The LDF bases it’s claim on the equal protection component of the 5th Amendment’s Due Process Clause. The best chance of winning will come if LDF can show that Trump’s prejudices steered the outcome over at DHS. ConLawProf blog explains a couple nuances on how the case might proceed.
Putting aside the constitutional question, though, it’s possible that DHS violated the TPS statute. DHS ended TPS citing progress Haiti had made recovering from the 2010 earthquake. But under the statute, DHS should have assessed whether additional conditions, unrelated to the earthquake, created an intolerable risk of harm for returning immigrants.
Framing the DHS decision as a statutory violation has strategic benefits because questions of subjective intent and causation that arise in constitutional cases are notoriously hard to prove. And however solid the record, a judge could bristle at having to call out a President for intentional bias. But those concerns are not an issue under the statute. The goal is simply to figure out what the language requires, and ask whether DHS followed the rules. Based on what we know so far, there’s a good chance it didn’t.
Here’s how the statute works.
TPS provides a safe-haven for immigrants already living in the United States when it’s too dangerous to return to their home country. Immigrants from a designated TPS country won’t be deported, so long as they pass a background check and meet other eligibility requirements. It’s not for immigrants trying to flee a dangerous country – it protects those who are already here.
The statute authorizes TPS in situations that involve: (1) armed conflict; (2) disaster; or (3) “extraordinary and temporary” conditions that prevent safe return. TPS designations are periodically reviewed, and will be terminated once things get back to normal.
The reason TPS was granted for Haiti wouldn’t make a difference in the everyday lives of immigrants in the United States – the same protection against deportation would apply, along with other benefits and obligations.
But it does make a difference when DHS conducts a TPS review, and a misstep at that stage means that TPS could be wrongly terminated when it should have been extended. That’s why the original designation matters so much.
Specifically, when TPS is granted on account of “extraordinary and temporary” circumstances, the review assessment is broad, covering the range of circumstances that contribute to present conditions on the ground. In “conflict” or “disaster” situations, the reassessment is relatively narrow because it only covers conditions linked to the original trigger event.
Look carefully at the statute’s wording to see what I mean:
- Case involving armed conflict: DHS can grant TPS when “there is an ongoing armed conflict within the state and, due to such conflict,” forced return would pose a serious safety threat.
- Case involving disaster: “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 affected area.
- In other circumstances: “there exist extraordinary and temporary condition” that prevent a safe return.
See the cause and effect involved in the first two situations – danger “due to” armed conflict, or “resulting” from a disaster (the emphasis is mine, btw)? That requires a connection between the original designation and subsequent review. So when TPS is granted on account of “disaster,” for example, it could be terminated on review if enough roads and houses are rebuilt, even though an intervening event sparked a disease outbreak.
It’s different for “extraordinary and temporary conditions” because the statute doesn’t circle back to any trigger event. Using the example above, TPS might be extended on account of a disease outbreak, whatever the cause, despite sufficient improvement in living conditions disrupted by an earthquake.
Let’s look at Haiti to see where DHS went wrong.
Haiti was granted TPS in 2010 after a catastrophic earthquake killed up to 250,000 people and displaced more than 2 million. The quake disrupted every aspect of public and private life: 90% of buildings in Port au Prince were damaged or destroyed; mountains of concrete buried urban roads, rural roads buckled in half; hospitals, schools and markets collapsed. The damage totaled $7.8 billion, more than 120% of Haiti’s annual GDP, and early estimates predicted a decade long recovery.
Surprisingly though, TPS wasn’t granted on account of the “disaster.” It was granted for “extraordinary and temporary conditions” that made it too dangerous to return. For sure the earthquake was to blame, but for TPS purposes, that was irrelevant. Only the conditions themselves mattered.
Fast forward to November 20, 2017, when DHS terminated TPS for Haiti. Acting Secretary Elaine Duke explained in a press release that “based on all available information, … [the] extraordinary but temporary conditions caused by the 2010 earthquake no longer exist. Thus, under the applicable statute, the current TPS designation must be terminated.” (Again, emphasis mine).
The Federal Register notice used similar language, stating that “the conditions for Haiti’s designation for TPS—on the basis of “extraordinary and temporary conditions” relating to the 2010 earthquake … are no longer met.” The notice also cited the withdrawal of UN peacekeeping forces, and a successful Presidential election carried out in 2017 – factors curiously omitted from Duke’s earlier press release.
The notice, however, overlooked two major hurricanes, a worsening drought, unchecked deforestation, and deepening food insecurity – events and circumstances that leave Haiti stuck at the bottom of the gobal Human Development Index.
One sentence in the Federal Register refers to the ongoing cholera crisis, stating only that the epidemic is at its lowest level since 2010. It does not acknowledge that cholera has so far killed 12,000 and infected close to 100,000, or that people continue to die from spread of the disease on an almost daily basis.
Whatever improvements have been made since the earthquake, people in Haiti continue to live under extreme and persistent hardship that will only get worse if 59,000 Haitians now living in the United States are forced to return.
The DHS decision to terminate TPS for Haiti not only makes bad policy, there’s a good chance it also violates the TPS statute.
– Kathleen Bergin
photo credit here
Post script: the good folks over at NYU’s Global Justice Clinic have teamed up with immigration advocates and submitted a FOIA complaint setting up the type of case I just described. View the complaint here.