On Mar. 23, 2018, three Temporary Protected Status (TPS) recipients from El Salvador, as well as the immigrants' rights organization Casa de Maryland which has many Salvadorian members, filed this lawsuit. Represented by the Washington Lawyers' Committee for Civil Rights and Urban Affairs and the private law firm Akin Gump Strauss, the plaintiffs challenged the Department of Homeland Security (DHS)'s recent revocation of TPS for Salvadorians living in the United States. The plaintiffs alleged that DHS violated the Equal Protection and Due Process Clauses of the Fifth Amendment as well as the Immigration and Nationality Act (INA) and the Administrative Procedures Act (APA). The plaintiffs filed their complaint in the U.S. District Court for the District of Maryland, seeking injunctive relief and a declaratory judgment.

Under the 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 following a devastating earthquake in that country in 2001 respectively. After each 18-month period since then, DHS had reviewed the program, determined that the nationals could not yet return safely to El Salvador (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 Jan. 2018 announcement that it would soon terminate TPS 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, but rather on invidious discrimination toward Latino immigrants on the basis of race, ethnicity, and/or national origin. This racial animus allegedly appeared in President Trump's public remarks disparaging Latin American immigrants. The plaintiffs also argued that DHS's action was arbitrary and capricious in violation of the APA.

This case was assigned to Judge George Jarrod Hazel.

On Nov. 28, 2018, the court (Judge Hazel) largely denied DHS' motion to dismiss (2018 WL 6192367). The court held that it had subject-matter jurisdiction because the TPS statute did not bar the plaintiffs' claims. The court found that the statute's language and scheme did not unambiguously preclude judicial review, and that the alternative methods of review of the plaintiffs' claims that DHS offered were meaningless. The court upheld the plaintiffs' equal protection claim, finding that the court owed the government less deference in this case and that President Trump's clearly racist statements regarding Latino immigrants provided sufficient evidence to make the claim plausible. For similar reasons, the court also upheld the plaintiffs' substantive due process claim. The court upheld the APA claim in so far as it alleged the government's actions were arbitrary and capricious because they were motivated by racial discrimination and because the government failed to conduct an objective assessment of El Salvador's conditions. But the court dismissed the APA claim in so far as it alleged the government's actions were arbitrary and capricious because the government did not consider the reliance interests of those implicated. The court concluded that the TPS statute did not require the government to make such considerations. Finally, the court kept President Trump as a defendant, concluding that although "ultimately, relief against the President himself is extraordinarily unlikely in this case, none of the authority cited by Defendants requires that the President be dismissed at this early stage."

It is ongoing.

Ava Morgenstern - 04/08/2018
Virginia Weeks - 12/01/2018


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