Archive for the ‘Immigration’ Category

The termination of Temporary Protected Status was blocked by a federal judge

April 12, 2019

FEDERAL DISTRICT COURT JUDGE WILLIAM F. KUNTZ OF BROOKLYN BANNED THE UNITED STATES FROM TERMINATING TEMPORARY PROTECTION STATUS FOR HAITIANS

Judge Kuntz was nominated by President Barack Obama in 2011 to a seat vacated by Judge Nina Gershon

The United States Secretary of Homeland Security is authorized to designate a foreign country for Temporary Protected Status (TPS) due to conditions in the country that temporarily prevent the country’s nationals from return safely or, in certain circumstances, where the country is unable to handle the return of its nationals adequately.  TPS may be granted to eligible nationals of certain countries who are already in the United States.  Eligible individuals without nationality who last resided in he designated country may also be granted TPS.

The Secretary may designate a country for TPS due to the following conditions in the country: (a) ongoing armed conflict such as a civil war, (b) an environmental disaster such as earthquake or hurricane or an epidemic and (c) other extraordinary and temporary conditions.

During a designated period, individuals who are TPS beneficiaries or who are found preliminarily eligible for TPS upon initial review of their cases are not removable from the United States, can obtain an employment authorization document (EAD) and may be granted travel authorization.  Once granted TPS, an individual also cannot be detained on the basis of his or her immigration status.

The countries currently designated for TPS are El Salvador, Haiti, Honduras, Nepal, Nicaragua, Somalia, Sudan, South Sudan, Syria and Yemen.

A non-jury lawsuit took place during January 2019 before a federal judge in Brooklyn in a case titled Saget v. Trump.  On April 11, 2019, the judge ruled that the United States was barred terminating TPS for Haitian nationals who live and work in the United States.

“A TPS determination should not be a political decision made to carry out political motives,” wrote United States District Court Judge William F. Kuntz.  Judge Kuntz’s 145 page opinion ruled that the evidence “reflected a pre-ordained outcome accomplished by sweeping negative evidence under the rug and disregarding contrary or inconvenient factual determinations made by prior decisionmakers.”

Judge Kuntz also ruled that the evidence showed that the White House “exerted significant influence” over a November 2017 decision by then-Acting Homeland Security Secretary Elaine Duke to terminate TPS for Haiti.

FORMER ACTING HOMELAND SECURITY SECRETARY ELAINE DUKE

Photo Credit: Pablo Martinez Monsivais / AP

During the trial before Judge Kuntz, Assistant United States Attorney Joseph A. Marutollo disputed that there was any animus by President Donald J. Trump involving a decision to terminate TPS for Haitians.   Martutollo, the Chief of Immigration Litigation for the United States Attorneys’ Office in Brooklyn, argued that the Homeland Security Secretary made her decision after conducting a “thorough and vigorous review.”  He argued that conditions in Haiti had improved enough for Haitians to return to their own country.

“TPS is not asylum.  It is not akin to having a green card.  It is a temporary humanitarian response,” Mr. Marutollo told the court.

In October 2018, in a different lawsuit before United States District Court Judge Edward M. Chen in San Francisco, Judge Chen placed a temporary injunction against the United States from terminating TPS for about 300,000 citizens of El Salvador, Haiti, Nicaragua and Sudan.  Judge Chen ruled that the TPS recipients would suffer irreparable harm and hardship if TPS was terminated.

During the San Francisco bench trial that took place in January 2019 Assistant United States Attorney Marutollo, argued that Haiti suffered from endemic problems like poverty before an earthquake hit Haiti on Jan. 12, 2010.   Mr. Marutollo noted that Haiti has not been redesignated for TPS since 2011 and that the extensions granted in lieu of that mean that no new Haitian nationals can acquire TPS.  He also argued that the TPS statute bars judicial review of any decision made by the Secretary of Homeland Security.

There are about 59,000 Haitians in the United States who are presently on TPS. More than 27,000 children were born to Haitians since being granted TPS.

The pending lawsuit in San Francisco awaits a ruling.  However, due to the lawsuit, in February 2019 the Secretary of Homeland Security issued a TPS extension until January 2020 for citizens of El Salvador, Haiti, Nicaragua and Sudan.

On Nov. 20, 2017, then-Acting Secretary of Homeland Security Secretary Elaine Duke announced her decision to terminate the TPS designation for Haiti with a delayed effective date of 18 months to allow for an orderly transition before the designation terminated on July 22, 2019.  A news release put out by Homeland Security stated:

“The decision to terminate TPS for Haiti was made after a review of the conditions upon which the country’s original designation were based and whether those extraordinary but temporary conditions prevented Haiti from adequately handling the return of their nationals, as required by statute.  Based on all available information . . . Secretary Duke determined that those extraordinary but temporary conditions caused by the 2010 earthquake no longer exist.  Thus, under the applicable statute, the current TPS designation must be terminated.”

Source: Acting Secretary Elaine Duke Announcement On Temporary Protected Status For Haiti (United States Department of Homeland Security — Nov. 20, 2017).

Former Secretary of Homeland Security Kirstjen Nielsen made a similar decision regarding 263,000 El Salvadorans who were granted “temporary” residence in the United States.

FORMER SECRETARY OF HOMELAND SECURITY KIRSTJEN NIELSEN

Photo Credit: Alex Wong / Getty Images

Some have concluded that the 18-month grace periods were more than generous.  One columnist argued that the 1-1/2 year period to leave “will . . . give more time to ‘go into the shadows,’ more time to apply for green cards, more time to create more anchor babies, collect welfare, take jobs from Americans, and, for some, to collect a paycheck from MS-13.”

Source: Ed Straker, Why do “Temporary Protected Status” refugees need 18 months to leave America? (American Thinker — Jan. 9, 2018).

Judge Kuntz assumed office in 2011 after being nominated by President Barack Obama. From 2005 until being appointed as a federal judge he was a lawyer in the New York office of the law firm Baker Hostetler.  Judge Chen also assumed office in 2011 after being nominated by President Obama. He served as a staff attorney for the American Civil Liberties Union from 1985-2001, specializing in language discrimination cases.

FEDERAL DISTRICT COURT JUDGE EDWARD M. CHEN OF SAN FRANCISCO TEMPORARILY BLOCKED THE UNITED STATES FROM TERMINATING TEMPORARY PROTECTED STATUS FOR CITIZENS OF FOUR COUNTRIES INCLUDING HAITI 

Judge Chen was nominated by President Barack Obama in 2011

Photo Credit: Unknown

 

 

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