Part of the Diversity and Inclusion blog post series

February is Black History Month in the United States. However, what is intended to be a time of recognition and celebration is marred by the Trump administration’s continued discriminatory and unlawful policies that directly affect citizens within Haiti — the first predominantly free black republic in the Western Hemisphere — as well as citizens and nationals of Haiti living in the United States under Temporary Protected Status (TPS).

On March 16, 2018, Kurzban, Kurzban, Tetzeli & Pratt, P.A., the National Immigration Project of the National Lawyers Guild, and the law firm Mayer Brown, filed a federal court action challenging the Trump administration’s decision to terminate TPS for Haitian citizens and overseas nationals.  Based on that litigation, on April 11, 2019, after extensive discovery and following a four-day bench trial in which the U.S. government chose not to call a single witness, the Honorable William F. Kuntz, II issued a decision granting a preliminary injunction in Saget, et al. v. Trump, et al., 18-cv-1599 (EDNY). Judge Kuntz granted a nationwide preliminary injunction, prohibiting the Department of Homeland Security (DHS) from terminating TPS for Haitian nationals lawfully residing in the U.S.

Judge Kuntz’s 145-page order is a sweeping indictment of the Trump Administration’s decision to terminate TPS for Haiti.  Despite having a narrowed window of time during an expedited discovery period, Plaintiffs obtained extensive evidence that the Trump Administration terminated TPS for Haiti in violation of the Administrative Procedures Act (APA) and the Equal Protection Clause of the U.S. Constitution. Although the U.S. government attempted to withhold thousands of pages of documents and ultimately submitted material discovery in camera (for Judge Kuntz’s eyes only), the information was damning.  For example, in one disclosed email exchange, a DHS official brags “African countries are toast . . . Haiti is up next.”

Throughout discovery, a consistent, troubling theme emerged: political appointees in DHS and the U.S. Citizenship and Immigration Services (USCIS) pressured the government’s own country conditions experts to claim conclusions contrary to the evidence, and intentionally misconstrued the TPS statute and country conditions facts in Haiti to support a predetermined decision.  Or, as Judge Kuntz determined, the Trump Administration “… reverse-engineered the TPS review process to achieve a desired political outcome.”  Judge Kuntz made clear that the APA and U.S. Constitution do not allow such decisions. He ultimately concluded that it is “highly likely” that Plaintiffs will succeed on their substantive APA and Equal Protection claims, and obtain permanent injunctive relief.

The Trump Administration continues to defend their policy to end TPS for Haiti, and the case is currently on appeal in the Second Circuit Court of Appeals. And on appeal, the U.S. government has taken an astonishing position: according to the U.S. government, “President Trump’s widely reported statements referring to Haiti as a ‘shithole country’ where all citizens ‘have AIDS’ are not actually racial slurs, but ‘reflect the current Administration’s focus on immigration policies that benefit Americans rather than aliens’ and should simply be ‘understood as a denigrating reference to the conditions and problems in the country.’” One wonders how the Trump Administration and the United States Department of Justice can write such words with a straight face and hide behind a nationalist agenda.

The Saget victory, nevertheless, has allowed Haitian citizens and nationals to extend their TPS status, and work authorization. The work of litigators, therefore, is critical in the fight to expose and legally challenge the true motives and bases for the Trump Administration’s immigration decisions, including ending TPS for Haiti. And the fight continues.