; Josh Boswell, Donald Trump’s Decision to Expel Salvadorans Could Empower Deadly MS-13 Gang, warns experts, The Telegraph (Jan. 14, 2018), http://www.telegraph.co.uk/news/2018/01/14/donald-trumps-decision-send-salvadorans-homecould-empower-deadly/. 134 Boswell, supra note 134. 135 USAID, USAID/El Salvador Country Fact Sheet (Nov. 2017) at 1, https://www.usaid.gov/sites/default/files/documents/1862/El_Salvador_External_Fact_Sheet__November_2017.pdf. 136 Dept. of State, El Salvador 2016 Human Rights Report (updated 4/12/2017) at 1, https://www.state.gov/documents/organization/265798.pdf.
46

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 50 of 81
critically high”137 and issued a Level Three Travel Advisory for El Salvador on January 10, 2018.138 The advisory recommends reconsidering travel to the country “due to crime” and states that “[v]iolent crime, such as murder, assault, rape, and armed robbery, is common,” and that “[g]ang activity, such as extortion, violent street crime, and narcotics and arms trafficking, is widespread.”139 It further reports that “[l]ocal police may lack the resources to respond effectively to serious criminal incidents.”140
184. The country’s violence has been identified by the U.N. World Food Programme as “a humanitarian emergency” that “has significantly impeded development.”141 Criminal and gang violence continues to displace El Salvador’s population. In 2017, the Internal Displacement Monitoring Centre (“IDMC”) estimated that nearly 220,000 people were forced to flee violence in El Salvador in 2016 alone, ranking El Salvador second in the world in the number of new displacements relative to population size.142
137 U.S. Embassy El Salvador, Security Message for U.S. Citizens: Travel Warning – El Salvador, Jan. 15, 2016, https://sv.usembassy.gov/sm-01152016/. 138 U.S. Dept. of State, El Salvador Travel Advisory (Jan. 10, 2018), https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/el-salvador-traveladvisory.html. 139 Id 140 Id. 141 U.N. World Food Programme, Food Security and Emigration (Aug. 2017) at 23, https://reliefweb.int/sites/reliefweb.int/files/resources/WFP-0000022124.pdf. 142 IDMC, Global Report on Internal Displacement (May 2017) at 22, 114, http://www.internaldisplacement.org/global-report/grid2017/pdfs/2017-GRID.pdf.
47

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 51 of 81
185. El Salvador has been identified as one of the world’s deadliest countries for women and girls in particular.143 On average, ten women a day experience violence or sexual assault in the country, and seven of every ten victims of sexual violence are under the age of twenty.144
186. Further, a March 2017 DOS report described the widespread human rights abuses in El Salvador that “stem[] from . . . widespread extortion and other crime,” “widespread corruption,” “weak rule of law” and “widespread” violence against women and girls, and the commercial sexual exploitation of women and children.145
187. As evidenced from the above, Defendant Nielsen’s assertion, in announcing the Trump Administration’s decision to terminate TPS for El Salvador, that country conditions have “stabilized” is pretext for invidious discrimination and belied by well-established facts.
188. Defendant Nielsen’s stated reasoning for the Trump Administration’s termination of El Salvador’s TPS designation represents a sharp departure from DHS’s ordinary decisionmaking process, furthering the inference of invidious discrimination.
189. Under 8 U.S.C. § 1254a, DHS is required to consider “the conditions in the foreign state . . . for which a designation is in effect under this subsection and . . . determine whether the conditions for such designation under this subsection continue to be met.”
143 Catalina Lobo-Guerrero, Opinion, In El Salvador, ‘Girls Are a Problem’, N.Y. Times (Sept. 2, 2017), https://www.nytimes.com/2017/09/02/opinion/sunday/el-salvador-girlshomicides.html. 144 Id. 145 U.S. Dep’t of State, El Salvador 2016 Human Rights Report 1, 21 (updated Apr. 12, 2017), https://www.state.gov/documents/organization/265798.pdf.
48

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 52 of 81
190. Previously, consistent with that statutory mandate, the Attorney General and DHS Secretaries have conducted careful reviews to determine whether conditions in El Salvador continued to meet the statutory criteria of the TPS statute, considering all current country conditions that may justify TPS designation. In stark contrast to the extensions of El Salvador’s TPS status in other administrations, Defendants failed to assess country conditions that were documented over the course of nearly two decades. In particular, Defendants failed to mention the numerous natural disasters that El Salvador recently experienced, the ongoing food scarcity, or the persistence of extreme gang violence, corruption and judicial inefficacy.
191. Defendant Nielsen’s flawed analysis of conditions in El Salvador conflicts sharply with the federal government’s own reports and analysis released by DOS, which consistently reflect the conditions described in the Federal Register for El Salvador’s prior TPS extensions. For example, DOS has released numerous reports documenting that in El Salvador “violent crime, such as murder, assault, rape, and armed robbery is common. Gang activity such as extortion [and] violent street crime . . . is widespread. Local police may lack the resources to respond effectively . . . .”146
192. Consistent with the determinations made by prior administrations in extending TPS protections to El Salvador, DOS has frequently noted that El Salvador experiences “widespread corruption; weak rule of law, which contribute[s] to high levels of impunity and
146 U.S. Dep’t of State, El Salvador Travel Advisory (Jan. 10, 2018), https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/el-salvador-traveladvisory.html.
49

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 53 of 81
government abuse, including unlawful killings by security forces, discrimination . . . [and] violence against women and girls.”147
193. Defendant Nielsen’s reliance on El Salvador’s increased GDP as a reason for termination also raises the inference of pretext. As the World Bank recently noted, external factors were responsible for the increase including “remittances which increased by $306 million since 2015.”148
194. Defendant Nielsen’s stated reasoning also gives no consideration to the ability of El Salvador to receive the thousands of TPS recipients currently living in the United States. In fact, “if all the Salvadoreans in the TPS programme were to come back . . . the country’s population would swell by 3%. El Salvador is in no state to receive and reintegrate them.”149
195. Defendant Nielsen’s purported analysis of country conditions in El Salvador also conflicts with DHS’s own reports, released as recently as January 2018, documenting that El Salvador is one of the “leading countries of nationality for persons granted either affirmative or defensive asylum” based on credible and well-founded fear of persecution or torture.150 El Salvador’s prevalence in asylum proceedings makes sense in light of the country conditions amply discussed in the Federal Register over the course of El Salvador’s TPS designation.
147 U.S. Dep’t of State, El Salvador 2016 Human Rights Report (updated Apr. 12, 2017), https://www.state.gov/documents/organization/265798.pdf. 148 The World Bank, World Bank in El Salvador Overview (Oct. 10, 2017), http://www.worldbank.org/en/country/elsalvador/overview. 149 See How Will El Salvador Cope With Deportees From America?, The Economist (Jan. 11, 2018), https://www.economist.com/news/americas/21734477-united-states-wants-expel-up200000-salvadoreans-both-they-and-their-home-country. 150 U.S. Dep’t of Homeland Sec., Office of Immigration Statistics, Annual Flow Report: Refugees and Asylees: 2016 (published Jan. 2018), https://www.dhs.gov/sites/default/files/publications/Refugees_Asylees_2016_0.pdf.
50

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 54 of 81
B. The Trump Administration Terminates TPS for Haiti 196. On May 24, 2017, former DHS Secretary John Kelly extended Haiti’s TPS
designation for six months from July 23, 2017, to January 22, 2018.151 197. Secretary Kelly based this extension on a finding that Haiti continued to meet the
requirements that prompted its initial designation, and particularly because of the high number of internally displaced persons, high levels of gender-based violence, and the debilitating cholera epidemic. He found that recovery efforts were compromised by new disasters—Hurricane Matthew, flooding, and landslides—that struck Haiti killing, displacing, and starving its populace.152
198. Notwithstanding this litany of unsafe conditions and lack of comprehensive reconstruction, Secretary Kelly extended Haiti’s TPS designation for only the minimum sixmonth period, and indicated that it was “in the best interest of [Haitian] TPS beneficiaries to prepare for their return to Haiti.”153
199. Despite extensions of the TPS program for Haiti over the course of almost a decade and the lingering effects of multiple environmental and humanitarian crises, on November 20, 2017, Defendant Duke abruptly announced the termination of Haiti’s TPS designation effective July 22, 2019.154
151 Extension of the Designation of Haiti for Temporary Protected Status, 82 Fed. Reg. 23,830 (May 24, 2017). 152 Id. at 23,832. 153 Id. 154 Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2648 (Jan. 18, 2018).
51

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 55 of 81
200. The termination of Haiti’s TPS designation was recorded in the Federal Register on January 18, 2018.155 Defendants cited some improvements in the numbers of internally displaced persons as a purported justification for rescinding Haiti’s TPS designation.156 Similar to the notice terminating TPS designation for El Salvador, Defendants did not consider all country conditions that might justify TPS designation for Haiti, but rather focused only on the original basis for designation and whether those conditions continued to be met.
201. Current conditions in Haiti, however, render the country unable to handle a safe return for Haitian TPS holders. Conditions prompting both the initial designation and subsequent designations continue to exist and have worsened over time. As such, an estimated 93,500 Haitian TPS holders may face deportation to a country that is ill-prepared to receive them.
202. Haiti remains one of the poorest countries in the Western Hemisphere and ranks 163rd out of 188 countries on the U.N. Human Development Index.157 Haiti’s GDP growth has slowed significantly in recent years.158
203. Haiti currently faces a significant housing crisis. More than 37,000 people in Haiti remain located in internal displacement camps since the 2010 designation, with tens of thousands more displaced but not recorded in official statistics due to lack of tracking or
155 Id. 156 Id. at 2650. 157 United Nations Development Programme, Human Development Reports Haiti (last visited May 8, 2018), http://hdr.undp.org/en/countries/profiles/HTI; The World Bank, The World Bank in Haiti (last updated Apr. 2, 2018), http://www.worldbank.org/en/country/haiti/overview. 158 The World Bank, The World Bank in Haiti (last updated Apr. 2, 2018), http://www.worldbank.org/en/country/haiti/overview.
52

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 56 of 81
reclassification.159 Of those who left the camps, many have settled in inadequate housing structures: for example, upwards of 200,000 Haitians live in Canaan, a makeshift, informal settlement created shortly after the earthquake whose inhabitants lack access to basic services, including water, health care, and waste management.160
204. Haiti also suffers from a significant food shortage and severe malnutrition, and more than two million people face severe food insecurity.161 The food shortage was greatly exacerbated by the massive destruction of crops, livestock, and infrastructure in Haiti’s southern peninsula by Hurricane Matthew in October 2016.162
205. Haiti’s political instability and weak economy continue to impede the country’s recovery efforts.163 Economic growth has slowed to one percent and the country’s fiscal deficit has widened in the wake of Hurricane Matthew.164
159 U.N. OCHA, Haiti: Humanitarian Snapshot (Aug. 2017), https://www.humanitarianresponse.info/system/files/documents/files/hti_humanitarian_snapshot _august2017-en_0.pdf (hereinafter “OCHA”); Global Justice Clinic, Extraordinary Conditions: A Statutory Analysis of Haiti’s Qualification for TPS at 9-11 (Oct. 2017), http://www.ijdh.org/wp- content/uploads/2017/10/ (hereinafter “GJC”). 160 GJC, supra note 160, at 2, 12. 161 OCHA, supra note 160. 162 GJC, supra note 160, at 19-21. 163 See generally Refugees International, Field Report Two Steps Back: Haiti Still Reeling from Hurricane Matthew (Apr. 2017), https://static1.squarespace.com/static/506c8ea1e4b01d9450dd53f5/t/58e56896414fb5affd68e857 /1491429534724/2017.4.6+Haiti.pdf. 164 The World Bank, supra note 159.
53

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 57 of 81
206. Remittances—money sent from Haitian nationals living abroad—remain critical to Haiti’s economy. It is estimated that remittances could reach an estimate $2.7 billion or 29.2 percent of the country’s GDP in 2020. 165
207. In May 2017, the Haitian government informed DHS that the country could not support the return of Haitian nationals with TPS, and expressed concern that “[a] sudden repatriation of tens of thousands of Haitians will give rise to instability in Haiti.”166 Such a sudden repatriation, the Haitian government noted, might cause further hardship to the country and “effectively derail [the Haitian government’s] rebuilding efforts.”167
208. In October 2017, the Haitian government reiterated its concerns and requested DHS provide an 18-month extension to allow the country to “adequately move forward with its recovery and redevelopment plan.”168 The government explained that Haiti had experienced catastrophic and unprecedented natural disasters since 2010, including a cholera epidemic that continued to pose a healthcare risk to its citizens. The Haitian government also explained that in October 2016, Hurricane Matthew destroyed over 200,000 homes and decimated entire towns and villages. The hurricane caused a severe food crisis of unparalleled magnitude and resulted in an estimated economic loss of $2.8 billion. The Haitian government further explained that
165 See Haiti Libre, Haiti – Economy: Impacts of Remittances from diaspora on the national economy (Apr. 4, 2017), http://www.haitilibre.com/en/news-20563-haiti-economy-impacts-ofremittances-from-diaspora-on-the-national-economy.html. 166 Letter from Paul G. Altidor, Ambassador of Haiti to the U.S. to the Honorable John F. Kelly, Sec’y of Dep’t of Homeland Sec. 1 (May 8, 2017), http://www.ijdh.org/wpcontent/uploads/2016/10/The-Honorable-Secretary-John-F.-Kelly.pdf. 167 Id. at 2. 168 Letter from Paul G. Altidor, Haitian Ambassador to the United States, to Elaine C. Duke, Acting Secretary of Dep’t of Homeland Sec. (Oct. 4, 2017), http://www.miamiherald.com/latestnews/article178072401.ece/binary/Lettertothe%20HonorableElaineC.Duke.pdf.
54

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 58 of 81
Hurricanes Irma and Maria also caused serious damage to the country in 2017, hampering Haiti’s efforts to recover from the earthquake, the cholera epidemic, and Hurricane Matthew. The two hurricanes destroyed substantial amounts of agricultural crops and caused flooding in several communities, resulting in the further displacement of people. The Haitian government warned that terminating TPS would force the government to halt its “ongoing, short-term redevelopment efforts” and to “focus its limited resources on receiving the influx of citizens.”169
209. The Haitian Ambassador to the United States and the Haitian Foreign Minister met with Defendant Duke in November 2017 to reiterate the country’s request for a TPS extension as “some of the key conditions that warranted TPS in the first place are still existing.”170
210. An October 2017 report issued by the Global Justice Clinic at the New York University School of Law also reported on the extraordinary conditions that would serve to prevent Haitian nationals from returning safely to Haiti.171 The report emphasized the country’s housing crisis; cholera outbreak that has caused nearly 10,000 deaths and more than 815,000 illnesses; and extreme hunger and malnutrition caused by drought and storms.172 The report concluded that the cholera epidemic, food insecurity, housing crisis, and poor living conditions
169 Id. 170 Ted Hesson, Haitian officials press Duke, Politico (Nov. 17, 2017), https://www.politico.com/newsletters/morning-shift/2017/11/17/haitian-officialspress-duke-026792. 171 Global Justice Clinic, Extraordinary Conditions: A Statutory Analysis of Haiti’s Qualification for TPS at 1 (Oct. 2017), http://www.ijdh.org/wp- content/uploads/2017/10/. 172 Id.
55

