Case 1:18-cv-01599-WFK-ST Document 24 Filed 06/21/18 Page 1 of 4 PageID #: 409

Mayer Brown LLP

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June 21, 2018 Main Tel +1 312 782 0600
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BY ECF
Honorable William F. Kuntz, II Geoffrey M. Pipoly
United States District Court Direct Tel +1 312 701 7902
Direct Fax +1 312 706 8108
Eastern District of New York gpipoly@mayerbrown.com
225 Cadman Plaza East
Brooklyn, New York 11201

Re: Saget, et al. v. Trump, et al., 18-CV-1599

Dear Judge Kuntz:

In this case, Plaintiffs challenge the Trump Administration’s unlawful decision to end
Temporary Protected Status (TPS) for Haiti, effective July 2019. Plaintiffs include Haitian
nationals who face deportation due to the Administration’s action, which was motivated by
animus towards Haitians; violated the requirements of the TPS statute; and implemented a new
standard for terminating TPS that is arbitrary and unlawful. Pursuant to Rule III.B of Your
Honor’s Individual Motion Practices, Plaintiffs submit the following letter response to
Defendants’ pre-motion conference letter. For the reasons below, dismissal is not warranted.

I. Background

Congress established TPS to extend to foreign nationals already living in the United
States the right to remain here when “extraordinary and temporary conditions in the foreign
state” “prevent [them] from returning … in safety.” 8 U.S.C. § 1254a(b)(1)(C). The Department
of Homeland Security (DHS) is authorized to designate foreign states for TPS. It must also
extend or terminate those designations during the required “[p]eriodic review,” when DHS “shall
review the conditions in the foreign state” and “shall determine whether the conditions for such
designation under [§ 1254a(b)(1)] continue to be met.” § 1254a(b)(3)(A). If DHS “does not
determine … that a foreign state … no longer meets the conditions for designation under
[§ 1254a(b)(1)], the period of designation of the foreign state is extended.” § 1254a(b)(3)(C).
Only if DHS “determines … that a foreign state … no longer continues to meet the conditions for
designation under [§ 1254a(b)(1)]” may DHS “terminate the designation.” § 1254a(b)(3)(B).

As pleaded in the First Amended Complaint, Haiti was initially designated for TPS on
January 21, 2010, following a devastating earthquake. From 2010 to 2016, on four occasions,
DHS either re-designated or extended TPS for Haiti. Each time, the DHS Secretary followed the
statute, examining current conditions in Haiti and determining that “conditions …. that prevent
…. nationals …. from returning …. in safety” persisted. § 1254a(b)(1)(C). As required, these
extensions were based on review of all country conditions—including a catastrophic cholera
outbreak and a severe hurricane that post-dated the earthquake and interfered with Haiti’s
recovery—and not only conditions immediately associated with the earthquake.

Mayer Brown LLP operates in combination with other Mayer Brown entities, which have offices in North America,
Europe and Asia and are associated with Tauil & Chequer Advogados, a Brazilian law partnership.
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Following President Trump’s election, the invective toward immigrants of color that he
employed on the campaign trail impacted policy discussions. In a widely-reported Oval Office
meeting about a draft immigration bill containing protections for Haiti, El Salvador, and some
African countries, President Trump asked: “Why are we having all these people from shithole
countries come here?” He suggested that the United States should take in more immigrants from
countries like Norway; asked, “Why do we need more Haitians?”; and ordered that the measures
be “taken out” of the bill. On another occasion, he opined that Haitians “all have AIDS.”

As the Administration aimed to swiftly implement policies consistent with the President’s
animus, Haitian TPS recipients were squarely in the crosshairs, despite country conditions that
did not support termination under the statute. Thus, the U.S. Citizenship and Immigration
Services (USCIS) began collecting data on Haitian TPS recipients’ criminal records and use of
public benefits, although these are irrelevant factors under the TPS statute. In April 2017, a
March 2, 2017 USCIS internal memo that recommended extension of Haiti’s TPS was suddenly
pulled and replaced with a memo recommending termination. In May 2017, DHS Secretary John
Kelly extended Haiti’s TPS for six months but warned recipients to prepare to return to Haiti,
calling the brief extension an “alert.” In Senate testimony, Kelly stated that going forward, he
would consider only “the earthquake,” in a stark departure from previous Administrations which
had considered all country conditions preventing safe return. In October 2017, under pressure
from the White House, Secretary of State Rex Tillerson recommended that DHS terminate
Haiti’s TPS, disregarding career State Department officials who recommended extension based
on country conditions. He told Acting DHS Secretary Elaine Duke that terminating Haiti’s TPS
was “just something she had to do.”

On November 20, 2017, DHS terminated Haiti’s TPS; the Federal Register notice
focused on conditions caused by the 2010 earthquake, neglecting other factors (some of which
Kelly acknowledged months earlier in extending TPS) including the cholera epidemic; recent
environmental disasters including Hurricane Matthew; and social and political instability.

