United States District Court, D. Maryland, Southern Division
J. HAZEL UNITED STATES DISTRICT JUDGE.
March 1, 2001, after a devastating earthquake that killed 1,
100 people and displaced another 1.3 million, the Bush
Administration designated El Salvador for “Temporary
Protected Status, ” (TPS), a status that permits
eligible nationals living in the United States at the time of
the designation to lawfully remain here and work for as long
as the designation remains in place. Since then, El Salvador has
struggled to recover from this earthquake, enduring repeated
natural disasters, persistent poverty, and low economic
growth that have combined to prevent the country from fully
rebuilding its infrastructure. Accordingly, El Salvador's
protected status was extended eleven times between 2002 and
2016. It is estimated that 262, 500 Salvadoran nationals are
recipients of TPS residing in the United States.
January 2018, the Secretary of Homeland Security announced
that El Salvador's TPS designation would be terminated.
In March 2018, Plaintiffs filed this lawsuit, alleging that
the decision to terminate El Salvador's TPS was motivated
not by a determination that the country no longer continues
to meet the conditions for designation, but by President
Donald Trump's anti-Latino immigrant animus. Plaintiffs
assert claims pursuant to the Equal Protection Clause as
incorporated into the Fifth Amendment,  the Fifth
Amendment's Due Process Clause, the Immigration and
Nationality Act (INA), and the Administrative Procedure Act
(APA). ECF No. 1. Presently pending before the Court is
Defendants' Motion to Dismiss, ECF No. 28. The Court held
a Motions Hearing on September 12, 2018. See ECF No.
40. For the following reasons, Defendants' Motion to
Dismiss is granted in part and denied in part.
The Immigration and Nationality Act
Immigration and Nationality Act of 1990, 8 U.S.C.
§§ 1101 to 1537 (“INA”) authorizes the
Attorney General to designate a country for protected status
(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
8 U.S.C. § 1254a(b)(1)(A-C). In 2003, Congress
transferred this authority from the Attorney General to the
Secretary of Homeland Security. 6 U.S.C. § 557. When the
Secretary designates a country for TPS, eligible nationals of
the designated country and eligible individuals with no
nationality who “last habitually resided” in the
designated country may remain lawfully in the United States
for the duration of the designation. 8 U.S.C. §
1254a(a)(1)(A). TPS also authorizes these individuals to
engage in employment in the United States. Id.
§ 1254a(a)(1)(B). Only aliens who have been
“continuously physically present in the United States
since the effective date of the most recent
designation” are eligible for TPS. Id. §
Secretary may determine an initial period of designation
ranging from six months to eighteen months, id.
§ 1254a(b)(2)(B), and may extend the designation for an
additional period of six, twelve, or eighteen months,
id. § 1254a(b)(3)(C). The Secretary may also
terminate the designation if she determines that a foreign
state “no longer continues to meet the conditions for
designation.” Id. § 1254a(b)(3)(B). To
terminate a designation, the Secretary must publish notice in
the Federal Register, “including the basis for the
determination.” Id. The INA also contains a
jurisdiction-stripping provision, stating “[t]here is
no judicial review of any determination of the Attorney
General with respect to the designation, or termination or
extension of a designation of a foreign state under this
subsection.” Id. § 1254a(B)(5)(A).
Nonetheless, the INA provides for “an administrative
procedure for the review of the denial of benefits.”
Id. § 1254a(B)(5)(B).
Designation and Termination of El Salvador for TPS
January 13, 2001, a 7.6 magnitude earthquake struck El
Salvador, leaving 1, 100 dead, around 2, 500 missing, and
approximately 8, 000 injured. ECF No. 1 at ¶
The earthquake displaced an estimated 1.3 million people,
caused nearly $3 billion in damages, and damaged or destroyed
over 200, 000 homes and public buildings. Id. The
administration of President George W. Bush designated El
Salvador for TPS and announced that Salvadorans who had been
residing in the United States since February 13, 2001 would
be eligible to apply for protected status. Id.
¶ 24. The notice of designation was published in the
Federal Register on March 9, 2001. 66 Fed. Reg. 14214.
2002 and 2016, El Salvador's protected status was
extended eleven times. ECF No. 1 at ¶ 25. Each of these
extensions detailed considerable ongoing structural and
social problems in El Salvador. Id. In 2002, more
than 75% of road infrastructure needed rebuilding; by 2005,
only one-third of the houses destroyed or damaged had been
rebuilt or were under construction, and 240 schools needed
rebuilding; in 2007, only fifty percent of the homes had been
repaired, and only two of the seven main hospitals were
undergoing reconstruction; in 2010, still just fifty percent
of the homes had been repaired, and the country was reeling
from a tropical storm and a volcanic eruption in 2005, a
series of earthquakes in 2006, and a hurricane in 2009; by
2015, El Salvador still faced a housing deficit of 446, 000,
“a profound deficit for a country of 6.1 million
final extension came on July 8, 2016. Id. ¶ 26.
That extension was due to expire on March 9, 2018.
Id. The Secretary reported that the housing deficit
had risen to 630, 000, a regional drought was contributing to
food insecurity, a lack of potable water affected ten percent
of the population, and one third of the population was
underemployed or unable to find full-time work. Id.