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 59 of 81
occasioned by the earthquake and exacerbated by multiple hurricanes rendered the country unsafe for the return of Haitians living in the United States.173
211. A November 2017 report on the conditions in Haiti issued by a United States Conference of Catholic Bishops delegation also analyzed the country’s ability to safely accept and reintegrate returned nationals.174 After meeting with various Haitian and U.N. governmental officials, the delegation concluded that Haiti “is not yet at a point where it can safely accommodate the return” of TPS recipients as it is still “in the midst of recovery, as evidenced by the thousands that remain displaced in camps and the key infrastructure that has yet to be rebuilt.”175 The report also found the country had “no evidence of capacity to provide large-scale reintegration services for repatriated nationals with TPS.”176
212. Indeed, several U.S. officials have repeatedly warned against terminating TPS based on Haiti’s current inability to handle the return of thousands of nationals. For example, the Massachusetts Congressional Delegation wrote a letter advising DHS that an 18-month extension is “needed and justified based on the devastation that Haiti has suffered from a series of natural disasters.”177 The Delegation explained that Haiti had suffered from extraordinary conditions
173 Id. at 2-3. 174 U.S. Conference of Catholic Bishops, Haiti’s Ongoing Road to Recovery: The Necessity of an Extension of Temporary Protected Status (Nov. 2017), http://www.usccb.org/about/migrationpolicy/fact-finding-mission- reports/upload/mrs-haiti-trip-report.pdf. 175 Id. at 2. 176 Id. at 2-3. 177 Letter from the Mass. Cong. Delegation to the Honorable Rex Tillerson, Secretary of State and the Honorable Elaine C. Duke, Acting Secretary , (Oct. 19, 2017), available at https://www.wola.org/wp-content/uploads/2017/10/2017-10-19-Letter-to-Tillerson-and-Dukeon-Haiti-TPS.pdf.
56

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 60 of 81
since the 2010 earthquake and as a result, could not safely repatriate TPS participants.178 The current Massachusetts governor echoed this concern, requesting that TPS be extended for, inter alia, the 5,000 Haitians in Massachusetts as the country was in crisis mode and would be at risk of further destabilization with a sudden influx of TPS nationals.179 The current Massachusetts Governor noted that “[i]ndependent evaluations offer strong support for the conclusions that Haiti, El Salvador, and Honduras are countries that remain in crisis and lack the resources, political stability, and infrastructure necessary to support the return of nationals now living in the United States under TPS.”180
213. As evidenced by the above, Defendant Duke’s assertion, in announcing the Trump Administration’s decision to terminate TPS for Haiti, that country conditions have made “progress” is pretext for invidious discrimination and belied by well-established facts.
214. Defendant Duke’s stated reasoning for the Trump Administration’s termination of Haiti’s TPS designation represents a sharp departure from DHS’s ordinary decision-making process, furthering the inference of invidious discrimination.
215. Under 8 U.S.C. § 1254a, DHS is required to consider “the conditions in the foreign state . . . for which a designation is in effect under this subsection and . . . determine whether the conditions for such designation under this subsection continue to be met.”
216. Previously, consistent with that statutory mandate, DHS conducted a careful review to determine whether conditions in Haiti continued to meet the statutory criteria of the
178 Id. 179 Letter from Charlie Baker, Gov. of Massachusetts, to the Honorable Elaine C. Duke, Acting Secretary (Nov. 14, 2017), available at https://www.miracoalition.org/images/Documents/GovBaker-TPS-letter-Nov142017.pdf . 180 Id. at 2.
57

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 61 of 81
TPS statute, considering all current country conditions that may justify TPS designation. Unlike the extensions of Haiti’s TPS protection in other administrations, Defendants failed to mention the numerous natural disasters Haiti recently experienced, the slow process of economic and infrastructural recovery described in recent extensions, the remaining food scarcity, or the persistent reports of gender-based violence.
217. Defendants’ analysis of the situation in Haiti also conflicts sharply with the federal government’s own reports and analysis released by DOS which consistently reflect the conditions described in the Federal Register for Haiti’s TPS extensions. For example, DOS has noted that in Haiti “[v]iolent crime such as armed robbery, is common. Local police may lack resources to respond effectively to serious criminal incidents or emergencies.”181
218. DOS has been clear that the situation in Haiti is destitute. DOS notes that genderviolence such as “rape . . . and societal discrimination against women” remains a serious problem. Haiti still contains a high number of internally displaced persons including “14,000 people displaced by Hurricane Matthew” and “several thousand street children” in Port-AuPrince alone.182 Against this background, the country’s reconstruction and development is far from complete and will take many years.
219. Defendants’ reliance on the withdrawal of United Nations forces from Haiti is not supported factually and, therefore, contributes to an inference of discrimination. The presence of United Nations peace-keeping forces in Haiti has been the subject of significant controversy and
181 U.S. Dep’t of State, Travel Advisory on Haiti (Jan. 10, 2018), available at https://travel.state.gov/content/travel/en/traveladvisories/traveladvisories/haiti-traveladvisory.html. 182 U.S. Dep’t of State, Haiti 2016 Human Rights Report 1, 24-25 (2016), https://www.state.gov/documents/organization/265806.pdf.
58

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 62 of 81
scandal, and their departure cannot be fairly attributed to alleged progress in country
conditions.183
220. Indeed, internal U.S. Citizenship and Immigration Services (“USCIS”) records
show that Defendants had full knowledge of the extraordinary risks and instability in Haiti based
on a report prepared in October of 2017.184 Defendants selective use of this information as
justification for TPS rescission demonstrates the decision was based on impermissible invidious
discrimination.185
C. The Trump Administration Terminates TPS for Honduras
221. On December 15, 2017, former Acting DHS Secretary Elaine C. Duke extended
Honduras’ TPS designation from January 5, 2018 to July 5, 2018.186
183 See Jonathan M. Katz, U.N. Admits Role in Cholera Epidemic in Haiti, N.Y. Times (Aug. 17, 2016), https://www.nytimes.com/2016/08/18/world/americas/united-nations-haiti-cholera.html; see also AP Report Documents Child Sexual Abuse by U.N. Peacekeepers in Haiti, NPR (Apr. 13, 2017 4:33PM), https://www.npr.org/2017/04/13/523804480/ap-report-documents-childsexual-abuse-by-u-n-peacekeepers-in-haiti.
184 U.S. Citizenship and Immigration Services, TPS Considerations: Haiti (October 2017) Natural Disaster 1 (Nov. 3, 2017). The report noted that “[a]lthough some progress regarding reconstruction and recovery has been made in a variety of sectors, billions of dollars in pledged foreign assistance never materialized and the pace and scope of Haiti’s recovery has been uneven. Many of the conditions prompting the original January 2010 TPS designation persist, and the country remains vulnerable to external shocks and internal fragility. Haiti has also experienced various setbacks that have impeded its recovery . . . and ‘continues to be affected by a convergence of humanitarian needs,’ including food insecurity, internal displacement, an influx of returnees from the Dominican Republic, the persistence of cholera, and the lingering impact of various natural disasters.” Id. The report concluded, stating “[d]ue to the conditions outlined in this report, Haiti’s recovery from the 2010 earthquake could be characterized as falling into what one non-governmental organization recently described as ‘the country’s tragic pattern of one step forward, two steps back.”’ Id. at 18.
185 See L. Francis Cissna, Memorandum for the Secretary:Haiti’s Designation for Temporary Protected Status (Nov. 3, 2017).
186 Extension of the Designation of Honduras for Temporary Protected Status, 82 Fed. Reg. 59,630 (Dec. 15, 2017).
59

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 63 of 81
222. The six-month extension was automatic, based on Acting Secretary Duke’s failure to make a determination on Honduras’ designation by the November 6, 2017 statutory deadline.187
223. However, even this non-discretionary extension was nearly subverted by the Administration. On or about November 6, 2017, former DHS Secretary and now White House Chief of Staff John Kelly and White House Homeland Security Adviser Tom Bossert repeatedly called Acting Secretary Duke to pressure her to terminate Honduras’ TPS designation, notwithstanding that she had made no investigation to satisfy the statutory requirements necessary before termination. A former official with knowledge of the exchange said “[t]hey put massive pressure on her.”188 Chief of Staff Kelly made the call from Japan, where he was traveling with President Trump. According to reports, Chief of Staff Kelly was irritated with Acting Secretary Duke’s allowance of the mandatory six-month extension, warning Acting Secretary Duke that the TPS program “prevents [the Trump Administration’s] wider strategic goal” on immigration.189
224. Despite extensions of the TPS program for Honduras over the course of multiple administrations under both political parties, and despite the lingering effects of compounded environmental crises, on May 4, 2018, the Trump Administration announced the termination of
187 Id. at 59,632. 188 Nick Miroff, White House Chief of Staff Tried to Pressure Acting DHS Secretary to Expel Thousands of Hondurans, Officials Say, Wash. Post (Nov. 9, 2017), https://www.washingtonpost.com/world/national-security/white-house-chief-of-staff-tried-topressure-acting-dhs-secretary-to-expel-thousands-of-hondurans-officialssay/2017/11/09/914d3700-c54a-11e7-a4413a768c8586f1_story.html?utm_term=.2d374b2092ef.. 189 Id.
60

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 64 of 81
Honduras’ TPS designation effective January 5, 2020.190 Similar to their terminations of TPS designation for El Salvador and Haiti, Defendants’ termination of TPS for Honduras did not consider all country conditions that might justify TPS designation for Honduras, but rather focused only on the original basis for designation and whether those conditions continued to be met.191 Defendants stated that this restrictive review is “required by statute.”192
225. Current conditions in Honduras, however, render the country unable to handle a safe return for Honduran TPS holders. Conditions prompting both the initial designation and subsequent designations continue to exist and have worsened over time. As such, an estimated 57,000 Honduran TPS holders may face deportation to a country that is ill-prepared to receive them.
226. Several recent natural disasters, including Tropical Storm Hanna and catastrophic drought, inhibit the country’s ability to adequately handle the safe return of Honduran TPS holders. Since Tropical Storm Hanna, Honduras has also experienced dengue and chikungunya
190 Press Release, U.S. Dep’t of Homeland Sec., Secretary of Homeland Security Kirstjen M. Nielsen Announcement on Temporary Protected Status for Honduras (May 4, 2018), https://www.dhs.gov/news/2018/05/04/secretary-homeland-security-kirstjen-m-nielsenannouncement-temporary-protected. 191 See id. (“The decision to terminate TPS for Honduras was made after a review of the environmental disaster-related conditions upon which the country’s original 1999 TPS designation was based and an assessment of whether those originating conditions continue to exist . . . .”). 192 Id.
61

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 65 of 81
epidemics.193 Periodic drought has led to massive crop losses, food insecurity, loss of employment and further depressed the country’s economy.194
227. Honduras experiences high levels of entrenched poverty, with more than 60 percent of the population living in poverty, and 38 percent of the population living in extreme poverty.195 In rural areas, one of out every 5 Hondurans lives on less than $1.90 per day.196
228. Despite recent economic growth, Honduras maintains the highest level of economic inequality in Latin America.197
229. Violent crime is rampant throughout the country and is a key component of forced migration from Honduras.198 Despite a recent downward trend, the murder rate remains one of the highest in the world at a rate of approximately 43.6 murders per 100,000 inhabitants in
193 Catholic Legal Immigration Network, Inc., Temporary Protected Status for Honduras 2-3 (last visited Apr. 19, 2018), https://cliniclegal.org/resources/temporary-protected-statushonduras#_ftnref32 (hereinafter “CLIN”). 194 Id. 195 U.N. Human Rights Council, Annual Report of the United Nations High Commissioner for Human Rights on the situation of human rights in Honduras 3 (Mar. 19, 2018), https://reliefweb.int/sites/reliefweb.int/files/resources/A_HRC_37_3_Add.2.pdf. 196 The World Bank, The World Bank in Honduras 1 (last updated: Apr. 16, 2018), http://www.worldbank.org/en/country/honduras/overview (hereinafter “World Bank”). 197 Id. 198 Amnesty Int’l, Amnesty International Report 2017/18- Honduras 1 (Feb. 22, 2018), http:www.refworld.org/docid/5a9938efa.html (hereinafter “Amnesty Int’l”).
62

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 66 of 81
2017.199 To compound matters, impunity for crime and human rights abuses is the “norm” in Honduras as the country’s judiciary and police force are largely ineffective.200
230. Widespread gang violence has forced the migration of thousands from the country. It is estimated that at least 174,000 people have fled Honduras since 2010 due to gang violence.201
231. Gender-based violence, especially against women and girls, remains at a high level and femicide rates have risen dramatically in recent years.202
232. Remittances–money sent from Honduran nationals living abroad—remain critical to Honduras’ economy. In 2016, remittances to Honduras exceeded $3.8 billion and represented approximately 20 percent of the country’s gross domestic product.203 The amount of remittances sent to Honduras is estimated rise to reach approximately $4.66 billion.204
199 World Bank, supra note 196, at 1. 200 Human Rights Watch, World Report 2018 – Honduras 1 (Jan. 18, 2018), http://www.refworld.org/docid/5a61ee6c4.html. 201 CLIN, supra note 193, at 3; Norwegian Refugee Council, On the brink of deportation, (Mar. 20, 2018), https://reliefweb.int/report/honduras/brink-deportation. 202 Amnesty Int’l, supra note 198, at 2; Freedom House, Freedom in the World 2017 – Honduras 6 (July 12, 2017), http://www.refworld.org/docid/59831e94a.html (last visited Apr. 26, 2018). 2018]. 203 CLIN, supra note 193, at 3; Norwegian Refugee Council, supra note 201. 204 CNBC, Honduras sees economic growth of up to 4.2 pct in 2018 (Mar. 8, 2018), https://www.cnbc.com/2018/03/08/reuters-america-honduras-sees-economic-growth-of-up-to-4point-2-pct-in-2018.html.
63

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 67 of 81
233. Currently, Honduras is experiencing significant political instability with widespread social and civil unrest.205 The government itself faces extreme challenges to its own legitimacy and cannot possibly safely integrate new arrivals.
234. Honduras’ president, ambassador to the U.S., and consul general have repeatedly requested that the Administration maintain TPS for its citizens.206
235. As evidenced by the above, Defendant Nielsen’s assertion, in announcing the Trump Administration’s decision to terminate TPS for Honduras, that country conditions have made “progress” is pretext for invidious discrimination and belied by well-established facts.
236. Defendant Nielsen’s stated reasoning for the Trump Administration’s termination of Honduras’ TPS designation represents a sharp departure from DHS’s ordinary decisionmaking process, furthering the inference of invidious discrimination.
237. Under 8 U.S.C. § 1254a, DHS is required to consider “the conditions in the foreign state . . . for which a designation is in effect under this subsection and . . . determine whether the conditions for such designation under this subsection continue to be met.”
238. Previously, consistent with that statutory mandate, DHS conducted a careful review to determine whether conditions in Honduras continued to meet the statutory criteria of the TPS statute, considering all current country conditions that may justify TPS designation. Unlike the extensions of Honduras’ TPS protection in other administrations, Defendants’ May 4,
205 See, e.g., Elisabeth Malkin, Citing Hostility, Leader of Anti-Corruption Panel in Honduras Resigns, N.Y. TIMES, Feb. 16, 2018, https://nyti.ms/2C4LHWr. 206 Alan Gomez, Hondurans could soon lose Temporary Protected Status under Trump Administration (Apr. 24, 2018) USA Today, https://www.usatoday.com/story/news/nation/2018/04/24/hondurans-may-next-lose-temporaryprotected-status-under-trump-administration/505341002/; CLIN, supra note 193, at 3; Norwegian Refugee Council, supra note 201.
64

