Response To The Government's Motion To Dismiss - Saget v. Trump

Case 1:18-cv-01599-WFK-ST Document 62 Filed 10/09/18 Page 1 of 38 PageID #: 2281
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK
PATRICK SAGET, SABINA BADIO )

FLORIAL, NAÏSCHA VILME, GERALD )
MICHAUD, BEATRICE BELIARD, )
RACHELLE GUIRAND, JEAN CLAUDE )
MOMPOINT, YOLNICK JEUNE, )
GUERLINE FRANCOIS, LEOMA )
PIERRE, HAÏTI LIBERTÉ, and FAMILY )
ACTION NETWORK MOVEMENT, )
INC., )
) No. 1:18-cv-01599
Plaintiffs, ) Kuntz, J.
) Tiscione, M.J.
vs. )
)
DONALD TRUMP, President of the )
United States of America, UNITED )
STATES OF AMERICA, DEPARTMENT )
OF HOMELAND SECURITY, KIRSTJEN )
NIELSEN, Secretary of Homeland )
Security, and ELAINE C. DUKE, Deputy )
Secretary of Homeland Security, )
)
Defendants. )
PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS PURSUANT TO

FED. R. CIV. P. 12(B)(1), FED R. CIV. P. 12(B)(6), OR, ALTERNATIVELY,
FOR SUMMARY JUDGMENT PURSUANT TO FED. R. CIV P. 56
Ira J. Kurzban, (NY Bar No. 5347083) Christopher J. Houpt (NY Bar No. 4452462)
Kevin Gregg* MAYER BROWN LLP
KURZBAN, KURZBAN, WEINGER, 1221 Avenue of the Americas
TETZELI & PRATT, P.A. New York, NY 10020
2650 S.W. 27th Avenue, 2nd Floor Phone: (212) 506-2500
Miami, FL 33133 choupt@mayerbrown.com
Phone: (312) 660-1364
ira@kkwtlaw.com Geoffrey M. Pipoly*
Christopher J. Ferro*
Sejal Zota* MAYER BROWN LLP
NATIONAL IMMIGRATION PROJECT OF THE 71 S. Wacker Drive
NATIONAL LAWYERS GUILD Chicago, IL 60606
14 Beacon Street, Suite 602 Phone: (312) 782-0600
Boston, MA 02018 gpipoly@mayerbrown.com
Phone: (919) 698-5015
sejal@nipnlg.org
Attorneys for Plaintiffs
*Admitted Pro Hac Vice
TABLE OF CONTENTS
Page
PRELIMINARY STATEMENT ................................................................................................... 1

BACKGROUND ........................................................................................................................... 2
I. Statutory Background ............................................................................................ 2
A. Designation ................................................................................................ 3
B. Extension and Termination ........................................................................ 3
II. Factual Background ............................................................................................... 4
A. Haiti is Designated for TPS Following the 2010 Earthquake .................... 4
B. President Trump’s Racial Bias................................................................... 5
C. The Trump Administration Reluctantly Extends, Then Terminates,
Haitian TPS ................................................................................................ 6
STANDARD OF REVIEW ......................................................................................................... 12
ARGUMENT ............................................................................................................................... 13
I. This Court Has Jurisdiction to Review Plaintiffs’ Claims ................................... 13
A. The TPS Statute’s Judicial-Review Bar Does Not Apply To
Plaintiffs’ Non-Constitutional Claims ..................................................... 13
B. This Court Has Jurisdiction to Review Plaintiffs’ Constitutional
Claims ...................................................................................................... 16
C. This Court Has Jurisdiction Over the President ....................................... 19
II. This Court Should Deny Defendants’ Motion With Regard to Plaintiffs’
Statutory Claims................................................................................................... 19
A. Plaintiffs Should Be Allowed To Proceed With Their APA Claims
Asserting That Defendants Acted Arbitrarily And Their Common
Law Claim That Termination of TPS Was Ultra Vires ........................... 19
B. Plaintiffs’ Claim That Defendants Violated The APA In Applying
A New Standard for TPS Should Proceed ............................................... 21
C. Defendants’ New Standard for TPS Review Constitutes a New
Rule, which Defendants Promulgated without APA-Required
Notice and Comment ............................................................................... 22
III. This Court Should Deny Defendants’ Motion With Regard to Plaintiffs’
Constitutional Claims........................................................................................... 23
A. Equal Protection ....................................................................................... 23
1. To Prevail, Plaintiffs Are Not Required to Show That a
Similarly Situated Group was Treated Differently than
They Were .................................................................................... 23
i
TABLE OF CONTENTS
(continued)
Page
2. To Prevail, Plaintiffs Are Not Required to Show that Duke

“Personally” Harbored Discriminatory Animus .......................... 24
3. Neither Trump v. Hawaii Nor Reno v. AADC Apply Here .......... 25
4. Plaintiffs Easily Satisfy Arlington Heights’ Standard ................. 27
B. Due Process .............................................................................................. 30
CONCLUSION ............................................................................................................................ 30
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Arce v. Douglas,
793 F.3d 968 (9th Cir, 2015) ...................................................................................................27
Battaglia v. General Motors Corp.,

169 F.2d 254 (2d Cir. 1948).....................................................................................................17
Battalla Vidal v. Nielsen,

291 F. Supp. 3d 260 (E.D.N.Y. 2018) .........................................................................24, 25, 29
Bowen v. Mich. Academy of Family Physicians,

476 U.S. 667 (1986) .................................................................................................................13
Bridges v. Wixon,
326 U.S. 135 (1945) .................................................................................................................30
Carter v. HealthPort Techs., LLC,

822 F.3d 47 (2d Cir. 2016).......................................................................................................12
Celotex Corp. v. Catrett,

477 U.S. 317 (1986) .................................................................................................................12
Centro Presente, at al., v. DHS, et al.,

No. 1:18-cv-10340 (D. Mass. July 23, 2018) .................................................................. passim
Chamber of Commerce of the U.S. v. Reich,

74 F.3d 1322 (D.C. Cir. 1996) .................................................................................................20
Chambers v. Time Warner, Inc.,

282 F.3d 147 (2d Cir. 2002).....................................................................................................12
Elgin v. Dept. of Treasury,

567 U.S. 1 (2012) .....................................................................................................................18
Encino Motorcars, LLC v. Navarro,

136 S. Ct. 2117 (2016) .............................................................................................................21
FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .................................................................................................................21
Henderson v. INS,
157 F.3d 106 (2d Cir. 1998).....................................................................................................17
iii
I.N.S. v. Cardoza-Fonseca,
480 U.S. 421 (1987) .................................................................................................................17
INS v. St. Cyr,

533 U.S. 289 (2001) .................................................................................................................15
Kandamar v. Gonzales,
464 F.3d 65 (1st Cir. 2006) ......................................................................................................27
Krua v. DHS,
729 F.Supp.2d 452 (D. Mass. 2010) ........................................................................................17
L.M. v. Johnson,
150 F. Supp. 3d 202 (E.D.N.Y. 2015) .....................................................................................23
Leedom v. Kyne,
358 U.S. 184 (1958) .................................................................................................................20
Lewis-Mota v. Sec’y of Labor,

469 F.2d 478 (2d Cir. 1972).....................................................................................................23
McNary v. Haitian Refugee Center,

498 U.S. 479 (1991) .....................................................................................................15, 16, 18
Mhany Mgmt., Inc. v. Cty. of Nassau,

819 F.3d 581 (2d Cir. 2016).....................................................................................................28
Mississippi v. Johnson,
71 U.S. (4 Wall.) 475 (1866) ...................................................................................................19
Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile
Ins. Co.,
463 U.S. 29 (1983) ...................................................................................................................21
Nat’l Sec. Counselors v. CIA,

931 F.Supp.2d 77 (D.D.C. 2013) .............................................................................................23
Nixon v. Sirica,
487 F.2d 700 (D.C. Cir. 1973) .................................................................................................19
Ohio v. Wyandotte Chems. Corp.,

401 U.S. 493 (1971) .................................................................................................................19
Padberg v. McGrath-McKechnie,
203 F.Supp.2d 261 (E.D.N.Y. 2002) .......................................................................................30
Pyke v. Cuomo,
258 F.3d 107 (2d Cir. 2001).....................................................................................................24
iv
Ramos, et al. v. Nielsen et al,

No. 3:18-cv-01554 (N.D. Cal., August 6, 2018).............................................................. passim
Regents of Univ. of Cal. v. Bakke,

438 U.S. 265 (1978) .................................................................................................................30
Reno v. AADC,
525 U.S. 471 (1999) .....................................................................................................25, 26, 27
Reno v. Catholic Soc. Servs., Inc.,

509 U.S. 43 (1993) ...................................................................................................................17
Ru Jun Zhang v. Lynch,

2018 WL 1157756 (E.D.N.Y. 2018)..................................................................................19, 20
Sessions v. Morales-Santana,
137 S.Ct. 1678 (2017) ..............................................................................................................27
Sharkey v. Quarantillo,
541 F.3d 75 (2d Cir. 2008).................................................................................................12, 13
Trump v. Hawaii,
138 S.Ct. 2392 (2018) ........................................................................................................25, 26
United States v. Nixon,

418 U.S. 683 (1974) .................................................................................................................19
United States v. Yonkers Bd. Of Educ.,

837 F.2d 1181 (2d Cir. 1987)...................................................................................................29
Village of Arlington Heights v. Metropolitan Housing Development Corporation,

