United States District Court, D. Maryland
NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.
UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE
one of several recent cases challenging the decisions to end
Temporary Protected Status (“TPS”) for nationals
of various countries. See, Centro Presente v. Dep't
of Homeland Sec'y, No. 18-cv-10340-DJC (D.Mass.
filed February 22, 2018)(Haiti, El Salvador, and Honduras);
Ramos v. Nielson, No. 18-cv-1554-EMC (N.D.Cal. filed
March 12, 2018)(Haiti, Sudan, El Salvador, and Nicaragua);
Saget v. Trump, No. 18-cv-1599-WFK (E.D.N.Y. filed
March 15, 2018)(Haiti); Casa De Maryland, Inc. v.
Trump, No. 18-cv-845-GJH (D.Md. filed March 23, 2018)(El
Salvador); and Bhattarai v. Nielsen, No.
19-cv-731-EMC (N.D.Cal. filed February 10, 2019)(Honduras and
Nepal). While not entirely uniform in their reasoning,
district court decisions reject challenges to subject matter
jurisdiction, and find at least some of the complaints to
state viable claims, both statutory and constitutional. As a
result of the decisions already produced by those courts, the
analysis here need not be extensive.
the National Association for the Advancement of Colored
People (“NAACP”), Haitian Women for Haitian
Refugees (“HWHR”), and the Haitian Lawyers
Association, Inc. (“HLA”), seek declaratory
relief and to enjoin the November 2017 decision of
Defendants, the U.S. Department of Homeland Security
(“DHS”), former acting DHS Secretary Elaine C.
Duke (“Duke”), and current DHS Secretary Kristjen
Nielsen (“Nielsen”), terminating Temporary
Protected Status (“TPS”) for Haitian nationals
based on alleged Due Process and Equal Protection violations.
Plaintiffs argue that Defendants' decision
“reflects an egregious departure from the TPS
statute's requirements and an intent to discriminate on
the basis of race and/or ethnicity.” (ECF No. 30 at 1).
Amended Complaint contains three counts. Count I asserts a
violation of the Fifth Amendment, both equal protection
(intent to discriminate against Haitian immigrants because of
race and/or ethnicity) and due process (irrational government
action). Counts II and III seek mandamus and declaratory
244(c)(2) of the Immigration and Nationality Act
(“INA”), codified in 8 U.S.C. § 1254a,
allows the Secretary of Homeland Security
(“Secretary”) to designate Temporary Protected Status
(“TPS”) for a country under certain conditions,
for example: (i) if “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, ”
or (ii) if the Secretary finds that a country is temporarily
unable to handle the return of its nationals. 8 U.S.C. §
1254a(b)(1)(B)(i)-(ii). The TPS designation protects
nationals of that country from removal while the designation
is in effect, and allows them to hold a registration document
and obtain work authorization in the United States.
Id. § 1254a(a).
Secretary has the discretion to designate TPS for an initial
period of 6 to 18 months. Id. § 1254a(b)(2).
After the allotted time has expired, the Secretary is
required to review the conditions in the foreign state and
determine whether to renew its TPS status. Id.
§ 1254a(b)(3)(A). A renewal may extend the designation
for up to 18 months. Id. § 1254a(b)(3)(C). If
the Secretary determines the conditions no longer warrant
TPS, she must terminate the designation. Id. §
1254a(b)(3)(B). The Secretary must publish renewal and
termination decisions in the Federal Register. Id.
received an 18-month TPS designation in January 2010, after
an earthquake “destroyed most of the capital
city” and caused numerous deaths in 2010. (ECF No. 30
¶ 21). Different administrations later extended the
designation in May 2011, October 2012, March 2014, and August
2015. (Id. ¶¶ 23, 28, 33, 38). Each
respective Secretary supported the extensions with a
discussion of Haiti's country conditions, including
continuing impacts from the 2010 earthquake, multiple cholera
outbreaks resulting from a breakdown in healthcare
infrastructure, breakdowns in law enforcement and government
stability, lack of access to basic health services, a high
unemployment rate, and compromised food security, among other
issues. (Id. ¶¶ 24-46).
President Trump took office, then-DHS Secretary John Kelly
extended the TPS designation for six months, from July 23,
2017 to January 22, 2018. (Id. ¶ 51). Although
he found the country conditions in Haiti to be severe enough
to warrant a shorter TPS renewal, he signaled the
administration's intent to terminate the TPS designation
soon. (Id. ¶ 55).
November 20, 2017, in the face of strong political support to
the contrary, then-acting Secretary Duke announced her
decision to terminate TPS for Haiti with a delayed effective
date of 18 months. (Id. ¶ 74). Her press
release stated that the extraordinary conditions caused by
the 2010 earthquake no longer existed. (Id. ¶
75). She later published her decision as a Notice in the
Federal Register. See Termination of the Designation
of Haiti for Temporary Protected Status, 83 Fed. Reg. 2, 648
(Jan. 18, 2018). The Notice was published four days before
the TPS designation was set to expire. Plaintiffs allege that
the “unprecedented delay” caused uncertainty and
economic losses for Haitians living in the United States,
including loss of jobs and certain federal benefits.
(Id. ¶ 76).
seek to enjoin Defendants from implementing the TPS
termination decision and to secure declaratory relief that
the decision is a violation of Due Process and Equal
Protection rights. (Id. ¶¶ 46). Plaintiffs
contend that the decision was not based upon objective
evidence but was intended to discriminate against Haitian
immigrants on the basis of race and/or ethnicity.
claim to have circumstantial and direct evidence, including
(1) alleged DHS targeted searches for evidence that Haitians
with TPS in the United States were criminals and recipients
of public welfare, (ECF No. 30 ¶¶ 87-88); (2)
President Trump's alleged comments that Haitians
“all have AIDS” and “Why do we need more
Haitians?” and the alleged order to drafters of the
immigration bill to “take [Haitians] out, ”
(id. ¶¶ 96-98); (3) President Trump's
alleged question in response to Haitian immigrants “Why
are we having all these people from shithole countries come
here?” (id.); (4) President Trump's
alleged comments expressing a preference for immigrants from
places like Norway, where the population is over 90 percent
white, (id.); President Trump's comments about
other minority races, (id. ¶¶ 90-95); (5)
Secretary Duke's failure to acknowledge evidence of
Haiti's troubling country conditions today, (id.
¶¶ 77-86); (6) the “unprecedented”
delay in publishing the Notice in the Federal Register,
(id. ¶ 76); (7) Secretary Duke's failure to
consider all factors in the statutory mandate, (id.
¶ 80); and (8) influence from the presidential
administration to pressure the Secretary to rescind
Honduras's designation as part of a broader strategic
goal on immigration, (id. ¶ 102).
April 17, 2018 Plaintiffs filed a first amended complaint.
(ECF No. 30). Defendants filed a motion to dismiss for lack
of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for
failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) on
May 7, 2018. (ECF No. 36). Plaintiffs responded in opposition
on June 7, 2018. (ECF No. 45). Defendants replied on June 27,
2018. (ECF No. ...