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    4. Decision to terminate TPS for Haiti temporarily blocked

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    Decision to terminate TPS for Haiti temporarily blocked

    April 16, 2019

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    By Jason Gerrol

    On April 11, 2019, a New York judge blocked the Trump administration’s decision to terminate TPS for Haitian nationals lawfully residing in the U.S., finding the administration’s decision raised serious questions under the Administrative Procedure Act and Equal Protection Clause of the Constitution.

    On April 11, 2019, a New York federal judge issued a nationwide injunction blocking the Trump administration from terminating Temporary Protected Status (TPS) for Haitian nationals lawfully residing in the U.S. The injunction will remain in place until the court issues a final decision regarding the merits of the case.

    What is Temporary Protected Status?

    TPS is a temporary immigration status granted to individuals who are already in the U.S. and who are unable to safely return to their home countries because of temporary conditions in those countries. The Department of Homeland Security (DHS) may designate a country for TPS for reasons such as an ongoing armed conflict, environmental disaster (such as an earthquake or hurricane), epidemic or other “extraordinary and temporary conditions.” Nationals of a designated country who apply for, and are granted TPS, are not removable from the U.S. and are granted work authorization for the duration of the TPS designation. DHS may terminate a TPS designation if it determines the country “no longer continues to meet the conditions” for TPS designation (i.e., there are no barriers to the safe return of its nationals).

    Haiti was designated for TPS status on January 21, 2010 following a devastating earthquake in that country.  In November 2017, DHS announced the decision to terminate TPS for Haiti, with a delayed effective date of July 22, 2019 to allow for an “orderly transition” of TPS beneficiaries from the U.S. to Haiti.

    What is the basis of the lawsuit?

    The plaintiffs in this matter, a group of Haitian TPS beneficiaries, argue the decision to terminate TPS violates both the Administrative Procedure Act (APA) and Equal Protection. In his 145-page decision, United States District Judge Kuntz agreed, finding DHS “decided to terminate TPS for Haiti for the sake of ‘agenda adherence’ to the ‘America first’ platform, without regard to…consideration of country conditions under the TPS statute, and that the White House extensively pressured… [DHS to] terminate TPS for Haiti.” The court reviewed extensive evidence suggesting DHS and other officials had previously recommended to extend the TPS designation for Haiti in light of continued conditions in that country preventing the safe return of Haitian nationals lawfully residing in the U.S.

    With regard to the Equal Protection claim, the judge found “there is both direct and circumstantial evidence [of] a discriminatory purpose of removing non-white immigrants from the United States,” and this was a “motivating factor behind the decision to terminate TPS for Haiti” raising “serious questions going to the merits of their Equal Protection Claim.”

    What is next?

    The plaintiffs’ suit is nearly identical to ongoing TPS litigation in California, where a California judge similarly found that the Trump administration’s decisions to terminate TPS for nationals of Sudan, Nicaragua, Haiti and El Salvador raised serious APA and Equal Protection issues. While litigation proceeds in both the California and New York lawsuits, TPS beneficiaries from Haiti (as well as Sudan, Nicaragua and El Salvador) should discuss the impact of pending litigation with their immigration counsel.

    The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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