Since then, conditions have worsened in some ways, as a 7.0
magnitude earthquake struck the country in November 2016, and
a 5.1 magnitude earthquake struck in April 2017. Id.
¶ 30. The housing shortage, though down to 360, 000
homes, still affects nearly one million families.
Id. ¶ 32. The labor market is in similarly bad
shape, as one-third of the country's urban labor force
remains underemployed. Id. ¶ 34. Forty percent
of Salvadoran households live in poverty or extreme poverty.
Id. In 2016, remittances sent from Salvadoran
nationals living abroad were the country's single
greatest source of income, 97% of which come from relatives
residing in the United States. Id. ¶ 35. And
the rate of these remittances is only increasing.
Id. Furthermore, crime continues to plague the
country, as El Salvador has one of the highest murder rates
in the world. Id. ¶ 38. In 2016 alone, nearly
220, 000 people were forced to flee violence in El Salvador.
Id. ¶ 46.
on January 8, 2018, the Secretary announced that El
Salvador's TPS designation would be terminated.
Id. ¶ 28. The notice of termination published
in the Federal Register states that the termination will be
effective on September 9, 2019. 83 Fed. Reg. 2654. According
to the Complaint, this termination came after White House
Chief of Staff John Kelly pressured acting DHS Secretary
Elaine Duke to terminate the TPS designation of Honduras,
another Central American country, explaining that continuing
the designation would frustrate the Administration's
immigration policy. ECF No. 1 at ¶ 65. Just days later,
the Department of State issued a travel advisory warning that
violent crime and gang activity in El Salvador is
“widespread” and “common” and
“local police may lack the resources to respond
effectively to serious criminal incidents.”
Id. ¶ 62.
President Donald J. Trump's Statements About Latino
Complaint details a lengthy list of disparaging statements
and actions made by President Donald Trump regarding Latino
immigrants. ECF No. 1 at ¶ 66. An incomplete selection
is provided here. This pattern began during the announcement
of his presidential campaign, when he said, “When
Mexico sends its people, they're not sending their best .
. . They're sending people that have lots of problems,
and they're bringing those problems with us. They're
bringing drugs. They're bringing crime. They're
rapists . . .It's coming from more than Mexico. It's
coming from all over South and Latin America . . .”
Id. at ¶ 66a. Months later, Trump refused to
condemn two of his supporters who “urinated on a
sleeping Latino man and beat him with a metal pole, ”
instead saying only that they were “passionate.”
Id. at ¶ 66b. During the campaign, Trump told
the Wall Street Journal that U.S. District Judge
Gonzalo P. Curiel of the Southern District of California
could not be fair in presiding over a lawsuit against Trump
University because Judge Curiel was “of Mexican
heritage, ” “Hispanic, ” and a member of a
Latino Lawyers' Association. Id. at ¶ 66d.
his election and inauguration, it is alleged that these
statements continued. During a speech delivered in Poland,
President Trump expressed the need to protect “the
West” and “civilization” against forces
from “the South or the East.” Id. at
¶ 66g. Later, when discussing potential protections for
immigrants from El Salvador (as well as immigrants from Haiti
and a group of African countries), President Trump allegedly
asked, “Why are we having all these people from
shithole countries come here?” Id. at ¶
66h. He then suggested the United States should focus on
immigration from countries such as Norway-which has a
predominantly white population-instead. Id.
move to dismiss the Complaint pursuant to Rule 12(b)(1) of
the Federal Rules of Civil Procedure, arguing that 8 U.S.C.
§ 1254a(b)(5)(A) strips the Court of jurisdiction over
Plaintiffs' claims. ECF No. 28 at 14. A plaintiff
“has the burden of proving that subject matter
jurisdiction exists.” Evans v. B.F. Perkins
Co., 166 F.3d 642, 647 (4th Cir. 1999). On a motion to
dismiss for lack of subject matter jurisdiction, a Court may
grant the motion “only if the material jurisdictional
facts are not in dispute and the moving party is entitled to
prevail as a matter of law.” Id. The Court
must “regard the pleadings as mere evidence on the
issue, and may consider evidence outside the pleadings
without converting the proceeding to one for summary
judgment.” Id. (quoting Richmond,
Fredericksburg & Potomac R. Co. v. United States,
945 F.2d 765, 768 (4th Cir. 1991).
also move to dismiss the Complaint pursuant to Rule 12(b)(6),
asserting that Plaintiffs fail to state a claim upon which
relief can be granted. On a motion to dismiss for failure to
state a claim pursuant to Fed.R.Civ.P. 12(b)(6), the Court
“must accept the factual allegations of the complaint
as true and construe them in the light most favorable to the
nonmoving party.” Rockville Cars, LLC v. City of
Rockville, Md., 891 F.3d 141, 145 (4th Cir. 2018). To
overcome a 12(b)(6) motion, the “complaint must contain
sufficient factual matter, accepted as true, ‘to state
a claim to relief that is plausible on its face.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007). Plaintiffs must “provide sufficient
detail” to show “a more-than-conceivable chance
of success on the merits.” Upstate Forever v.
Kinder Morgan Energy Partners, 887 F.3d 637, 645 (4th
Cir. 2018) (citing Owens v. Balt. City State's
Attorneys Ofice, 767 F.3d 379, 396 (4th Cir. 2014)). The
mere recitation of “elements of a cause of action,
supported only by conclusory statements, is ...