Saget v. Trump

375 F.Supp.3d 280

Patrick SAGET, Sabina Badio Florial Naïscha Vilme, Gerald Michaud, Beatrice Beliard, Rachelle Guirand, Jean Claude Mompoint, Yolnick Jeune, Guerline Francois, Leoma Pierre, Haïti Liberté, and Family Action Network Movement, Inc., Plaintiffs,

v.Donald TRUMP, President of the United States of America, United States of America, Department of Homeland Security, Kirstjen Nielsen, Secretary of Homeland Security, and Elaine C. Duke, Deputy Secretary of Homeland Security, Defendants.

18-CV-1599 (WFK)(ST)

United States District Court, E.D. New York.

Signed April 11, 2019

Sejal Zota, National Immigration Project of the National Lawyers Guild, Boston, MA, Christopher J. Ferro, Sara Norval, Mayer Brown LLP, Christopher Anton-Rashad Knight, Geoffrey Pipoly, Howard Roin, Jill Fortney, Linda Shi, Pro Hac Vice, Mayer Brown LLP, Jonathan Craig Medow, Vincent J. Connelly, Pro Hac Vice, Chicago, IL, Christopher James Houpt, Mayer Brown LLP, New York, NY, Kevin A. Gregg, Pro Hac Vice, Miami, FL, Miriam R. Nemetz, Mayer Brown LLP, Washington, DC, Ira J. Kurzban, Kurzban, Kurzban, Tetzeli & Pratt, P.A., Coral Gables, FL, for Plaintiffs.

Joseph Anthony Marutollo, James R. Cho, U. S. Attorney's Office, Brooklyn, NY, for Defendants.

DECISION & ORDER

WILLIAM F. KUNTZ, II, United States District Judge:

Plaintiffs bring this action challenging then-Acting Secretary of Homeland Security Elaine C. Duke's November 20, 2017 determination to terminate Haiti's Temporary Protected Status designation based on her assessment that Haiti had sufficiently recovered from a 2010 earthquake and there were no longer "extraordinary and temporary conditions" preventing Haitian nationals residing in the United States from safely returning to Haiti. For the foregoing reasons, the Court hereby ORDERS a preliminary injunction enjoining the termination of Temporary Protected Status for those Haitian nationals lawfully residing in the United States of America under the Temporary Protected Status the United States of America awarded them.

TABLE OF CONTENTS

BACKGROUND...297

A. History and Purpose of TPS...297

B. The TPS Decisionmaking Process...298

i. Department of State...298

ii. Department of Homeland Security...299

a. General Practices DHS Employs in Making TPS Determinations...299

b. Factors DHS Considers in Making TPS Determinations...300

HAITI'S TPS DESIGNATIONS...301

A. History of Haiti's TPS Designation...301

B. Events Leading Up to May 2017 Extension...302

i. The 2016 Periodic Review Process...302

ii. March 2017 Official Drafts Recommend 18-Month Extension...304

iii. In March and April 2017, USCIS Revises Draft Director Memorandum to Recommend Termination...305

iv. USCIS and DHS Officials Began Collecting Criminality, Welfare, and Immigration Status Data...307

v. Career Staffers React to USCIS's Recommendation...309

vi. April 2017 Press Leaks...310

vii. In May 2017, Secretary Kelly Announces 6-Month Extension...311

C. Events Leading Up to November 2017 Termination...313

i. DHS Looks to Statute for TPS Process with "Fresh Eyes"...313

ii. DHS and Department of State Officials Seek to Coordinate TPS Review...315

a. U.S. Embassy in Haiti Recommends Extension...317

b. WHA Recommends Termination and Sends a Split Memo to Secretary Tillerson...317

c. Secretary Tillerson Recommends Termination for Haiti, Honduras, El Salvador, and Nicaragua...318