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 68 of 81
2018 press release failed to mention the numerous natural disasters Honduras experienced, the slow process of economic and infrastructural recovery described in recent extensions, the remaining food scarcity, the significant political instability, or the persistent reports of genderbased violence. D. The Administration’s Terminations of TPS for El Salvador, Haiti, and Honduras Are
Motivated by Unlawful Discriminatory Animus 239. From the literal outset of his presidential campaign, Defendant Trump has communicated his discriminatory animus against persons of Latino and Haitian origin directly, publicly, and in frank and unsettling language. 240. As discussed supra, this practice has continued unabated since he has entered office. 241. The evidence of Defendant Trump’s animus is not limited to generalized racial grievances. When offered a legislative proposal to address numerous immigration issues, including that of TPS beneficiaries, earlier this year, Defendant Trump made clear the rationale for Defendants’ previous and subsequent decisions to terminate TPS: the United States should not keep migrants from “shithole countries,” but instead should encourage immigration from predominantly white countries like Norway. 242. The Administration’s terminations of TPS for El Salvador, Haiti, and Honduras are the product of unconstitutional racial discrimination and must be set aside. E. The Terminations of TPS for El Salvador, Haiti, and Honduras Reflect the Administration’s Execution of a Substantive Rule Restricting the Scope of the TPS Statute in Contravention of the Statutory Text and Decades of Prior Practice 243. The Administration’s termination of TPS for El Salvador, Haiti, and Honduras are not only in and of themselves unlawful and contrary to the U.S. Constitution, they are based on a
65

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 69 of 81
novel substantive rule that is contrary to the TPS statute and contradicts decades of practice under prior administrations.
244. The current Administration has adopted a new interpretation of the TPS statute without a formal announcement to disclose its rationale for making a drastic change to decades of practice affecting hundreds of thousands of TPS beneficiaries. During his June 6, 2017 testimony before the Senate, then-Secretary Kelly succinctly stated the new rule as it applied to Haiti: “the program [TPS] is for a specific event. In – in Haiti, it was the earthquake. Yes, Haiti had horrible conditions before the earthquake, and those conditions aren’t much better after the earthquake. But the earthquake was why TPS was – was granted and – and that’s how I have to look at it.”207
245. Current Secretary Nielsen has confirmed that this remains the current view of the Administration: “The law does not allow me to look at the country conditions of a country writ large. It requires me to look very specifically as to whether the country conditions originating from the original designation continue to exist.”208
246. Under prior administrations, DHS or its predecessors considered intervening natural disasters, conflicts, and other serious social and economic problems that may or may not be related to the original natural disaster that prompted the initial TPS designation as relevant
207 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 John F. Kelly), available at https://www.c-span.org/video/?429383-1/secretary-kellytravel-baninjunctions-hobbling-homeland-security-screening-effort&start=5492. 208 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. Department of Homeland Security), available at https://www.judiciary.senate.gov/meetings/oversight-of-the-united-states-department-ofhomeland-security.
66

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 70 of 81
factors when deciding whether to continue or terminate a TPS designation. Neither the TPS statute nor the regulations have been amended in any relevant respect, such that the Administration’s current position is unprecedented.
247. This newly created substantive rule is reflected in each of the Administration’s terminations to date of TPS arising from natural disasters:
a. “[T]he Secretary has determined that the conditions for Nicaragua’s 1999 designation for TPS on the basis of environmental disaster due to the damage caused by Hurricane Mitch are no longer met. . . . Recovery efforts relating to Hurricane Mitch have largely been completed.”209
b. “[T]he Secretary of Homeland Security has determined that the conditions supporting El Salvador’s 2001 designation for TPS on the basis of environmental disaster due to the damage caused by the 2001 earthquakes are no longer met.”210
c. “[T]he Acting Secretary of Homeland Security determined on November 20, 2017 that the conditions for Haiti’s designation for TPS—on the basis of ‘extraordinary and temporary conditions’ relating to the 2010 earthquake that prevented Haitian nationals from returning in safety—are no longer met. Haiti has made progress recovering from the 2010 earthquake and subsequent effects that formed the basis for its designation.”211
209 Termination of the Designation of Nicaragua for Temporary Protected Status, 82 Fed. Reg. 59,636, 59,637 (Dec. 15, 2017). 210 Termination of the Designation of El Salvador for Temporary Protected Status, 83 Fed. Reg. 2654, 2655-56 (Jan. 18, 2018). 211 Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2648, 2650 (Jan. 18, 2018).
67

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 71 of 81
d. “[T]he Secretary determined that the disruption of living conditions in
Nepal from the April 2015 earthquake and subsequent aftershocks that served as the basis
for its TPS designation have decreased to a degree that they should no longer be regarded as substantial . . . .”212
e. “[T]he Secretary determined that the disruption of living conditions in
Honduras from Hurricane Mitch that served as the basis for its TPS designation has decreased to a degree that it should no longer be regarded as substantial . . . .”213
248. The DHS Secretary’s press release accompanying the TPS termination of El
Salvador state the Administration’s rule succinctly: “The decision to terminate TPS for El
Salvador was made after a review of the disaster-related conditions upon which the country’s
original designation was based and an assessment of whether those originating conditions continue to exist as required by statute.”214 The press releases accompanying the terminations of Haiti, Nicaragua, Nepal, and Honduras include nearly identical language.215
212 Press Release, U.S. Dep’t of Homeland Sec., Secretary Kirstjen M. Nielsen Announcement on Temporary Protected Status for Nepal (Apr. 26, 2018), https://www.dhs.gov/news/2018/04/26/secretary-kirstjen-m-nielsen-announcement-temporaryprotected-status-nepal. 213 Press Release, U.S. Dep’t of Homeland Sec., Secretary of Homeland Security Kirstjen M. Nielsen Announcement on Temporary Protected Status for Honduras (May 4, 2018), https://www.dhs.gov/news/2018/05/04/secretary-homeland-security-kirstjen-m-nielsenannouncement-temporary-protected. 214 Press Release, U.S. Dep’t of Homeland Sec., Secretary of Homeland Security Kirstjen M. Nielsen Announcement on Temporary Protected Status for El Salvador (Jan. 8, 2018), https://www.dhs.gov/news/2018/01/08/secretary-homeland-security-kirstjen-m-nielsenannouncement-temporary-protected. 215 Press Release, U.S. Dep’t of Homeland Sec., Acting Secretary Elaine Duke Announcement on Temporary Protected Status for Haiti (Nov. 20, 2017), https://www.dhs.gov/news/2017/11/20/acting-secretary-elaine-duke-announcement-temporaryprotected-status-haiti; Press Release, U.S. Dep’t of Homeland Sec., Acting Secretary Elaine
68

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 72 of 81
249. As reflected in the history of TPS designations for El Salvador, Haiti, and Honduras dating back to 1999, discussed supra ¶¶ I.83 - I.144, as well as Nicaragua and Nepal, supra ¶¶ Error! Reference source not found. - Error! Reference source not found., the Administration’s current rule is a substantial departure from decades of practice by DHS and its predecessor agencies.
250. The Administration has offered no justification or explanation, legal or otherwise, for this revision to longstanding agency practice. F. Defendants’ Discriminatorily Motivated and Unlawful Actions Have Harmed Plaintiffs
251. If TPS rescission goes into effect, Plaintiffs and other TPS beneficiaries will suffer immediate and irreparable injuries to their rights under the U.S. Constitution and federal law; to their proprietary interests; and to their dignity.
252. If TPS rescission goes into effect, Plaintiffs and other TPS beneficiaries will be denied work, including workplace benefits and protections. Without TPS, most beneficiaries will not have access to employment authorization which gives these immigrants (and their employers) an assurance that they may put their talents to use – something that benefits Massachusetts and the country as a whole. Without employment, many TPS beneficiaries will also lose health benefits.
Duke Announcement on Temporary Protected Status for Nicaragua and Honduras (Nov. 6, 2017), https://www.dhs.gov/news/2017/11/06/acting-secretary-elaine-duke-announcementtemporary-protected-status-nicaragua-and; Press Release, U.S. Dep’t of Homeland Sec., Secretary Kirstjen M. Nielsen Announcement on Temporary Protected Status for Nepal (Apr. 26, 2018), https://www.dhs.gov/news/2018/04/26/secretary-kirstjen-m-nielsen-announcementtemporary-protected-status-nepal; Press Release, U.S. Dept’ of Homeland Sec., Secretary of Homeland Security Kirstjen M. Nielsen Announcement on Temporary Protected Status for Honduras (May 4, 2018), https://www.dhs.gov/news/2018/05/04/secretary-homeland-securitykirstjen-m-nielsen-announcement-temporary-protected.
69

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 73 of 81
253. TPS beneficiaries have relied upon a consistent practice over nearly thirty years, where prior DHS Secretaries have evaluated all current conditions in TPS-designated countries in addition to the circumstances that gave rise to the initial TPS designations. TPS beneficiaries have relied upon DHS to fully and fairly evaluate country conditions so that they will not be returned to unsafe and unstable conditions.
254. If TPS rescission goes into effect, Plaintiffs and other TPS beneficiaries will have to prepare for imminent removal. Plaintiffs will incur costs to ensure that their property rights, family relationships, and tax obligations are protected. These financial burdens will decrease the overall resources available to TPS beneficiaries and their families.
255. Because the Trump Administration’s decisions to terminate TPS for El Salvador, Haiti, and Honduras were infected by invidious discrimination, its rescission stigmatizes immigrants of color, as well as their children and families, and imposes a dignitary harm by denying them the dignity and respect they deserve under the U.S. Constitution and federal law. TPS rescission triggers and fuels social stigma, harassment, discrimination, and even violence against immigrants of color.
256. By labeling TPS beneficiaries from El Salvador, Haiti, and Honduras as undesirable and by contrasting them with immigrants from predominantly white countries such as Norway, the federal government ratifies and legitimizes the notion that immigrants of color— particularly those deemed by President Trump to come from “shithole countries”—are worthy of lesser social stature. This compromises their well-being and encourages discrimination against immigrants of color. In this manner, the Trump Administration’s decision to terminate TPS for these countries has caused, is causing, and will continue to cause dignitary harms and psychological injuries to families and children.
70

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 74 of 81
CLAIMS COUNT 1 Violation of Equal Protection – Fifth Amendment 257. Plaintiffs incorporate by reference all allegations as stated above. 258. The Due Process Clause of the Fifth Amendment incorporates the equal protection principles of the Fourteenth Amendment. Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686 n.1 (2017) (involving gender discrimination in immigration context); see also United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (citing Bolling v. Sharpe, 347 U.S. 497 (1954)). 259. Defendants’ decision to rescind TPS protections for Salvadoran, Haitian, and Honduran immigrants living in the United States violates the Fifth Amendment because it constitutes intentional discrimination against all three groups on the basis of race, ethnicity, and/or national origin. 260. The inference of race, ethnicity, and/or national origin discrimination is supported by the Trump Administration’s departure from the normal decision-making process; the fact that the decisions bear more heavily on disparaged minority races than others; the sequence of events leading to the decisions; the contemporaneous statements of decision-makers; and the historical background of the decisions. The Supreme Court has recognized these factors as probative of intentional discrimination. See Village of Arlington Heights v. Metro. Hous. Development Corp., 429 U.S. 252, 266-68 (1977). 261. The inference of race, ethnicity, and/or national origin discrimination is supported by the departure of Defendants’ analyses from previous TPS determinations. The consistent practice of previous officials demonstrates the normal decision-making process for TPS decisions. Defendants sharply deviated from that normal decision-making process in deciding to terminate TPS for El Salvador, Haiti, and Honduras.
71

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 75 of 81
262. The inference of race, ethnicity, and/or national origin discrimination is also supported by Defendants’ deviation froms INA § 244(b)(3)’s and 8 U.S.C. § 1254a’s requirement that DHS undertake a genuine, good faith review of the conditions in a foreign country designated for TPS to determine whether the conditions for designation continue to be met.
263. The inference of race, ethnicity, and/or national origin discrimination is also supported by President Trump and DHS’s comments as listed in paragraphs II.148 through II.172 and which informed practice in executive agencies.
264. As a direct and proximate result of the rescissions of TPS by Defendants and/or their agents, Plaintiffs have been deprived of their rights under the Fifth Amendment to the U.S. Constitution.
COUNT 2 Violation of Due Process – Fifth Amendment 265. Plaintiffs incorporate by reference all allegations as stated above. 266. The Due Process Clause of the Fifth Amendment also prohibits irrational government action. U.S. Dep’t of Agric. v. Moreno, 413 U.S. 528, 532-33 (1973). 267. Defendants have failed to carry out their duties consistent with the Due Process requirements of the Fifth Amendment to the U.S. Constitution. 268. The Defendants’ discriminatory decision to rescind TPS for Salvadorans, Haitians, and Hondurans deprives Plaintiffs of the appropriate and non-discriminatory process due to them under the law.
72

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 76 of 81
COUNT 3 Violation of Administrative Procedure Act – Arbitrary and Capricious Actions
Narrowing the TPS Review to Original Conditions 269. Plaintiffs incorporate by reference all allegations as stated above. 270. The Administrative Procedure Act, 5 U.S.C. § 551, et seq., ensures that federal agencies are accountable to the public by providing a “right of review” to any “person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.” 5 U.S.C. § 702. Judicial review extends to “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. 271. Among other things, the APA empowers the federal courts to “hold unlawful and set aside agency actions, finding, and conclusions” that are “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). 272. The Administration’s actions constitute arbitrary and capricious acts contrary to the U.S. Constitution and federal law through its adoption of a novel interpretation of the TPS statute that is contrary to the law and to decades of established practice. Specifically, the Administration has refused to extend TPS regardless of current country conditions, instead opting for a narrow rule requiring termination of TPS if original conditions giving rise to the TPS designation have reflected certain improvements or remediation, regardless of whether it would be safe for individuals to return to the country. 273. Defendants’ adoption of a new, drastically narrower interpretation of the TPS statute was arbitrary, capricious, and contrary to law in violation of the APA because it is contrary to the TPS statute and represents a sudden and unexplained departure from decades of decision-making practices and ordinary procedures. By shifting the decision-governing standard for country designations without explanation, Defendants have ignored a clear statutory
73

