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Casa De Maryland, Inc v. Trump

United States District Court, D. Maryland, Southern Division

November 28, 2018

DONALD J. TRUMP, in his official capacity as President of the United States, et al., Defendants.



         On 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.[1] 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.

         In 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, [2] 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.

         I. BACKGROUND

         A. The Immigration and Nationality Act

          The 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 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.

8 U.S.C. § 1254a(b)(1)(A-C).[3] 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. § 1254a(c)(1)(A)(i).

         The 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).

         B. Designation and Termination of El Salvador for TPS

         On 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 ¶ 23.[4] 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.

         Between 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 people.” Id.

         The 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.

         Nonetheless, 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.

         C. President Donald J. Trump's Statements About Latino Immigrants

         The 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.

         After 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.


         A. Rule 12(b)(1)

         Defendants 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).

         B. Rule 12(b)(6)

         Defendants 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 ...

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