The Trump Administration will have to defend its decision to end Temporary Protected Status for Haiti in court. The NAACP’s Legal Defense and Education Fund brought suit last week, maintaining that the Department of Homeland Security had no legitimate reason to end TPS, but did so out of discriminatory bias towards Haitian immigrants.
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.