II. Defendants Do Not State An Adequate Basis For Dismissing This Action

Plaintiffs adequately pleaded that Haiti’s TPS termination violated the Administrative
Procedures Act (APA), the TPS statute, the Regulatory and Flexibility Act (RFA), and the U.S.
Constitution. This Court has jurisdiction under 28 U.S.C. § 1331.

Defendants argue that this Court lacks jurisdiction because the TPS statute provides that
“[t]here is no judicial review of any determination of the [Secretary] with respect to the
designation, or termination or extension of a designation, of a foreign state.” § 1254a(b)(5)(A)
(emphasis added). But under § 1254a, “any determination” does not include every “termination,”
but refers to a “determin[ation] whether the conditions for … designation … continue to be met”
(i.e. whether conditions prevent nationals from returning to the foreign state in safety), based on
the required process of reviewing conditions in the foreign state. § 1254a(b)(3). The statute does
not bar review where, as Plaintiffs allege, DHS violated the statute by arbitrarily terminating a
country’s TPS, without conducting the required review process or making any “determination”
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based on such review that the statutory criteria are no longer met.1 In any case, this Court has
jurisdiction over Plaintiffs’ Equal Protection and Due Process counts: even if Congress’s intent
to preclude review of constitutional claims were explicit (which it is not), Congress cannot strip
all courts of jurisdiction to hear constitutional claims. Battaglia v. Gen. Motors Corp., 169 F.2d
254, 257 (2d Cir. 1948); cf. Webster v. Doe, 486 U.S. 592, 603 (1988).2 As to Defendants’ claim
that the President may never be enjoined, that is wrong. See Knight First Amendment Inst. v.
Trump, 2018 WL 2327290, at *23 (S.D.N.Y. May 23, 2018). Regardless, “[s]ubordinate
officials” like Defendant Nielsen, “may, of course, be enjoined.” Id. at *24.

Defendants also argue for dismissing Plaintiffs’ claims on the merits. But Plaintiffs allege
that DHS made an arbitrary decision to terminate Haiti’s TPS despite evidence showing that
Haitians could not safely return to Haiti and that the statutory criteria thus were not met.
Plaintiffs also allege that DHS’s decision was factually supported only by ad hoc rationalization
rather than the good-faith review of country conditions required by statute. Thus, Plaintiffs have
adequately pleaded that Defendants’ action was arbitrary and ultra vires in violation of the APA,
the TPS statute, and the Due Process Clause. Plaintiffs also adequately pleaded their APA claim
through allegations that DHS sub silentio implemented, but provided no reasons for, a new TPS-
review standard that considers only the conditions on which the country’s designation was based,
rather than all conditions preventing safe return there. See FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 515-16 (2009). Further, Plaintiffs adequately pleaded that Haiti’s TPS termination,
DHS’s new TPS-review standard, or both required notice and comment: neither the count under
the APA notice-and-comment requirement or the RFA count should be dismissed.

Defendants further argue that Plaintiffs’ Equal Protection claim fails because Plaintiffs
have not alleged “clear evidence” of “outrageous discrimination.” Even if that were the standard,
Plaintiffs have met it. They have alleged direct evidence that President Trump harbors
outrageous discriminatory animus towards immigrants of color (and Haitians in particular), as
well as direct evidence that DHS’s decision to terminate Haiti’s TPS was made by the Trump
Administration to implement a policy agenda motivated by discriminatory animus rather than to
reflect the results of any good-faith review of country conditions in Haiti as required by statute.
Those allegations are clearly sufficient to plead that race-based or national-origin-based
discriminatory animus was a “motivating factor” in the decision by the Trump Administration to
terminate TPS for Haiti in violation of the Equal Protection and Due Process Clauses. Vill. of
Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265-66 (1977).

1
Even if the statute barred review of any “termination,” there would be jurisdiction to review Plaintiffs’ claims
because they seek review not of the termination decision per se but of the “practice or procedure employed [by
DHS] in making decisions,” i.e., DHS’s arbitrary reliance on ad hoc rationalization and a new and unjustified
standard for terminating Haiti’s TPS rather than good-faith review of the facts and application of the statutory
criteria. McNary v. Haitian Refugee Ctr., 498 U.S. 479, 492 (1991).
2
Defendants suggest that Congress conferred jurisdiction over constitutional challenges to TPS terminations on
immigration courts. But TPS recipients could obtain review through immigration-court removal proceedings only if
they were arrested or surrendered after unlawfully remaining in the United States once the termination becomes
effective. That is “tantamount to a complete denial of judicial review.” McNary, 498 U.S. at 496-97.
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Plaintiffs thank the Court for its consideration.

Respectfully Submitted,

By: /s/ Geoffrey M. Pipoly

Geoffrey M. Pipoly
MAYER BROWN LLP
71 S. Wacker Drive
Chicago, IL 60606
Phone: (312) 782-0600
gpipoly@mayerbrown.com

By: /s/ Sejal Zota

Sejal Zota
NATIONAL IMMIGRATION PROJECT OF THE
NATIONAL LAWYERS GUILD
14 Beacon Street, Suite 602
Boston, MA 02018
Phone: (919) 698-5015
sejal@nipnlg.org

cc: BY E.C.F.
Counsel of Record