429 U.S. 252 (1977) ......................................................................................................... passim
Webster v. Doe,
486 U.S. 592 (1988) .................................................................................................................17
Yick Wo v. Hopkins,
118 U.S. 356 (1886) ...........................................................................................................26, 30
Zadvydas v. Davis,
533 U.S. 678 (2001) .................................................................................................................26
Statutes
5 U.S.C. § 500, et seq............................................................................................................. passim
8 U.S.C. § 1160(e)(1) .....................................................................................................................15
8 U.S.C. § 1182(f) ..........................................................................................................................25
v
8 U.S.C. § 1252(a)(2)(D) ...............................................................................................................18
8 U.S.C. § 1252(b)(9) ....................................................................................................................17
8 U.S.C. § 1254a .................................................................................................................... passim
5 U.S.C. § 601 et seq......................................................................................................................23
Other Authorities
75 Fed. Reg. 3476 ............................................................................................................................4
76 Fed. Reg. 29,000 .........................................................................................................................4
77 Fed. Reg. 59,943 .........................................................................................................................5
79 Fed. Reg. 11,808 .........................................................................................................................5
80 Fed. Reg. 51,582 .........................................................................................................................5
82 Fed. Reg. 23,830 .........................................................................................................................7
83 Fed. Reg. 2,648 .........................................................................................................................11
Fed. R. Civ. P. 12(b)(1)..................................................................................................................12
Fed. R. Civ. P. 12(b)(6)..................................................................................................................12
Fed. R. Civ. P. 56(c) ......................................................................................................................12
vi
PRELIMINARY STATEMENT
When he took office in January 2017, President Donald Trump and his Administration
quickly set about taking steps to fulfil his campaign promise to deport as many immigrants as
possible. Among the targets of his anti-immigrant agenda were recipients of Temporary Protected
Status (“TPS”), a legal designation for people from countries devastated by war, natural disaster,
or other “extraordinary” conditions. In November 2017, the Acting Secretary of Homeland
Security, Elaine Duke, announced she was terminating TPS for people from several countries,
including 60,000 Haitians. Those who lost their TPS are overwhelmingly racial minorities.
Publicly, the Administration referenced factors in the TPS statute to justify termination of
TPS. In reality, the Administration resolved from the beginning to terminate TPS no matter what.
During 2017, Administration officials at multiple levels worked feverishly to manufacture
rationales for termination. Even though the TPS statute instructs that conditions on the ground in
the foreign country dictate whether TPS should be extended, political surrogates sought data on
how many TPS recipients were criminals and welfare beneficiaries. They took reports prepared by
neutral experts and rewrote them because extending TPS was not “the conclusion we are looking
for.” They then justified terminating TPS for hundreds of thousands of people based on a new and
restrictive interpretation of the statute that they adopted without explanation. Rather than focus on
current country conditions, they focused only on the initial catastrophe prompting the TPS
designation, ignoring other devastating events that occurred after.
Acting Secretary Duke herself confirmed that the decision to terminate TPS was pre-
ordained. She struggled to engineer a rationale to terminate TPS, writing “rationale: don’t know,
need to rationalize conflicting info,” but added that “all” in the Administration “agree[d]” that TPS
“must end.” Separately, she wrote that her decisions to terminate TPS designations for specific
countries were designed to “send a clear signal that TPS in general is coming to a close.”
1
The decision to terminate TPS was the direct result of President Trump’s animus towards
immigrants of color and Haitians in particular. Evoking this country’s long history of
discrimination against Haitians, President Trump has repeated the racist lie that Haitans “all have
AIDS.” In a meeting about TPS, he described Haitians as people from a “shithole countr[y]” and
asked “why do we need more Haitians.” The White House exerted tremendous pressure on the
officials charged with making TPS decisions. Duke wrote that the decision to end “TPS in general”
was “consistent with the President’s position on immigration” and a way to “get to the President’s
objectives.” John Kelly, the White House Chief of Staff, saw nothing wrong with pressuring Duke
to end TPS; in his view, he was just “ensuring agenda adherence.”
None of this was legal. The preordained, arbitrary, and capricious decision to terminate
Haiti’s TPS violated the Administrative Procedure Act (“APA”) (and was ultra vires). It was based
on a new and changed standard for conducting TPS review, violating the APA as well as the
Regulatory Flexibility Act. And, because it flowed directly from President Trump’s discriminatory
animus, it violated the Constitution’s Equal Protection and Due Process Guarantees. Two other
cases challenging TPS terminations, Ramos, et al. v. Nielsen et al, No. 3:18-cv-01554 (N.D. Cal.,
August 6, 2018) (Ex. 1), and Centro Presente, at al., v. DHS, et al., No. 1:18-cv-10340 (D. Mass.
July 23, 2018) (Ex. 2) have already denied the Government’s motions to dismiss on issues like the
ones raised here. This Court should do the same.
BACKGROUND
I. Statutory Background
TPS may be granted to foreign nationals who are unable to return to their countries of
origin due to circumstances there beyond their control—such as a natural disaster, an epidemic, or
a war—which make it unsafe for them to return.
2
A. Designation
The Secretary of Homeland Security (the “Secretary;” or “DHS Secretary”) may designate
a foreign state for TPS if, after “consultation with the appropriate agencies of the Government,”
she determines that the foreign state is in the midst of an “ongoing armed conflict;” has suffered
an “environmental disaster” like an “earthquake, flood, drought, or epidemic;” or “that there exist
[other] extraordinary and temporary conditions in the foreign state that prevent” safe return.
8 U.S.C. § 1254a(b)(1)(A-C).
Following such a designation, eligible citizens from the designated country may be granted
TPS, receiving benefits that include employment authorization and protection from deportation.
8 U.S.C. § 1254a(a)(1). Not everyone from designated country is automatically eligible for TPS.
Those who have been convicted of a felony, or two or more misdemeanors, for example, are
ineligible for TPS. Id. § 1254a(c)(2)(B). And only foreign nationals who are present in the United
States at the time of designation are eligible. Id. §1254a(c)(1)(A)(i).
B. Extension and Termination
The Secretary’s initial TPS designation lasts for, at most, 18 months. 8 U.S.C. §
1254a(b)(2)(B). “At least 60 days before the end of the initial period of designation,” and “after
consultation with appropriate agencies of the Government,” the Secretary must “review the
conditions” in the foreign state. Id. § 1254a(b)(3)(A). This review focuses on whether conditions
in the foreign state continue to “meet the conditions for designation” (i.e. armed conflict, natural
disaster, or other “extraordinary” conditions which prevent TPS recipients’ safe return to the
foreign state). Id. § 1254a(b)(3)(A).
Unless the Secretary “determines,” based on this mandatory review, that the foreign state
“no longer meets the conditions for designation,” the designation is automatically extended for six
months, or, in the Secretary’s discretion, for “12 or 18 months.” 8 U.S.C. § 1254a(b)(3)(B),(C).
3
The Secretary may terminate TPS only if she “determines . . . that [the] foreign state . . .no longer
continues to meet the conditions for designation.” Id. at § 1254a(b)(3)(B). The termination or
extension of TPS thus follows directly from the mandatory review of in-country conditions.
If TPS is extended, then this mandatory review process must begin anew sixty days before
the end of the extension,. 8 U.S.C. § 1254a(b)(3)(A). Thus, TPS is “temporary” in that it must be
periodically reviewed. Congress did not restrict the number of times TPS can be extended. As
long as period reviews indicate that the “conditions for designation” exist and recipients are unable
to safely return, the statute requires that the Secretary extend the TPS designation.
II. Factual Background
A. Haiti is Designated for TPS Following the 2010 Earthquake
On January 12, 2010, a 7.0 magnitude earthquake hit Haiti, killing as many as 200,000
people. Ex. 3. The earthquake displaced more than 2.3 million people, and many more were
affected by the resulting emergency conditions. Ex. 4; Ex. 5. Hospitals overflowed with victims,
electricity was cut off, potable water was unavailable, and telephone service was severely affected.
Roads blocked with debris and makeshift housing encampments set up by earthquake victims
impeded the transport of food, clean water, and medical supplies. On January 21, 2010, because
of these “extraordinary conditions,” DHS designated Haiti for TPS. 75 Fed. Reg. 3476, 3477.
Less than ten months later, one of the deadliest cholera outbreaks in modern history erupted
in Haiti. A million people became sick and 12,000 died. Haiti’s cholera epidemic is ongoing, a
disaster in its own right, and substantially magnified the earthquake’s toll. Ex. 6. On May 19, 2011,
based on the cholera outbreak and the earthquake, Homeland Security Secretary Janet Napolitano
both extended and re-designated TPS for Haiti. 76 Fed. Reg. 29,000.
This 18-month TPS extension and re-designation were effective through January 22, 2013.
Id. TPS was extended for Haitian nationals for 18-month intervals again in October 2012, March
4
2014, and August 2015. 77 Fed. Reg. 59,943 (Oct. 1, 2012); 79 Fed. Reg. 11,808 (Mar. 3, 2014);
80 Fed. Reg. 51,582 (Aug. 25, 2015). These subsequent extensions were based on conditions
arising from the 2010 earthquake in Haiti and its attendant damage to infrastructure, public health,
agriculture, and transportation. Each subsequent extension named the cholera epidemic and the
exacerbation of pre-existing vulnerabilities caused by the earthquake, including food insecurity
and a housing crisis, as contributing to the extension of TPS for Haitian nationals.
B. President Trump’s Racial Bias
President Trump has long exhibited bias against immigrants, particularly immigrants of
color. He campaigned on an explicitly anti-immigrant platform, repeatedly referring to immigrants
as criminals and rapists. Ex. 7; Ex. 8. He routinely uses derogatory epithets to describe immigrants,
such as “bad hombres” and “animals.” Ex. 9; Ex. 10.
While in office, President Trump made numerous statements reflecting his explicit bias
against immigrants of color and Haitians in particular. For example, during a June 2017 meeting
in the Oval Office, at which then-DHS Secretary John Kelly and then-Secretary of State Rex
Tillerson were present, President Trump said that Haitians “all have AIDS.” Ex. 11. This racist
stereotype traces its roots to the early days of the AIDS epidemic in the 1990’s, when rumors
abounded in New York that Haitians were the source of the disease. Ex. 12. During a January 11,
2018, meeting attended by DHS Secretary Kirstjen Nielsen—the subject of which was TPS—
President Trump referred to Haitians as people from “shithole countries” and asked “why do we
need more Haitians,” and “demand[ed] that congressional negotiators ‘take them out’ of any
further talks about extending” TPS. Ex. 13. This was not the first time President Trump referred
to Haiti as a “shithole”—he had done so on the campaign trail, as well. Ex. 14. In the same meeting,
President Trump said he wanted more immigrants from “places like Norway.” Ex. 15. Senators of
both parties who attended the meeting confirmed President Trump’s comments. Ex. 14.
5
C. The Trump Administration Reluctantly Extends, Then Terminates, Haitian TPS
In the early months of 2017, the deadline for then-Secretary Kelly to review Haiti’s TPS
designation loomed. Career researchers and country conditions experts within DHS were unified
in their view that TPS should be extended. For example, on January 27, 2017, DHS staff drafted a
report recommending an extension of TPS for Haiti because “[m]any of the conditions prompting
the original January 2010 TPS designation and the May 2011 redesignation persist.” Ex. 16. On
February 7, 2017, U.S. Citizenship and Immigration Services (“USCIS”) staff issued a memo
noting that country conditions in Haiti had deteriorated since Hurricane Matthew. Ex. 17. And, on
March 2, 2017, USCIS staff circulated another memo recommending an 18 month extension,
attaching a corresponding draft Federal Register Notice to that effect. Ex. 18. At this point,
President Trump’s surrogates—many of whom came from Candidate Trump’s immigration policy
transition team—took control within the DHS apparatus.
On April 7, 2017, Gene Hamilton, a Trump Administration Special Advisor within DHS,
sent an e-mail to other Trump appointees within USCIS, indicating that Secretary Kelly wanted to
know, among other things, how many Haitian TPS recipients were criminals, and how many were
on some form of public assistance. Ex. 19. Kathy Nuebel Kovarik, the newly-appointed USCIS
Chief of Policy and Strategy, passed on Kelly’s request for this information to the career
researchers at USCIS, later noting that Kelly needed some of this data to make a decision regarding
Haiti. Ex. 20; Ex. 21.
These data are irrelevant under the statute. They have nothing to do with country conditions
within Haiti. Yet they were requested numerous times in April, 2017, when every career researcher
and subject-matter expert within the DHS apparatus—who had conducted an analysis of country
conditions—recommended extending Haitian TPS.
6
Career staff at DHS recognized that the Trump Administration was taking a fundamentally
different approach to TPS review than in the past. On April 13, career USCIS researcher
emailed fellow career researcher , asking her for clarity on Trump
officials’ approach to Haitian TPS. replied: “the short answer” is that their approach
was “a political one by . . . [the Secretary’s] advisors.” Ex. 22.
On May 1, 2017, responding to Kovarik’s email passing along Secretary Kelly’s
request for irrelevant data on Haitian TPS recipients, wrote that “[u]nfortunately, conditions in
Haiti remain difficult.” email listed numerous factors, such as Hurricane Matthew and
scarcity of food and shelter, which contributed to these “difficult” conditions. Ex. 23.
It was evident to those within the Administration that Kelly was determined to terminate
TPS if he could justify it. For example, James Nealon, who at the time of Kelly’s decision was the
Ambassador to Honduras, testified he “had the feeling from my conversations with Kelly that he
was probably going to terminate.” Ex. 24 pp. 127-130.
On May 24, 2017, Secretary Kelly ultimately settled on a six-month extension of TPS, but
with language clearly signaling that it would be the last. The extension cited, among other things,
the original earthquake, the cholera epidemic, flooding, landslides, as well as Hurricane Matthew
as bases for the extension. 82 Fed. Reg. 23,830. Despite this short extension, Kelly warned Haitian
TPS recipients that they “need to start thinking about returning” while foreshadowing future
termination: Haitian TPS recipients, Kelly said, should “settle their issues” “in the event it’s not
extended next time.” Ex. 25.
Two weeks later, Kelly testified in the Senate. He described the Pre-Trump Administration
TPS extensions as “automatic renewals” and said his decision was based exclusively on an
evaluation of “the earthquake,” not on other “horrible conditions” that existed before—and
7
persisted after—the earthquake. Ex. 26. Of course, past Secretaries had looked to a wide range of
country conditions to determine whether an extension was warranted. But this standard changed
in the Trump Administration. Former Ambassador Nealon confirmed as much; he testified that he
recalled conversations at DHS in which agency officials acknowledged the shift. He also testified
that White House officials had communicated with DHS with respect to this new standard. Ex. 24
pp. 220 – 222. Similarly, in 2018 testimony before the House of Representatives, Kristjen Nielsen
explained her view that “[t]he law does not allow me to look at the country conditions of a country
writ large. It requires me to look very specifically as to whether the country conditions originating
from the original designation continue to exist.” Ex. 27. Thus, under the Trump Administration’s
new standard, it did not matter if the exact same humanitarian crisis that warranted an initial
designation—like food insecurity—continued to persist if it was due to intervening disasters and
not the initial event prompting designation. Ex.28 (“Haiti’s food insecurity problems seem related
to tropical storms and a drought rather than from the lingering effects of the 2010 earthquake. ….
Any current issues in Haiti are unrelated to the 2010 earthquake.”).
On July 28, 2017, Elaine Duke replaced Kelly as the Secretary of Homeland Security.
Kelly became President Trump’s Chief of Staff. In the fall of 2017, with Haiti’s TPS set to expire
in January, 2018, it fell to Duke to conduct the review process.
In October 2017, the research unit at USCIS updated its working report titled “TPS
Considerations: Haiti,” which the research unit periodically updated. The October, 2017 update
identified seven previously identified areas of concern justifying ongoing TPS designation,
including the cholera epidemic, food insecurity, and the devastation of Hurricane Matthew. The
report described Haiti’s progress as “one step forward, two steps back,” noting that “conditions
prompting the original January 2010 TPS designation persist,” and that Haiti had also experiences
8
disasters that “severely worsened the pre-existing humanitarian situation.” Ex. 29. The government
of Haiti itself wrote a letter to Duke requesting an 18-month extension based on many of the same
conditions noted in the USCIS report. Ex. 30.
On October 13, 2017, Kovarik emailed career staffers at USCIS regarding their country
condition reports for several countries, including Haiti. Kovarik was frustrated with the reports’
accurate reflection of country conditions: “[t]he problem,” she wrote, “is that it reads as though
we’d recommend an extension b/c we talk so much about how bad it is.” Ex. 31.
the Chief of International and Humanitarian Affairs at USCIS, and a subject matter expert, replied:
“the basic problem is that it IS bad [with respect to] all the standard metrics. . . . We can . . . comb
through the country conditions … looking for positive gems, but the conditions are what they are.”
Id.
On October 22, 2017, Kovarik sent USCIS Adviser and Trump Appointee Robert Law a
draft decision memo for Haiti; the memo’s author, had written it neutrally to “support
either extension or termination.” Law disagreed. In his view, “[t]he draft is overwhelmingly
weighted for extension which I do not think is the conclusion we are looking for.” Law edited the
memo to “fully support termination,” adding comment boxes to the document “where additional
data should be provided to back up the decision.” Ex. 32.
At the end of October, 2017, Secretary of State Tillerson wrote to Duke, and overriding the
“strong opposition” of career diplomats, (Ex. 33), recommend that she terminate TPS. Ex. 34.
Tillerson’s top advisors had also been in contact with White House immigration advisor Stephen
Miller. Ex. 35. This type of involvement by Miller and the White House in the TPS process was
not uncommon—Kovarik later testified that Miller would “[p]retty regularly” attend meetings with
USCIS senior staff about TPS. Ex. 36 pp. 69–70. Miller had “numerous conversations” with
9
Duke’s office on the subject of TPS. Ex. 24 p. 225. The pressure worked: on a phone call, Tillerson
told Duke that ending TPS for Honduras was “just something she had to do.” Ex. 35.
On November 3, the White House held a “Principles Small Group Meeting” on TPS
attended by Kelly, Press Secretary Sarah Sanders, and Kirstjen Nielsen among others. The
discussion paper for the meeting reflects that the White House desired termination as a means to
“engage Congress to pass . . . .immigration reform to include a merit based entry system.” Ex. 37.
On November 5, 2017, with her decision fast approaching, Duke met with Tom Bossert, a
Homeland Security Advisor to the President, and Zachary Fuentes, the White House Deputy Chief
of Staff, regarding TPS for Haiti. Duke’s handwritten notes from this meeting reflect her
impression that it would be “extremely disappointing” if she were to “kick” the TPS decision into
the “lap of the next sec[retary].” Ex. 38.
Another document from around this time,1 containing Duke’s typed and handwritten notes,
is especially revealing. Reciting a Trump campaign slogan, Duke hand-wrote “I believe America
First,” but opined, “not sure ending TPS is America first strategy.” She wrote of the need to
“foreshadow” the impending terminations, but that she had had yet to find a rationale to terminate.
Specifically, she wrote: “rationale: don’t know, need to rationalize conflicting info.”2 Finally,
Duke wrote that “all agree[d]” that TPS “must end.” Ex. 39.
On November 6, 2017, Duke emailed John Kelly at the White House with her decision on
TPS for Honduras and Nicaragua. She had decided to terminate TPS for Nicaragua, while delaying
the effective date of the termination by 18 months. As for Honduras, she had decided to “not
1
Though this document does not contain a date, it is clear that it reflects Duke’s decision-making process and thus
predated her decision.
2
In yet another document from around this time Duke wrote “[t]he TPS program must end . . . soon” for El Salvador,
Nicaragua, and Honduras. Again parroting the Trump campaign slogan, Duke added that terminating TPS for these
countries was “the result of an America first view” of TPS, and that the only question she had was “the appropriate
timing for the termination.” Ex. 40.
10
affirmatively extend[]” TPS. “These decisions,” Duke wrote, “send a clear signal that TPS in
general is coming to a close. . . . [c]onsistent with the President’s position on immigration.” Ex.
41.
Just three hours later, after a “discussion with Tom B[ossert at the White House], “Duke e-
mailed Kelly again to explain that she was changing her recommendation on the effective date for
the Nicaragua termination from 18 months to 12. Id. Bossert separately emailed Duke’s office:
“Thank you . . . for the 12 month outcome.” Ex. 42.
After Duke’s decisions on Nicaragua and Honduras, the Washington Post reported that the
White House had applied “massive pressure” to Duke to reach its desired outcome. Ex. 43. In
response, Kelly emailed Duke and other senior administration officials decrying the reporting as
“foolishness.” A half-hour later, Kelly replied to his own email to opine that all he had done was
give Duke “guidance” on her decision; his job, he wrote “includes ensuring agenda adherence.”
Ex. 44.
On November 20, 2017, DHS announced in a press release Duke’s termination of TPS.
The announcement stated that the decision “was made after a review of the conditions upon which
the country’s original designation were based,” and summarily asserted that the “extraordinary but
temporary conditions caused by the 2010 earthquake no longer exist. Thus, under the applicable
statute, the current TPS designation must be terminated.” In short, the press release referred
exclusively to the 2010 earthquake, making no mention of the conditions Kelly had relied on only
a few months earlier to extent TPS for Haiti. Ex. 45.
On January 18, 2018, DHS published the notice of its TPS termination for Haiti in the
Federal Register. 83 Fed. Reg. 2648. The termination notice, like the earlier press release, provided
little information about what factors Duke reviewed in reaching her decision. The few metrics
11
cited by Duke all existed in May when Kelly extended TPS for Haiti. She cited that the number of
people in IDP camps had decreased; that the United Nations had withdrawn its peacekeeping
mission; that a new Haitian president was in office; that he intended to rebuild the National Palace;
and that Haiti’s economy had recovered somewhat since the earthquake. Last, she cursorily
mentioned the cholera epidemic, but offered no analysis of its reach other than to say that it was
“at its lowest level.” 83 Fed. Reg. at 2650. TPS for Haiti officially expires July 22, 2019.
STANDARD OF REVIEW
A motion to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) can be either
“facial, i.e., based solely on the allegations of the complaint” or “fact-based,” “proffering evidence
beyond the Pleading.” Carter v. HealthPort Techs., LLC, 822 F.3d 47, 57 (2d Cir. 2016). Because
Defendants’ Rule 12(b)(1) motion is facial, see Def. Br. at 14-17, this Court should “accept as true
all material factual allegations in the complaint, and draw all reasonable inferences” in Plaintiffs’
favor. Id. (internal citations, alterations, and quotation marks omitted).
Similarly, when ruling on a motion to dismiss for failure to state a claim for which relief
can be granted under Fed. R. Civ. P. 12(b)(6), courts should construe the complaint “liberally,
accepting all factual allegations . . . as true, and drawing all reasonable inferences in the plaintiff’s
favor.” Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). So long as a claim is
“plausible on its face,” dismissal is inappropriate. Sharkey v. Quarantillo, 541 F.3d 75, 92 (2d Cir.
2008). That counts are brought under the APA does not change these standards. Id.
A motion for summary judgment under Fed. R. Civ. P. 56(c) should be granted only if there
is “no genuine issue of any material fact and . . . the moving party is entitled to judgment as a
matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
12
ARGUMENT
I. This Court Has Jurisdiction to Review Plaintiffs’ Claims
A. The TPS Statute’s Judicial-Review Bar Does Not Apply To Plaintiffs’ Non-
Constitutional Claims
The TPS statute provides: “There 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.” 8 U.S.C. § 1254a(b)(5)(A) (emphasis added). This provision must be construed
narrowly due to the “‘the strong presumption that Congress intends judicial review of
administrative action,’” which can be rebutted only “upon a showing of ‘clear and convincing
evidence’ of a contrary legislative intent.” Sharkey, 541 F.3d at 84 (quoting Bowen v. Mich.
Academy of Family Physicians, 476 U.S. 667, 670 (1986). Thus, Plaintiffs’ claims are barred only
if they seek review of a TPS “determination” under the statute.
“Determination” has a specific meaning within the context of the required statutory process
for terminating TPS. That process requires, first, that the Secretary periodically “review the
conditions in the foreign state.” 8 U.S.C. § 1254a(b)(3)(A). Then, the Secretary “shall determine
whether the conditions for [the state’s] designation . . . continue to be met.” Id. (emphases added).
That means a determination of whether “there exist extraordinary and temporary conditions . . .
that prevent aliens . . . from returning to the state in safety.” Id., § 1254a(b)(1)(C). Lastly, only
“[i]f the [Secretary] determines . . . that a foreign state . . . no longer continues to meet the
conditions for designation,” the Secretary “shall terminate the designation.” Id., § 1254a(b)(3)(B)
(emphasis added). Thus, under the statute, “determination” refers specifically to the judgment that
the statutory criteria for designation are or are not met—a determination that must have a rational
“basis” in the required review of country conditions. Id., § 1254a(b)(3)(A). It does not encompass
any—even arbitrary—decision to terminate. Because the judicial-review provision only bars
13
review of any “determination” by the Secretary, Congress only clearly intended to bar review of a
TPS termination where the Secretary’s decision reflects the required, evidence-based
“determination” that the statutory criteria for designation are no longer met. Congress did not
clearly intend to bar review where the Secretary violates the statute by terminating TPS arbitrarily,
without ever having made any evidence-based judgment that conditions warrant termination.
That is precisely what Plaintiffs’ Complaint alleges. Plaintiffs allege that: (1) Defendants
violated the TPS statute, the APA, and the Due Process clause because they made a preordained,
arbitrary decision to terminate Haiti’s TPS without ever having reached a good-faith, evidence-
based determination that the statutory criteria for termination are met (i.e. that country conditions
prevents Haitian nationals from safely returning); (2) Defendants violated the APA by adopting a
novel, unjustified rule for evaluating TPS under which they could terminate TPS despite the fact
that those statutory criteria are not met; and (3) the termination decision was unconstitutionally
motivated by discriminatory animus. Plaintiffs thus do not seek judicial review of any
“determination” by the Secretary under the statute—and thus, review of this case is not barred.
Defendants’ motion totally ignores Plaintiffs’ allegation and the supporting evidence that
Defendants terminated TPS for Haiti despite never having determined in good faith that conditions
there had improved. The decision to terminate was contrary to internal memos revealing
Defendants’ awareness that “conditions prompting the original January 2010 TPS designation
persist.” Ex. 29; see also Ex. 46; Ex. 47. Thus, DHS had to fish for a pretext to rationalize the
termination. E.g., Ex. 31 ( to Kovarik in Oct. 2016: “We can . . . [look] for positive gems,
but the conditions are what they are.”). Duke’s own notes show that her decisionmaking was not
based in the statutory criteria for termination, the evidence of country conditions, or any other
rational considerations: her “rationale” for the decision was: “don’t know.” Ex. 39. Duke had
14
decided (in her own words) that “TPS in general is coming to a close,” “consistent with the
President’s position on immigration.” Ex. 41(emphasis added).
As this evidence shows that Duke’s decision to terminate TPS for Haiti failed to reflect any
judgment that termination is warranted under the statute, her decision is not encompassed by the
judicial-review bar, which only clearly expresses an intent to bar review of non-arbitrary
“determination[s]” that the statutory criteria for designation are no longer met. 8 U.S.C.
§ 1254a(b)(5)(A). Moreover, even if the word “determination” were ambiguous—i.e., even if
(despite the clear meaning that the surrounding context of the statute provides) the word could be
read broadly to bar review of any decision to terminate TPS (even an arbitrary, irrational one that
violates the statute’s procedural requirements)—this Court should adopt the narrower construction
advanced above, which favors review of Plaintiffs’ claims: that is because of the “longstanding
principle of construing any lingering [statutory] ambiguities … in favor of the alien” who faces
deportation. INS v. St. Cyr, 533 U.S. 289, 298 (2001).
Further, even if the section 1254a judicial-review provision unambiguously precluded
challenges to any TPS termination, there would still be jurisdiction to hear Plaintiffs’ claims for a
second reason: the word “determination” does not encompass practices and procedures employed
by the Government in making TPS termination decisions, so the TPS statute does not preclude
collateral challenges to TPS terminations resulting from unlawful practices and procedures. The
Court’s jurisdiction to review such claims is confirmed by McNary v. Haitian Refugee Center, 498
U.S. 479 (1991). In McNary, a class brought statutory and constitutional challenges to Government
policies and practices administering the special agricultural worker (“SAW”) program, which
granted legal status to qualifying workers. Id. at 481-84. The statute barred “judicial review of a
determination respecting an application for adjustment of status.” Id. at 491 (quoting 8 U.S.C. §
15
1160(e)(1)). Relying on Bowen’s “well-settled presumption” in favor of judicial review, the
Supreme Court concluded that plaintiffs’ claims were not barred because “the reference to a
‘determination’ describes a single act rather than a group of decisions or a practice or procedure
employed in making decisions.” Id. at 492.
Here, too, Plaintiffs’ claims are directed at underlying “practices and procedures” that
Defendants employed in terminating TPS for Haiti no less than for other countries—specifically:
(1) their practice of terminating TPS in general, whether or not statutory criteria for termination
are met; (2) their adoption of a new, generally applicable rule limiting review of TPS to conditions
on which TPS designations were originally based rather than considering all relevant country
conditions; and (3) their “America First” agenda, which broadly discriminates against immigrants
of color. As in Ramos and Presente (where the plaintiffs are pursuing similar theories), McNary
compels the conclusion that section 1254a’s preclusion of review of any TPS “determination” does
not bar Plaintiffs’ challenges to Defendants’ TPS practices and practices. Defendants’ motion
presents no reason to doubt that conclusion. 3 And indeed, the courts in both Ramos and Presente
rejected the Government’s jurisdictional arguments on precisely this ground. Ex. 1; Ex. 2.
B. This Court Has Jurisdiction to Review Plaintiffs’ Constitutional Claims
Initially, “although Congress exercises broad power over immigration matters, that power
is limited by the Constitution,” and thus Congress cannot bar review of all constitutional claims.
3
In a footnote, Def. Br. at 15 n.10, Defendants argue that McNary is inapplicable because this litigation does not
“involve some collateral challenge to DHS’s policies or procedures, nor does it concern the legality of DHS
regulations,” because Plaintiffs “are challenging the Acting Secretary’s TPS determination … and they are seeking
declaratory and injunctive relief that would undo that determination.” Ramos squarely—and correctly—rejected this
argument, stating: “[T]he fact that Plaintiffs’ challenge might result in vacating the … TPS [decisions] at issue in this
case is not dispositive…. The same was true in McNary… [which] had the effect of vacating individual determinations
and requiring the agency to re-consider them after correcting procedural deficiencies and applying the correct legal
standard. Similarly, if Plaintiffs prevail here, Defendants would not be compelled to extend each country’s TPS
designation. Instead, Defendants may make a new determination whether TPS should be extended or terminated once
they correct any legal errors identified by the Court.” Ex. 1 at 19-20.
16
Henderson v. INS, 157 F.3d 106, 118 (2d Cir. 1998), citing Battaglia v. General Motors Corp.,
169 F.2d 254, 257 (2d Cir. 1948).
Even assuming, though, that Congress has the power to strip courts of constitutional
jurisdiction, it did not do so here. As Defendants themselves acknowledge, “where Congress
intends to preclude judicial review of constitutional claims its intent do so must be clear.” Webster
v. Doe, 486 U.S. 592, 603 (1988). Indeed, “clear and convincing” evidence of Congressional intent
is required. Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 64 (1993).4 As Ramos held, the TPS
Statute “does not reflect a clear Congressional intent”—let alone “clear and convincing” evidence
of intent—to strip the courts of jurisdiction over Plaintiffs’ constitutional claims. Ex. 1 at 21-22.
Indeed, as Presente recognized, the fact that Congress specifically included constitutional
jurisdiction-stripping provisions elsewhere in the INA but did not do so in the TPS statute strongly
suggests Congress did not intend to eliminate jurisdiction over constitutional claims. Compare 8
U.S.C. § 1252(b)(9) (stripping courts of jurisdiction over constitutional challenges to orders of
removal) with 8 U.C.C. § 1254a (containing no equivalent provision); I.N.S. v. Cardoza-Fonseca,
480 U.S. 421, 433 (1987); (“Where congress includes particular language in one section of a statute
but omits it in another section . . . it is generally presumed that Congress acts intentionally and
purposely in the disparate inclusion or exclusion.”). See Ex. 2 at 21.
Moreover, Plaintiffs’ constitutional claims do not, as Defendants assert, require this Court
to “probe the sufficiency” of any specific fact-based evaluations under the TPS statute. Def. Br. at
14. Put another way, Plaintiffs do not challenge any determination that any “country is not in fact
4
Defendants cite Krua v. DHS, 729 F.Supp.2d 452, 455 (D. Mass. 2010) as their lone authority that this Court lacks
jurisdiction over Plaintiffs’ constitutional claims. But the pro se plaintiff in Krua did not raise any jurisdictional
argument at all, and the court thus did not have an opportunity to consider Webster. As such, “it is not persuasive.”
Ex. 1 at 21. In any event, the constitutional claims raised in Krua did not allege that the decision at issue there was
made “on the basis of racial animus.” See id. Thus, Krua is distinguishable.
17
safe, an evaluation which [the TPS statute] was intended to insulate” from review. Ex. 1 at 22.
Rather, Plaintiffs contend that TPS decision was “driven by unconstitutional animus” and violated
their due process rights. Id. Although the “evaluation of particular facts based on statutory
criteria . . . may be closely tied to the application and interpretation of statutes related to” the TPS
decision, “whether the decision is driven by unconstitutional racial animus is not.” Ex. 1 at 22
(emphasis added, citation and quotation marks omitted).
Finally, Defendants’ argument Congress intended to “channel” Plaintiffs’ constitutional
challenges into thousands of individualized removal proceedings in immigration court is meritless.
See Elgin v. Dept. of Treasury, 567 U.S. 1, 9 (2012). Elgin is inapposite here, as both Presente and
Ramos recognized. For one thing, the “channeling” Defendants advocate would require Plaintiffs
to “voluntarily surrender themselves for deportation” in order to obtain review, and “[q]uite
obviously, that price is tantamount to a complete denial of judicial review.” McNary, 498 U.S. at
496-97. For another, the statute in Elgin “channeled” the plaintiffs’ claims into the Merit System
Review Board and the Federal Circuit; those fora had the “tools to create the necessary record,”
and the “authority to consider and decide” their claims. 657 U.S. at 20. That is not the case in
removal proceedings in immigration court. See Ex. 2. at 22-23 (“[T]he assertion of claims here
would require developing a record that would not be possible or relevant in any one individual
plaintiff’s removal proceeding.”); Ex. 1 at 24 (same). Further, the “channeling” provision of the
INA on which Defendants rely, 8 U.S.C. § 1252(a)(2)(D), which was enacted well after the TPS
statute, “reflects Congress’ intent to channel constitutional challenges to a removal order” not a
“Congressional purpose to circumvent constitutional challenges to TPS country determinations.”
Ex. 1 at 23. For these reasons, this Court has jurisdiction to review Plaintiffs’ constitutional claims.
18
C. This Court Has Jurisdiction Over the President
Defendants rely on Mississippi v. Johnson, 71 U.S. (4 Wall.) 475, 501 (1866) for the
proposition that the President’s official actions can never be enjoined. Johnson was a political
question case—it did not establish a per se rule that the President is above the law even when he
himself has violated the Constitution. See Ohio v. Wyandotte Chems. Corp., 401 U.S. 493, 496
(1971) (Johnson was a case that attempted to “embroil [the Supreme Court] in ‘political
questions’”). Indeed, the Supreme court has not “expressly held” that courts may “never enjoin the
President” for official acts. Patricia M. Wald & Jonathan R. Siegel, The D.C. Circuit and the
Struggle for Control of Presidential Information, 90 Geo. L.J. 737, 758 (2002). Indeed, if “the
President himself” violates the law, then “the court’s order must run directly to the President.”
Nixon v. Sirica, 487 F.2d 700, 709 (D.C. Cir. 1973); see also United States v. Nixon, 418 U.S. 683,
706 (1974) (“[N]either the doctrine of separation of powers, nor the need for confidentiality . . .
can sustain an absolute, unqualified Presidential privilege of immunity from judicial process.”).
Here, Plaintiffs allege that the personal racial bias of President Trump himself motivated
the TPS terminations. See generally Part III, infra. Accordingly, this court can, and should,
exercise jurisdiction over Plaintiffs’ claims against President Trump.
II. This Court Should Deny Defendants’ Motion With Regard to Plaintiffs’ Statutory
Claims
A. Plaintiffs Should Be Allowed To Proceed With Their APA Claims Asserting That
Defendants Acted Arbitrarily And Their Common Law Claim That Termination of
TPS Was Ultra Vires
Defendants assert that Plaintiffs’ APA count—insofar as it is based on Plaintiffs’ theory
that terminating Haiti’s TPS was arbitrary, capricious, and in violation of the TPS statute—has no
merit because the Secretary “considered the pertinent evidence, examined the relevant factors, and
articulated a satisfactory explanation for its action.” Def. Br. at 20 (quoting Ru Jun Zhang v. Lynch,
19
2018 WL 1157756, at *6 (E.D.N.Y. 2018) (Kuntz, J.)). Defendants recite the improved conditions
on which the Secretary purported to rely in concluding that Haitian nationals “can safely return
home”—including “positive gems” like the announcement of a plan to rebuild the national palace.
Ex. 31. Remarkably though—like the Federal Register notice terminating Haiti’s TPS—
Defendants’ fail even to acknowledge the ongoing humanitarian crisis in Haiti, which USCIS
memos from around the time of the Secretary’s decision detailed in concluding that “the conditions
prompting the original January 2010 designation persist.” E.g., Ex. 29. The decision to terminate
was a “a political one.” Ex. 22. As it does not even try to explain why the Secretary’s decision was
reasonable in light of those countervailing facts, Defendants’ argument is patently inadequate to
show that the Secretary “considered the pertinent evidence, examined the relevant factors, and
articulated a satisfactory explanation for its action.” Ru Jun Zhang, 2018 WL 1157756, at *6.
Indeed, even at this preliminary stage, Plaintiffs have presented evidence that the TPS
termination was predetermined without regard to the statutory criteria and that Defendants
constructed a post hoc rationalization to support it, irrespective of actual conditions in Haiti. See
Background, Part II, supra. Defendants’ argument, Def. Br. at 24, that the Secretary’s decision
was not ultra vires because it was “consistent with the plain text of the statute” and “a permissible
interpretation of the statute” is conclusory.5
5
Defendants also argue that the ultra vires claim should be dismissed because “Plaintiffs assert the same claim … as
both a violation of the INA and as a substantive violation of the APA.” If, however, this Court or an appellate court
were to hold that the APA does not provide a cause of action, Plaintiffs would still be entitled to pursue a standalone
ultra vires claim. See Chamber of Commerce of the U.S. v. Reich, 74 F.3d 1322, 1327-28 (D.C. Cir. 1996) (citing
Leedom v. Kyne, 358 U.S. 184 (1958)) (plaintiff could bring common-law ultra vires claim against the Executive
where conditions for judicial review of APA claim were not satisfied). Accordingly, Plaintiffs should be permitted to
pursue these two theories in the alternative..
20
B. Plaintiffs’ Claim That Defendants Violated The APA In Applying A New Standard
for TPS Should Proceed
Under the APA, agency action may be set aside if it is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” 5 U.S.C. § 706(2)(A) “in excess of statutory
jurisdiction, authority, or limitations, or short of statutory right,” id. § 706(2)(C); or “without
observance of procedure required by law,” id. § 706(2)(D). The decision to terminate Haiti’s TPS
designation runs afoul of each of these provisions.
First, Defendants’ termination decision was arbitrary and capricious because it represents
an unexplained change in agency policy. Under this standard, an agency must examine the relevant
data and articulate a satisfactory explanation for its action. Motor Vehicle Mfrs. Assn. of United
States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). “An agency may not,
for example, depart from a prior policy sub silentio or simply disregard rules that are still on the
books.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 515 (2009). An “unexplained
inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary and
capricious change from agency practice.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117,
2126 (2016) (internal citation omitted). Here, the fact that Defendants’ provided no explanation
for the abrupt and significant change in the standard under which they reviewed TPS renders the
termination an arbitrary and capricious action.
Defendants’ response—that the termination of TPS did not result from a change in policy—
is unavailing. Under the standard applied by DHS in the past, the Secretary analyzed the real-world
conditions on the ground in TPS-designated countries to ascertain whether it was safe for TPS
recipients to return. The TPS statute does not direct that this review be limited to the conditions
which gave rise to the initial TPS designation. Consistent with the text of the TPS statute, review
of TPS extensions before the November termination of TPS for Haiti considered not only
21
conditions arising out of the earthquake that triggered the initial TPS designation, but also
conditions related to subsequent catastrophes like Hurricane Matthew. 82 Fed. Reg. at 23,832. In
terminating Haiti’s TPS, however, Trump Administration officials suddenly announced that they
could analyze only whether the TPS-triggering conditions themselves were still active, regardless
of other, separate conditions. Ex. 45. Defendants provided no explanation for this new, more
limited standard.
Second, given that the Trump Administration’s new standard for reviewing TPS has no
basis in the TPS statute and, in fact, runs counter to the text of the law, the decision to terminate
TPS here was in excess of the Secretary’s statutory authority, violating APA Section 706(2)(A).
Third, even if the Trump Administration’s rationale for terminating TPS were permitted
under the APA, the record shows that this rationale was never actually employed in reviewing
Haiti for re-designation under TPS, in violation of APA Section 706(2)(D). Instead of undertaking
a meaningful analysis of whether conditions related to the earthquake still impacted Haiti’s ability
to reabsorb people, officials examined statutorily irrelevant factors such as use of public benefits
and crime rates for TPS-recipients. Ex. 19; Ex. 20; Ex. 21. The TPS statute does not permit
consideration of factors other than conditions on the ground in the foreign state. Thus, the
termination was made “without observance of procedure required by law,” in violation of the APA.
C. Defendants’ New Standard for TPS Review Constitutes a New Rule, which
Defendants Promulgated without APA-Required Notice and Comment
The Trump Administration’s departure from the prior standard for TPS review constitutes
a new legislative rule, which should have been promulgated using notice and comment rulemaking.
The APA requires that when an agency engages in rulemaking, it must provide public notice of
the proposed rule and an opportunity to comment. 5 U.S.C. § 553(b), (c). The APA’s notice and
comment requirement, however, applies only substantive rules, which create new law, rights, or
22
duties, as opposed to so-called interpretative rules, which do not alter the rights of parties, though
they may change how parties make arguments to an agency. L.M. v. Johnson, 150 F. Supp. 3d
202, 215 (E.D.N.Y. 2015). Defendants argue that the new approach to TPS review is merely an
agency interpretation, but they cannot escape the fact that this new rule has a substantial impact
on those persons permitted to reside the United States under TPS.
“When determining whether an agency action is subject to the notice-and-comment
exemption under Section 553, the court looks not to labels given by the agency, but rather to the
nature of the impact of the agency action.” Id.; Lewis-Mota v. Sec’y of Labor, 469 F.2d 478, 481–
82 (2d Cir. 1972) (“[W]hat the agency does in fact” is determinative). Rules are considered
interpretative “so long as they do not ‘change the substantive standards by which the [agency]
evaluates’ applications which seek a benefit that the agency has the power to provide.” Nat'l Sec.
Counselors v. CIA, 931 F.Supp.2d 77, 107 (D.D.C. 2013) (citation omitted).
The Trump Administration’s new standard is a substantive rule which fundamentally
impacts the rights of TPS recipients. Because this new rule fundamentally alters the circumstances
under which DHS will renew or revoke TPS, the fact that the agency failed to use notice and
comment rulemaking to promulgate the rule violates APA Section 553.6
III. This Court Should Deny Defendants’ Motion With Regard to Plaintiffs’
Constitutional Claims
A. Equal Protection
1. To Prevail, Plaintiffs Are Not Required to Show That a Similarly Situated

