On Feb. 22, 2018, eight Temporary Protected Status (TPS) recipients from El Salvador and Haiti, as well as the Massachusetts immigrants' rights organization Centro Presente, filed this lawsuit. Represented by the Lawyers’ Committee for Civil Rights and Economic Justice, the plaintiffs challenged the Department of Homeland Security (DHS)'s recent revocation of TPS for Salvadorians and Haitians living in the United States. The plaintiffs alleged that DHS violated the Equal Protection and Due Process Clauses of the Fifth Amendment. The plaintiffs filed their complaint in the U.S. District Court for the District of Massachusetts, seeking mandamus (for DHS to carry out the INA's procedures for reviewing TPS), injunctive relief, and a declaratory judgment.

Under the Immigration and Nationality Act (INA), the Secretary of Homeland Security may find that a country's conditions temporarily prevent its nationals from returning safely, or that the country is unable to adequately handle the return of nationals. In such a situation, the Secretary may grant TPS to these nationals for six to eighteen months, with a possible extension following a review of country conditions. TPS allows recipients to remain and work legally in the United States.

DHS had initiated TPS for Salvadorians and for Haitians following devastating earthquakes in those countries in 2001 and 2010 respectively. After each 18-month period since then, DHS had reviewed the program, determined that the nationals could not yet return safely to their countries (due to severe safety, health, housing, and infrastructure problems, exacerbated by subsequent natural disasters), and extended the program.

This policy, however, ended with DHS's announcement that it would soon terminate TPS for Haitians (effective July 2019) and for Salvadorians (effective Sept. 2019). The plaintiffs argued that DHS's decision to end the program was based not on a change in conditions in El Salvador or Haiti, but rather on invidious discrimination toward black and Latino immigrants on the basis of race, ethnicity, and/or national origin. This racial animus allegedly appeared in President Trump's public remarks disparaging Haitians and Latin American immigrants.

This case was assigned to Judge Denise J. Casper.

On May 9, 2018, the plaintiffs filed an amended complaint, adding additional claims that the government violated the APA. The government moved to dismissed the complaint, the court (Judge Casper) granted it in part and denied in part on July 23, 2018. The court dismissed the plaintiffs' mandamus claim because they had not yet exhausted all other avenues of relief. Otherwise, the court denied the motion to dismiss, holding that it had subject matter jurisdiction and that President Trump did not have to be dismissed as a defendant at this stage. The court also held that the government had not proven elements to show its changed policy will survive review under the APA's arbitrary and capricious standard, including displaying awareness of its changed position, demonstrating good reasons for the new policy, and displaying awareness of the reliance upon the longstanding prior policy. The court also held that the plaintiffs' constitutional claims should not be dismissed, finding "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" were sufficient to suggest the policy shift was motivated by discriminatory purposes.

The case is ongoing.

Ava Morgenstern - 03/07/2018
Virginia Weeks - 07/25/2018


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