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 77 of 81
command and engaged in procedurally flawed decision-making. Further, Defendants changed their policy without taking into account the serious reliance interests that their prior policy had engendered.
274. Plaintiffs will suffer irreparable injury resulting from the arbitrary termination of the TPS designations.
COUNT 4 Violation of Administrative Procedure Act – Failure to Provide Notice and Comment
275. Plaintiffs incorporate by reference all allegations as stated above. 276. The APA directs federal courts to hold unlawful and set aside federal agency action that is “without observance of procedure required by law.” 5 U.S.C. § 706(2)(D). 277. Defendants employed an invalid and unauthorized process to terminate TPS for El Salvador, Haiti, and Honduras irrespective of the statutory criteria for review enacted by Congress to ensure the protection of noncitizens vulnerable to extraordinary environmental, geopolitical, health and/or other human tragedies. 278. Defendants abandoned without explanation or justification their well-established standard for reviewing such designations and have enacted a rule eliminating TPS designations founded on environmental conditions in direct contradiction to the statutory text. 279. Defendants’ terminations of TPS pursuant to its newly adopted rules should be held invalid and set aside under the APA.
COUNT 5 Mandamus 28 U.S.C. § 1361 280. Plaintiffs incorporate by reference all allegations as stated above.
74

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 78 of 81
281. Defendants have failed to carry out their mandatory and non-discretionary duties owed to Plaintiffs, including the duties established in 8 U.S.C. § 1254a(b)(3). 28 U.S.C. § 1361.
282. Defendants’ failure to carry out their mandatory and non-discretionary duties owed to Plaintiffs irrevocably harm Plaintiffs.
COUNT 6 Declaratory Judgment 28 U.S.C. § 2201 283. Plaintiffs incorporate by reference all allegations as stated above. 284. For the reasons stated above, Defendants have violated the U.S. Constitution and other laws. 285. Plaintiffs seek a declaration to that effect. 286. Defendants’ illegal actions have injured and will continue to injure all Plaintiffs and those similarly situated in numerous ways including the dignitary harms that attach to the invidious discrimination visited upon them by Defendants.
PRAYER FOR RELIEF Wherefore the Plaintiffs respectfully request that the Court grant the following relief: 1. Declaratory Relief.
a. Declare that Defendants’ actions to terminate TPS designation for El Salvador violate the Fifth Amendment of the U.S. Constitution and the Administrative Procedures Act and are, therefore, void and without legal force or effect;
b. Declare that Defendants’ actions to terminate TPS designation for Haiti violate the Fifth Amendment of the U.S. Constitution and the Administrative Procedures Act and are, therefore, void and without legal force or effect; and
75

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 79 of 81
c. Declare that Defendants’ actions to terminate TPS designation for Honduras violate the Fifth Amendment of the U.S. Constitution and the Administrative Procedures Act and are, therefore, void and without legal force or effect. 2. Injunctive Relief.
a. Enjoin and restrain Defendants, their agents, servants, employees, attorneys and all persons in active concert with them from implementing or enforcing the termination of El Salvador’s TPS status and from taking any further action to terminate El Salvador’s TPS status in violation of the U.S. Constitution or other applicable laws;
b. Enjoin and restrain Defendants, their agents, servants, employees, attorneys and all persons in active concert with them from implementing or enforcing the termination of Haiti’s TPS status and from taking any further action to terminate Haiti’s TPS status in violation of the U.S. Constitution or other applicable laws; and
c. Enjoin and restrain Defendants, their agents, servants, employees, attorneys and all persons in active concert with them from implementing or enforcing the termination of Honduras’ TPS status and from taking any further action to terminate Honduras’ TPS status in violation of the U.S. Constitution or other applicable laws. 3. Mandamus. Plaintiffs ask this Court to issue a writ of mandamus compelling Defendants to carry out all nondiscretionary duties required by the U.S. Constitution, and applicable federal law with respect to the TPS program, its administration, and execution. 4. Award Plaintiffs reasonable attorneys’ fees and the cost of maintaining this action such as court costs, expert fees and other expenses. 5. All other necessary and appropriate relief that justice may require.
76

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 80 of 81

Dated: May 9, 2018

Respectfully submitted,
/s/ Oren Sellstrom Oren Sellstrom (BBO# 569045) Oren Nimni (BBO #691821) Iván Espinoza-Madrigal (Admitted Pro Hac Vice) LAWYERS’ COMMITTEE FOR CIVIL RIGHTS AND ECONOMIC JUSTICE 61 Batterymarch Street, 5th Floor Boston, Massachusetts 02110 (617) 988-0624
Eric J. Marandett (BBO# 561730) Carlos J. Perez-Albuerne (BBO# 640446) Kevin P. O’Keefe (BBO# 697101) Xing-Yin Ni (BBO# 693876) CHOATE, HALL & STEWART LLP Two International Place Boston, Massachusetts 02110 (617) 248-5000

77

Case 1:18-cv-10340-DJC Document 21 Filed 05/09/18 Page 81 of 81 CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) and paper copies will be sent to those indicated as non-registered participants.
/s/ Oren Sellstrom
78 8621673v7

 
 Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 1 of 42

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

__________________________________________

)

)

CENTRO PRESENTE, JUAN CARLOS

)

VIDAL, ANNE CHRISTINE NICOLAS,

)

CHRIS JEAN BAPTISTE, MERCEDES

)

MATA, CAROLINA MATA, WILL ARIAS, )

JUAN AMAYA, MARIA GUERRA,

)

HAITIAN-AMERICANS UNITED, INC.,

)

JOSUE DORFEUILLE, NATACHA

)

DORFEUILLE, YESY PATRICIA CARBAJAL,)

JUAN GUERRERO, JAIME YANES

)

and JOSE OMAR RODRIGUEZ VARELA, )

)

Plaintiffs,

)

Civil Action No. 18-10340

)

v.

)

)

)

UNITED STATES DEPARTMENT OF

)

HOMELAND SECURITY, DONALD J.

)

TRUMP, KIRSTJEN NIELSEN and ELAINE )

COSTANZO DUKE,

)

)

Defendants.

)

)

)

__________________________________________)

MEMORANDUM AND ORDER

CASPER, J.

July 23, 2018

I. Introduction

Plaintiffs Centro Presente, Haitian-Americans United, Inc., Juan Carlos Vidal, Anne

Christine Nicolas, Chris Jean Baptiste, Mercedes Mata, Carolina Mata, Will Arias, Juan Amaya,

Maria Guerra, Josue Dorfeuille, Natacha Dorfeuille, Yesy Patricia Carbajal, Juan Guerrero, Jaime

Yanes and Jose Omar Rodriguez Varela (collectively, “Plaintiffs”) have filed this lawsuit against

the United States Department of Homeland Security (“DHS”), President Donald J. Trump

1

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 2 of 42
(“President Trump”) in his official capacity, Secretary Kirstjen Nielsen (“Nielsen”) in her official capacity and Deputy Secretary Elaine Costanzo Duke (“Duke”) in her official capacity (collectively, “Defendants”) regarding Defendants’ decisions to terminate the designation of Haiti, El Salvador, and Honduras for temporary protected status (“TPS”). D. 21. Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. D. 24. For the following reasons, the Court ALLOWS Defendants’ motion to dismiss with respect to the mandamus claim (Count V) and DENIES Defendants’ motion to dismiss in all other respects. II. Standard of Review
“To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.’” Coll. Hill Properties, LLC v. City of Worcester, 821 F.3d 193, 195–96 (1st Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “This standard is ‘not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.’” Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (quoting Iqbal, 556 U.S. at 678). “[W]here a complaint pleads facts that are merely consistent with a defendant’s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” In re Ariad Pharm., Inc. Sec. Litig., 842 F.3d 744, 756 (1st Cir. 2016) (quoting Iqbal, 556 U.S. at 678). In reviewing a motion to dismiss, the Court “accept[s] as true all well-pled facts alleged in the complaint and draw all reasonable inferences in [the plaintiff’s] favor.” Miller v. Town of Wenham, 833 F.3d 46, 51 (1st Cir. 2016) (quoting Evergreen Partnering Grp., Inc. v. Pactiv Corp, 720 F.3d 33, 36 (1st Cir. 2013) (second alteration in original)).
2

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 3 of 42
“Where, as here, a dismissal for want of [subject matter] jurisdiction is based solely on the complaint, we accept ‘the well-pleaded factual averments contained therein and indulg[e] all reasonable inferences in the [plaintiff’s] favor.’” Gordo-Gonzalez v. United States, 873 F.3d 32, 35 (1st Cir. 2017) (quoting Muñiz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003)). III. Factual Background
Unless otherwise noted, the following facts are drawn from the amended complaint, D. 21, and are accepted as true for the purposes of considering the motion to dismiss.
A. The Parties The fourteen individual plaintiffs are each recipients of TPS. D. 21 ¶¶ 26, 29, 31, 33, 38, 41, 44, 47, 51, 54, 59, 62, 65. Of the fourteen, six are immigrants from El Salvador, four are immigrants from Haiti and four are immigrants from Honduras. Id. Haitian-Americans United is a non-profit organization founded “to improve the quality of life for Haitians and Haitian-Americans through education, community empowerment, and cultural development.” D. 21 ¶ 18. It has a number of members who are Haitian immigrants with TPS status. D. 21 ¶ 20. Centro Presente is a non-profit organization “dedicated to the selfdetermination and self-sufficiency of the Latin American immigrant community of Massachusetts.” D. 21 ¶ 12. Centro Presente has a number of members who are immigrants from El Salvador and Honduras with TPS status. D. 21 ¶ 14. DHS is the administrative agency charged with administering certain immigration laws and policies, including the TPS program. D. 21 ¶ 70. Nielsen has been the DHS Secretary since December 6, 2017. D. 21 ¶ 71. Duke was the Acting DHS Secretary from July 31, 2017, to December 6, 2017, and thereafter served as Deputy DHS Secretary until her retirement on April
3

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 4 of 42
15, 2018. D. 21 ¶ 72. Both have served in the executive branch under President Trump. D. 21 ¶ 69.
B. The Legislative Framework Regarding Temporary Protected Status The Secretary may grant an individual TPS if two conditions are met: first, the individual is a national of a foreign state that has been designated by the DHS Secretary; and second, the individual meets certain eligibility criteria. 8 U.S.C. § 1254a(a)(1).1 While an individual has TPS, the Secretary may not remove the individual from the United States and must authorize the individual to engage in employment in the United States. Id. The Secretary may designate a foreign state under the statute only if, “after consultation with appropriate agencies of the Government,” the Secretary finds that at least one of three conditions is met: first, that “there is an ongoing armed conflict within the state,” such that returning aliens to that state “would pose a serious threat to their personal safety;” second, that “there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected,” such that “the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state” and “the foreign state officially has requested designation;” or third, that “there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety,” and “permitting the aliens to remain temporarily in the United States” would not be “contrary to the national interest of the United States.” 8 U.S.C. § 1254a(b)(1). The effective period of designation “is the period, specified by the [Secretary], of not less than 6 months and not more than 18 months.” Id. §
1 Although the statute references the Attorney General as the decisionmaker for TPS designations, the authority to administer the TPS program was transferred from the Attorney General to the DHS Secretary in 2003. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135 (2002); D. 21 at 18 n.13.
4

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 5 of 42
1254a(b)(2). At least sixty days before the end of the effective period of designation, the Secretary, “after consultation with appropriate agencies of the Government, shall review the conditions in the foreign state” to “determine whether the conditions for such designation . . . continue to be met.” Id. § 1254a(b)(3)(A). The Secretary must publish in the Federal Register “notice of each such determination[,] including the basis for the determination,” and the length of any extension. Id. An extension of designation may be for a period of six, twelve, or eighteen months. Id. § 1254a(b)(3)(C). The statute provides that “[t]here is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” Id. § 1254a(b)(5)(A).
In addition to being a national of a foreign state that has been designated, a foreign national must also meet certain individual criteria to qualify for TPS. Among other criteria, the foreign national must have been “continuously physically present in the United States since the effective date of the most recent designation” of the foreign state, id. § 1254a(c)(1)(A)(i); the foreign national must not have been convicted of certain categories of criminal offenses, id. § 1254a(c)(2)(A)(iii); and the foreign national must not be otherwise inadmissible in certain ways, including being present in the United States without being admitted or paroled into the United States, id. § 1254a(c)(1)(A)(iii); § 1254a(c)(2), § 1182(a)(6), or having been previously removed, id. § 1182(a)(9). The criteria for an individual to qualify for TPS is not at issue in this case as the individual plaintiffs have already received TPS. D. 21 ¶¶ 26, 29, 31, 33, 38, 41, 44, 47, 51, 54, 59, 62, 65. Instead, Plaintiffs’ claims concern Defendants’ actions to change TPS designations for El Salvador, Haiti and Honduras.
5

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 6 of 42
C. The TPS Designations of El Salvador, Haiti and Honduras There are currently approximately 400,000 TPS recipients residing in the United States, including over 262,500 from El Salvador, approximately 58,550 from Haiti, and approximately 86,000 from Honduras. D. 21 ¶ 7.
1. El Salvador On March 1, 2001, then Attorney General John Ashcroft (“Ashcroft”) gave El Salvador TPS designation. D. 21 ¶ 83. That designation was based upon a determination that, due to three earthquakes earlier in the year that had resulted in the deaths of at least 1,100 people and the displacement of approximately 1.3 million people, El Salvador would be “unable, temporarily, to handle adequately the return of its nationals.” D. 21 ¶¶ 83-84. On July 11, 2002, Ashcroft extended the designation, finding that the earthquakes had caused substantial damage to the country’s infrastructure and that subsequent droughts had left farming families “destitute” and 200,000 people “threatened by food insecurity.” D. 21 ¶¶ 85-86. On July 16, 2003, then DHS Secretary Tom Ridge (“Ridge”) extended the designation, stating that the “economy of El Salvador [was] not yet stable enough to absorb returnees from the United States.” D. 21 ¶¶ 87-88. Ridge again extended the designation on January 7, 2005, based on a determination that the economy of El Salvador had not yet recovered. D. 21 ¶¶ 89-90. On June 15, 2006, then DHS Secretary Michael Chertoff (“Chertoff”) extended the designation for El Salvador, finding that new natural disasters, including a volcanic eruption and a hurricane that resulted in mudslides and flooding, had slowed rebuilding efforts. D. 21 ¶¶ 91-92. Chertoff again extended the designation on August 21, 2007, and October 1, 2008, citing his determination that El Salvador had “still not completed reconstruction of the infrastructure damaged by several severe 2001 earthquakes” and was therefore still limited in its ability to absorb potential returnees. D. 21 ¶¶ 93-96. On July 9, 2010,
6