Group was Treated Differently than They Were
6
For these reasons, Plaintiffs also should be allowed to proceed on their claim that Defendants violated the Regulatory
Flexibility Act (“RFA”), 5 U.S.C. §§ 601 et seq., by failing to evaluate the TPS termination’s significant economic
impact on small-businesses entities; the RFA’s requirements apply where, as here, the section 553 notice-and-
comment provisions of the APA apply. See 5 U.S.C. § 603.
23
As a threshold matter, Defendants argue that Plaintiffs’ equal protection claim is “facially
defective” as a matter of law because it “does not involve classifications of groups of aliens for
favored (or disfavored) treatment.” Def. Br. at 25. Defendants are wrong.
Plaintiffs bring their equal protection claim under Village of Arlington Heights v.
Metropolitan Housing Development Corporation, 429 U.S. 252 (1977), asserting that President
Trump’s “discriminatory purpose”—that is, his explicit racial animus towards Haitians and other
immigrants of color—was “a motivating factor in the decision” to terminate TPS. Id. at 266; see
also Compl. at ¶ 140 (alleging that the termination decision was “motivated by discriminatory
animus based on race”). For this very reason, Plaintiffs “need not plead or show the disparate
treatment of other similarly situated individuals.” Pyke v. Cuomo, 258 F.3d 107, 109 (2d Cir.
2001) (emphasis added).7 See also Ex. 1 at 46 (no need to show“that a group of similarly situated
persons were treated more favorably to demonstrate discriminatory intent”).
2. To Prevail, Plaintiffs Are Not Required to Show that Duke “Personally”

Harbored Discriminatory Animus
Defendants also argue that Plaintiffs’ equal protection claim is “fatal[ly] defect[ive]” as a
matter of law because Duke did not “personally harbor[] discriminatory animus” against Haitians
or immigrants of color. Def. Br. at 28. Defendants’ argument is nothing new. For example, in
Battalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 278-79 (E.D.N.Y. 2018), a case about President
Trump’s decision to rescind the DACA program, the court found this same attempt to “pass the
buck” to Duke “remarkable” in light of the fact that the “Constitution vests ‘executive power’ in
the President,” not Duke, “who reports to the President and is removable by him at will.” Id. The
court noted that “in far more mundane contexts, liability for discrimination will lie when a biased
7
Even assuming that Plaintiffs were required to show that a similarly situated group was favored over Haitians and
immigrants of color, they can. In particular, President Trump’s preference for immigrants from “places like Norway”
and disfavoring immigrants from “shithole countries” like Haiti is evidence of a preference for white immigrants.
24
individual manipulates a non-biased decision-maker into taking discriminatory action.” Id.
(collecting cases which explain “cat’s paw” liability and hold that it applies in the equal protection
context). Indeed, “it would be surprising” if the law were to permit President Trump’s racial
animus to “be laundered by being implemented by an agency under his control.” Id. (citation
omitted). More recently, Defendants made this same argument in Ramos and Presente. Both courts
rejected it. Ex. 1. at 43-44; Ex. 2. at 34-35. This court should, too.
3. Neither Trump v. Hawaii Nor Reno v. AADC Apply Here
Defendants make much of the Supreme Court’s recent Travel Ban decision in Trump v.
Hawaii, 138 S.Ct. 2392 (2018). In Defendants’ view, Trump insulates a President and his
subordinates from liability for even intentional discrimination, so long as that discrimination arises
in any context involving noncitizens. See Def. Br. at 26 (arguing that Trump requires “at most,
rational basis” review “given the deference owed to the political branches in this area”). But Trump
did not purport to overturn Arlington Heights, the case that applies to Plaintiffs’ claims here; Trump
never even mentions Arlington Heights.
Trump is distinguishable in other key respects, too. First, and most importantly, Trump
involved the President’s constitutional authority on matters of national security. The Court noted
that the case “differe[d]” from a “conventional” constitutional case precisely because the plaintiffs
sought “to invalidate a national security directive.” 138 S.Ct. at 2418. Defendants have never
argued—in this or any other TPS case—that decisions about TPS implicate national security. That
is because they do not—people with a criminal record are statutorily ineligible for TPS.
Second, and consistent with the Constitution’s recognition that national security is a
“matter within the core of executive responsibility,” id. at 2418, Trump concerned a statute which,
“by its plain language . . . grants the President broad discretion to suspend the entry of aliens into
the United States.” Id. at 2408 (citing 8 U.S.C. § 1182(f)). By contrast, the TPS statute prescribes
25
a mandatory review by the Secretary of Homeland Security of country conditions in the foreign
state; TPS may be terminated only if those conditions no longer exist. 8 U.S.C. § 1254a(b)(3)(B).
Third, Trump involved foreign nationals who had never set foot on American soil—a
critical factor in the Court’s conclusion that the Constitution’s protections did not apply. Id. at
2419. (“[F]oreign nationals seeking admission have no constitutional right to entry.”). By contrast,
each and every TPS recipient was physically present in the United States at the time of a
designation or extension—that is because the TPS statute requires physical presence to receive
TPS. 8 U.S.C. § 1254a(c)(1)(A)(i). Moreover, noncitizens residing within the United States have
greater constitutional protections than those outside the United States. Zadvydas v. Davis, 533 U.S.
678, 693 (2001) (“The distinction between an alien who has effected an entry into the United States
and one who has never entered runs throughout immigration law . . . . [O]nce an alien enters the
country, the legal circumstance changes.”); id. (citing Yick Wo v. Hopkins, 118 U.S. 356, 369
(1886) and noting the “equal protection guarantee applies” to noncitizens in the United States).
Relying on these and other factors, both Ramos and Presente correctly concluded that Trump did
not affect the analysis of constitutional challenges to TPS terminations. Ex. 1 at 53; Ex. 2. at 28.
This Court should do the same.
Similarly, Defendants argue that Reno v. AADC, 525 U.S. 471 (1999) requires Plaintiffs to
meet a “particularly demanding” standard of showing by “clear evidence” that the TPS termination
was based on “outrageous” discrimination. Def. Br. at 3, 28. AADC says no such thing. AADC
involved allegations that the plaintiffs were unconstitutionally selected for deportation “because
of their affiliation with a politically unpopular group,” not because of racial animus. 525 U.S. at
472. The Court insisted on a “particularly demanding” standard because the plaintiffs’ claims
“invade a special province of the Executive—its prosecutorial discretion” to choose to deport some
26
people but not others. Id. at 488. Here, though, Plaintiffs’ equal protection claims do not challenge
the government’s right under AADC to make discretionary decisions about which individual
noncitizens to remove in a particular case. They challenge TPS terminations based on racial
animus.8 For these reasons, Ramos and Presente correctly held that AADC did not apply to equal
protection challenges to TPS terminations. Ex. 1 at 26; Ex. 2 at 27. This Court should do the same.
4. Plaintiffs Easily Satisfy Arlington Heights’ Standard
Thus, Arlington Heights—not Trump or AADC—controls Plaintiffs’ equal protection
claim. Under Arlington Heights, Plaintiffs need not show that the decision to terminate TPS was
“motivated solely by” racial animus, nor that animus “was the ‘dominant’ or ‘primary’” purpose.
429 U.S. at 265. Rather, because “racial discrimination is not just another competing
consideration” that governments are permitted to consider when making decisions, “[w]hen there
is proof that a discriminatory purpose has been a motivating factor in the decision . . . judicial
deference” to the government’s decision-making “is no longer justified.” Id. at 265-66 (emphasis
added). Satisfying this standard requires a “sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.” Id. at 266. And, because they “rely[] on Arlington
Heights,” Plaintiffs “need provide very little” evidence of discriminatory purpose “to raise a
genuine issue of fact; any indication of discriminatory motive may suffice to raise a question that
can only be resolved by a fact-finder.” Arce v. Douglas, 793 F.3d 968, 977-78 (9th Cir, 2015)
(emphasis added). Plaintiffs easily satisfy this standard.
8
Attempting to salvage AADC, Defendants rely on several cases involving equal protection challenges to the NSEERS
program, reasoning that if AADC applies to “broader, programmatic” challenges like NSEERS, it should apply here.
Def. Br. at 29. But each of those cases involved individual plaintiffs challenging individual removal proceedings.
Moreover, in Kandamar v. Gonzales, 464 F.3d 65, 72 (1st Cir. 2006), the leading NSEERS case cited by Defendants,
the court did not apply AADC to the plaintiffs’ programmatic challenge, opting instead for traditional standards of
scrutiny. And, as Presente noted, “the Supreme Court recently applied heightened scrutiny in the context of an equal
protection challenge to a gender-based classification in the immigration context.” Ex. 2. at 28 (citing Sessions v.
Morales-Santana, 137 S.Ct. 1678, 1686, 1690 (2017)).
27
Ordinarily, “discriminatory intent is rarely susceptible to direct proof.” Mhany Mgmt., Inc.
v. Cty. of Nassau, 819 F.3d 581, 606 (2d Cir. 2016). Indeed, courts and scholars tend to believe
that “‘smoking gun’ evidence of discrimination is largely a thing of the past,” and courts are often
“surprised when explicit bias appears” in a case. Jessica Clarke, Explicit Bias, 113 N.W. L. REV.
at 4, 5 (forthcoming 2018), Ex. 48. But this case is far from ordinary. While in office, the President
of the United States has referred to Haitians as people from “shithole countries” while expressing
a preference for immigrants from mostly white countries “like Norway.” Ex. 15. He believes
Haitians “all have AIDS,” a view based on a decades-old, racist misconception about Haitians. Ex.
11. He asked “why do we need more Haitians?” in the U.S. Ex. 13. And, of course, he has referred
to immigrants as “rapists” and criminals Ex. 7; Ex. 8. Under Arlington Heights, “statements of
explicit bias” like these are “‘highly relevant’ to [the] contextual inquiry into whether
discrimination was a motivating factor” in the decision.9 Ex. 48 at 52; Arlington Heights, 429 U.S.
at 268 (emphasizing the importance of “contemporary statements” by decision makers). These
statements alone—which Defendants do not deny—are “more than sufficient” to establish that
the President harbors “animus based on race and/or national origin/ethnicity against non-white
immigrants in general and Haitians . . . in particular.” Ex. 1 at 54.
Plaintiffs have also plausibly alleged that TPS was terminated because the White House
wanted it to be, regardless of conditions on the ground. President Trump himself has linked his
race-laden invective to TPS. In the same meeting when he referred to Haitians as people from
“shithole” countries, he “demand[ed] that congressional negotiators ‘take them out’ of any further
talks about extending” TPS.” Ex. 13.
9
Indeed, even assuming that AADC’s standard applied, and Plaintiffs were required to show “outrageous” conduct,
these racist statements undoubtedly qualify.
28
On November 6, 2017, Duke wrote that the reason “TPS in general is coming to a close,”
was because doing so was “consistent with the President’s position on immigration,” and as a
means to “get to the President’s objectives.” Ex. 41. Separately, Duke wrote “the TPS program
must end” and, parroting a Trump campaign slogan, added that terminating TPS was the “result of
an America first view of the TPS decision.” Ex. 40.
This evidence confirms reporting that the White House exerted direct pressure on Duke to
terminate TPS, causing her to change parts of her decision. Ex. 43. Kelly and other officials spoke
with Duke in the days leading up to her decisions to terminate TPS for Nicaragua and Honduras.
In Kelly’s own words, the purpose of the call was to “ensure[] . . . adherence” to the President’s
“agenda.” Ex. 44. And, Duke modified the effective date of Nicaragua’s termination from 18
months to 12 after talking with White House official Tom Bossert, who later thanked Duke for the
change. Ex. 41; Ex. 42. White House advisor Stephen Miller “[p]retty regularly” attended meetings
with USCIS senior staff tasked with writing reports on which Duke based her decisions. Ex. 36.
These facts are more than sufficient to survive Defendants’ motion. See, e.g. United States
v. Yonkers Bd. Of Educ., 837 F.2d 1181, 1221-24 (2d Cir. 1987) (holding that a housing plan was
enacted with discriminatory intent under Arlington Heights where, inter alia, the City’s
constituents made numerous racist comments at public meetings, and the City’s “deviat[ions] from
its normal procedur[es]” and “swift zoning obstructions” were enough to “infer[] that the City
intended to preserve racially segregated neighborhoods”); Battalla Vidal, 291 F. Supp. 3d at 279
(E.D.N.Y. 2018) (“[L]iability for discrimination will lie when a biased individual manipulates a
non-biased decision-maker.”).
Finally, despite Defendants’ arguments to the contrary, strict scrutiny, not rational basis,
should apply to Plaintiffs’ equal protection claim. See Regents of Univ. of Cal. v. Bakke, 438 U.S.
29
265, 291 (1978) (“Racial and ethnic distinctions of any sort are inherently suspect and thus call for
the most exacting judicial examination.”); see also Yick Wo, 118 U.S. at 373-74. In light of the
ample evidence that the TPS termination was motivated by President Trump’s racism, however,
Plaintiffs can prevail even under rational basis review. See Ex. 2. at 37 (“[E]ven under rational
basis review, Plaintiffs have plausibly stated constitutional claims.”). For these reasons,
Defendants’ motion with regard to Plaintiffs’ equal protection claim should be denied.
B. Due Process
The Constitution’s due process guarantee, at bottom “protects against arbitrary government
action that deprives individuals of a protected interest.” Padberg v. McGrath-McKechnie, 203
F.Supp.2d 261, 277 (E.D.N.Y. 2002). As Ramos explained, TPS recipients have a protectable
interest in ensuring that the termination complied with the process mandated in the statute, namely,
“‘review’ and determin[ation].’” Ex. 1 at 41; see also id. (noting that there is a due process liberty
interest in residing in the United States, as deportation “visits a great hardship on the individual
and deprives him of the right to stay and live and work in this land of freedom.” Bridges v. Wixon,
326 U.S. 135, 154 (1945)). Thus, as Ramos already held, Plaintiffs have plausibly pleaded a due
process claim “co-extensive with their ability to prove that Defendants violated the APA or equal
protection guarantee.” Id.; see also Ex. 2 at 37 (denying the defendants’ motion to dismiss due
process claim). Here, Plaintiffs have established both that Defendants violated the APA and their
rights under the Equal Protection Clause. See Argument, Part III, supra.
CONCLUSION
For the foregoing reasons, this Court should deny Defendants’ motion.
30
Dated: September 14, 2018
Respectfully Submitted,
/s/ Geoffrey M. Pipoly
/s/ Ira J. Kurzban
/s/ Sejal Zota
31
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Case 3:18-cv-01554-EMC
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
7 CRISTA RAMOS, et al., Case No. 18-cv-01554-EMC

