This article appeared in The Intercept on June 28, 2018.
WHEN PRESIDENT DONALD Trump referred to Haiti, El Salvador, and an assortment of African nations as “shithole countries” during a closed-door meeting with congressional leaders and Cabinet members in January, he may have unwittingly planted the seed for the unraveling of a critical part of his deportation agenda.
Last Friday, in U.S. District Court in San Francisco, the first hearing was held for a lawsuit challenging the Trump administration’s revocation of Temporary Protected Status for over 200,000 foreign nationals from four countries who currently live in the United States. The lawsuit alleges that Trump’s rhetoric demonstrates that his administration’s cancellation of TPS was motivated by bigotry, rather than policy concerns.
“The Trump administration’s decision to end TPS for people from these countries was motivated by its racism against non-white, non-Europeans immigrants,” said Ahilan Arulanantham, legal director at the American Civil Liberties Union of Southern California and co-counsel for the plaintiffs. “That racist motivation was obvious from a number of statements that this president and others in the administration made, including about TPS holders specifically.”
Created by Congress in 1990, TPS designations are extended to countries that have suffered from war, natural disasters, or other humanitarian emergencies that make it unsafe for their citizens abroad to return home. Expatriates of TPS countries in the U.S. are shielded from deportation for as long as their country’s designation remains in place.
In 1997, Sudan was extended TPS designation as a result of its ongoing civil war. Two years later, Nicaragua became a TPS-designated country in the wake of a catastrophic hurricane. El Salvador was granted the designation in 2001 as a result of a major earthquake. Haiti became a TPS designee after a massive earthquake in 2010. Past administrations have periodically extended the durations for the respective designations of each of the four countries, based on assessments of conditions on the ground.
But within a five-month period, under two Department of Homeland Security secretaries — current Secretary Kirstjen Nielsen and her predecessor, Acting Secretary Elaine Duke — the Trump administration terminated TPS designations for all four countries, declaring that conditions on the ground had improved enough to allow for the safe return of their citizens living in the U.S.
The lawsuit, which is one of five challenges to TPS nationally, alleges that the decisions to terminate were motivated not by purported improvements in conditions on the ground, but by racial prejudice on the part of the president. It seeks to overturn those decisions and keep the TPS holders from those countries in the United States. (The plaintiffs intend to add Honduras to the list as well.)
TRUMP’S “SHITHOLE” REMARK figures prominently in the case. The plaintiffs, which include TPS holders from Haiti, El Salvador, Nicaragua, and Sudan, as well as their American citizen children, contend that, alongside a litany of other racist comments by the president, Trump’s vulgar dismissal of the majority black and Latino countries indicate his “racially discriminatory motives against non-white and non-European immigrants.” The rationalization of Trump’s racism in DHS policy, the plaintiffs maintain, violates TPS holders’ constitutional right to equal protection under the law.
Trump made his “shithole” remark during a reportedly contentious January 2018 meeting with lawmakers in the Oval Office to discuss the terms of a potential bipartisan deal to resolve the status of 800,000 young immigrants protected from deportation by the Obama administration’s Deferred Action for Childhood Arrivals program. Over the course of the conversation, Sens. Dick Durbin, D-Ill., and Lindsay Graham, R-S.C., proposed ending the visa lottery program in exchange for extending the duration of TPS protections for current TPS holders from countries like El Salvador, Honduras, and Haiti.
“Why do we need Haiti?” Trump interjected, rhetorically, according to reports. “Take them out.”
When immigration from African countries came up, Trump complained, “Why are we having all these people from shithole countries come here?” He then suggested bringing immigrants to the United States from Norway, a country that, many observers noted, is overwhelmingly white.
Nielsen was reportedly in the room when the president made the remarks.
Within a week of that discussion, the complaint notes, DHS officially terminated the TPS designation for Haiti. (The Haiti decision had been announced the prior November.) It terminated El Salvador’s designation that same day, though DHS had announced its decision on El Salvador a few days prior to the Oval Office meeting. DHS had already terminatedSudan’s designation the prior October and ended Nicaragua’s in December.
The plaintiffs allege that DHS ended TPS for the four countries not because they had recuperated sufficiently from the disasters that prompted their designations, as the administration maintains, but because Trump has contempt for non-white immigrants from poor foreign countries and wants them expelled from the United States. In addition to the “shithole” comment, the complaint cites Trump’s campaign announcement speech, in which he referred to Mexican immigrants as “rapists”; his frequent comparison of immigrants to snakes; his outlandish assertion that Haitian immigrants to the U.S. “all have AIDS”; his comment that Nigerian immigrants would never “go back to their huts”; and the lie he has repeatedly told about Arab-Americans in New Jersey cheering after the Twin Towers fell on 9/11.
Following the president’s lead, the complaint suggests, DHS targeted for TPS termination countries whose nationals Trump deemed undesirable, even when conditions in those countries did not merit termination. For example, in November 2017, White House chief of staff and former DHS Secretary John Kelly called Duke, then the acting DHS secretary, after she had resolved that conditions in Honduras continued to warrant its TPS designation. Kelly pressured her into reversing her decision. Her refusal to do so, he complained, undermined the administration’s “wider strategic goal” on immigration and risked presenting his handpicked nominee for DHS secretary — Nielsen — with a potentially difficult line of questioning at her upcoming confirmation hearing.