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 7 of 42
then DHS Secretary Janet Napolitano (“Napolitano”) extended the designation, stating that El Salvador continued to “suffer a public security crisis that threaten[ed] to undermine sustained development and confidence in democratic governance” and finding “increasing levels of violent crime.” D. 21 ¶¶ 97-98. On January 11, 2012 and May 30, 2013, Napolitano again extended the designation, based on findings of infrastructural deficiencies and subsequent natural disasters. D. 21 ¶¶ 99-102. On January 7, 2015, then DHS Secretary Jeh Johnson (“Johnson”) extended El Salvador’s designation, based on the recent eruption of a volcano and a recent tropical storm. D. 21 ¶¶ 103-104. On July 8, 2016, Johnson again extended El Salvador’s designation. D. 21 ¶ 105. The effective period for the extension was September 10, 2016 to March 9, 2018. D. 21 ¶ 105. Johnson cited, in his extension decision, a substantial rise of violence and “an environment of impunity” for corruption, violent crimes, and gang activity. D. 21 ¶ 106.
2. Haiti On January 21, 2010, Napolitano gave Haiti TPS designation, finding that a recent earthquake there had “destroyed most of the capital city” and affected “one-third of Haiti’s population.” D. 21 ¶¶ 107-108. Napolitano re-designated Haiti with TPS on May 19, 2011, based on the earthquake’s lasting damage to Haiti’s infrastructure, the high numbers of displaced persons following the earthquake, the outbreak of a cholera epidemic and a rise in gender-based violence.2 D. 21 ¶ 109-110. Napolitano extended the designation on October 1, 2012, based on similar findings. D. 21 ¶ 111-12. On March 3, 2014, Johnson extended the designation, citing the slow
2 It appears that re-designation differs, in at least one respect, from an extension of a designation. If a country is re-designated, nationals of that country may qualify for TPS if they have been continuously present in the United States since the re-designation date, whereas if a country’s designation is extended, nationals of that country may only qualify if they have been continuously present since the initial designation date. See 8 U.S.C. § 1254a(c)(1)(A)(i); see also D. 25 at 15 (citing Extension of Designation and Redesignation of Liberia under TPS Program, 62 Fed. Reg. 16,608-01, 16,009 (April 7, 1997)).
7

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 8 of 42
pace of the economic recovery and new natural disasters, including Hurricane Sandy, which had caused additional displacement, damage and death. D. 21 ¶¶ 113-14. On August 25, 2015, Johnson again extended the designation. D. 21 ¶ 115. The effective period for the extension was January 23, 2016 to July 22, 2017. D. 21 ¶ 115. The extension was based on continued infrastructural damage, high rates of food insecurity, the lack of emergency services and the lack of a “functioning legislative branch or duly elected local authorities.” D. 21 ¶ 116.
3. Honduras On January 5, 1999, then Attorney General Janet Reno designated Honduras for TPS based on findings that Hurricane Mitch had rendered Honduras temporarily unable to handle the return of Honduran nationals. D. 21 ¶¶ 117-18. On May 11, 2000, Reno extended the designation for Honduras, determining that Honduras had made “little progress” in recovering from Hurricane Mitch and that the reconstruction had “not sufficiently countered the devastation” caused by the hurricane. D. 21 ¶¶ 119-120. On May 8, 2001, Ashcroft extended Honduras’ designation based on findings that only a fraction of the necessary housing units had yet been constructed and that many Hondurans remained in shelters, notwithstanding some progress in the recovery efforts. D. 21 ¶¶ 122-23. On May 3, 2002, Ashcroft again extended Honduras’ designation, noting that “[a]lthough there are strong indications of progress in recovery efforts, recent droughts as well as flooding from Hurricane Michelle in 2001 have added to the humanitarian, economic, and social problems initially brought on by Hurricane Mitch in 1998.” D. 21 ¶¶ 123-24. On May 5, 2003, Ridge extended the designation, determining that prolonged drought and flooding after Hurricane Michelle had compromised food security and disrupted reconstruction efforts. D. 21 ¶¶ 125-26. On November 3, 2004, Ridge again extended the designation, finding that Honduras was still recovering from damage to its water and power supplies. D. 21 ¶¶ 127-28. On March 31, 2006,
8

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 9 of 42
Chertoff extended Honduras’ designation, citing both continuing vulnerability after Hurricane Mitch and serious storms in 2005. D. 21 ¶¶ 129-130. On May 29, 2007, Chertoff again extended the designation, determining that there was continued social and economic stress caused by Hurricane Mitch, with ongoing challenges in the areas of health, infrastructure, and employment. D. 21 ¶¶ 131-32. On October 1, 2008, Chertoff extended the designation for a third time, based on findings that much of the newly built housing lacked electricity and water, that more than 600,000 Hondurans lived in flood-prone areas and that much of the drinking water remained contaminated. D. 21 ¶¶ 133-34. On May 5, 2010, Napolitano extended Honduras’ TPS designation, noting that “Honduras continue[d] to rely heavily on international assistance” and that recovery from Hurricane Mitch and subsequent disasters remained incomplete. D. 21 ¶¶ 135-36. On November 4, 2011, Napolitano again extended the designation, based on a recent series of natural disasters in Honduras and the determination that Honduras’ security situation was “critical,” negatively affecting its ability to re-assimilate returning Hondurans. D. 21 ¶¶ 137-38. On April 3, 2013, Napolitano extended Honduras’ designation a third time, citing a drought in 2012 and a tropical storm in 2011 that had contributed to ongoing problems with water, infrastructure, and sanitation. D. 21 ¶¶ 139-140. On October 16, 2014, Johnson extended the designation, finding that Honduras suffered from both food insecurity caused by a drought in 2014 and ongoing problems stemming from Hurricane Mitch and subsequent natural disasters. D. 21 ¶¶141-142. On May 16, 2016, Johnson again extended Honduras’ designation. D. 21 ¶ 143. The effective period for the extension was July 5, 2016 to January 5, 2018. D. 21 ¶¶ 143. Johnson based the extension on findings that Honduras still had a housing deficit of 1.1 million homes; that Honduras was one of the poorest countries in the Western Hemisphere; that Honduras suffered
9

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 10 of 42
damage caused by Tropical Storm Hanna in 2014; and that Honduras experienced an increase in mosquito-borne disease in 2014 and 2015. D. 21 ¶ 144.
D. Allegations Regarding Defendants’ Bias Plaintiffs allege that President Trump, the head of the Executive Branch in which the DHS Secretary serves, has personally made “numerous statements reflecting bias and prejudice against immigrants of color, particularly Latino and Haitian immigrants.” D. 21 ¶ 148. In support of this allegation, Plaintiffs cite several, alleged statements by President Trump. On or about June 16, 2015, while then-candidate Trump announced his presidential campaign, he stated that “[w]hen Mexico sends its people, they’re not sending their best. . . . They’re sending people that have lots of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re bringing crime. They’re rapists. And some, I assume, are good people . . . It’s coming from more than Mexico. It’s coming from all over South and Latin America.” D. 21 ¶ 149. A few months later, on or about August 6, 2015, then-candidate Trump declared during a debate that the Mexican government was “send[ing] the bad ones over, because they don’t want to pay for them, they don’t want to take care of them.” D. 21 ¶ 150. On or about August 21, 2015, then-candidate Trump was asked about an incident in which two men beat and urinated on a sleeping Latino man and one, after his arrest, stated that “Donald Trump was right; all these illegals need to be deported.” D. 21 ¶ 151. He allegedly responded by stating that “[i]t would be a shame . . . I will say that the people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate.” D. 21 ¶ 151. During a presidential debate in October 2016, then-candidate Trump responded to a question on immigration policy by stating that “[w]e have some bad hombres here and we’re going to get them out.” D. 21 ¶ 152. In December 2016, after having been elected President, in referring to an article about a crime wave on Long Island,
10

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 11 of 42
President-elect Trump said, as alleged, “[t]hey come from Central America. They’re tougher than any people you’ve ever met. They’re killing and raping everybody out there. They’re illegal. And they are finished.” D. 21 ¶ 153.
Plaintiffs also rely on certain actions and statements made by President Trump since he assumed office. On August 25, 2017, the President pardoned former Maricopa County Sheriff Joe Arpaio, who was to be sentenced for criminal contempt for failing to comply with a federal court order to stop racially profiling Latinos. D. 21 ¶ 154. During a meeting in the Oval Office in June 2017, President Trump reportedly reacted to a report that 15,000 Haitians had received visas to enter the United States in 2017 by stating that Haitian immigrants “all have AIDS.” D. 21 ¶ 155. In January 2018, during a discussion at the White House of a legislative proposal to reallocate visas from other groups of foreign nationals to TPS recipients, President Trump allegedly said about TPS recipients “[w]hy are we having all these people from shithole countries come here?” D. 21 ¶¶ 157-160. President Trump also allegedly asked “[w]hy do we need more Haitians?” and demanded that the Senators with whom he was meeting “[t]ake them out” of the plan. D. 21 ¶ 161. President Trump then reportedly stated that policies should encourage immigration from countries like Norway, a predominantly white country, D. 21 ¶¶ 161, while, as Plaintiffs note, El Salvador and Honduras are predominately Latino countries and Haiti is a predominately black country. D. 21 ¶ 165. President Trump later denied having made such comments, D. 21 ¶ 163, but others present at the meeting dispute this denial, D. 21 ¶ 162.
Plaintiffs also allege actions taken by DHS as evidence of bias on the part of Defendants. First, they allege that in April 2017, DHS officials sought evidence regarding criminal records and welfare use by Haitians living in the United States, which they allegedly sought to use to support a decision to rescind TPS status. D. 21 ¶ 167. Second, on February 14, 2018, DHS issued a press
11

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 12 of 42
release regarding a legislative proposal on immigration with the headline “[t]he McCain-Coons Proposal Would Increase Illegal Immigration, Surge Chain Migration, Continue Catch and Release, and Give a Pathway to Citizenship to Convicted Alien Felons.” D. 21 ¶ 171. The release also characterized the legislative proposal as a “[m]ass [l]egalization [b]ill.” D. 21 ¶ 171. Third, on February 15, 2018, DHS characterized a proposal to provide conditional permanent resident status for TPS recipients as part of “a [m]ass [a]mnesty [b]ill for [i]llegal [a]liens of [a]ll [a]ges.” D. 21 ¶ 172.
E. Termination of TPS Designations for El Salvador, Haiti and Honduras 1. El Salvador
On January 18, 2018, Nielsen terminated El Salvador’s TPS designation, effective September 9, 2019. D. 21 ¶ 173. In doing so, Nielsen stated that “the conditions supporting El Salvador’s 2001 designation for TPS on the basis of environmental disaster due to the damage caused by the 2001 earthquakes are no longer met.” D. 21 ¶ 174. Plaintiffs allege that Nielsen made clear a “new rule” that the Secretary “would not consider intervening country conditions” but rather would only consider whether the conditions supporting the initial TPS designation continue to be met. D. 21 ¶ 174. Plaintiffs also allege that El Salvador is still unable to accept returning nationals safely because the country “lacks viable infrastructure, is low on housing, [] suffers from pervasive and widespread violence,” has a high underemployment and poverty rate, and has suffered several intervening natural disasters. D. 21 ¶ 175-78. Economic growth in El Salvador has been stagnant, with high levels of unemployment, and the economy depends heavily on remittances sent from Salvadoran nationals living here. D. 21 ¶¶ 179-181. An estimated 220,000 people were forced to flee violence from El Salvador in 2016 alone, due to the widespread
12

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 13 of 42
human rights abuses and violence, including high levels of gender-based violence. D. 21 ¶¶ 182186.
Plaintiffs allege that Nielsen’s stated rationale was pretext for invidious discrimination, as evidenced by the adoption of a new rule focusing on the conditions that created the initial designation rather than the general state of the country and the current inability of El Salvador to accept returnees safely. D. 21 ¶¶ 187-192. Plaintiffs also allege that Nielsen’s reliance on the recent increase in the GDP raises an inference of pretext, because the factors responsible for the increase in GDP included an increase in remittances, which overwhelmingly come from the United States. D. 21 ¶¶ 181, 193. Plaintiffs further point to internal DHS reports documenting that El Salvador is one of the “leading countries of nationality for persons granted either affirmative or defensive asylum.” D. 21 ¶ 195. Finally, Plaintiffs contend that the statements by President Trump described above further support the inference of discriminatory animus. D. 21 ¶¶ 239-242.
2. Haiti On May 24, 2017, then DHS Secretary John Kelly extended Haiti’s TPS designation for six months, effective from July 23, 2017 to January 22, 2018. D. 21 ¶ 196. This extension was based upon Kelly’s finding of a high number of internally displaced persons in Haiti, high levels of gender-based violence and the continuing cholera epidemic. D. 21 ¶ 197. Kelly, however, only extended the designation for a six-month period, stating that it was “in the best interest of [Haitian] TPS beneficiaries to prepare for their return to Haiti.” D. 21 ¶ 198. On June 6, 2017, while testifying before the Senate, Kelly stated that TPS designations are “for a specific event. [In] Haiti, it was the earthquake. Yes, Haiti had horrible conditions before the earthquake, and those conditions aren’t much better after the earthquake. But the earthquake was why TPS was [] granted and [] that’s how I have to look at it.” D. 21 ¶ 244. On January 16, 2018, after Nielsen became
13

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 14 of 42
the DHS Secretary, she similarly stated that “the law does not allow me to look at the country conditions of a country writ large. It requires me to look very specifically as to whether the country conditions originating from the original designation continue to exist.” D. 21 ¶ 245.
On November 20, 2017, Duke announced the termination of Haiti’s TPS designation, effective July 22, 2019. D. 21 ¶ 199. In doing so, Duke cited a decrease in the number of internally displaced persons. D. 21 ¶ 200. Plaintiffs allege that Duke “did not consider all country conditions that might justify TPS designation for Haiti, but rather focused only on the original basis for designation and whether those conditions continued to be met.” D. 21 ¶ 200. Plaintiffs allege that Haiti is unable to support a safe return of Haitians currently holding TPS status. D. 21 ¶ 201. Plaintiffs base this allegation on their claims that Haiti remains one of the poorest countries in the Western Hemisphere; that Haiti’s GDP growth has slowed in recent years; that over 37,000 people in Haiti are located in internal displacement camps, with tens of thousands more displaced but not recorded; the settling of many Haitians in inadequate housing; a continued food shortage and severe malnutrition; the recent damage caused by Hurricane Matthew in October 2016; and Haiti’s political instability. D. 21 ¶¶ 201-205, 210-211. On or about November 3, 2017, the United States Citizenship and Immigration Services (“USCIS”), a branch of DHS, authored a report stating that “[m]any of the conditions prompting the original January 2010 TPS designation persist, and the country remains vulnerable to external shocks and internal fragility. Haiti . . . continues to be affected by a convergence of humanitarian needs, including food insecurity, internal displacement, an influx of returnees from the Dominican Republic, the persistence of cholera, and the lingering impact of various natural disasters.” D. 21 ¶ 220 & n.184.
Plaintiffs allege that Duke’s stated reasoning for terminating Haiti’s TPS designation is pretext for invidious discrimination. D. 21 ¶¶ 213-214. In support of this allegation, they contend
14

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 15 of 42
that Duke improperly failed to consider recent conditions in Haiti, including conditions as documented by the USCIS report and similar reports from the Department of State. D. 21 ¶¶ 217218. Plaintiffs also allege that, in addition to President Trump’s statements supporting an inference of discriminatory animus, D. 21 ¶¶ 239-42, Duke’s reliance on the withdrawal of United Nations forces from Haiti also contributes to an inference of discrimination because such withdrawal cannot be attributed to progress in Haiti but rather a function of controversy related to that mission. D. 21 ¶ 219.
3. Honduras On December 15, 2017, Duke extended Honduras’ TPS designation, with an effective period from January 5, 2018 to July 5, 2018. D. 21 ¶ 221. This extension, however, was automatic because of Duke’s failure to make a determination by the statutory deadline of November 6, 2017. D. 21 ¶ 222; 8 U.S.C. § 1254a(b)(3)(C). Plaintiffs allege that on or about November 6, 2017, Kelly, now White House Chief of Staff, and Tom Bossert, the White House Homeland Security Advisor, pressured Duke to terminate Haiti’s TPS designation, notwithstanding that Duke had made no findings regarding whether the statutory requirements for terminating the designation had been satisfied. D. 21 ¶ 223. On May 4, 2018, Nielsen terminated Honduras’ TPS designation, effective January 5, 2020. D. 21 ¶ 224. Plaintiffs allege that the report in the Federal Register focused “only on the original basis for designation and whether those conditions continued to be met.” D. 21 ¶ 224. Plaintiffs further allege that Honduras is not able to handle safely the return of Honduran TPS holders, due to several recent natural disasters, recent outbreaks of disease, periodic drought, high levels of entrenched poverty and rampant violent crime, including gang violence and gender-based violence. D. 221 ¶¶ 225-231. Finally, Plaintiffs allege that the termination of Honduras’ TPS
15