8 Plaintiffs,
ORDER DENYING DEFENDANTS’
9 v. MOTION TO DISMISS
10 KIRSTJEN NIELSEN, et al., Docket No. 20
11 Defendants.
12
Northern District of California
United States District Court
13 In 1990, Congress passed and President George H. W. Bush signed the Immigration Act of
14 1990, creating the ―Temporary Protected Status‖ (TPS) program. See Pub. L. 102-232 (1991).
15 The TPS statute codifies a long-standing practice: ―every Administration since and including that
16 of President Eisenhower has permitted one or more groups of otherwise deportable aliens to
17 remain temporarily in the United States out of concern that the forced repatriation of these
18 individuals could endanger their lives or safety.‖ H.R. Rep. 100-627, at 6 (1988). TPS is thus a
19 humanitarian program: it authorizes the Secretary of Homeland Security to temporarily permit
20 nationals from certain countries to live and work in the United States when an ongoing armed
21 conflict, environmental disaster, or other conditions prevent the safe return of those persons to
22 their countries of origin. See 8 U.S.C. § 1254a(b)(1)(A)-(C). Since 1990, several countries have
23 received TPS status.
24 At issue here are the designations for El Salvador, Nicaragua, Haiti, and Sudan. Sudan
25 was designated for TPS in 1997 on account of a brutal civil war. Its TPS designation was
26 extended periodically by every administration until late 2017, when Defendants announced that
27 Sudan‘s status would be terminated. Similarly, Nicaragua was designated in 1999 due to
28 Hurricane Mitch; El Salvador was designated in 2001 and Haiti in 2010, both on the basis of
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1 devastating earthquakes. Each country‘s TPS designation was periodically extended on every
2 occasion until late 2017. Between October 2017 and January 2018, Defendants announced that
3 TPS status for all four countries would be terminated by November 2, 2018 (Sudan), January 5,
4 2019 (Nicaragua), July 22, 2019 (Haiti), and September 9, 2019 (El Salvador).
5 These TPS designations have given rise to a sizeable population of over 200,000 people
6 who have lived in the United States with lawful status pursuant thereto for 10-20 years. Many
7 have built careers, bought homes, married, and had children—children who are U.S. citizens.
8 Plaintiffs in this case are TPS-beneficiaries and their U.S.-citizen children. At the crux of
9 their compliant is an allegation that Defendants, under the President‘s influence, have adopted a
10 new interpretation of the TPS statute. Whereas prior administrations evaluated the severity of
11 intervening events when considering whether to extend TPS, the present administration allegedly
12 ignores those events and focuses solely on whether the original rationale for TPS continues to
13 exist.
14 Plaintiffs assert four legal claims. First, the U.S.-citizen children between the ages of 5
15 and 18 allege that Defendants‘ termination violates their substantive due process rights because
16 the Government—without good reason—is forcing them to choose between living in the United
17 States without their parents or leaving their country of citizenship to return to countries they
18 maintain are unsafe. Second, Plaintiffs allege that the termination of TPS and adoption of a new
19 interpretation of the TPS statute violates the Constitution‘s equal protection guarantee because it
20 they were based on President Trump‘s racial animus against persons from those countries and his
21 alleged disdain for non-white immigrants. Third, the TPS beneficiaries allege that Defendants
22 have violated their substantive due process rights because they have not advanced a reasonable
23 basis to terminate their TPS status of the countries in question or to change their interpretation of
24 the TPS statute. Finally, the TPS-beneficiaries allege that Defendants‘ actions violated the
25 Administrative Procedure Act (APA) because Defendants departed from long-standing policy and
26 practice without acknowledging the change or providing good reasons for it.
27 Defendants have moved to dismiss on the basis that the Court lacks jurisdcition to hear
28 Plaintiffs‘ claims or review the Secretary‘s decisions with respect to TPS. Defendants also
2
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1 maintain that, even if the Court has jurisdiction, Plaintiffs fail to state a claim on any theory.
2 A hearing was held on June 22, 2018. See Docket Nos. 35, 39. On June 25, 2018, this
3 Court issued a summary order denying the motion (Docket No. 34 ). This order elaborates on that
4 order and addresses intervening case law.
5 I. FACTUAL BACKGROUND
6 Plaintiffs are nine persons who have permission to live and work in the United States
7 because their countries of origin have been designated for ―Temporary Protected Status‖ (TPS)
8 and four U.S.-citizen children whose parents currently hold TPS status. See Compl. ¶¶ 16-29.
9 The TPS holders come from Sudan, Nicaragua, El Salvador, and Haiti, four countries that have
10 continuously been designated for TPS since 1997, 1999, 2001, and 2010, respectively. Pursuant to
11 these TPS designations, Plaintiffs with TPS have been lawfully present in the United States from
12 approximately ten to twenty years. Despite long-standing practice periodically extending TPS
13 designations for these four countries, Defendants announced that TPS would be terminated over a
14 three month period between October 2017 and January 2018. As a result, over 200,000 residents
15 who have resided in the United States for years, some for decades, stand to lose their permission to
16 live and work in the United States and will be subject to deportation. Below, the Court
17 summarizes Plaintiffs‘ personal experiences as well as the history of TPS designations for each of
18 the four countries at issue.
19 A. Plaintiffs‘ Backgrounds
20 The following is a sample of Plaintiffs‘ backgrounds alleged in the Complaint.
21 1. Hiwaida Elarabi (Sudan)
22 Plaintiff Hiwaida Elarabi is originally Sudanese, but has lived in the United States since
23 1997 with TPS status. Compl. ¶ 29. She came to the United States with a valid visitor‘s visa in
24 1997 to visit her aunt and family (all of whom are U.S. citizens); the security situation in Sudan
25 deteriorated during her stay. Compl. ¶ 65. For that reason, the United States government
26 designated Sudan for TPS and Ms. Elarabi was permitted to remain in the United States because
27 she could not safely return to Sudan. Id. She has spent the past 20 years here because the United
28 States has extended Sudan‘s TPS designation at every relevant interval. In the United States, Ms.
3
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1 Elarabi a Master‘s degree in Bioinformatics from Brandeis University. Id. For 16 years, she
2 worked as a Health Educator at the Massachusetts Department of Public Health. Id. In 2015, she
3 borrowed money to open a restaurant. Id. After Defendants terminated Sudan‘s TPS designation,
4 she ―made the difficult decision to sell it, at great cost‖ because ―her future was uncertain and she
5 did not know whether she would be able to sustain the restaurant.‖ Id. Now, she must leave the
6 country she has lived in since 1997.
7 2. Elsy Yolanda Flores de Ayala, Maria Jose and Juan Eduardo (El Salvador)
8 Plaintiff Elsy Yolanda Flores de Ayala was born in El Salvador. Her mother, father, and
9 siblings fled El Salvador in the 1980s due to the country‘s brutal civil war, but she could not make
10 the journey because she was too young. Compl. ¶ 60. Her immediate relatives are now U.S.
11 citizens or legal permanent residents. In 2000, Ms. Flores de Ayala married, and migrated to the
12 United States with her daughter, Plaintiff Maria Jose Ayala Flores, a one-year-old at the time. Id.
13 While they were in the United States, devastating earthquakes struck El Salvador. Id. The United
14 States determined that nationals of El Salvador could not safely return and designated the country
15 for TPS. Id. Ms. Flores de Ayala and her daughter, Maria Jose, been living in the United States
16 since 2000 with TPS protection. In the United States, Ms. Flores de Ayala has worked as a
17 domestic worker and child-care provider for over fourteen years. Id.
18 Maria Jose, Ms. Flores de Ayala‘s daughter, is now 19-year-old. Compl. ¶ 59. She was
19 brought to the United States as an infant and has lived virtually her whole life here under the
20 umbrage of TPS. Id. All her schooling has taken place here. Id. In 2016, she graduated high
21 school. Id. She did not learn of her TPS status until she applied for college and realized she was
22 ineligible for many scholarships. Id. Currently, she is studying mathematics at Montgomery
23 College in Maryland and would like to teach math to elementary students. Id. However, if
24 Defendants‘ termination of TPS for El Salvador takes effect, she will be required to leave the only
25 country she has known and will be unable to complete her studies.
26 Ms. Flores de Ayala‘s youngest son, Juan Eduardo, is a U.S.-citizen. Compl. ¶ 53. He was
27 born in the United States and is also a plaintiff in this case. Id. He is currently in seventh grade.
28 Id. He may have no choice but to return to El Salvador with his parents and siblings, or be
4
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1 separated from them and placed with another family if he remains in the country of his citizenship
2 to complete his education. Id.
3 3. Hnaidi Cenemat and Wilna Destin (Haiti)
4 The plaintiffs from Nicaragua and Haiti will confront similar hardship. Plaintiff Hnaidi
5 Cenemat is also a U.S.-citizen, fourteen years old, whose mother, Plaintiff Wilna Destin, was born
6 in Haiti but has lived in the United States for 18-years after Haiti suffered from an earthquake that
7 prompted TPS designation. Compl. ¶ 54. Hnaidi is a freshman high school student in Florida,
8 where she is on the honor roll and active in her school and church communities, joining her church
9 choir and aspiring to join the cheerleading and flag football teams at her school in addition to the
10 Student Council. Id. She enjoys studying math and science and aspires to become an
11 obstetrician/gynecologist to help others. Id. She fears moving to Haiti with her mother—a
12 country she does not know—but she also fears being placed with a foster family in the United
13 States without her mother. Id. The situation is no less harrowing for her mother, Wilna. Compl. ¶
14 61. Wilna not only fears separation from her daughter, but also does not want to leave behind the
15 life she has built in the United States over the past eighteen years (eight of them with TPS status).
16 Id. She owns a home in Florida, is an active member of her community and church, and has
17 worked for a union for the past four years. Id. After Hurricane Katrina, she traveled to New
18 Orleans to volunteer with humanitarian relief efforts. Id.
19 4. Imara Ampie (Nicaragua)
20 Plaintiff Imara Ampie was born in Nicaragua, but traveled to the United States in 1998 at
21 the age of 26 to procure material for her mother‘s tailoring business. Compl. ¶ 63. While she was
22 here, Nicaragua was devastated by Hurricane Mitch. Id. The government designated Nicaragua
23 for TPS, so Ms. Ampie stayed here. Id. She married another TPS holder and they had two
24 children in the United States, who are both U.S. citizens. Id. She has lived here for twenty years.
25 Id. She owns a home in California. Id. She worries that she will have to return to Nicaragua
26 despite the lives she and her husband have built here, and that she will not be able to satisfy her
27 family‘s health care and educational needs in Nicaragua. Id. Her children would suffer whether
28 they are required to return to Nicaragua or whether they remain in the United States without their
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1 parents. Id. She has been here more than half of her adult life.
2 The plight of other named Plaintiffs are described in ¶¶ 50-65 of the Complaint. As noted
3 above, over 200,000 other people stand to lose their TPS status. Id. ¶ 2. Further, over 200,000
4 U.S.-citizen children have at least one parent who is a TPS holder likely to be deported. Id.
5 B. Background of TPS Designations and Terminations
6 The history of TPS designation for Haiti, El Salvador, Nicaragua, and Sudan is
7 summarized below.
8 1. Haiti
9 Haiti was originally designated for TPS on January 21, 2010 based on the 7.0-magnitude
10 earthquake on January 12, 2010 that prevented Haitians from returning safely. See Designation of
11 Haiti for Temporary Protected Status, 75 Fed. Reg. 3476 (Jan. 21, 2010). The Secretary described
12 that a third of Haiti‘s population had been affected by the earthquake and that Haiti‘s critical
13 infrastructure—including hospitals, food, water, electricity, and telephone supplies—was severely
14 impaired. Id. Haiti‘s designation was subsequently extended and re-designated four times by the
15 Obama administration and once by the Trump administration.1 Three of the designations cited
16 factors other than the original earthquakes; for example, the 2012, 2014, and 2015 extensions cited
17 subsequent ―steady rains . . . which led to flooding and contributed to a deadly cholera outbreak.‖2
18 On January 18, 2018, Acting Secretary Duke announced that Haiti‘s TPS designation
19 would be terminated effective July 22, 2019. See Termination of the Designation of Haiti for
20 Temporary Protected Status, 83 Fed. Reg. 2648-01 (Jan. 18, 2018). The termination notice states
21 that ―DHS has reviewed conditions in Haiti‖ in consultation with other federal agencies and
22
23 1
See Extension and Redesignation of Haiti for Temporary Protected Status, 76 Fed. Reg. 29,000-
24 01, 29,000 (May 19, 2011); Extension of the Designation of Haiti for Temporary Protected Status,
77 Fed. Reg. 59,943-01 (Oct. 1, 2012); Extension of the Designation of Haiti for Temporary
25 Protected Status, 79 Fed. Reg. 11,808-01, 11,808 (Mar. 3, 2014); Extension of the Designation of
Haiti for Temporary Protected Status, 80 Fed. Reg. 51,582-01 (Aug. 25, 2015); Extension of the
26 Designation of Haiti for Temporary Protected Status, 82 Fed. Reg. 23,830-01 (May 24, 2017).
2
27 Extension of the Designation of Haiti for Temporary Protected Status, 77 Fed. Reg. 59,943-01
(Oct. 1, 2012); see also Extension of the Designation of Haiti for Temporary Protected Status, 79
28 Fed. Reg. 11,808-01, 11,808 (Mar. 3, 2014) (same); Extension of the Designation of Haiti for
Temporary Protected Status, 80 Fed. Reg. 51,582-01 (Aug. 25, 2015) (same).
6
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1 ―determined . . . that the conditions for Haiti‘s designation for TPS—on the basis of ‗extraordinary
2 and temporary conditions‘ relating to the 2010 earthquake that prevented Haitian nationals from
3 returning safely—are no longer met.‖ Id. at 2650. The notice states that Haiti ―has made progress
4 recovering from the 2010 earthquake and subsequent effects that formed the basis for its
5 designation,‖ including that 98% of internally displaced persons sites have closed, and only
6 38,000 of the estimated 2 million Haitians who lost their homes were still living in camps in June
7 2017. Id. The United Nations had withdrawn its peacekeeping mission in October 2017. Id. It
8 held a presidential election, and the Haitian government was working to rebuild government
9 infrastructure that had been destroyed. Economic recovery ―has been generally positive.‖ Id.
10 Further, ―[a]lthough Haiti has grappled with a cholera epidemic that began in 2010 in the
11 aftermath of the earthquake, cholera is currently at its lowest level since the outbreak began.‖ Id.
12 Based on these considerations, the Acting Secretary determined that ―the conditions for the
13 designation of Haiti for TPS‖ are no longer met. Id.
14 2. El Salvador
15 El Salvador was designated for TPS on March 9, 2001 based on a series of earthquakes.
16 See Designation of El Salvador Under Temporary Protected Status, 66 Fed. Reg. 14214 (Mar. 9,
17 2001) (citing a ―devastating earthquake‖ causing displacement of 17% of the population,
18 destruction of 220,000 homes, 1,696 schools, and 856 public buildings, and causing losses in
19 excess of $2.8 billion). El Salvador‘s designation has been extended 11 times by the Bush and
20 Obama administrations,3 including due to ―a subsequent drought‖ in 2002,4 and the effects of
21
3
22 See Extension of the Designation of El Salvador Under the Temporary Protected Status
Program, 67 Fed. Reg. 46,000-01, 46,000 (Jul. 11, 2002); Extension of the Designation of El
23 Salvador Under Temporary Protected Status Program, 68 Fed. Reg. 42,071-01, 42,072 (Jul. 16,
2003); Extension of the Designation of Temporary Protected Status for El Salvador, 70 Fed. Reg.
24 1450-01, 1451 (Jan. 7, 2005); Extension of the Designation of Temporary Protected Status for El
Salvador, 71 Fed. Reg. 34,637-01, 34,638 (June 15, 2006); Extension of the Designation of El
25 Salvador for Temporary Protected Status, 72 Fed. Reg. 46,649-01, 46,650 (Aug. 21, 2007);
Extension of the Designation of El Salvador for Temporary Protected Status, 73 Fed. Reg. 57,128-
26 01, 57,129 (Oct. 1, 2008); Extension of the Designation of El Salvador for Temporary Protected
Status, 75 Fed. Reg. 39,556-01, 39,558-59 (July 9, 2010); Extension of the Designation of El
27 Salvador for Temporary Protected Status, 77 Fed. Reg. 1710-02, 1712 (Jan. 11, 2012); Extension
of the Designation of El Salvador for Temporary Protected Status, 78 Fed. Reg. 32,418-01, 32,420
28 (May 30, 2013); Extension of the Designation of El Salvador for Temporary Protected Status, 80
Fed. Reg. 893-01, 894-95 (Jan. 7, 2015); Extension of the Designation of El Salvador for
7
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1 Tropical Storm Stan, the eruption of the Santa Ana volcano, subsequent earthquakes, and
2 Hurricane Ida in the 2010 notice.5
3 On January 18, 2018, Secretary Nielsen announced the termination of TPS effective
4 September 9, 2019. See Termination of the Designation of El Salvador for Temporary Protected
5 Status, 83 Fed. Reg. 2654-01 (Jan. 18, 2018). According to the notice, the Secretary ―reviewed
6 conditions in El Salvador‖ and considered input from other government agencies, and ―determined
7 that the conditions supporting El Salvador‘s 2001 designation for TPS on the basis of
8 environmental disaster due to the damage caused by the 2001 earthquakes are no longer met.‖ Id.
9 at 2655-56. The notice states that recovery efforts relating to the earthquakes have ―largely‖
10 completed, ―social and economic conditions affected by the earthquakes have stabilized,‖ and
11 ―people are able to conduct their daily activities without impediments directly related to damage
12 from the earthquakes.‖ Id. at 2656. It also notes that El Salvador has been accepting the return of
13 people removed from the United States, including 20,538 persons in 2016 and 18,838 in 2017. Id.
14 The notice also describes the international aid El Salvador has received since 2001, the completion
15 of ―many reconstruction projects,‖ including schools, hospitals, homes, and support for improving
16 water, sanitation, and roads. The notice also cites ―stead[y] improv[ement]‖ in El Salvador‘s
17 economy, including a 7% unemployment rate and increases in its gross domestic product. Id. The
18 notice acknowledges that assistance and resources for returnees are ―limited,‖ but that the
19 governments of the U.S., El Salvador, and international organizations ―are working cooperatively
20 to improve security and economic opportunities.‖ Id.
21 3. Nicaragua
22 Nicaragua was originally designated for TPS on January 5, 1999 on the basis of Hurricane
23 Mitch. See Designation of Nicaragua Under Temporary Protected Status, 64 Fed. Reg. 526-01,
24
25
Temporary Protected Status, 81 Fed. Reg. 44,645-03 (July 8, 2016).
26 4
Extension of the Designation of El Salvador Under the Temporary Protected Status Program,
27 67 Fed. Reg. 46,000-01, 46,000 (July 11, 2002).
5
28 Extension of the Designation of El Salvador for Temporary Protected Status, 75 Fed. Reg.
39,556-01, 39,558-59 (July 9, 2010).
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1 526 (Jan. 5, 1999) (―Hurricane Mitch swept through Central America causing severe flooding and
2 associated damage in Nicaragua,‖ including ―substantial disruption of living conditions‖).
3 Nicaragua‘s designation was extended 13 times by the Clinton, Bush, and Obama
4 administrations.6 Its status was extended several times thereafter, including based on subsequent
5 developments, such as ―recent droughts as well as flooding from Hurricane Michelle‖ in 2002, 7
6 and subsequent natural disasters and storms.8
7 On December 15, 2017, Acting Secretary Duke announced that Nicaragua‘s designation
8 would terminate effective January 5, 2019. See Termination of the Designation of Nicaragua for
9 Temporary Protected Status, 82 Fed. Reg. 59636-01 (Dec. 15, 2017). The termination notice
10 states that ―DHS has reviewed conditions in Nicaragua‖ and that based on the review, ―the
11 Secretary has determined that conditions for Nicaragua‘s 1999 designation for TPS on the basis of
12 environmental disaster due to the damage caused by Hurricane Mitch are no longer met.‖ Id. at
13 59637. The Secretary found that ―[i]t is no longer the case that Nicaragua is unable, temporarily,
14 to handle adequately the return of nationals of Nicaragua,‖ that recovery efforts ―have largely been
15
16 6
See Extension of the Designation of Nicaragua Under the Temporary Protected Status Program,
17 65 Fed. Reg. 30,440-01, 30,440 (May 11, 2000); Extension of the Designation of Nicaragua
Under the Temporary Protected Status Program, 66 Fed. Reg. 23,271-01, 23,272 (May 8, 2001);
18 Extension of the Designation of Nicaragua Under the Temporary Protected Status Program, 67
Fed. Reg. 22,454-01, 22,454 (May 3, 2002); Extension of the Designation of Nicaragua Under
19 Temporary Protected Status Program, 68 Fed. Reg. 23,748-01, 23,749 (May 5, 2003); Extension
of the Designation of Temporary Protected Status for Nicaragua, 69 Fed. Reg. 64,088-01 (Nov. 3,
20 2004); Extension of the Designation of Temporary Protected Status for Nicaragua, 71 Fed. Reg.
16,333-01 (Mar. 31, 2006); See Extension of the Designation of Nicaragua for Temporary
21 Protected Status, 72 Fed. Reg. 29,534-01, 29,535 (May 29, 2007); Extension of the Designation of
Nicaragua for Temporary Protected Status, 73 Fed. Reg. 57,138-01, 57,139 (Oct. 1, 2008);
22 Extension of the Designation of Nicaragua for Temporary Protected Status, 75 Fed. Reg. 24,737-
01, 24,738 (May 5, 2010); Extension of the Designation of Nicaragua for Temporary Protected
23 Status, 76 Fed. Reg. 68,493-01 (Nov. 4, 2011); Extension of the Designation of Nicaragua for
Temporary Protected Status, 78 Fed. Reg. 20,128-01 (Apr. 3, 2013); Extension of the Designation
24 of Nicaragua for Temporary Protected Status, 79 Fed. Reg. 62,176-01 (Oct. 16, 2014); Extension
of the Designation of Nicaragua for Temporary Protected Status, 81 Fed. Reg. 30,325-01 (May
25 16, 2016).
7
26 Extension of the Designation of Nicaragua Under the Temporary Protected Status Program, 67
Fed. Reg. 22,454-01, 22,454 (May 3, 2002).
27 8
See, e.g., Extension of the Designation of Temporary Protected Status for Nicaragua, 71 Fed.
28 Reg. 16,333-01 (Mar. 31, 2006); Extension of the Designation of Nicaragua for Temporary
Protected Status, 72 Fed. Reg. 29,534-01, 29,535 (May 29, 2007).
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1 completed,‖ that ―[t]he social and economic conditions affected by Hurricane Mitch have
2 stabilized,‖ and that ―people are able to conduct their daily activities without impediments directly
3 related to damage from the storm.‖ Id. Furthermore, the Secretary noted that Nicaragua has
4 received significant international aid, many reconstruction projects have been completed, hundreds
5 of homes destroyed have been rebuilt, the Nicaraguan government has built new roads in many
6 areas affected by Hurricane Mitch, access to drinking water and sanitation has improved,
7 electrification of the country has increased from 50% in 2007 to 90% today, 1.5 million textbooks
8 have been provided to 225,000 primary students of the poorest regions, and Internet access is now
9 widely available. Id. In addition, the Secretary noted that Nicaragua‘s relative security has
10 attracted tourism and foreign investment, cites growth in Nicaragua‘s GDP, and notes that the
11 State Department has no current travel warning to Nicaragua. Id. Based on these considerations,
12 the Secretary ―determined . . . that Nicaragua no longer meets the conditions for designation of
13 TPS under section 244(b)(1) of the INA.‖ Id.
14 4. Sudan
15 Sudan was designated for TPS in November 1997 due to an ongoing armed conflict and
16 extraordinary conditions preventing nationals from returning safely. See Designation of Sudan
17 Under Temporary Protected Status, 62 Fed. Reg. 59737-01 (Nov. 4, 1997) (finding that ―a return
18 of aliens who are nationals of Sudan . . . would pose a serious threat to their personal safety as a
19 result of the armed conflict in that nation‖). It was periodically extended and/or re-designated for
20 TPS 15 times by the Clinton, Bush, and Obama administrations,9 often citing factors other than the
21
9
22 Extension of Designation of Sudan Under Temporary Protected Status Program, 63 Fed. Reg.
59,337-01 (Nov. 3, 1998); Extension and Redesignation of Sudan Under the Temporary Protected
23 Status Program, 64 Fed. Reg. 61,128-01, 61,128 (Nov. 9, 1999); See Extension of Designation of
Sudan Under the Temporary Protected Status Program, 65 Fed. Reg. 67,407-01 (Nov. 9, 2000);
24 Extension of the Designation of Sudan Under the Temporary Protected Status Program, 66 Fed.
Reg. 46,031-01 (Aug. 31, 2001); Extension of the Designation of Sudan Under the Temporary
25 Protected Status Program, 67 Fed. Reg. 55,877-01 (Aug. 30, 2002); Extension of the Designation
of Sudan Under Temporary Protected Status Program, 68 Fed. Reg. 52,410-01 (Sept. 3, 2003);
26 Extension and Re-designation of Temporary Protected Status for Sudan, 69 Fed. Reg. 60,168-01,
60,169 (Oct. 7, 2004); Extension of Designation of Sudan Under the Temporary Protected Status
27 Program, 70 Fed. Reg. 52,429-01 (Sept. 2, 2005); Extension of the Designation of Sudan for
Temporary Protected Status, 72 Fed. Reg. 10,541-02 (Mar. 8, 2007); Extension of the Designation
28 of Sudan for Temporary Protected Status, 73 Fed. Reg. 47,606-02 (Aug. 14, 2008); Extension of
the Designation of Sudan for Temporary Protected Status, 74 Fed. Reg. 69,355-02 (Dec. 31,
10
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1 armed conflict but possibly related, such as forced relocation, human rights abuses, famine, and
2 denial of access to humanitarian agencies.10
3 On October 11, 2017, Acting Secretary Elaine C. Duke announced the termination of
4 Sudan‘s TPS status, to be effective November 2, 2018 in order to permit an orderly transition. See
5 Termination of the Designation of Sudan for Temporary Protected Status, 82 Fed. Reg. 47228-02
6 (Oct. 11, 2017). The notice explains that Sudan‘s designation was terminated because:
7 DHS and the Department of State (DOS) have reviewed the