A source told the New York Times that Kelly’s objections made no reference to conditions on the ground in Honduras, which, by law, is the sole criteria for making determinations on TPS extensions or terminations. According to the Washington Post, Duke was incensed by Kelly’s attempt to leverage the White House’s political priorities to override her administrative decision. She refused to back down.
Duke stepped down as acting secretary in December 2017, upon Nielsen’s confirmation, which put a close Kelly ally in the Cabinet post. Earlier this month, under Nielsen, DHS terminated TPS for Honduras.
IN ADDITION TO violating the equal rights protections of TPS holders, the complaint contends that DHS violated the constitutional rights of their school-age American citizen children. DHS’s termination decisions, the plaintiffs contend, put these children in an impossible situation. The children are being forced to choose between the basic right of any American citizen to remain in the United States and their fundamental interest in being raised by their parents, rather than being handed over to relatives or put into the foster care system as wards of the state.
The plaintiffs also allege that the Trump administration violated the Administrative Procedure Act, which governs how federal agencies make rules. In terminating TPS for the four countries, they argue, DHS broke from decades of standard practice by prior administrations, in effect unlawfully creating a “new rule” for making TPS designation decisions.
In the past, administrations have routinely extended TPS designations when recovery efforts were hampered by events that took place after the original emergency. For example, Sudanese migrants gained a TPS designation in 1997 in response to its civil war. In the 18 times it has been renewed since, prior administrations have cited floods, droughts, poverty, crime, and new armed conflicts that arose subsequent to the start of the war. Under the Trump administration, the complaint charges, DHS ignored such intervening factors in its haste to end TPS for countries the president regards as repugnant.
In May, the government filed a motion to dismiss the case, arguing that the Immigration Act of 1990, the statute that created TPS, exempts every aspect of DHS’s decision-making on TPS designations, extensions, and terminations from review by the courts. The government contends that the plaintiffs’ allegation that DHS created a “new rule” by breaking from past practice is a scheme to get around this problem: By asserting a violation of the Administrative Procedure Act — which would be within the court’s purview — the plaintiffs have created a “backdoor” that allows the court to weigh in on the substance of DHS’s TPS determinations, which it would be barred from doing in that backdoor’s absence.
On Monday, U.S. District Judge Edward Chen denied the government’s motion, asserting the courts’ jurisdiction over the plaintiff’s claims.
“A federal judge for the first time has recognized that TPS holders can have their day in court, challenging the illegal and unconstitutional terminations of their legal status under TPS,” said Emi MacLean, an attorney with the National Day Laborer Organizing Network and co-counsel for the plaintiffs.
The Trump administration is almost certain to appeal the denial. This — and the case, writ large — could go to the Supreme Court, which, on Tuesday, upheld Trump’s “Muslim ban.” The decision on barring citizens of mostly Muslim-majority nations from the U.S. spoke to the question of the degree to which Trump’s racist statements can be taken into accountin weighing the constitutionality of the administration’s policies.
In the California case, Chen has solicited legal analyses from each side on the potential impact, if any, of the higher court’s “Muslim ban” decision on the TPS case. He will make a further ruling on the question in the near future. MacLean said, “We’re confident that the decision will stand.”
THE TRUMP ADMINISTRATION has good reason to fear scrutiny of DHS’s TPS determinations: There is a clear pattern of administration officials pressing relentlessly for TPS terminations even in the face of evidence that the designations should continue.
As Splinter has reported, months before DHS announced its termination of Haiti’s TPS designation, Kathy Nuebel Kovarik, chief of the Office of Policy and Strategy at U.S. Citizenship and Immigration Services and a former Kelly adviser, emailed her staff asking them to “pull some data” on the number of Haitian TPS holders who are on welfare or have been convicted of crimes. (The latter category would have been a null set, as convicted criminals are prohibited from being extended TPS protections.) Such statistical dirt could have made useful propaganda with which to demonize Haitian immigrants to generate political support for their mass deportation, especially given the conspicuous absence of a credible legal rationale for terminating Haiti’s TPS designation, including from USCIS itself.
In an internal report last year, Splinter reported, USCIS staff found that many of the conditions that had prompted Haiti’s original TPS designation in 2010 had shown little improvement seven years later. Nevertheless, a few weeks after the report was issued, USCIS Director Francis Cissna contradicted his staff and recommended TPS termination for Haiti anyway.
The Washington Post reported in May that, before DHS terminated TPS for Haiti, El Salvador, and Honduras, senior diplomats had warned the State Department that doing so could destabilize the region and create a wave of unauthorized immigration into the United States. But then-Secretary of State Rex Tillerson ignored the embassy cables and, along with Kelly and other administration officials, lobbied Duke to terminate the three countries’ TPS designations, in accord with the White House’s political agenda.
The larger picture that emerges from this tapestry is of an administration with a clear objective: to expel foreign nationals of “shithole countries” from the United States in any way possible, whether through “zero tolerance” prosecution for those who are unauthorized, or by stripping those with authorization of their legal protections, with little regard for the niceties of the law.
The government is leaning heavily on the Immigration Act’s provision barring judicial review of DHS’s TPS determinations to prevent the courts — and, through them, the public — from prying further open this can of worms. The administration’s deportation regime functions most efficiently in darkness.