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 16 of 42
designation was based on invidious discrimination, based upon President Trump’s aforementioned statements, D. 21 ¶¶ 149-65, and upon Nielsen’s departure from what they contend is DHS’s ordinary decision-making process. D. 21 ¶¶ 236-38.
F. Plaintiffs’ Claims and Request for Relief Plaintiffs assert the following claims against Defendants: violation of the equal protection clause of the Fourteenth Amendment as incorporated through the Fifth Amendment, based upon unlawful discrimination by race, ethnicity, and/or national origin (Count I); violation of the due process clause, based upon “irrational government action” (Count II); violation of the Administrative Procedures Act (“APA”) for arbitrarily and capriciously narrowing the scope of review for TPS designations (Count III); violation of the APA for failure to provide notice and comment (Count IV); a count for mandamus relief (Count V); and a count for a declaratory judgment that Defendants’ actions are illegal and have caused injury to Plaintiffs and those similarly situated (Count VI). D. 21 ¶¶ 257-286. Plaintiffs further seek an injunction enjoining Defendants from implementing or enforcing the termination of the TPS designation as to the three subject countries. D. 21 at 79. IV. Procedural History On February 22, 2018, Plaintiffs filed their complaint against Defendants. D. 1. On May 9, 2018, Plaintiffs filed an amended complaint. D. 21. On May 23, 2018, Defendants moved to dismiss. D. 24. On June 22, 2018, the Commonwealth of Massachusetts filed an amicus brief, joined by a number of other states and the District of Columbia. D. 37. On July 12, 2018, the Court heard argument on the motion and took the matter under advisement. D. 44.
16

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 17 of 42
V. Subject Matter Jurisdiction As an initial matter, Defendants contend that the Court lacks subject matter jurisdiction to
hear any of Plaintiffs’ claims. D. 25 at 23-24. The statute states that “[t]here is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” 8 U.S.C. § 1254a(b)(5)(A). Defendants argue that this provision completely bars all judicial review, including any constitutional and statutory claims related to TPS designation decisions. D. 25 at 23-24.
Plaintiffs respond that, notwithstanding this provision, the Court retains jurisdiction over both constitutional and statutory claims because Congress has not stated with the requisite clarity that the Court lacks subject matter jurisdiction. D. 35 at 15-16. As to the constitutional claims, Plaintiffs cite Webster v. Doe, 486 U.S. 592, 603 (1988). D. 35 at 15. In that case, the Supreme Court held that “where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear.” Id. at 603. It required “this heightened showing in part to avoid the ‘serious constitutional question’ that would arise if a federal statute were construed to deny any judicial forum for a colorable constitutional claims.” Id. (quoting Bowen v. Michigan Acad. of Family Physicians, 476 U.S. 667, 681 n.12 (1986)); see Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 64 (1993) (stating that the court would only “find an intent to preclude” any “judicial review of administrative action” if “presented with clear and convincing evidence”) (internal citation omitted); Johnson v. Robison, 415 U.S. 361, 366-67 (1974) (holding that, before interpreting a statute to strip federal courts of jurisdiction over constitutional challenges, which would “raise serious questions concerning the constitutionality” of that statute, the court would “first ascertain whether a construction of the statute is fairly possible by which the (constitutional) question(s) may be avoided”). With respect to the statutory claims, Plaintiffs rely upon Bowen v.
17

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 18 of 42
Michigan Acad. of Family Physicians, 476 U.S. 667, 670 (1986), in which the Supreme Court stated that there is a “strong presumption that Congress intends judicial review of administrative action.” Id. at 670. That presumption may be overcome by “specific language or specific legislative history that is a reliable indicator of congressional intent, or a specific congressional intent to preclude judicial review that is fairly discernible in the detail of the legislative scheme.” Id. at 673 (citation omitted).
Defendants make two arguments in response. First, they contend that these presumptions do not apply because individuals with TPS may obtain judicial review by bringing their claims in removal proceedings. D. 25 at 24; see Elgin v. Dep’t of Treasury, 567 U.S. 1, 9 (2012) (holding that “Webster’s heightened standard . . . does not apply where Congress simply channels judicial review of a constitutional claim to a particular court”). Second, they contend that Section 1254a(b)(5)(A) is written with the requisite clarity to preclude judicial review, even if that removal of jurisdiction would deprive Plaintiffs of the ability to bring their claims. D. 25 at 23-24.
The Supreme Court’s opinion in McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991) speaks to both issues. In McNary, the plaintiffs, a group of undocumented foreign nationals, alleged that the process by which the federal government granted special agricultural worker (“SAW”) status violated their statutory and constitutional rights by failing to provide competent interpreters, failing to provide applicants with the opportunity to challenge adverse evidence, preventing applicants from presenting witnesses on their behalf and other procedural faults. Id. at 487. Like temporary protected status, SAW status provides work authorization and protection from removal. 8 U.S.C. § 1160(a)(1), (a)(4); McNary, 498 U.S. at 484. There was a statutory provision that limited “judicial review of a determination respecting an application” for SAW status to the judicial review available in removal proceedings. Id. at 485-86, 486 n.6; 8 U.S.C. §
18

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 19 of 42
1160(e). The Supreme Court held that a federal district court had jurisdiction to hear the plaintiffs’ challenges to the process by which the agency made decisions regarding applications for SAW status. McNary, 489 U.S. at 483-84. The court began by explaining that textually, a bar to review of “a determination respecting an application” did not bar review of challenges to the process by which the determinations were made, focusing on the use of the singular “a” and “an” in the statute. Id. at 492. The court also noted that Congress had used “broader statutory language” in limiting judicial review in other immigration statutes than it had used in the SAW statute. Id. at 494.
The defendants in McNary challenged the distinction the plaintiffs attempted to draw between the challenge to an individual determination and the process by which determinations were made, citing Heckler v. Ringer, 466 U.S. 602 (1984). McNary, 498 U.S. at 494. In Heckler, the court held that a claim cast as a challenge to the procedure by which reimbursement decisions under the Medicare Act were made was, “at bottom,” only a claim that the plaintiffs should have been reimbursed, and was, therefore, subject to a statutory jurisdictional bar. McNary, 498 U.S. at 494 (quoting Heckler, 466 U.S. at 614). The court in McNary rejected the comparison to Heckler for two reasons. First, it stated that “[u]nlike [] in Heckler, the individual respondents in this action do not seek a substantive declaration that they are entitled to SAW status[, n]or would the fact that they prevail on their purportedly procedural objections have the effect of establishing their entitlement to SAW status.” Id. at 495. Second, it stated that “[u]nlike in Heckler, if not allowed to pursue their claims in the District Court, respondents would not as a practical matter be able to obtain meaningful judicial review of their application denials or of their objections to INS procedures,” notwithstanding the ability to seek judicial review in removal proceedings. Id. at 496.
19

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 20 of 42
In support of its conclusion that removal proceedings would not offer meaningful judicial review, the Supreme Court explained in McNary that judicial review in removal proceedings is not available “unless the alien is [] apprehended and deportation proceedings are initiated,” so “most aliens denied SAW status can ensure themselves review in courts of appeals only if they voluntarily surrender themselves for deportation. Quite obviously, that price is tantamount to a complete denial of judicial review for most undocumented aliens.” Id. at 496-97. The court further noted that asserting the constitutional claims at issue would require bringing in “a substantial amount of evidence, most of which would have been irrelevant in the processing of a particular individual application,” so “a court of appeals reviewing an individual SAW determination [would] therefore most likely not have an adequate record as to the pattern of [the agency’s] allegedly unconstitutional practices” and “also lack the factfinding and record-developing capabilities of a federal district court.” Id. at 497. Moreover, the court recognized that, even aside from the risk of deportation, the work authorization that SAW status carried was a separate constitutional interest that required constitutionally fair procedures. Id. at 491.
This case is like McNary in several important respects. Plaintiffs, like the plaintiffs there, bring both constitutional and statutory claims that they frame as challenges to Defendants’ process of adjudication rather than the content of any particular adjudication. D. 21 ¶ 257-279; D. 35 at 30; McNary, 498 U.S. at 484, 495-96. The jurisdiction-stripping provision here, like the jurisdiction-stripping provision at issue in McNary, is framed in the singular. Compare 8 U.S.C. § 1254a(b)(5)(A) (barring judicial review of “any determination of the [Secretary] with respect to the designation, or termination or extension of a designation”) with 8 U.S.C. § 1160(e)(1) (barring judicial review of “a determination respecting an application for adjustment of status under this section”).
20

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 21 of 42
Moreover, in both cases, there are comparable examples of jurisdiction-stripping provisions in which Congress used broader language than it did in the provision at issue. In McNary, the Court pointed out that Congress used more expansive language, barring review of “all questions of law and fact,” in a provision limiting judicial review of claims for veterans’ benefits. McNary, 498 U.S. at 494 (citing 38 U.S.C. § 211(a) (1991)). Plaintiffs here point to the more expansive language Congress used to channel judicial review into removal proceedings. D. 35 at 16. That provision, 8 U.S.C. § 1252(b)(9), precludes “[j]udicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions” outside of the specific process provided for in that statute. The language at issue in Section 1254a(b)(5)(A) in this case, barring review of “any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state” is less explicitly broad than Section 1252(b)(9), because it lacks the specific language of “all questions of fact and law, including interpretation and application of constitutional and statutory provisions.” “When Congress includes particular language in one section of a statute but omits it in another, this Court presumes that Congress intended a difference in meaning.” Dig. Realty Tr., Inc. v. Somers, __ U.S. __, 138 S. Ct. 767, 777 (2018) (internal citation omitted). As a result, if the presumptions in favor of review outlined in Webster and Bowen apply, there are sound textual reasons to conclude that Congress has not spoken with the requisite clarity to bar all judicial review of challenges to the process by which TPS designation determinations are made.
Defendants contend that the presumptions in favor of review should not apply because, unlike in McNary, there remains an avenue for individual plaintiffs to bring their claims, namely, removal proceedings. D. 25 at 24. In support of this argument, they cite Elgin v. Dep’t of the Treasury, 567 U.S. at 9, contending that the clear statement rule in Webster would not apply if
21

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 22 of 42
Congress merely channeled judicial review into a particular forum. D. 24 at 24. This argument is unavailing because here, as in McNary, there would be no meaningful opportunity for review of Plaintiffs’ constitutional and statutory claims in removal proceedings. Like the constitutional and statutory claims at issue in McNary, the assertion of the claims here would require developing a record that would not be possible or relevant in any one individual plaintiff’s removal proceeding. See, e.g., Aguilar v. U.S. Immigration & Customs Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d 1, 11 (1st Cir. 2007) (explaining that “because removal proceedings are confined to determining whether a particular alien should be deported,” there are “certain claims [which], by reason of the nature of the right asserted, cannot be raised efficaciously within” removal proceedings). Moreover, the employment authorization that comes with TPS would stop being valid on the effective date of the termination, 8 C.F.R. § 244.12(a), but removal proceedings could occur some time after the effective date of the termination of a country’s TPS designation, leaving Plaintiffs either unable to vindicate their asserted right to work authorization for a substantial period of time or forced to submit to removal proceedings voluntarily.
Defendants do not explain convincingly how individuals could successfully vindicate their claims in removal proceedings. D. 25 at 24; D. 40 at 10. Defendants contend instead that Elgin supports their claim that Webster’s clear statement rule does not apply where Congress channels review into alternative forum, even a more limited one. D. 40 at 10. But in Elgin, the Supreme Court held that the alternative forum (there, review by the Federal Circuit of decisions by the Merit Systems Protection Board) had the “authority to consider and decide petitioners’ constitutional claims,” and “[t]o the extent such challenges require factual development, the [statute] equips” the administrative body with the “tools to create the necessary record.” Elgin, 567 U.S. at 20. The court concluded that the “petitioners’ constitutional claims can receive meaningful review within
22

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 23 of 42
the” alternative forum. Id. The same cannot be said here as to any statutory or constitutional claims regarding TPS designation in any one individual’s removal proceedings.
Finally, Defendants contend that, even though Plaintiffs’ claims are framed as a challenge to the criteria applied by the Secretary in making decisions regarding extensions of TPS designations, Plaintiffs’ claims amount to a challenge to the TPS designation decisions themselves. D. 40 at 18. It is true that Plaintiffs seek the relief of setting aside the decisions made by the Secretary pursuant to what they allege was the application of unlawful criteria. D. 21 ¶¶ 274, 279. Plaintiffs, however, do not seek a substantive declaration from the Court that they are entitled to any particular new TPS determination by the Secretary – the relief that they seek is a declaration that the current termination decisions are “void and without legal force or effect,” and an injunction restraining Defendants from “implementing or enforcing” those terminations or “taking any further action” to terminate designations “in violation of the U.S. Constitution or other applicable laws.” D. 21 at 78-79. If this Court were to grant Plaintiffs the relief they seek, the prior TPS determinations would be set aside and the Secretary would need to make new determinations, applying the allegedly lawful criteria, which could result in the same or different TPS determination as to each of the three countries. This stands in contrast to the plaintiffs in Heckler, who sought “a ‘substantive’ declaration from [the Secretary] that [certain expenses] are reimbursable under the Medicare Act,” notwithstanding the objections the plaintiffs offered to some of the procedures followed. Heckler, 466 U.S. at 614. Thus, seeking the remedy of setting aside the Secretary’s earlier TPS decisions does not convert Plaintiffs’ claim about unlawful process into a substantive challenge to each of the determinations at issue.
Defendants contended at the motion hearing that, even if Plaintiffs’ claim for relief is cast as a redetermination rather than a particular substantive decision, the policy change challenged by
23

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 24 of 42
Plaintiffs is a mere change in the weighing of factors involved in a TPS designation determination, and such a challenge is in fact substantive, in contrast to the claims in McNary concerning the availability of interpreters. D. 45. As described below, however, Plaintiffs allege that the current administration adopted a new policy that TPS designation determinations are to be made solely on the basis of whether the conditions that created the initial designation persist rather than a broader view of whether the country is safely able to accept returning nationals. The allegation is not that Defendants changed the relative weight given to the persistence of conditions justifying the initial designation versus intervening events or that Defendants changed the balancing of the various factors involved in making a determination of whether the country may safely accept returning nationals changed. The allegation is rather that Defendants are giving no weight to any facts except those regarding whether the conditions that created the initial designation persist. Thus, like the plaintiffs in McNary, Plaintiffs here allege that the decision is being made on the basis of an improperly narrow record. The difference is that in McNary, the additions to the record – such as the evidence that the plaintiffs would have offered had they had the opportunity to present witnesses – were not available to the decisionmaker, whereas here, Plaintiffs allege that the additions to the record – that is, factfinding regarding intervening conditions – are allegedly being ignored by the Secretary despite being potentially available. That distinction, however, does not change the collateral nature of Plaintiffs’ challenge. For all of the aforementioned reasons, the Court thus concludes that Plaintiffs’ challenge is sufficiently collateral that the Court has jurisdiction over both the constitutional and statutory claims.
24