conditions in Sudan. Based on this review and consultation, the
8 Secretary has determined that conditions in Sudan have sufficiently
improved for TPS purposes. Termination of the TPS designation of
9 Sudan is required because it no longer meets the statutory conditions
for designation. The ongoing armed conflict no longer prevents the
10 return of nationals of Sudan to all regions of Sudan without posing a
serious threat to their personal safety. Further, extraordinary and
11 temporary conditions within Sudan no longer prevent nationals from
returning in safety to all regions of Sudan.
12
13 Id. at 47230. The notice explains that conflict is limited to Darfur and the Two Areas (South
14 Kordofan and Blue Nile states), but that in the 2016-2017 timeframe, the parties in conflict
15 engaged in ―time-limited unilateral cessation of hostilities declarations‖ that ―result[ed] in a
16 reduction in violence and violent rhetoric.‖ Id. ―The remaining conflict is limited and does not
17 prevent the return of nationals of Sudan to all regions of Sudan without posing a serious threat to
18 their personal safety.‖ Id. Additionally, food security has improved, humanitarian actors have
19 been able to provide needed humanitarian aid, and conditions no longer prevent all Sudanese
20 nationals from returning in safety despite the country‘s poor human rights record. Id. The notice
21 concludes that, in consideration of these factors, ―the Secretary has determined that the ongoing
22 armed conflict and extraordinary and temporary conditions that served as the basis for Sudan‘s
23
24 2009); Extension of the Designation of Sudan for Temporary Protected Status, 76 Fed. Reg.
63,635-01 (Oct. 13, 2011); Extension and Redesignation of Sudan for Temporary Protected
25 Status, 78 Fed. Reg. 1872-01 (Jan. 9, 2013) (detailing the 2005 Comprehensive Peace Agreement
and continuing violence); Extension of the Designation of Sudan for Temporary Protected Status,
26 79 Fed. Reg. 52,027-01, 52,029 (Sept. 2, 2014); Extension of the Designation of Sudan for
Temporary Protected Status, 81 Fed. Reg. 4045-01 (Jan. 25, 2016).
27 10
See, e.g., Extension of Designation of Sudan Under the Temporary Protected Status Program,
28 65 Fed. Reg.67,407-01 (Nov. 9, 2000); Extension of the Designation of Sudan Under the
Temporary Protected Status Program, 67 Fed. Reg. 55,877-01 (Aug. 30, 2002).
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1 most recent designation have sufficiently improved such that they no longer prevent nationals of
2 Sudan from returning in safety to all regions of Sudan.‖ Id.
3 C. Defendants‘ Termination Decisions
4 Plaintiffs question how the conditions in four countries that had been repeatedly designated
5 for TPS by multiple administrations over an eight to twenty year period improve within the span
6 of four months between October 2017 and January 2018. Plaintiffs contend Defendants ―adopted
7 a novel interpretation of the TPS statute.‖ Compl. ¶ 75. Previously, ―DHS or its predecessors
8 considered intervening natural disasters, conflicts, and other serious social and economic problems
9 as relevant factors when deciding whether to continue or instead terminate a TPS designation,‖ but
10 ―the Trump administration‘s DHS has now taken the position that such factors cannot be
11 considered.‖ Id. This change occurred without any explicit acknowledgment, announcement, or
12 explanation. Id. ¶ 76.

13 Plaintiffs cite two statements given to Congress by DHS officials as evidence to support
14 those claims. On June 6, 2017, then-DHS Secretary John Kelly stated that ―the program [TPS] is
15 for a specific event. In – in Haiti, it was the earthquake. Yes, Haiti had horrible conditions before
16 the earthquake, and those conditions aren‘t much better after the earthquake. But the earthquake
17 was why TPS was – was granted and – and that‘s how I have to look at it.‖ Id. ¶ 76. Current
18 Secretary Kirstjen Nielson more expressly stated that ―[t]he law does not allow me to look at the
19 country conditions of a country writ large. It requires me to look very specifically as to whether
20 the country conditions originating from the original designation continue to exist.‖ Id. ¶ 77.
21 Plaintiffs contend this change in approach was not a good-faith change in legal
22 interpretation of the TPS statute. Instead, they allege Defendants‘ action was motivated by racial
23 and national-origin animus. Compl. ¶ 66. They trace the animus to President Donald J. Trump
24 and others in his administration who have made statements which ―leave no doubt as to the
25 speaker‘s racially discriminatory motives against non-white and non-European immigrants.‖ Id.
26 Most relevant to the TPS terminations at issue here, in a January 11, 2018 meeting with
27 Congressional representatives concerning TPS protections for nationals from Latin American and
28
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1 African countries, in which at least El Salvador and Haiti were specifically discussed,11 President
2 Trump wondered aloud, ―Why are we having all these people from shithole countries come here?‖
3 Id. ¶ 70. He expressed a preference, instead, for immigrants from countries like Norway, which is
4 overwhelmingly white. Id. President Trump asked ―Why do we need more Haitians?‖ and
5 ―insisted that lawmakers ‗[t]ake them out‘ of any potential immigration deal.‖ Id.
6 Just one week after President Trump‘s comments, Deputy Secretary Duke announced the
7 decision terminating Haiti‘s TPS designation, and Secretary Nielsen announced the decision
8 terminating El Salvador‘s designation. Compl. ¶¶ 81, 84. Secretary Nielsen was allegedly present
9 at the meeting with President Trump. Id. ¶ 72.
10 The White House has allegedly exerted pressure on DHS with respect to recent TPS
11 terminations. In particular, Plaintiffs allege that in November 2017, White House Chief of Staff
12 John F. Kelly and White House Homeland Security Adviser Tom Bossert ―repeatedly called
13 Acting [DHS] Secretary Duke and pressured her to terminate the TPS designation for Honduras.‖
14 Compl. ¶ 73. One official with knowledge of the exchange stated that ―[t]hey put massive
15 pressure on [Acting Secretary Duke].‖ Id. Chief of Staff Kelly who allegedly called from Japan
16 while traveling with President Trump, ―was irritated and persistent,‖ and ―warn[ed] Acting
17 Secretary Duke that the TPS program ‗prevents [the Trump Administration‘s] wider strategic goal‘
18 on immigration.‖ Id. The pressure was so severe that Acting Secretary Duke stated she would
19 resign her position. Id.
20 II. LEGAL STANDARD
21 Defendants move to dismiss under both Rule 12(b)(1) and 12(b)(6).
22 A. Rule 12(b)(1)
23 ―[A] defendant may challenge the plaintiff‘s jurisdictional allegations in one of two ways.
24
25 11
Plaintiffs‘ complaint cites a news article stating that the topic of discussion at the January 11,
26 2018 meeting was immigrants ―from Haiti, El Salvador, and African countries. See Compl. at 20,
n. 37 (citing Josh Dawsey, Trump Derides Protections for Immigrants from “Shithole” Countries,
27 WASH. POST (Jan 12, 2018), https://www.washingtonpost.com/politics/trump-attacks-protections-
for-immigrants-from-shithole-countries-in-oval-office-meeting/2018/01/11/bfc0725c-f711-11e7-
28 91af-31ac729add94_story.html. The article is incorporated by reference into the complaint. See
In re NVIDIA Corp. Securities Litig., 768 F.3d 1046, 1051 (9th Cir. 2014).
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1 A ‗facial‘ attack accepts the truth of the plaintiff‘s allegations but asserts that they are insufficient
2 on their face to invoke federal jurisdiction. The district court resolves a facial attack as it would a
3 motion to dismiss under Rule 12(b)(6): Accepting the plaintiff‘s allegations as true and drawing
4 all reasonable inferences in the plaintiff‘s favor, the court determines whether the allegations are
5 sufficient as a legal matter to invoke the court‘s jurisdiction.‖ Leite v. Crane Co., 749 F.3d 1117,
6 1121 (9th Cir. 2014) (citations and quotations omitted).
7 ―A ‗factual‘ attack, by contrast, contests the truth of the plaintiff‘s factual allegations,
8 usually by introducing evidence outside the pleadings. When the defendant raises a factual attack,
9 the plaintiff must support her jurisdictional allegations with ‗competent proof,‘ under the same
10 evidentiary standard that governs in the summary judgment context. The plaintiff bears the
11 burden of proving by a preponderance of the evidence that each of the requirements for subject-
12 matter jurisdiction has been met.‖ Id. (citations omitted).