iii. USCIS Recommends Termination...319

iv. Acting Secretary Duke Decides to Terminate TPS...322

a. Input Within DHS...322

b. Input from the White House and SOUTHCOM...324

c. The Government of Haiti Continues to Ask for Extension...326

d. Acting Secretary Duke Announces Termination of TPS for Haiti...327

PROCEDURAL HISTORY...328

JURISDICTION...329

A. Subject Matter Jurisdiction Over Plaintiffs' Claims...330

i. General Legal Standards...330

ii. Discussion...330

B. Plaintiff's Claims Against the President...333

STANDING...335

PRELIMINARY INJUNCTION...339

A. General Legal Standards...339

B. Likelihood of Success on the Merits/Serious Questions...340

i. APA and Ultra Vires Claims...340

a. Scope of Review...340

b. Discussion...345

1. Not in Accordance with Law...345

2. Arbitrary and Capricious...353

i. Departure from Agency Practices...354

ii. Improper Political Influence...359

iii. Pretext...3603. Notice-and-Comment...362

4. Ultra Vires...365

ii. Equal Protection Claim...365

a. General Legal Standards...366

b. Scope of Review...368

c. Discussion...368

1. Direct Evidence...369

2. Circumstantial Evidence...372

C. Irreparable Harm...374

D. Public Interest and Balance of the Equities...377SCOPE OF RELIEF...378

CONCLUSION...379

BACKGROUND

A. History and Purpose of TPS

Congress enacted the Immigration Act of 1990 to amend the Immigration and Nationality Act ("INA") and to provide additional avenues for immigrants to enter lawfully and remain in the United States. See Pub. L. 101-649, 104 Stat. 4978 (1990). Upon signing the Act into law, President George H.W. Bush announced the Act "recognizes the fundamental importance and historic contributions of immigrants to our country." Presidential Statement on Signing the Immigration Act of 1990 (Nov. 29, 1990). The law established, among other things, a diversity visa program, a family-based immigration visa, and additional employment-based visas. See 104 Stat. at 4986-5001.

Congress also created Temporary Protected Status ("TPS") for nationals of designated countries experiencing an ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. 8 U.S.C. § 1254a(b). Section 1254a(b) governs TPS designations, providing in relevant part:

(1) the Attorney General, after consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if—

(A) the Attorney General finds that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;

(B) the Attorney General finds that—

(i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial but temporary, disruption of living conditions in the area affected,

(ii) the foreign state is unable temporarily to handle adequately the return to the state of aliens who are nationals of the state, and

(iii) the foreign state officially has requested designation under this subparagraph; or

(C) the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.

Id. Congress subsequently transferred authority to make TPS designations from the Attorney General to the Secretary of the Department of Homeland Security ("DHS"). See id. § 1103; 6 U.S.C. § 557.

TPS provides eligible foreign nationals with employment authorization and deportation stays. 8 U.S.C. § 1254a(a)(2) ; id. § 1254a(g). To be eligible, the foreign national must: (1) be a national of a TPS-designated country; (2) have been present in the united States on the date of the initial designation, re-designation, or extension; (3) be otherwise admissible into the United States; and (4) register within a specified time frame. 8 U.S.C. § 1254a(c)(1)(A) ; 8 C.F.R. § 244.2. Nationals who are otherwise eligible but who have been convicted of either a felony or two or more misdemeanors in the United States are categorically barred from TPS eligibility. 8 U.S.C. § 1254a(c)(2)(B). Moreover, if the Secretary determines allowing a foreign state's nationals to remain temporarily in the United States is against the U.S. national interest, the Secretary may elect not to designate that foreign state for TPS. Id. § 1254a(b)(1)(C).

When DHS first designates a foreign country for TPS, "the initial period of designation ... [is] not less than 6 months and not more than 18 months." 8 U.S.C. § 1254a(b)(2). The Secretary then undertakes a periodic review to determine whether to redesignate, extend, or terminate TPS for that country. See id. § 1254a(b)(3). Per the statute, "[a]t least 60 days before [the] end of the initial period designation, and any extended period of designation, ... the [Secretary of Homeland Security], after consultation with appropriate agencies of the Government, shall review the conditions in the foreign state ... and shall determine whether the conditions of such designation under this subsection continue to be met." Id. § 1254a(b)(3)(A). If the Secretary determines the foreign state no longer meets the conditions for TPS designation, the Secretary "shall terminate the designation." Id. § 1254a(b)(3)(B). If the Secretary "does not determine" the foreign state "no longer meets the conditions for designation ..., the period of designation is extended for an additional period of six, twelve, or eighteen months. Id. There is no limit to the number of extensions a designated foreign state may receive. The Secretary may also redesignate the foreign state for TPS, which may expand the population of eligible foreign nationals who were present in the United States after the prior designation. See 8 U.S.C. § 1254a(b) ; see also, e.g., Extension of Designation and Redesignation of Haiti for Temporary Protected Status , 76 Fed. Reg. 3476 (Jan. 21, 2010). The Secretary must timely publish the decision to extend or terminate TPS, including the basis for that determination, in the Federal Register. 8 U.S.C. § 1254a(b)(1)(C) ; id. §§ 1254a(b)(3)(A)–(B).

B. The TPS Decisionmaking Process

As noted, the TPS statute endows the DHS Secretary with the authority to determine whether to designate, redesignate, extend, or terminate a foreign nation's TPS. 8 U.S.C. §§ 1254a(b)(2)–(3). But the statute stipulates the Secretary is to consult...