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 25 of 42
VI. Plausibility of Claims A. Counts I and II: Constitutional Claims 1. The Proper Standard of Review Plaintiffs allege that Defendants violated their rights under the equal protection clause of
the Fourteenth Amendment and the due process clause of the Fifth Amendment by adopting an unreasoned change in policy regarding the applicable standard for TPS designations that was motivated by unlawful animus and applying that new standard to terminate the TPS designations of El Salvador, Haiti and Honduras. D. 35 at 8-9.
Defendants first argue that the Secretary’s decisions regarding TPS designations are subject to rational basis review. D. 25 at 25. In support of this contention, they cite a series of decisions holding that classifications based on foreign citizenship in the context of immigration policy are not suspect classifications and are, therefore, subject only to rational basis review. D. 25 at 25-26; D. 40 at 15-16; Vieira Garcia v. I.N.S., 239 F.3d 409, 414 (1st Cir. 2001) (explaining that rationalbasis review applies to distinctions based on foreign national status); Narenji v. Civiletti, 617 F.2d 745, 747 (D.C. Cir. 1979) (holding that “[d]istinctions based on nationality may be drawn in the immigration field” and “must be sustained” unless “wholly irrational”); Kandamar v. Gonzales, 464 F.3d 65, 72 (1st Cir. 2006) (stating that “Congress may permissibly set immigration criteria based on an alien’s nationality or place of origin”); Bruns v. Mayhew, 750 F.3d 61, 66 (1st Cir. 2014) (holding that “[b]ecause Congress acts with plenary authority when it legislates the rights and benefits to be afforded aliens present in this country, such congressional acts are appropriately afforded rational basis judicial review”). Plaintiffs, however, do not contend that the Secretary’s decision to terminate TPS designations involves the suspect classification of national origin and is, therefore, subject to scrutiny more searching than rational basis review. Plaintiffs instead
25

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 26 of 42
contend that the decision to alter the criteria by which TPS designation decisions were made was motivated by racial animus, and, therefore, is subject to heightened scrutiny even if that decision did not explicitly invoke a suspect classification. D. 35 at 9.
In support of that contention, Plaintiffs cite Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (1977). In that case, the Supreme Court reviewed the plaintiffs’ claims that the city’s decision to deny a rezoning request was motivated by racial animus in violation of the equal protection clause. Id. at 258-59. The court stated that most facially neutral decisions by legislators and administrators, including those that “result[] in a racially disproportionate impact,” are subject only to judicial review to determine if the decision was “arbitrar[y] or irrational[]” – that is, rational basis review – “because legislators and administrators are properly concerned with balancing numerous competing considerations.” Id. at 264-65. The Supreme Court explained, however, that “racial discrimination is not just another competing consideration,” so “[w]hen there is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial deference is no longer justified.” Id. at 265-66. The court recognized that “[d]etermining whether invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such circumstantial and direct evidence of intent as may be available,” including “the impact of the official action;” “[t]he historical background of the decision;” “[t]he specific sequence of events leading up to the challenged decision;” any “[d]epartures from the normal procedural sequence;” any “[s]ubstantive departures . . . particularly if the factors usually considered important by the decisionmaker strongly favor a decision contrary to the one reached;” the “legislative or administrative history,” including “contemporary statements by members of the decisionmaking body, minutes of its meetings, or reports;” and finally, in “extraordinary circumstances,” testimony of members “concerning the purpose of the official action.” Id. at 266-68.
26

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 27 of 42
To challenge the constitutionality of the TPS designations, Defendants respond that Plaintiffs must meet not only the standard laid out by Arlington Heights but also must allege that the discrimination was “outrageous,” citing Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471, 491 (1999) (“AADC”). D. 25 at 30-31. In AADC, the Supreme Court reviewed a claim that a foreign national had been unlawfully targeted for deportation based on his political views. Id. at 488. The court held that “[a]s a general matter . . . an alien unlawfully in this country has no constitutional right to assert selective enforcement as a defense against his deportation.” Id. The Supreme Court explained that “[e]ven in the criminal-law field, a selection prosecution claim is a rara avis [rare bird],” and the rationale for barring selective prosecution claims was magnified in the deportation context where delay would “permit and prolong a continuing violation of United States law.” Id. at 489-90. The court then stated that it “need not rule out the possibility of a rare case in which the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome.” Id. at 491. The “outrageous” standard in AADC was thus confined to claims of selective prosecution, which Plaintiffs do not assert here. AADC did not purport to set out a general rule with respect to all equal protection challenges in the immigration context. In fact, the Supreme Court recently applied heightened scrutiny in the context of an equal protection challenge to a gender-based classification in the immigration context. Sessions v. Morales-Santana, __ U.S. __, 137 S. Ct. 1678, 1686, 1690 (2017) (holding that statute that provided different rights to the children of unwed U.S. citizen mothers than the children of unwed U.S. citizen fathers violated the equal protection clause).
Defendants further contend that, notwithstanding Arlington Heights, the Supreme Court’s recent decision in Trump v. Hawaii, __ U.S. __, 138 S. Ct. 2392 (2018) indicates that rational basis review should apply here. That decision, however, does not challenge the foregoing analysis.
27

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 28 of 42
Hawaii concerned an Establishment Clause challenge to an executive order restricting entry to foreign nationals of particular countries. Id. at 2403. The court’s decision to apply rational basis review was based on two considerations not at issue here: first, the limited due process rights afforded to foreign nationals seeking entry into the United States, id. at 2418-20, and the particular deference accorded to the executive in making national security determinations, id.
As to the first factor, the foreign nationals here, the individual Plaintiffs, are already lawfully present in the United States and are accorded a higher level of due process than foreign nationals seeking admission to the country. See Landon v. Plasencia, 459 U.S. 21, 32 (1982) (explaining that “once an alien gains admission to our country and begins to develop the ties that go with permanent residence his constitutional status changes accordingly”); Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (collecting cases). The individual Plaintiffs have developed substantial ties with the United States. Some have been in the United States since 1999 or 2001. D. 21 ¶¶ 26, 33, 38, 41, 44, 47, 62, 65. Several have U.S. citizen children. D. 21 ¶¶ 27, 35, 39, 43, 46, 49, 53, 56, 64. They work in a variety of fields. D. 21 ¶¶ 28, 32, 34, 42, 45, 52, 60, 63, 66. Some have obtained educational degrees in the United States. D. 21 ¶¶ 30, 32. They are active in their communities, through churches, community organizations and extended family networks. D. 21 ¶¶ 36, 40, 50, 54, 57, 64. The individual Plaintiffs thus have developed or begun to develop the ties of permanent residence in the United States and their constitutional status is therefore different from that of foreign nationals seeking admission.
As to the second factor, the determination at issue in this case does not concern national security. The court in Hawaii emphasized the particular importance of deferential review in the context of the executive branch’s role in the national security realm. Hawaii, 138 S. Ct. at 241920. The determinations at issue here are the Secretary’s determinations of whether “there has been
28

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 29 of 42
an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected,” such that “the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state,” 8 U.S.C. § 1254a(b)(1)(B), with respect to El Salvador and Honduras, see 66 Fed. Reg. 14214, 14214 (2001); 64 Fed. Reg. 524, 524 (1999), or whether there are “extraordinary and temporary conditions in the foreign state that prevent aliens . . . from returning to the state in safety, unless . . . permitting aliens to remain temporary in the United States is contrary to the national interest of the Unites States,” 8 U.S.C. § 1254a(b)(1)(C), with respect to Haiti, 75 Fed. Reg. 3476, 3476 (2010). The statutory provision at issue with respect to the designations of El Salvador and Honduras involve no national security judgments, and while the statutory provision at issue with respect to Haiti makes an exception for where the Secretary determines designation would not be in the national interest, the 2018 termination decision with respect to Haiti stated “the conditions for Haiti’s designation for TPS” were “no longer met,” not that the Secretary determined that permitting aliens to remain would be contrary to the national interest of the United States. 83 Fed. Reg. 2648, 2650 (2018). Hawaii established a narrower proposition than Defendants contend, namely, that decisions by the government regarding admission of aliens, particularly in the context of the executive’s authority to make national security judgments, are subject to rational basis review. See Hawaii, 138 S. Ct. at 2420.
Finally, Defendants argue that “it cannot be that a litigant could avoid deference in the immigration context by recasting a distinction drawn on the basis of alienage as one drawn alone racial lines,” because such a tactic “would largely defeat the deference the Supreme Court and lower courts have reserved for the Executive in this sensitive arena.” D. 40 at 16. Defendants thus argue that Arlington Heights is not applicable in the context of immigration decisions based upon
29

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 30 of 42
national origin. Defendants, however, provide no support for this contention. Applying review under Arlington Heights would not vitiate the deference that courts typically afford the other branches in immigration policy, but would only limit that deference upon a proper showing of unlawful animus on the basis of a protected category. The Court thus concludes that Arlington Heights lays out the relevant standard.
2. Whether Plaintiffs Have Properly Alleged the Existence of a New Policy Before applying the Arlington Heights standard to the allegedly new policy adopted by the Secretary regarding the standard applicable to TPS designations, however, the Court must address an additional threshold question. Defendants argue that there was no new policy at all, because, contrary to the allegations in the complaint, the decisions to terminate the TPS designations of El Salvador, Haiti and Honduras were accompanied by an examination of not just whether the conditions that led to the initial designation had been ameliorated but also a broader look at the country’s capacity to accept returnees safely. D. 40 at 19-20. Although Defendants do so in the context of challenging Plaintiffs’ claims under the APA, D. 40 at 20, the non-existence of a new policy would affect the viability of Plaintiffs’ challenge under Arlington Heights. Drawing all reasonable inferences in favor of Plaintiffs at this stage, as the Court must, see Miller, 833 F.3d at 51, there is a plausible inference to be drawn that there is a new policy. Plaintiffs rely upon public statements by Kelly and Nielsen that they adopted the policy that extension is only warranted if the conditions causing the initial designation persist. D. 21 ¶ 244 (alleging that Kelly stated that “the earthquake [in Haiti] is why TPS . . . was granted . . . and that’s how I have to look at it”); D. 21 ¶ 245 (alleging that Nielsen stated that “[t]he law does not allow me to look at the country conditions of a country writ large. It requires me to look very specifically as to whether the country conditions originating from the original designation continue to exist”).
30

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 31 of 42
Given the reliance of earlier administrations on current country conditions writ large in making TPS designation decisions, D. 21 ¶¶ 92-144, these statements support the reasonable inference that Defendants have adopted a new policy with respect TPS designation decisions.
Defendants contend that prior administrations “terminated TPS for countries despite ongoing crises” and also “linked TPS extensions to the failure to recover adequately from the crises underlying the initial designation,” and that, therefore, there is no “new policy” to challenge. D. 40 at 20. Defendants point to earlier decisions published in the Federal Register in support of this contention. D. 40 at 20. The publications in the Federal Register are susceptible to judicial notice and referenced in the complaint, so are properly considered by the Court in consideration of Defendants’ motion to dismiss. See Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st Cir. 2012).
The termination determinations at issue are all based on findings that the conditions supporting the initial determination no longer persist. Specifically, the rationale for the 2018 decision terminating the TPS designation for El Salvador begins by stating that “DHS has reviewed conditions in El Salvador. Based on the review, including input received from other appropriate U.S. government agencies, . . . the Secretary . . . has determined that the conditions supporting El Salvador’s 2001 designation for TPS on the basis of environmental disaster due to the damage caused by the 2001 earthquakes are no longer met.” 83 Fed. Reg. 2654, 2656-57 (2018). Similar language referencing the conditions supporting the initial determination appears in the decisions terminating the TPS designations for Haiti and Honduras. 83 Fed. Reg. 2648, 2650 (2018) (stating that “the Acting Secretary . . . determined . . . that the conditions for Haiti’s designation for TPS – on the basis of ‘extraordinary and temporary conditions’ relating to the 2010 earthquake that prevented Haitian nationals from returning in safety – are no longer met”); 83 Fed. Reg. 26074,
31

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 32 of 42
26076 (stating that “the Secretary . . . has determined that the conditions supporting Honduras’s 1999 designation for TPS on the basis of environmental disaster due to the damage caused by Hurricane Mitch in October 1998 are no longer met”). The rationales provided for the 2018 termination decisions for all three countries do also include some reference to current conditions beyond the reconstruction efforts from the natural disaster that caused the initial designation. 83 Fed. Reg. at 2656 (noting, as to El Salvador, the current GDP and unemployment rate); 83 Fed. Reg. at 2650 (noting, as to Haiti, the successful completion of a presidential election in 2017, recent GDP growth and progress in countering the recent cholera epidemic); 83 Fed. Reg. at 26076 (noting, as to Honduras, recent increase in coffee bean production, the abatement of drought conditions and recent increases in GDP). But the critical determination made by the Secretary in each case – in the sentence that includes the phrase “the Secretary . . . determined” – is that the conditions supporting the initial designation are no longer met. 83 Fed. Reg. at 2655-56 (El Salvador); 83 Fed. Reg. at 2650 (Haiti); 83 Fed. Reg. at 26076 (Honduras). The earlier TPS termination decisions cited by Defendants largely do not contain such language. D. 40 at 20; see 65 Fed. Reg. 33356, 33356 (2000) (stating that “the Attorney General finds that conditions in the Kosovo Province no longer support a TPS designation”); 68 Fed. Reg. 3896, 3896 (2003) (stating that “the Attorney General finds that conditions in Angola no longer support a TPS designation”); 69 Fed. Reg. 40642, 40643-44 (2004) (stating that “the Secretary . . . finds that Montserrant no longer continues to meet the conditions for designation under the TPS program”). The one exception is the termination decision for Guinea. 81 Fed. Reg. 66064, 66065 (2016) (stating that “the Secretary has determined that the termination of the TPS designation of Guinea . . . is required because the extraordinary and temporary conditions that prompted Guinea's designation for TPS have substantially resolved and no longer prevent nationals of Guinea from returning in safety”).
32