13 Here, Defendants concede that they are mounting only a ―facial‖ attack to Plaintiffs‘
14 allegations with respect to jurisdiction. Accordingly, the Court accepts those allegations as true
15 and draws reasonable inferences in their favor.
16 B. Rule 12(b)(6)
17 In reviewing a motion to dismiss, the Court takes all allegations of material fact as true and
18 construes them in favor of the plaintiffs to determine whether a plausible legal claim has been
19 stated. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). A claim ―has facial plausibility
20 [if the plaintiffs] plead[] factual content that allows the court to draw the reasonable inference that
21 the defendant is liable for the misconduct alleged.‖ Aschroft v. Iqbal, 556 U.S. 662, 678 (2009).
22 Importantly, ―[i]f there are two alternative explanations [for the challenged conduct], one
23 advanced by defendant and the other advanced by plaintiff, both of which are plausible, plaintiff‘s
24 complaint survives a motion to dismiss under Rule 12(b)(6).‖ Starr v. Baca, 652 F.3d 1202, 1216
25 (9th Cir. 2011). Dismissal is only warranted if Defendants‘ ―plausible alternative explanation is
26 so convincing that [Plaintiffs‘] explanation is implausible.‖ Id. (emphasis in original).
27 III. DISCUSSION
28 Defendants argue that the Court lacks jurisdiction to review any claim related to
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1 Defendants‘ termination of TPS for the four countries at issue and that, even if the Court can
2 consider Plaintiffs‘ claims, they each fail on the merits. For the reasons stated in its prior
3 summary order and below, the Court denies Defendants‘ motion.
4 A. Jurisdictional Bar – Dismissal Under Rule 12(b)(1)
5 Section 1254a(b)(5)(A) of the TPS statute provides:
6 There is no judicial review of any determination of the [Secretary of

Homeland Security]12 with respect to the designation, or termination
7 or extension of a designation, of a foreign state under this
subsection.
8
9 8 U.S.C. § 1254a(b)(5)(A).
10 Defendants construe this provision broadly to preclude review not only of the Secretary‘s
11 substantive determination with respect to a particular country (e.g., whether conditions in a
12 particular foreign country have abated), but also any generally applicable process, practice, or
13 legal interpretation employed by the Secretary in making such determinations. The Court first
14 construes the scope of § 1254a and then considers whether Plaintiffs‘ claims fall within its scope.
15 1. Section 1254a Does Not Preclude Challenges to General Collateral Practices
16 Statutory interpretation begins with the text of the statute. See Los Angeles Lakers, Inc. v.
17 Fed. Ins. Co., 869 F.3d 795, 802 (9th Cir. 2017). Construction of a jurisdiction-stripping statute,
18 however, is guided by important overarching principles. ―A strong presumption exists that the
19 actions of federal agencies are reviewable in federal court.‖ KOLA, Inc. v. U.S., 882 F.2d 361, 363
20 (9th Cir. 1989); see also Sackett v. E.P.A., 566 U.S. 120, 128 (2012) (explaining that ―[t]he
21 APA . . . creates a presumption favoring judicial review of administrative action‖). Furthermore,
22 ―where Congress intends to preclude judicial review of constitutional claims its intent to do so
23 must be clear.‖ Webster v. Doe, 486 U.S. 592, 603 (1988). The presumption in favor of judicial
24 review may be overcome ―only upon a showing of ‗clear and convincing evidence‘ of a contrary
25 legislative intent.‖ Abbott Labs. v. Gardner, 387 U.S. 136, 141 (1967) (citations omitted). Such
26 indications may be ―drawn from ‗specific language,‘ ‗specific legislative history,‘ and ‗inferences
27
12
28 Section 1254a vests this authority with the Attorney General, but that power was subsequently
transferred to the Secretary of Homeland Security. See 8 U.S.C. § 1103; 6 U.S.C. § 557.
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1 of intent drawn from the statutory scheme as a whole,‘ that Congress intended to bar review.‖
2 Cuozzo Speed Techs., LLC v. Lee, 136 S. Ct. 2131, 2140 (2016) (quotation omitted). Finally,
3 ―[e]ven where the ultimate result [of a statute] is to limit judicial review, . . . as a matter of the
4 interpretive enterprise itself, the narrower construction of a jurisdiction-stripping provision is
5 favored over the broader one.‖ ANA Int’l, Inc. v. Way, 393 F.3d 886, 891 (9th Cir. 2004). Giving
6 effect to provisions eliminating judicial review raises serious questions as to separation of powers,
7 and raises constitutional concerns. See Webster, 486 U.S. at 603 (explaining that a ―heightened
8 showing‖ of Congressional intent is required ―in part to avoid the ‗serious constitutional question‘
9 that would arise if a federal statute were construed to deny any judicial forum for a colorable
10 constitutional claim‖).
11 The TPS statute precludes review of the ―any determination . . . with respect to the
12 designation, or termination or extension of a designation, of a foreign state under this subsection.‖

13 8 U.S.C. § 1254a(b)(5)(A) (emphasis added). The statute does not define ―determination,‖ but it
14 is evident from the statutory context that this provision refers to the designation, termination, or
15 extension of a country for TPS. Id. The statute uses the word ―determines‖ or ―determination‖ in
16 connection with the Secretary‘s initial designation, periodic review, and termination of a TPS
17 foreign-state designation. See 8 U.S.C. § 1254a(b)(3)(A) (providing that the Secretary
18 periodically ―shall determine whether the conditions for such designation . . . continue to be met‖
19 and to timely publish ―such determination‖); id. § 1254a(b)(3)(B) (if the Secretary ―determines‖
20 the conditions are no longer met, then he ―shall terminate the designation by publishing notice . . .
21 of the determination‖); id. § 1254a(b)(3)(C). There is no clear provision stating ―determination‖
22 refers to, e.g., general procedures or criteria applied in making such country-by-country
23 determinations.
24 The Supreme Court has concluded that similar statutes which preclude review of a
25 ―determination‖ of immigration status did not preclude review of collateral practices and policies.
26 For example, McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991), concerned a jurisdiction-
27 stripping provision related to the ―Special Agricultural Workers‖ (SAW) amnesty program for
28 certain farmworkers. Under the Immigration Reform and Control Act of 1986 (―IRCA‖), alien
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1 farmworkers who were unlawfully present but met certain criteria could apply for adjustment of
2 status. See generally 8 U.S.C. § 1160(a). The Attorney General was responsible for administering
3 the application process, including a required interview. The plaintiffs in McNary alleged that the
4 ―interview process was conducted in an arbitrary fashion that deprived applicants of the due
5 process guaranteed by the Fifth Amendment to the Constitution‖ because, inter alia, they were not
6 apprised of or given an opportunity to challenge adverse evidence, denied the opportunity to
7 present witnesses, were denied access to competent interpreters, and because the interviews were
8 not recorded, inhibiting meaningful review of denials. Id. at 487. They did not challenge their
9 individual denials on the merits (i.e., the application of the statute‘s substantive eligibility criteria
10 to their individual case), but rather collaterally challenged the process under which their denials
11 were determined.
12 The government argued that the McNary plaintiffs‘ claims were precluded from bringing
13 suit because the statute (similar to the TPS statute here) provided that ―[t]here shall be no
14 administrative or judicial review of a determination respecting an application for adjustment of
15 status under this section except [as provided under 8 U.S.C. § 1160(e)(3)(A) of ‗an order of
16 exclusion or deportation‘].‖ 8 U.S.C. § 1160(e). The Supreme Court held that ―the reference to ‗a
17 determination‘ describes a single act rather than a group of decisions or a practice or procedure
18 employed in making decisions.‖ Id. at 492 (emphasis added). The court found that its
19 interpretation was bolstered by the fact that the statute limited judicial review of such
20 ―determinations‖ to a narrow process; that review was limited to an administrative record related
21 to an individual‘s eligibility for relief, and was thus inadequate ―to address the kind of procedural
22 and constitutional claims‖ asserted by the plaintiffs. Id. at 493. The Supreme Court noted that,
23 ―had Congress intended the limited review provisions . . . to encompass challenges to INS
24 procedures and practices, it could easily have used broader statutory language,‖ such as ―all
25 causes . . . arising under‖ the statute, or ―all questions of law and fact. Id. at 494. In short, the
26 Supreme Court held that ―[w]e agree . . . this language [describes] the process of direct review of
27 individual denials of SAW status, rather than as referring to general collateral challenges to
28 unconstitutional practices and policies used by the agency in processing applications.‖ 498 U.S. at
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1 492.
2 The Supreme Court applied McNary in Reno v. Catholic Social Servs., Inc., 509 U.S. 43
3 (1993) (―CSS‖). In Reno, the Supreme Court considered a challenge to regulations promulgated
4 by the AG pursuant to IRCA with respect to another amnesty program permitting certain aliens to
5 adjust their immigration status. A similar set of jurisdiction-stripping provisions collectively
6 provided that ―a determination respecting an application for adjustment of status‖ could only be
7 reviewed in a single level of administrative appellate review and then ―only in the judicial review
8 of an order of deportation.‖ See 8 U.S.C. §§ 1255a(f)(1), 1255a(f)(3)(A), 1255a(f)(4)(A),
9 1255a(f)(1). Although the suit in Reno was not the judicial review authorized by the statute, the
10 Court permitted the case to proceed because the plaintiffs‘ challenge was to the AG‘s regulations
11 interpreting the statute, rather than an individual determination. The Supreme Court thus held that
12 the jurisdiction-stripping provision did not apply.13

13 Here, Plaintiffs challenge, inter alia, DHS‘s change in interpretation of the TPS statute (a
14 general procedural issue), not an individual determination.14 The Department‘s general
15 interpretation of the TPS statute is a question distinct from the Department‘s designation or
16 termination of a particular country‘s TPS status.
17 Contrary to Defendants‘ argument, the statute‘s reference to ―any determination‖ does not
18 subsume ―any‖ general policies or practices. Rather, the word ―any‖ must be understood in its
19 grammatical context: ―any determination . . . with respect to the designation, or termination or
20
21 13
The Supreme Court then determined that several plaintiffs‘ claims may not be ripe because they
22 had not yet applied for and been denied adjustment of status under the regulation they challenged.
Defendants do not challenge the ripeness of Plaintiffs‘ claims in this case. Moreover, no such
23 problem appears. In CSS, the plaintiffs were unlawfully present in the United States and would
not be affected by the problematic regulation unless they applied for adjustment of status and then
24 were denied on the basis of the challenged regulation (rather than on other grounds). In contrast,
here, Plaintiffs and others similarly situated have permission to remain in the United States and
25 Defendants‘ actions will, if undisturbed, strip them of that status.
14
26 See also Immigrant Assistance Project of AFL-CIO v. I.N.S., 306 F.3d 842, 862-63 (9th Cir.
2002) (applying McNary to hold that a statute depriving aliens applying for amnesty of ―judicial
27 review of a determination respecting an application for adjustment‖ did not preclude district court
jurisdiction over the plaintiffs‘ ―procedural rather than substantive‖ challenge); Proyecto San
28
Pablo v. I.N.S., 189 F.3d 1130, 1138-41 (9th Cir. 1999) (same).
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1 extension of a designation, of a foreign state.‖ 8 U.S.C. § 1254a(b)(5)(A) (emphasis added). See
2 Small v. U.S., 544 U.S. 385, 388 (2005) (holding that statutory phrase ―convicted in any court‖ did
3 not include foreign courts); U.S. v. Alvarez-Sanchez, 511 U.S. 350, 357 (1994) (holding that
4 ―respondent errs in placing dispositive weight on the broad statutory reference to ‗any‘ law
5 enforcement officer or agency without considering the rest of the statute‖). In context, ―any
6 determination‖ means the determination to designate, the determination to terminate, and the
7 determination to extend a designation. ―Any‖ modifies but does not define ―determinations.‖
8 The government cites a House Judiciary Committee report which states that ―none of the
9 [Secretary‘s] decisions with regard to granting, extending, or terminating TPS will be subject to
10 judicial review,‖ H.R. Rep. No. 101-245 (1989), at 14. That citation is inapt for two reasons.
11 First, this committee report concerns the ―Chinese Temporary Protected Status Act of 1989,‖
12 House Resolution 2929 (101st Congress), which was never passed. Although the judicial review
13 provision in that proposed legislation is similar to the language ultimately included in the general
14 TPS statute passed and codified at 8 U.S.C § 1254a, the latter was part of the Immigration Act of
15 1990, Pub. L. No. 101-649, Nov. 29, 1990. Defendants have not identified other relevant
16 legislative history pertaining to the legislation actually passed by Congress. In any case, the
17 language cited in this committee report would not provide additional guidance even if it pertained
18 to the TPS statute at issue here. It merely echoes the language of the statute, using the word
19 ―decisions‖ instead of ―determinations.‖ That is not clear and convincing evidence of
20 Congressional intent to strip jurisdiction of the courts to review generally applicable policies and
21 practices which transcend individual TPS determination for a particular country.
22 Finally, the fact that Plaintiffs‘ challenge might result in vacating the four TPS
23 determinations at issue in this case is not dispositive to the interpretation question at hand. The
24 same was true in McNary and CSS; both had the effect of vacating individual determinations and
25 requiring the agency to re-consider them after correcting procedural deficiencies and applying the
26 correct legal standard. Similarly, if Plaintiffs prevail here, Defendants would not be compelled to
27 extend each country‘s TPS designation. Instead, Defendants may make a new determination
28 whether TPS should be extended or terminated once they correct any legal errors identified by the
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1 Court.
2 2. Section 1254a Does Not Preclude Colorable Constitutional Claims
3 Plaintiffs‘ constitutional claims do challenge, inter alia, DHS‘s determinations to terminate
4 each of the four country‘s TPS status on grounds that do not depend on DHS‘s general
5 interpretation of the TPS statute. For example, the U.S.-citizen children allege that Defendants‘
6 termination of their parents‘ TPS status violates their substantive due process rights because
7 ―Defendants have articulated no substantial governmental interest and have failed to adequately
8 tailor their action to promote any legitimate interest they may have,‖ and the TPS termination
9 notices do not ―identif[y] any risk to the interests of the United States that would follow from
10 allowing the school-aged U.S. citizen children to remain in the United States with their TPS holder
11 parents until the children reach the age of majority.‖ Compl. ¶ 105. Similarly, Plaintiffs‘ equal
12 protection claim alleges that ―Defendants‘ decisions to terminate the TPS designations for El
13 Salvador, Haiti, Nicaragua, and Sudan are unconstitutional because they were motivated, at least
14 in part, by intentional discrimination based on race, ethnicity, or national origin.‖ Compl. ¶ 110.
15 Finally, the TPS-holder Plaintiffs allege that their due process rights have been violated because
16 ―[t]he government also has not articulated, and cannot establish, any rational basis for . . . ignoring
17 the current capability of TPS countries to safely receive longtime TPS holders, their families, and
18 their U.S. citizen children.‖ Compl. ¶ 115.
19 These challenges are not collateral challenges to broad policies. Rather, they directly
20 attack the determinations themselves. Thus, McNary and Reno do not apply to these challenges.
21 Nevertheless, as noted above, ―where Congress intends to preclude judicial review of
22 constitutional claims its intent to do so must be clear.‖ Webster, 486 U.S. at 603. This
23 ―heightened showing‖ is required ―in part to avoid the ‗serious constitutional question‘ that would
24 arise if a federal statute were construed to deny any judicial forum for a colorable constitutional
25 claim.‖ Id. (citation and quotation omitted).
26 Here, Plaintiffs argue that the phrase ―under this subsection‖ in Section 1254a(b)(5)(A)
27 means that the provision does not preclude a legal claim arising under the Constitution or other
28 statutes. See 8 U.S.C. § 1254a(b)(5)(A) (―There is no judicial review of any determination of the
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1 Attorney General . . . under this subsection.‖ (emphasis added)). This argument is not persuasive.
2 Under Plaintiffs‘ interpretation, the statute only precludes a cause of action arising directly under §
3 1254a; but there is no direct cause of action under § 1254a, so Plaintiffs‘ interpretation would
4 render the phrase meaningless. Rather, as the Government contends, ―under this subsection‖ is
5 more reasonably read to describe the ―determinations‖ for which review is precluded, i.e., specific
6 TPS determinations made by the Secretary under the statute.
7 However, there is no ―clear and convincing‖ evidence that Congress intended to preclude
8 the Court from reviewing constitutional challenges of the nature alleged here. Indeed, as Plaintiffs
9 point out, where Congress otherwise intended to preclude review of all constitutional claims in the
10 INA, it said so explicitly. See 8 USC 1252(b)(9) (―Judicial review of all questions of law and fact,
11 including interpretation and application of constitutional and statutory provisions, arising from
12 any action taken or proceeding brought to remove an alien . . . shall be available only in judicial
13 review of a final order under this section.‖ (emphasis added)); see also McNary, 509 U.S. at 494.
14 Such a clear expression of intent is absent in the TPS statute.15 Constitutional concerns counsel
15 for a narrow interpretation of jurisdiction-limiting statutes. Thus, absent clear evidence of
16 Congressional intent, the jurisdiction-stripping provision should be construed to preclude review
17 only of claims challenging a determination for reasons that are ―closely tied to the application and
18 interpretation of statutes‖ which are committed by statute to the Secretary‘s discretion. See
19 Cuozzo, 136 S.Ct. at 2141-42 (holding that lawsuit challenging U.S. Patent and Trademark
20 Office‘s decision to institute inter partes review based on the alleged insufficiency of the petition
21
15
22 The government cites only one case to support its interpretation that § 1254a precludes review
of constitutional claims, Krua v. U.S. Dept. of Homeland Sec., 729 F.Supp.2d 452, 455 (D. Mass.
23 2010) (holding that pro se Liberian national‘s claim that Secretary‘s TPS designation violated the
equal protection guarantee because it arbitrarily distinguished between Libyans present in the U.S.
24 before and after Oct. 1, 2002 was precluded from review). The Krua court did not undertake a
reasoned analysis in construing Section 1254a‘s jurisdiction-stripping provision so is not
25 persuasive. In any event, it is not necessarily inconsistent with the Court‘s holding. Arguably, the
Secretary‘s decision with respect to eligibility cut-off dates for TPS protection is ―closely related‖
26 to administration of the TPS statute and therefore unreviewable under Cuozzo. See 8 U.S.C.
§ 1254a(b)(2)(A) (TPS designation of a foreign state ―take[s] effect upon the date of
27 publication . . . or such later date as the Attorney General may specify‖). Thus, the plaintiff‘s
equal protection challenge based on the differential treatment of Liberians arriving before and
28 after a particular cut-off date established by law could be precluded. In contrast, Congress did not
charge the Secretary with making termination decisions on the basis of racial animus.
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1 for review was precluded by jurisdiction-stripping statute, but expressly holding that ―we do not
2 categorically preclude review of a final decision where . . . there is a due process problem with the
3 entire proceeding, nor does our interpretation enable the agency to act outside its statutory limits‖).
4 Applying that principle here, Section 1254a does not reflect a clear Congressional intent to
5 preclude this Court from reviewing Plaintiffs‘ constitutional challenges to the Secretary‘s
6 determinations. The substance of Plaintiffs‘ constitutional challenges is far afield of fact-based
7 criteria that are ―closely tied‖ to administration of the TPS statute. While the Secretary‘s
8 evaluation of particular facts based on statutory criteria under 8 U.S.C. § 1254a(b)(1)(A)-(C) may
9 be ―closely tied to the application and interpretation of statutes related to‖ the Secretary‘s
10 decisions, ascertaining whether the decision is driven by unconstitutional racial animus is not.
11 Nor is the purely legal question regarding the scope of a person‘s substantive due process interests
12 against removal (i.e., how to balance an individual‘s interests with the Government‘s interests).
13 Unlike, e.g., a challenge to the Secretary‘s determination to terminate TPS for a particular country
14 being allegedly arbitrary because the country is not in fact safe, the constitutional claims at issue
15 here do not focus on the factual accuracy of the Secretary‘s evaluation of specific country
16 conditions, an evaluation which Section 1254a was intended to insulate. Instead, these
17 constitutional challenges are predicated on facts outside the considerations prescribed (and
18 committed to the Secretary‘s evaluation) by the TPS statute.
19 Defendants argue that the Webster presumption in favor of judicial review of colorable
20 constitutional claims does not apply here because Congress did not preclude all judicial review but
21 ―simply channel[ed] review of a constitutional claim to a particular court.‖ Elgin v. Dept. of
22 Treasury, 567 U.S. 1, 9 (2012).16 Defendants‘ argument rests on the assumption that an alien
23
16
24 In its Reply brief, the Government cites the plurality opinion in Patchak v. Zinke, 138 S. Ct.
897 (2018). In that case, the plaintiff sued the Secretary of the Interior for taking land into trust on
25 behalf of an Indian tribe; after the suit was instituted, Congress passed a statute stripping the
district courts of jurisdiction over lawsuits relating to the land. Id. at 902. The plaintiff argued
26 that Congress violated Article III of the Constitution by improperly directing the results of
pending litigation. Id. at 904. The Supreme Court explained that ―Congress violates Article III
27 when it ‗compel[s] . . . findings or results under old law,‘‖ but not ―when it ‗changes the law.‘‖
Id. at 905 (citations omitted, alteration in original). The court interpreted the new statute stripping
28 jurisdiction as a change in law that was not problematic. In so doing, the court explained that
―Congress generally does not infringe the judicial power when it strips jurisdiction because, with
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1 ordered removed may seek judicial review in the context of removal proceedings of constitutional
2 claims challenging termination of a country‘s TPS status under 8 U.S.C. § 1252(a)(2)(D).17 The
3 argument is flawed for several reasons.
4 First, Defendants do not concede that review of constitutional claims through those
5 procedures would be available to aliens ordered removed: Defendants therefore seem to doubt
6 their own premise.
7 Second, the TPS statute was passed in 1990; the TPS statute did not purport to ―channel‖
8 review of constitutional claims arising out of TPS country determinations to a particular forum.
9 Congress did not create the judicial review provisions of 8 U.S.C. § 1252(a)(2)(D) until a decade
10 later, when it passed the REAL ID Act of 2005, Pub. L. 109-13, in response to the Supreme
11 Court‘s decision in INS v. St. Cyr., 533 U.S. 289 (2001). The Act eliminated district court habeas
12 jurisdiction over orders of removal‖ and ―addressed Suspension Clause concerns raised in St. Cyr.
13 by allowing (i.e., reinstating) review in courts of appeal of final removal orders of aggravated
14 felons for ‗constitutional claims or questions of law.‘‖ Iasu v. Smith, 511 F.3d 881, 886 (9th Cir.
15 2007) (quoting 8 U.S.C. § 1252(a)(2)(D)). The REAL ID Act reflects Congress‘s intent to
16 channel constitutional challenges to a removal order; it does not reflect a Congressional purpose
17 to circumvent constitutional challenges to TPS country determinations; nor was it intended to limit
18 challenges brought by a person who is not facing removal (e.g., a U.S.-citizen).
19 Third, U.S.-citizen children cannot seek judicial review through that process because they
20 are not aliens who would be ordered removed; Congress therefore could not have intended to
21 channel their claims to appeals from a removal proceeding.
22 Finally, even for aliens ordered removed, judicial review in removal proceedings would be
23
24 limited exceptions, a congressional grant of jurisdiction is a prerequisite to the exercise of judicial