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 33 of 42
Nothing indicates, however, that there were any intervening conditions in Guinea for the Secretary to review, so the Secretary’s failure to review intervening conditions in that case alone does not render the inference that there exists a new policy an implausible one.
It appears correct that prior administrations have based extension decisions on a country’s failure to recover from the conditions causing the initial designation. See, e.g., 81 Fed. Reg. 30331, 30333 (2016) (stating that “Secretary [Johnson] has determined that an 18-month extension is warranted because conditions in Honduras supporting its designation for TPS persist”); 68 Fed. Reg. 42071, 47072 (2003) (stating that Secretary Ridge “finds that the conditions that prompted designation of El Salvador . . . continue to be met”). Such facts, however, are not inconsistent with Plaintiffs’ contention. Prior administrations appear to have taken the position that if the conditions that caused the initial determination persist, then extension is warranted, but that extension may also be warranted if new conditions justify a finding that there has been, for example, a natural disaster rendering a foreign state unable to safely accept returnees, such that a termination decision may require more than a determination of solely whether the conditions causing the initial determination persist. Plaintiffs have plausibly alleged that the current administration has adopted the policy that extension is only warranted if the conditions that caused the initial determination persist, which is a shift from the prior policy.
3. Review under Arlington Heights The Arlington Heights factors for determining whether a facially neutral action has been taken with a discriminatory motive may, as previously noted, include the “historical background of the decision;” the “specific sequence of events leading up to the challenged decision;” “[d]epartures from the normal procedural sequence;” “contemporary statements by members of the decisionmaking body,” and “substantive departures . . . , particularly if the factors usually
33

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 34 of 42
considered important by the decisionmaker strongly favor a decision contrary to the one reached.” Arlington Heights, 429 U.S. at 267. Plaintiffs contend that the complaint sufficiently alleges, based on those factors, that a discriminatory purpose was the motivating factor in changing the policy regarding the criteria for TPS determinations. D. 35 at 19-25. As support for this argument, Plaintiffs point to the adoption of the new policy that resulted in the termination of TPS designations for Haiti, El Salvador, and Honduras, which will primarily affect Black and Latino individuals, D. 21 ¶ 165; that the sequence of events leading up to the new policy involved statements from President Trump demonstrating that he held the view that Latino immigrants and Haitian immigrants should be made to leave the country because of discriminatory beliefs he held about these groups, D. 21 ¶¶ 149-61, 165; and that the new policy was adopted without any accompanying legal process or explanation, D. 21 ¶¶ 174, 244.
Defendants argue that the allegations regarding statements by Trump are irrelevant because animus held by the President cannot be imputed to Duke or Nielsen, the two officials who terminated the TPS designations at issue, notwithstanding allegations that the White House was closely monitoring decisions regarding TPS designations. D. 25 at 31-32; D. 21 ¶ 223. The Arlington Heights analysis considers, however, not only the “contemporary statements by members of the decisionmaking body” but also more broadly “the historical background of the decision” and “the specific sequence of events leading up to the challenged decision.” Arlington Heights, 429 U.S. at 267. Courts have repeatedly held, however, that “liability for discrimination will lie when a biased individual manipulates a non-biased decision-maker into taking discriminatory action.” Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279 (E.D.N.Y. 2018) (collecting cases); see Staub v. Proctor Hosp., 562 U.S. 411, 420-22 (2011) (explaining that where a biased supervisor performs an act motivated by animus that causes an employer to take an
34

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 35 of 42
adverse action, the employer will be liable even if the employer was not directly motivated by animus).3 The complaint alleges that the White House, acting through then-Homeland Security Advisor Kelly, pressured Duke specifically regarding the designation of Haiti, to the point of encouraging Duke to act unlawfully in terminating Haiti’s TPS designation without any findings. D. 21 ¶ 223. The complaint alleges that Kelly called Duke while he was travelling with President Trump in Japan and told her that extending the designation would prevent President Trump’s administration’s “wider strategic goal” on immigration. D. 21 ¶ 223. The fact that Duke did not ultimately take that unlawful action does not discredit the permissible inference that such animus played a role in the decision to terminate the TPS designations at issue. Moreover, because the exact time that the new policy regarding the criteria for TPS designations was made and the exact participants involved in that decision are unclear, it would be premature to conclude that President Trump had nothing to do with that decision such that his statements would be irrelevant.
This Court finds that the combination of a disparate impact on particular racial groups, statements of animus by people plausibly alleged to be involved in the decision-making process, and an allegedly unreasoned shift in policy sufficient to allege plausibly that a discriminatory purpose was a motivating factor in a decision. See Arce v. Douglas, 793 F.3d 968, 977–78 (9th Cir. 2015) (stating that “when relying on Arlington Heights to demonstrate that an action was motivated by a discriminatory purpose, a plaintiff need provide very little such evidence to raise a genuine issue of fact; any indication of discriminatory motive may suffice to raise a question that can only be resolved by a fact-finder” (internal citation omitted)); Ríos-Colón v. Toledo-Dávila, 641 F.3d 1, 5 (1st Cir. 2011) (concluding that allegations that a supervisor who used “abusive and
3 While Staub and other cases cited in Batalla Vidal arise in the employment discrimination context, nothing in the reasoning of those opinions makes them inapplicable in a constitutional context.
35

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 36 of 42
derogatory slurs expressing explicit anti-black bias” had recommended a less qualified white candidate over the black plaintiff were “sufficient to plead a cognizable claim under the Equal Protection Clause”).
Under Arlington Heights review, once plaintiffs have made out a prima facie case that discrimination motivated a facially neutral law, the burden shifts to Defendants to show that the same decisions would have been made even without that motivation. Hunter v. Underwood, 471 U.S. 222, 228 (1985) (holding that “[o]nce racial discrimination is shown to have been a ‘substantial’ or ‘motivating’ factor behind enactment of the law, the burden shifts to the law’s defenders to demonstrate that the law would have been enacted without this factor”). As described above, Plaintiffs have successfully made out their prima facie case. Consistent with Defendants’ claim that there is no new policy, Defendants make no argument that the new policy would have been reached without the alleged unlawful animus.
4. Rational Basis Review Finally, even if rational basis review were to apply, Plaintiffs’ claims, at this early stage of litigation, would still survive. To prevail under rational basis review, Plaintiffs “are required to show that the governmental infringement is not rationally related to a legitimate government purpose.” Mulero-Carrillo v. Román-Hernández, 790 F.3d 99, 107 (1st Cir. 2015). Defendants contend that there is no new policy and do not alternatively set forth any legitimate governmental purpose to be advanced by the alleged new policy that decisions about extending a TPS designation must focus exclusively on whether the conditions creating the initial designation have abated. D. 40 at 17-18. Defendants contend that their actions pass rational basis review, citing the facts laid out in the termination decisions in the Federal Register. D. 25 at 28-30. Consistent with
36

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 37 of 42
Defendants’ denial of the existence of the new policy, Defendants offer no justification of the new policy, plausibly alleged by Plaintiffs, to change to criteria by which TPS designations are made.
The Supreme Court’s application of rational basis review in Hawaii is not to the contrary. In applying rational basis review, the court relied on the express statement of purpose in the executive order at issue and the extensive review process involved in its creation. Hawaii, 138 S. Ct. at 2422. In this case, by contrast, there is no justification, explicit or otherwise, for Defendants’ switch to focusing on whether the conditions that caused the initial designation had abated rather than a fuller evaluation of whether the country would be able to safely accept returnees. The complaint does not allege, and Defendants do not present, any rationale for such a focus or any explanation of the process by which the decision to shift focus in that manner was made. Thus, even under rational basis review, Plaintiffs have plausibly stated constitutional claims. For all of the foregoing reasons, Defendants’ motion to dismiss Count I and Count II is DENIED.
B. Counts III and IV: APA Claims Plaintiffs assert claims under the APA, contending that Defendants’ new policy changing the criteria for making TPS designation decisions was “arbitrary [and] capricious,” 5 U.S.C. § 706(2)(A) and taken without “observance of procedure required by law,” id. § 706(2)(D). Defendants move to dismiss both claims. First, Defendants contend that the claims are barred under the APA, which by its own terms does not apply “to the extent that . . . statutes preclude judicial review.” 5 U.S.C. § 701(a)(1); D. 25 at 33. The Court has explained above why the statute at issue does not preclude judicial review, so this provision is not applicable. Second, Defendants contend that there is no new policy changing the criteria for making TPS designation decisions. D. 25 at 34. The Court has already rejected that argument as discussed above. Third, Defendants contend that to the extent there is a new policy, that new policy is not “in tension with [the] statute that vests TPS decision making in the judgment of the Secretary.” D. 25 at 35. The Court need
37

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 38 of 42
not, however, resolve the issue of whether the new policy is in tension with the applicable statute. Even if the new policy is a permissible interpretation of the statute, it still may be an unjustified shift from earlier practice. The Supreme Court has made clear that an “unexplained inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” Encino Motorcars, LLC v. Navarro, __ U.S. __, 136 S. Ct. 2117, 2126 (2016) (internal citation omitted). To survive arbitrary and capricious review when changing policy, an agency must “at least display awareness that it is changing position,” “show that there are good reasons for the new policy,” and “be cognizant that longstanding policies may have engendered serious reliance interests that must be taken into account.” Id. (citation omitted). The record, as it exists before this Court, shows none of these. Defendants’ motion to dismiss Count III is, therefore, DENIED.
With respect to Count IV, regarding the procedure by which the new policy was made, Defendants contend that, to the extent a new policy exists, it would be merely an interpretive rule, interpreting the statutory provision regarding the criteria for TPS determinations, rather than a legislative rule, and therefore not subject to notice and comment procedures. D. 25 at 36. In support of this contention, they cite Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1206 (2015) (stating that “[b]ecause an agency is not required to use notice-and-comment procedures to issue an initial interpretive rule, it is also not required to use those procedures when it amends or repeals that interpretive rule”). Plaintiffs contend that the alleged new policy is a regulatory rule rather than an interpretive rule, and cite New Hampshire Hosp. Ass’n v. Azar, 887 F.3d 62, 71 (1st Cir. 2018) in support of that contention. D. 35 at 35. In that case, however, the First Circuit explained that where Congress does not provide a standard for making a decision, the agency’s promulgation of a standard – even one contained in an informal document like a “Frequently Asked Questions”
38

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 39 of 42
document – is likely a legislative rule and thus subject to notice and comment. Id. at 69, 70-71. Here, by contrast, Congress articulated a standard for making TPS designation determinations.
The Court, however, need not resolve at this stage the issue of whether the alleged new policy is interpretive or legislative. If the new policy is interpretive, even interpretive changes “must be addressed expressly, at least by the agency’s articulate recognition that it is departing from its precedent.” Nat’l Labor Relations Bd. v. Lily Transportation Corp., 853 F.3d 31, 36 (1st Cir. 2017). Defendants contend that Lily Transportation is not applicable because that case involved an express change in policy. D. 40 at 21. As explained above, however, Plaintiffs have plausibly alleged that Defendants adopted a new policy which Secretary Nielsen and then Secretary Kelly communicated in testimony before Congress. D. 21 ¶¶ 244-245. Thus, under the logic of Lily Transportation, even if the alleged new policy is interpretive, Defendants would be required to provide some rationale acknowledging the change in position to provide the “observance of procedure required by law,” 5 U.S.C. § 706(2)(D), even though Defendants would not be required to go through a full notice-and-comment process. As addressed above, Defendants have given no explanation at all – much less one acknowledging the change in position – for the new policy. Thus, Defendants’ motion to dismiss Count IV is DENIED.
C. Count V: Mandamus Relief Plaintiffs allege in their complaint that they are entitled to mandamus relief because Defendants have failed in their mandatory and nondiscretionary duties set forth in 8 U.S.C. § 1254a(b)(3). D. 21 ¶ 281. Defendants contend that Plaintiffs’ claims do not meet the narrow criteria for mandamus relief. D. 25 at 36-37. Mandamus relief is “intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler, 466 U.S. at 616. Here, the Plaintiffs assert
39

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 40 of 42
substantive claims for relief under the Constitution and the APA and seek injunctive relief for those claims. D. 21 at 74-79. Plaintiffs have thus not yet exhausted all other avenues of relief. Plaintiffs appear to recognize this when they state that because they “have direct causes of action by way of the Constitution and the APA,” the Court “need not reach the cause of action for mandamus” at this juncture, but that the Plaintiffs “reserve the right to address the appropriate mechanisms for relief at the merits stage.” D. 35 at 35 n.7. Plaintiffs have not stated a claim for mandamus relief in the complaint. The Court thus ALLOWS Defendants’ motion to dismiss Count V, for mandamus relief.
D. Count VI: Declaratory Judgment Plaintiffs seek a declaratory judgment that “Defendants have violated the U.S. Constitution and other laws.” D. 21 ¶ 284. Defendants seek to dismiss this claim, on the grounds that Plaintiffs fail to state a claim under the Constitution or other laws. D. 25 at 37. As explained above, however, the Court finds that Plaintiffs have stated claims that Defendants have violated the Constitution and the APA. Thus, the Court DENIES Defendants’ motion to dismiss Count VI. E. Motion to Dismiss President Trump as a Defendant Finally, Defendants seek to dismiss President Trump as a defendant. D. 25 at 37. They cite Franklin v. Massachusetts, 505 U.S. 788 (1992), in which a plurality of the Supreme Court stated that a “grant of injunctive relief against the President himself is extraordinary, and should [raise] judicial eyebrows.” Id. at 802. The plurality opinion explained that, in general, a federal court may not “enjoin the President in the performance of his official duties,” but that the Supreme Court had “left open the question whether the President might be subject to a judicial injunction requiring the performance of a purely ‘ministerial’ duty.” Id. The plurality opinion then stated that it would not address the question of whether injunctive relief against the President was appropriate in that case because “the injury allegedly [was] likely to be redressed by declaratory
40

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 41 of 42
relief against the Secretary alone.” Id. Defendants thus contend that equitable relief against the President is not warranted here and, therefore, that President Trump should be dismissed as a Defendant. D. 25 at 37. Plaintiffs respond that the issues raised by Defendants are properly considered by the Court if and when the Court fashions appropriate relief for Plaintiffs’ alleged injuries. D. 35 at 36-37.
Injunctive relief against the President is an “extraordinary” remedy, but one that may be available in limited circumstances. Franklin, 505 U.S. at 802. The factors to consider in determining whether such relief would be appropriate are whether injunctive relief against a lower official or declaratory relief would be an adequate remedy and the level of intrusion into the President’s authority. See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir.), as amended (May 31, 2017), as amended (June 15, 2017) (reasoning that the President was not a proper defendant because “[r]eview of the legality of Presidential action can ordinarily be obtained in a suit seeking to enjoin the officers who attempt to enforce the President's directive” (citation omitted), vacated and remanded on other grounds sub nom. Trump v. Int’l Refugee Assistance, __ U.S. __, 138 S. Ct. 353 (2017); Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982) (stating that “a court, before exercising jurisdiction, must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch”); Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 579 (S.D.N.Y. 2018) (declining to issue an injunction against the President, even if such an injunction would be largely ministerial, where declaratory relief would suffice). A record has not yet been developed regarding, for some examples, what relief would be appropriate if Plaintiffs prevailed on their claim or whether an injunction against lower officials or declaratory relief would be sufficient. It is thus premature to determine whether this case has the potential to be the rare case in which such
41

Case 1:18-cv-10340-DJC Document 47 Filed 07/23/18 Page 42 of 42 an extraordinary remedy might be justified. The Court thus DENIES Defendants’ motion to dismiss with respect to Defendant President Trump. VII. Conclusion
For the foregoing reasons, the Court ALLOWS Defendants’ motion to dismiss, D. 24, with respect only to Plaintiffs’ mandamus claim (Count V), but DENIES Defendants’ motion in all other respects.
So Ordered. /s/ Denise J. Casper United States District Judge
42