power.‖ Id. at 907. The plurality opinion‘s language is inapposite because, as explained above,
25 Congress has not clearly expressed its intent to strip the Court of jurisdiction over Plaintiffs‘
claims here. Thus, the question whether Congress could strip the district court of jurisdiction over
26 constitutional claims is not necessarily at issue here.
17
27 See 8 U.S.C. § 1252(a)(2)(D) (providing that ―[n]othing . . . in any other provision of this
chapter . . . which limits or eliminates judicial review, shall be construed as precluding review of
28 constitutional claims or questions of law raised upon a petition for review [of a final order of
removal] filed with an appropriate court of appeals in accordance with this section‖).
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1 ineffective because it would be limited to ―the administrative record on which the order of
2 removal is based.‖ See 8 U.S.C. § 1252(b)(4)(A). Plaintiffs would not have an opportunity to
3 develop a record regarding their constitutional claims to support review.
4 For these reasons, Congress has not clearly indicated an intent to preclude jurisdiction over
5 colorable constitutional challenges related to TPS determinations.
6 B. Motion to Dismiss
7 Plaintiffs bring four claims. First, they allege that Defendants‘ adoption of a new
8 interpretation of the TPS statute violates the Administrative Procedure Act insofar as it departed
9 sub silentio from a past practice (Count Four). Second, Plaintiffs bring two separate due process
10 claims on behalf of the TPS-holding parents and the U.S.-citizen children on the basis that
11 Defendants have not advanced a sufficient rationale to justify infringing on their protected liberty
12 and/or property interests (Counts One and Three). Finally, Plaintiffs allege that Defendants‘
13 termination of TPS violates the equal protection guarantee of the Due Process Clause because it
14 was motivated, at least in part, by racial or national-origin animus. The Court analyzes each claim
15 on which Defendants seek dismissal substantively under Rule 12(b)(6).
16 1. APA Claim (Count Four)
17 a. Legal Standard
18 Under the APA, agency action may be set aside if it is arbitrary or capricious. See 5
19 U.S.C. § 706(2)(A). Under this standard, an agency must ―examine the relevant data and
20 articulate a satisfactory explanation for its action.‖ Motor Vehicle Mfrs. Assn. of United States,
21 Inc. v. State Farm Mut. Automobile Ins. Co., 463 U.S. 29, 43 (1983). But ―a court is not to
22 substitute its judgment for that of the agency‖ and ―should uphold a decision of less than ideal
23 clarity if the agency‘s path may reasonably be discerned.‖ F.C.C. v. Fox Television Stations, Inc.,
24 556 U.S. 502, 513-14 (2009) (citation and quotation omitted).
25 The APA constrains an agency‘s ability to change its practices or policies without
26 acknowledging the change or providing an explanation. ―[T]he requirement that an agency
27 provide reasoned explanation for its action would ordinarily demand that [an agency] display
28 awareness that it is changing position.‖ Id. at 515 (emphasis in original). Thus, agencies ―may
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1 not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books,‖
2 and ―must show that there are good reasons for the new policy.‖ Id. (emphasis in original). An
3 agency need not demonstrate that ―the reasons for the new policy are better than the reasons for
4 the old one; it suffices that the new policy is permissible under the statute, that there are good
5 reasons for it, and that the agency believes it to be better, which the conscious change of course
6 adequately indicates.‖ Id. (emphasis in original).
7 This constraint on changes to agency policy is not limited to formal rules or official
8 policies. It applies to practices implied from the agency conduct. For example, in California
9 Trout v. F.E.R.C., 572 F.3d 1003 (9th Cir. 2009), the plaintiffs challenged the Federal Energy
10 Regulatory Commission‘s (FERC) denial of their untimely attempt to intervene in a proceeding
11 concerning the renewal of an operating license for a dam and power plant. In essence, the
12 plaintiffs argued that FERC‘s decision to grant late intervention requests in three prior
13 adjudications had given rise to an implicit rule that FERC would always grant late requests in
14 certain circumstances, and that FERC was required to offer a reasoned explanation before
15 abandoning that practice. Although it ultimately held against the plaintiffs, the Ninth Circuit
16 agreed that the alleged change in adjudicative practice was subject to the APA‘s requirements for
17 reasoned decision-making. It explained that ―while an agency may announce new principles in an
18 adjudicatory proceeding, it may not depart, sub silentio, from its usual rules of decision to reach a
19 different, unexplained result in a single case.‖ Id. at 1022(quotation and citation omitted)).
20 Rather, ―‗if [an agency] announces and follows—by rule or by settled course of adjudication—a
21 general policy by which its exercise of discretion will be governed, an irrational departure from
22 that policy (as opposed to an avowed alteration of it) could constitute action that must be
23 overturned as ‗arbitrary, capricious, [or] an abuse of discretion‘ within the meaning of the
24 Administrative Procedure Act.‘‖ Id. at 1023 (quoting INS v. Yueh-Shaio Yang, 519 U.S. 26, 32
25 (1996)) (emphasis added, alteration in original). The court proceeded to consider the claim on the
26 merits and held that the agency‘s prior decisions had not ―establish[ed] a broad principle that the
27 Commission will allow untimely intervention.‖ Id. at 1024.
28 Thus, California Trout establishes that a shift in agency practice (as opposed to a formal
25
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1 rule or policy) is also reviewable under the APA. Courts have also looked, in part, to whether an
2 agency‘s past practice evinces the existence of an implicit rule or policy. See, e.g., Northwest Env.
3 Def. Ctr. v. Bonneville Power Admin., 477 F.3d 668 (9th Cir. 2007) (holding that BPA‘s decision
4 to stop funding Fish Passage Center and to divert its responsibilities to two other entities after
5 nearly two decades was arbitrary and capricious where no reasoned explanation was provided);
6 Am. Wild Horse Pres. Campaign v. Perdue, 873 F.3d 914, 927 (D.C. Cir. 2017) (after
7 ―longstanding practice‖ of treating certain land as if it were part of the Wild Horse Territory,
8 agency‘s unexplained change in practice was arbitrary-and-capricious, particularly where it
9 ―fail[ed] even to acknowledge its past practice . . . let alone to explain its reversal of course in the
10 2013 decision‖).
11 b. Plaintiffs Plausibly Allege a Change in Practice or Policy
12 Plaintiffs allege that to justify the termination of TPS for El Salvador, Haiti, Nicaragua,
13 and Sudan, ―DHS has adopted a novel interpretation of the TPS statute. Under prior
14 administrations, DHS or its predecessors considered intervening natural disasters, conflicts, and
15 other serious and social economic problems as relevant factors when deciding whether to continue
16 or instead terminate a TPS designation. . . . [T]he Trump administration‘s DHS has now taken the
17 position that such factors cannot be considered.‖ Compl. ¶ 75. Plaintiffs more specifically cite
18 former Secretary Kelly‘s June 6, 2017 Senate testimony that ―the [TPS] program is for a specific
19 event. In – in Haiti, it was the earthquake. Yes, Haiti had horrible conditions before the
20 earthquake, and those conditions aren‘t much better after the earthquake. But the earthquake was
21 why TPS was – was granted and – and that‘s how I have to look at it.‖ Compl. ¶ 76.
22 Additionally, as noted above, Secretary Nielsen later stated that ―[t]he law does not allow me to
23 look at the country conditions of a country writ large. It requires me to look very specifically as to
24 whether the country conditions originating from the original designation continue to exist.‖ Id. ¶
25 77. Plaintiffs also cite three press releases issued by DHS with respect to TPS for El Salvador,
26 Haiti, Nicaragua, and Honduras where the Secretary stated that she compared ―the conditions upon
27 which the country‘s original designation was based‖ with ―an assessment of whether those
28 originating conditions continue to exist.‖ Id. ¶ 78.

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1 Defendants argue that a facial comparison between the termination notices here and prior
2 notices shows that they are in fact consistent, not that any radical change has occurred. Indeed, to
3 state a claim, Plaintiffs must plausibly allege not only that Defendants considered only the
4 ―originating conditions‖ in terminating TPS here, but also that Defendants‘ prior practice was to
5 the contrary. They have done so here. Prior to October 2017, extension and/or re-designation
6 notices indicate that DHS consistently considered, at the very least, whether intervening events
7 had frustrated or impeded recovery efforts from the originating conditions in Sudan, Haiti,
8 Nicaragua, and El Salvador. For example, in notices regarding Sudan, DHS emphasized both the
9 persistence of the armed conflict prompting the original designation and consequential problems
10 beyond the conflict itself, which together prevented the safe return of Sudanese nationals.18 The
11
12 18
Sudan:
13  Extension and Redesignation of Sudan Under the Temporary Protected Status Program,
64 FR 61128-01, 1999 WL 1008419 (Nov. 9, 1999) (finding that the armed conflict is
14 ongoing and extraordinary and temporary conditions continue to exist);
 Extension of Designation of Sudan Under the Temporary Protected Status Program, 65
15 Fed. Reg.67,407-01 (Nov. 9, 2000) (noting that the civil war continues and highlighting
some of its effects, including forced relocation, destruction of indigenous trading and
16 production systems, and a risk of famine);
 Extension of the Designation of Sudan Under the Temporary Protected Status Program, 66
17 Fed. Reg. 46,031-01 (Aug. 31, 2001) (noting that the civil war continues and associated
impact, including human rights abuses, displacement, insecurity, and famine);
18  Extension of the Designation of Sudan Under the Temporary Protected Status Program, 67
Fed. Reg. 55,877-01 (Aug. 30, 2002) (noting ongoing civil war, failure of peace
19 negotiations, and associated human rights abuses, forced displacement, denial of access to
humanitarian agencies, and so on);
20  Extension of the Designation of Sudan Under Temporary Protected Status Program, 68
Fed. Reg. 52,410-01 (Sept. 3, 2003) (same);
21  Extension and Re-designation of Temporary Protected Status for Sudan, 69 Fed.
Reg.60,168-01, 60,169 (Oct. 7, 2004) (same);
22  Extension of the Designation of Sudan for Temporary Protected Status, 76 Fed. Reg.
63635-01 (Oct. 13, 2011) (concluding that ―because the armed conflict is ongoing,
23 although there have been a few improvements . . . the extraordinary and temporary
conditions that prompted . . . redesignation persist‖);
24  Extension and Redesignation of Sudan for Temporary Protected Status, 78 Fed. Reg. 1872-
01 (Jan. 9, 2013) (same because ―the conditions in Sudan that prompted the TPS
25 designation not only continue to be met but have deteriorated‖ and ―[t]here continues to be
a substantial, but temporary, disruption of living conditions in Sudan based upon ongoing
26 armed conflict and extraordinary and temporary conditions‖);
 Extension of the Designation of Sudan for Temporary Protected Status, 79 Fed. Reg.
27 52,027-01, 52,029 (Sept. 2, 2014) (same);
 Extension of the Designation of Sudan for Temporary Protected Status, 81 Fed. Reg. 4045-
28 01 (Jan. 25, 2016) (same).
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1 same is generally true of Nicaragua and Hurricane Mitch,19 El Salvador‘s earthquake,20 and Haiti‘s
2
19
3 Nicaragua:
 Extension of the Designation of Nicaragua Under the Temporary Protected Status
4 Program, 65 Fed. Reg. 30,440-01, 30,440 (May 11, 2000) (―The conditions which led to
the original designation are less severe, but continue to cause substantial disruption to
5 living conditions in Nicaragua.‖);
 Extension of the Designation of Nicaragua Under the Temporary Protected Status
6 Program, 66 Fed. Reg. 23,271-01, 23,272 (May 8, 2001) (―sufficient damage from
Hurricane Mitch persists‖);
7  Extension of the Designation of Nicaragua Under the Temporary Protected Status
Program, 67 Fed. Reg. 22,454-01, 22,454 (May 3, 2002) (“[R]ecent droughts as well as
8 flooding from Hurricane Michelle in 2001 compounded the humanitarian, economic,
and social problems initially brought on by Hurricane Mitch in 1998” (emphasis
9 added));
 Extension of the Designation of Nicaragua Under Temporary Protected Status Program,
10 68 Fed. Reg. 23,748-01, 23,749 (May 5, 2003) (same);
 Extension of the Designation of Temporary Protected Status for Nicaragua, 69 Fed. Reg.
11 64,088-01 (Nov. 3, 2004) (―Reconstruction of infrastructure damaged by Hurricane Mitch
continues.‖);
12  Extension of the Designation of Temporary Protected Status for Nicaragua, 71 Fed. Reg.
16,333-01 (Mar. 31, 2006) (―While progress has been made in reconstruction from
13 Hurricane Mitch, Nicaragua has not been able to fully recover, in part due to follow-
on natural disasters that have severely undermined progress towards an economic
14 recovery that would enable Nicaragua to adequately handle the return of its
nationals.” (emphasis added));
15  Extension of the Designation of Nicaragua for Temporary Protected Status, 72 Fed. Reg.
29,534-01, 29,535 (May 29, 2007) (concluding no recovery from Hurricane Mitch and
16 noting that subsequent storms have caused the country to remain vulnerable);
 Extension of the Designation of Nicaragua for Temporary Protected Status, 73 Fed. Reg.
17 57,138-01, 57,139 (Oct. 1, 2008) (concluding that disruption from Hurricane Mitch
persists and noting that subsequent economic crises and natural disasters have exacerbated
18 issues caused by Hurricane Mitch);
19 24,737-01, 24,738 (May 5, 2010) (country ―has not fully recovered from Hurricane Mitch‖
and that ―more recent natural disasters have slowed the recovery from Hurricane Mitch‖);
68,493-01 (Nov. 4, 2011) (describing subsequent natural disasters and noting that ―[e]ach
21 of these environmental events has hampered the recovery efforts from Hurricane Mitch‖);
22 20,128-01 (Apr. 3, 2013) (―[R]ecovery from Hurricane Mitch is still incomplete‖ and
―subsequent natural disasters . . . hamper[ed] the recovery efforts‖ (emphasis added));
62,176-01 (Oct. 16, 2014) (same);
30,325-01 (May 16, 2016) (―Nicaragua continues to suffer from the residual effects of
25 Hurricane Mitch, and subsequent disasters have caused additional damage and added to
the country‘s fragility‖ which ―exacerbated the persisting disruptions caused by
26 Hurricane Mitch‖ (emphasis added)).
27 20
El Salvador:
28  Extension of the Designation of El Salvador Under the Temporary Protected Status
Program, 67 Fed. Reg. 46,000-01, 46,000 (July 11, 2002) (concluding that ―the conditions
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1 earthquake.21 As the highlighted language in these footnotes demonstrates, prior administrations
2 considered subsequent, intervening events such as droughts extending TPS status. In some cases,
3 such intervening events were considered irrespective of whether they had any causal relationship
5 that warranted TPS designation initially continue to exist‖ but noting that the recovery
―has been further affected by a subsequent drought‖ (emphasis added));
6  Extension of the Designation of El Salvador Under Temporary Protected Status Program,
68 Fed. Reg. 42,071-01, 42,072 (July 16, 2003) (finding that recovery from earthquake
7 was ongoing and ―the conditions that prompted designation . . . continue to be met‖);
 Extension of the Designation of Temporary Protected Status for El Salvador, 70 Fed. Reg.
8 1450-01, 1451 (Jan. 7, 2005) (same);
 Extension of the Designation of Temporary Protected Status for El Salvador, 71 Fed. Reg.
9 34,637-01, 34,638 (June 15, 2006) (the conditions that initially gave rise to the designation
. . . continue to exist‖);
10  Extension of the Designation of El Salvador for Temporary Protected Status, 72 Fed. Reg.
46,649-01, 46,649-50 (Aug. 21, 2007) (concluding that ―there continues to be a substantial,
11 but temporary, disruption in living conditions . . . resulting from the earthquakes that
struck the country in 2001‖);
57,128-01, 57,129 (Oct. 1, 2008) (same);

39,556-01, 39,558-59 (July 9, 2010) (same, but explaining that ―[m]ore recent natural
14 disasters have delayed the recovery from the 2001 earthquakes,” including Tropical
Storm Stan in October 2005, the eruption of the Santa Ana volcano, a series of earthquakes
15 in 2006, and Hurricane Ida in 2009 (emphasis added));
 Extension of the Designation of El Salvador for Temporary Protected Status, 77 Fed. Reg.
16 1710-02, 1712 (Jan. 11, 2012) (noting that El Salvador was ―still rebuilding from the
devastating 2001 earthquakes‖ and the efforts “have been further complicated by more
17 recent natural disasters and by sluggish economic growth” (emphasis added));
18 32,418-01, 32,420 (May 30, 2013) (same);
19 893-01, 894-95 (Jan. 7, 2015) (documenting a series of natural disasters that ―have caused
substantial setbacks to infrastructure recovery and development since the 2001
20 earthquakes‖ (emphasis added));
21 44,645-03 (July 8, 2016) (same).
21
22 Haiti:
 Extension and Redesignation of Haiti for Temporary Protected Status, 76 Fed. Reg.
23 29,000-01, 29,000 (May 19, 2011) (concluding that ―the conditions prompting the original
designation continue to be met‖);
24  Extension of the Designation of Haiti for Temporary Protected Status, 77 Fed. Reg.
59,943-01 (Oct. 1, 2012) (concluding that ―the extraordinary and temporary conditions that
25 prompted the original January 2010 TPS designation and the July 2011 extension and
redesignation persist‖ and noting that camp conditions were exacerbated by later ―steady
26 rains‖ and ongoing problems of food security);
 Extension of the Designation of Haiti for Temporary Protected Status, 79 Fed. Reg.
27 11,808-01, 11,808 (Mar. 3, 2014) (same); and,
 Extension of the Designation of Haiti for Temporary Protected Status, 80 Fed. Reg.
28 51,582-01 (Aug. 25, 2015) (same).
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1 to the original TPS designation.22
2 In sharp contrast to these prior notices—which were frequently detailed and lengthy—the
3 termination notices for Sudan, Haiti, Nicaragua, and El Salvador are curt and fail to address
4 numerous conditions that justified extensions of TPS status in the most recent notices issued by
5 prior administrations. The following chart illustrates the types of conditions cited in the prior
6 notices but not discussed in Defendants‘ termination notices in these four cases.
7
Country Factors Cited to Support Prior Termination Notices
8 Extensions
El July 8, 2016 Extension: January 2018 Termination:
9
Salvador · ―Subsequent natural disasters and · No reference to subsequent
10 environmental challenges, including natural disasters
hurricanes and tropical storms, heavy rains
11 and flooding, volcanic and seismic activity‖
· Prolonged regional drought impacting · No reference to regional
12 food security drought and food security
· A housing deficit of 630,000 because · No specific reference or

13
340,000 houses not yet rebuilt from numbers concerning housing
14 earthquake deficits, but general statements
about reconstruction
15 · Coffee rust epidemic · No reference to coffee rust
epidemic
16 · More than 10 percent of population · No reference to water access
lacks access to potable water
17
· March 2016 extortion by gangs · No reference to gang extortion
18 resulted in weeklong temporary bottled
water shortage in San Salvador
19 · Violence and insecurity impeding · No reference to violence and
economic growth, particularly $756 in insecurity but general statements
20 extortion payments to gangs in 2014 alone that international organizations are
21 working to provide security and
economic support
22 · Corrupt police and judiciary · No reference to corruption
· In 2014, almost a third of the work · No specific reference to
23 force was unemployed and lived in poverty poverty and unemployment but
mentions international economic
24 support
25
26 22
See, e.g., Extension of the Designation of Haiti for Temporary Protected Status, 82 Fed. Reg.
27 23,830-01 (May 24, 2017) (noting that ―lingering effects of the 2010 earthquake remain‖ despite
―significant progress,‖ but noting that conditions warrant a brief extension due to Hurricane
28 Matthew’s October 2016 landfall and heavy rains in April 2017, though not explicitly discussing
any apparent link between those events and the earthquakes).
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Country Factors Cited to Support Prior Termination Notices

1 Extensions
2 Nicaragua May 16, 2016 Extension: December 2017 Termination:
· Heavy rains and flooding in October · No specific reference to 2014-
3 2014, May 2015, and June 2015 2015 heavy rains and flooding
· Earthquakes in April and October · No specific reference to 2014
4 2014 earthquakes
· Telica volcano erupted 426 times in · No specific reference to 2015
5 July 2015 volcanic eruptions
· A prolonged regional drought and · No specific reference to coffee
6
coffee rust epidemic negatively impacting rust epidemic or regional drought
7 livelihoods and food security
8 Haiti May 24, 2017 Extension (Trump January 2018 Termination:

Administration):
9 · Hurricane Matthew in October 2016 · No reference to Hurricane
damaged crops, housing ,livestock, and Matthew
10 infrastructure
11 · Heavy rains in late April 2017 killing · No reference to heavy rains
people, damaging homes, and destroying
12 crops causing food insecurity
· Ongoing cholera epidemic · ―Although Haiti has grappled

13 with a cholera epidemic that began

in 2010 in the aftermath of the
14 earthquake, cholera is currently at
its lowest level since the outbreak
15 began.‖
16 August 25, 2015 Extension (Prior
Admin):
17 · Cholera epidemic – as of Dec. 2014, · Same as above
725,000 people affected and 8,800 deceased
18 · Food insecurity- as of Jan. 2015, 2.5 · No reference to food insecurity
million people could not cover basic food
19 needs
· Political instability – after expiration · Mentions February 2017
20 of local and parliamentary mandates in presidential election without
21 January 2015, protests and demonstrations specific discussion of whether there
have turned violent are still violent protests and
22 demonstrations
23
24
25
26
27
28
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Sudan Jan 25, 2016 Extension: October 2017 Termination:

1
· In 2014, Sudanese government · Acknowledges continuing
2 deployed a new paramilitary service conflict in Darfur and the Two
carrying out a campaign that began in April Areas and stating that ―toward the
3 2014, was renewed December 2014, and end of 2016 and through the first
continued into 2015, resulting in half of 2017, parties to the conflict
4 widespread civilian displacement. renewed a series of time-limited
unilateral cessation of hostilities‖
5 and that ―[t]he remaining conflict is
limited and does not prevent the
6 return of nationals of Sudan to all
7 regions of Sudan without posing a
serious threat to their personal
8 safety‖
· ―[A]n increase in criminal activity and · No reference to criminal
9 intertribal conflict‖ activity
10
· ―Reports of human rights violations · ―Although Sudan‘s human
11 and abuses [which] are widespread, rights record remains extremely
including . . . extrajudicial and unlawful poor in general, conditions on the
12
killings‖ and ―abuse . . . of certain
ground no longer prevent all

13 populations, including journalists, political Sudanese nationals from returning

opposition, civil society, and ethnic and in safety.‖
14 religious minority groups‖
· Displacement of 143,000 persons · Acknowledges that hundreds of
15 between January and May 2015 and a thousands have fled but that the
March 2015 report that 250,000 Sudanese remaining conflict is limited and
16 fled to South Sudan and Ethiopia does not prevent their safe return
· 6.9 million people in need of · ―Above-harvests have
17
humanitarian assistance. 2 million children moderately improved food security.
18 suffering from malnutrition. 550,000 from While populations in conflict-
severe malnutrition. affected areas continue to
19 experience acute levels of food
security, there has also been some
20 improvement in access for
humanitarian actors to provide
21 much-needed humanitarian aid‖
22
23 This comparison demonstrates the plausibility of Plaintiffs‘ allegation of a shift from past
24 practice or policy. For every country (although to varying degrees), factors that were explicitly
25 considered recently by prior administrations were wholly absent from the four termination notices
26 issued between October 2017 and January 2018. That supports a plausible inference, corroborated
27 by the statements of former Secretary Kelly and Secretary Nielsen, that Defendants changed their
28 interpretation of the TPS statute so as to focus solely (or nearly solely) on the originating
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1 condition without considering intervening events in making TPS determinations.
2 There are only two exceptions to this observation. First, Haiti‘s designation was extended
3 once by former Secretary Kelly under the current administration. See Extension of the
4 Designation of Haiti for Temporary Protected Status, 82 Fed. Reg. 23,830-01 (May 24, 2017).
5 This does not undermine Plaintiffs‘ allegations that the change in policy occurred recently.
6 Indeed, a comparison between Secretary Kelly‘s extension and Acting Secretary Duke‘s
7 termination six months later supports an inference of an intervening change in policy or practice:
8 although Secretary Kelly explicitly considered intervening events like Hurricane Matthew in
9 October 2016 and heavy rains in late April 2017, Acting Secretary Duke did not.
10 Second, arguably the termination notice for Sudan touches, albeit indirectly and with much
11 less specificity, on nearly all of the themes discussed in the most recent extension notice.
12 However, that does not undermine the plausibility that Defendants at some point adopted a new
13 rule or policy as indicated by the discrepancies between the notices for El Salvador, Haiti, and
14 Nicaragua. The arguably more complete discussion with respect to Sudan does not defeat the
15 viability of Plaintiffs‘ APA claim challenging the change in practice itself; at most, it might affect
16 the scope of Plaintiffs‘ remedy if, for example, the new rule or policy was not instituted until after
17 Sudan‘s termination.23
18 Finally, Defendants argue that prior administrations have terminated TPS despite ongoing
19 problems in the designated countries. That fact is not dispositive to the case at bar. The question
20 is whether those ongoing problems were considered when the termination decision was made.
21
22 23
The Government cited the example of Montserrat, which was initially designated for TPS based
23 on a volcanic eruption in 1997, see 62 Fed. Reg. 45686 (Aug. 28, 1997), and then re-designated
six times, see 63 Fed. Reg. 45864 (Aug. 27, 1998); 64 Fed. Reg. 48190 (Sep. 2, 1999); 65 Fed.
24 Reg. 58806 (Oct. 2, 2000); 66 Fed. Reg. 40834 (Aug. 3, 2001); 67 Fed. Reg. 47002 (Jul. 17,
2002); 68 Fed. Reg. 39106 (Jul. 1, 2003). However, its TPS designation was eventually
25 terminated in 2004 because ―the volcanic eruptions can no longer be considered temporary in
nature‖ based on scientists‘ position that such eruptions ―generally last 20 years, but the volcano
26 could continue to erupt sporadically for decades.‖ See Termination of the Designation of
Montserrat Under the Temporary Protected Status Program, 69 Fed. Reg. 40642-01 (Jul. 6,
27 2004). This example is inapposite, however, because the termination notice reflected a judgment
that the originating condition was not ―temporary.‖ Defendants‘ terminations of TPS for Haiti,
28 Sudan, El Salvador, and Nicaragua are not based on such a finding; rather, they are based on the
notion that the originating condition has abated.
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1 The notices confirm Plaintiffs‘ assertion that under the prior practice, intervening events were at
2 least considered.24
3 In sum, Plaintiffs‘ allegations and a facial review of the termination notices support a
4 plausible inference that Defendants have adopted a new policy or practice without any explanation
5 for the change. Accordingly, Plaintiffs have stated a claim under the APA, and thus Defendants‘
6 motion to dismiss the APA claim is DENIED.
7 2. U.S. Citizens‘ Children‘s Due Process Claim to Family Integrity (Count One)
8 The U.S.-citizen children assert that Defendants have not ―articulated [a] substantial
9 governmental interest‖ to justify intruding on their right to live in the United States, to live with
10 their parents, and against being forced to make a choice between the two, thus violating their
11 substantive due process rights. See Compl. ¶¶ 105-6.
12 ―The concept of ‗substantive due process‘ . . . forbids the government from depriving a
13 person of life, liberty, or property in such a way that ‗shocks the conscience‘ or ‗interferes with
14 rights implicit in the concept of ordered liberty.‘‖ Nunez v. City of Los Angeles, 147 F.3d 867, 871
15 (9th Cir. 1998). To establish a claim, ―a plaintiff must, as a threshold matter, show a government
16 deprivation of life, liberty, or property.‖ Id. The right in question must be one of ―those
17 fundamental rights and liberties which are, objectively, deeply rooted in this Nation‘s history and
18 tradition.‖ Washington v. Glucksberg, 521 U.S. 702, 720-21 (1997) (quotation omitted). ―‗The
19 protections of substantive due process have for the most part been accorded to matters relating to
20 marriage, family, procreation, and the right to bodily integrity.‘‖ Nunez, 147 F.3d at 871, n.4
21
22 24
See Termination of Designation of Angola Under the Temporary Protected Status Program, 68
23 Fed. Reg. 3896-01, 3896 (Jan. 27, 2003) (though originally designating Angola due to an armed
conflict between the Angolan government and the National Union for the Total Independence of
24 Angola, the termination notice reflects that the Department also considered, inter alia, a continuing
―separate insurgency led by . . . the Front for the Liberation of the Enclave of Cabinda/Armed
25 Forces of Cabinda,‖ ―the humanitarian needs of 380,000 UNITA members and their families,‖ 4
million displaced persons, a lack of ―housing, medical services, water systems, and other basic
26 services destroyed by a 27-year-long war,‖ ―8 million landmines planted in Angolan soil‖ through
40 percent of the countryside); Termination of the Province of Kosovo in the Republic of Serbia in
27 the State of the Federal Republic of Yugoslavia (Serbia-Montenegro) Under the Temporary
Protected Status Program, 65 Fed. Reg. 33,356-01, 33,356 (May 23, 2000) (terminating TPS
28 because the original armed conflict had ended, but noting that ―conditions remain difficult with
bursts of ethnically-motivated violence‖).
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1 (citation omitted). Courts have ―always been reluctant to expand the concept of substantive due
2 process because guideposts for responsible decisionmaking in this unchartered area are scarce and
3 open-ended . . . . lest the liberty protected by the Due Process Clause be subtly transformed into
4 the policy preferences of [the courts].‖ Washington, 521 U.S. at 720 (quotation and citation
5 omitted).
6 Plaintiffs‘ assertion that the government‘s action in terminating TPS status of four
7 countries which foreshadows the deportation of parents of U.S.-citizen children places this case in
8 relatively unchartered waters.
9 The cases in which courts have referred to a U.S. citizen‘s right to enter and live in the
10 United States have generally involved direct attempts by the government to obstruct a U.S.
11 citizen‘s return from abroad, a scenario different from the case at bar. See U.S. v. Wong Kim Ark,
12 169 U.S. 649 (1898) (confirming that children born in the U.S. are citizens under 14th
13 Amendment and that, therefore, citizen could not be denied entry to the U.S.); Lee Sing Far v.
14 U.S., 94 F.3 834, 836 (9th Cir. 1899) (a U.S. citizen has the ―right to land and remain in the United
15 States‖).25 These cases did not involve indirect pressures upon a citizen resulting from action
16 taken against others. But Plaintiffs have not cited any cases addressing whether the government‘s
17 application of such indirect pressure may constitute a violation of substantive due process, and if
18 so, under what circumstances.
19 It is well-settled that children have a liberty interest in living with their parents. See, e.g.,
20 Ching v. Mayorkas, 725 F.3d 1149, 1157 (9th Cir. 2013) (―The right to live with and not be
21 separated from one‘s immediate family is a right that ranks high among the interests of the
22 individual and that cannot be taken away without procedural due process.‖ (quotation omitted)).
23 However, Plaintiffs have not cited any case where this interest was deemed sufficient to prevent
24 the enforcement of a legitimate immigration law to remove a person at the cost of family
25
26 25
Nguyen v. I.N.S., 533 U.S. 53, 67 (2001) refers to ―the absolute right to enter [the United
27 States‘] borders,‖ but the Supreme Court was reviewing whether the state could condition
acquisition of citizenship of persons born abroad depending on whether citizenship derived from a
28 mother or father. The court was not squarely confronted with government action frustrating the
right to enter the United States.
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1 separation.26 The Government cites a litany of cases rejecting the notion that immigration
2 enforcement resulting in family separation inherently violates a U.S. citizen‘s constitutional rights.
3 For instance, in Gebhardt v. Nielsen, 879 F.3d 980, 988 (9th Cir. 2018), the Ninth Circuit held that
4 U.S. citizen‘s due process rights were not violated by denial non-citizen wife and her children‘s
5 visa petitions based on his own sex offense because ―the generic right to live with family is ‗far
6 removed‘ from the specific right to reside in the United States with non-citizen family members,‖
7 and holding that ―a fundamental right to reside in the United States with [one‘s] non-citizen
8 relatives‖ ―would ―run[] headlong into Congress‘ plenary power over immigration.‖ See Morales-
9 Izquierdo v. Dep’t of Homeland Sec., 600 F.3d 1076, 1091 (9th Cir. 2010) (holding that ―lawfully
10 denying Morales adjustment of status does not violate any of his or his family‘s substantive rights
11 protected by the Due Process Clause‖ even ―when the impact of our immigration laws is to scatter
12 a family or to require some United States citizen children to move to another country with their
13 parent‖), overruled in part on other grounds by Garfias-Rodriguez v. Holder, 702 F.3d 504 (9th
14 Cir. 2012) (en banc). Cf. De Mercado v. Mukasey, 566 F.3d 810, 816 n.5 (9th Cir. 2009) (stating,
15 in dicta, that ―family unity‖ theory of due process in immigration context is ―implausible‖ because
16 ―no authority [has been identified] to suggest that the Constitution provides [alien petitioners] with
17 a fundamental right to reside in the United States simply because other members of their family
18 are citizens or lawful permanent residents‖).27
19
26
20 Plaintiffs cite cases that merely hold that a U.S. citizen has a ―protected liberty interest in
marriage [that] gives rise to a right to constitutionally adequate procedures in the adjudication of
21 her husband‘s visa application.‖ Bustamante v. Mukasey, 531 F.3d 1059, 1062 (9th Cir. 2008)
(holding that U.S.-citizen spouse of Mexican national had liberty interest permitting her to
22 challenge denial of her husband‘s visa application, but it was limited to assuring that ―the reason
given [for denial] is facially legitimate and bona fide‖); see also Cardenas v. U.S., 826 F.3d 1164,
23 1170-72 (9th Cir. 2016). But that liberty interest, cited to support a procedural due process claim,
did not overcome the government‘s interest in either case, so long as the government had
24 identified a facially valid and bona fide reason for denying the visa.
27
25 The Government has also cited out-of-circuit cases in accord. See Payne-Barahona v.
Gonzales, 474 F.3d 1, 1-2 (1st Cir. 2007) (explaining that ―[t]he circuits that have addressed the
26 constitutional issue (under varying incarnations of the immigration laws and in varying procedural
postures) have uniformly held that a parent‘s otherwise valid deportation does not violate a child‘s
27 constitutional right,‖ ―[n]or does deportation necessarily mean separation since the children could
be relocated during their minority‖); Ayala-Flores v. INS, 662 F.2d 444, 446 (6th Cir. 1981) (per
28 curiam) (same); Marin-Garcia v. Holder, 647 F.3d 666, 674 (7th Cir. 2011) (―If an alien could
avoid the consequences of unlawful entry in to the United States by having a child, it would create
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1 Plaintiffs are correct that Gebhardt, Morales-Izquierdo, and De Mercado differ from the
2 instant situation in three senses. First, they involved persons who were removed or denied an
3 immigration benefit based on criminal conduct, thus heightening the government‘s interest in
4 removal. Second, they involved persons seeking a permanent right to remain in the United States
5 whereas Plaintiffs seek only temporary permission for their parents to reside until they reach
6 adulthood. Third, the children here have a stronger liberty interest because the countries to which
7 they would be forced to return are allegedly unsafe.28 But these factors do not appear to have been
8 material to the analysis in these cases.29 Accordingly, the government appears to have a
9 persuasive argument.
10 Plaintiffs also assert the ―unconstitutional choice‖ doctrine in advancing their due process
11 claim. See Simmons v. United States, 390 U.S. 377, 394 (1968) (it is ―intolerable that one
12 constitutional right should have to be surrendered in order to assert another‖). However, while the
13 Court recognizes that U.S.-citizen children Plaintiffs will face the difficult and unenviable choice
14 between living in the United States or abroad with their parents in a land they have never known,
15 the ―unconstitutional choice‖ doctrine appears inapt. Virtually all of the cases that Plaintiffs have
16
17 perverse incentives and undermine Congress‘s authority over immigration matters.‖).

28
18 The only case Plaintiffs cite alluding to dangerous conditions as a basis for a constitutional
limitation on removal, Martinez de Mendoza v. I.N.S., 567 F.2d 1222 (3d Cir. 1977), does not in
19 fact go so far. In de Mendoza, a Colombian mother with a U.S.-citizen child had been ordered
deported, but in her appellate petition identified new evidence that her and her daughter‘s safety
20 might be endangered if they were deported. The court held, on statutory grounds specific to the
standard of review, that new material evidence required remand to the agency for reconsideration.
21 The court merely hinted, in dicta, in a footnote, that if the allegations of physical danger ―are
correct, they may well be sufficient to raise questions of the constitutionality of such deportation.‖
22 Id. at 1225, n.8. But Plaintiffs have not cited any case in the past 44 years that has relied on this
footnote to establish a constitutional rule against deportation in case of dangerous country
23 conditions.
29
24 Plaintiffs also cite Wang v. Reno, 81 F.3d 808 (9th Cir. 1996), but it is inapposite. There, the
government had arranged for Wang to be paroled into the United States from China to give grand
25 jury testimony, which the government knew might have been procured through torture. When
Wang arrived, he testified that Chinese authorities tortured him to obtain false testimony. Wang
26 was decided under the state-created danger doctrine: because the government ―placed Wang in
danger of violating his own conscience and the federal perjury statute, or of facing torture and
27 possible execution in China,‖ id. at 819, its own actions created the danger he sought to avoid by
return to China. Plaintiffs‘ allegations here are dissimilar. They do not allege the government
28 created a danger specific to Plaintiffs simply by granting temporary protective status to their
parents.
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1 cited arise in the criminal prosecution context,30 or in the immigration context on the narrow
2 question of whether an alien‘s right to choose voluntary departure could be conditioned on
3 abandonment of the right to judicial review.31 Plaintiffs have not cited a case where the forced
4 choice doctrine was applied to prohibit the government from deporting a non-citizen parent from
5 their U.S.-citizen child based solely on the asserted due process interest in family integrity; even
6 though the due process interest was recognized in those cases, it was not sufficient to overcome
7 the government‘s interests. To hold that substantive due process bars deportation of parents could
8 have the effect of circumventing the holdings in Gebhardt, Morales-Izquierdo, and De Mercado.
9 In any event, the nature of Plaintiffs‘ choice here is arguably different from
10 ―unconstitutional choice‖ cases such as Simmons, Jackson, or Elian. In those cases, by asserting
11 one right, the individual necessarily extinguished the other. Here, even if a U.S.-citizen child left
12 the country to live with a parent, they would retain the right to return to and live in the U.S; they
13 would still be legally free to stay or leave. It is not clear that the forced-choice doctrine would
14 extend to this situation, where the government is not forcing a person to irretrievably relinquish
15 one right in order to exercise another.
16
30
17 See Simmons, 390 U.S. at 394 (holding that criminal defendant‘s testimony to establish
standing to request exclusion of evidence under Fourth Amendment could not be admitted against
18 him to demonstrate guilt without violating Fifth Amendment or else defendant is forced to
abandon one right in favor of another); United States v. Jackson, 390 U.S. 570 (1968) (holding
19 that criminal statute which conditioned unavailability of the death penalty for kidnapping on the
defendant‘s abandonment of right to jury trial was unconstitutional); Lefkowitz v. Cunningham,
20 431 U.S. 801, 807-08 (1977) (invalidating New York law which provided that an officer of a
political party who refused to testify before a grand jury or waive immunity against subsequent
21 criminal prosecution would lose his position and be barred from holding any other party or public
office for five years unconstitutionally required choosing between First and Fifth Amendment
22 rights); Bittaker v. Woodford, 331 F.3d 715, 724 n.7 (9th Cir. 2003) (holding that defendant‘s right
to bring ineffective assistance of counsel claim could not be conditioned on waiving attorney-
23 client privilege with respect to subsequent prosecution); Boyd v. United States, 116 U.S. 616, 621-
22 (1886) (analyzing whether the search and seizure of a man‘s papers was equivalent to
24 compelling a person to testify against themselves under the Fifth Amendment and thus an
unreasonable search under the Fourth Amendment), overruled on other grounds, Warden, Md.
25 Penitentiary v. Hayden, 387 U.S. 294 (1967). Further, New York v. United States, 505 U.S. 144,
176 (1992) (holding, inter alia, that legislation regulating disposal of radioactive waste exceeded
26 Congress‘s enumerated powers insofar as it offered states a ―choice‖ between two unconstitutional
alternatives), is inapposite, because it did not involve a forced choice between two constitutional
27 rights but rather the validity of two unconstitutional conditions.
31
28 See Elian v. Ashcroft, 370 F.3d 897, 900 (9th Cir. 2004); see also Contreras-Aragon v. I.N.S.,
852 F.2d 1088, 1094-95 (9th Cir. 1988).
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1 The Court need not resolve these questions at this time, however. See In re Snyder, 472
2 U.S. 634, 642 (1985) (―We avoid constitutional issues when resolution of such issues is not
3 necessary for disposition of a case.‖). If the challenged action by the Administration were
4 otherwise illegitimate and unlawful, the deprivation of Plaintiffs‘ liberty interests in family
5 integrity, even if typically insufficient to defeat the government‘s interest in enforcing valid
6 immigration laws, may be unlawful where it is not be supported by a legitimate government
7 interest. Cf. Smith v. City of Fontana, 818 F.2d 1411, 1419-20 (9th Cir. 1987) (state had ―no
8 legitimate interest in interfering with [protected] liberty interest [in familial relations] through the
9 use of excessive force by police officers‖), overruled on other grounds, Hodgers-Durgin v. de la
10 Vina, 199 F.3d 1037, 1040 n.1 (9th Cir. 1999); Diaz v. Brewer, 656 F.3d 1008, 1015 (9th Cir.
11 2011) (noting that ―a bare . . . desire to harm a politically unpopular group [is] not [a] legitimate
12 state interest‖ (citation and quotation omitted)). Because Plaintiffs have adequately pled that
13 Defendants‘ actions violate the APA and equal protection (as discussed below), Plaintiffs‘ due
14 process claim is sufficiently plausible to proceed at least on that basis.
15 3. TPS-Beneficiaries‘ Due Process Claim (Count Three)
16 The TPS-beneficiaries separately allege that, as persons lawfully present in the United
17 States, they have a significant liberty interest protected by the Due Process Clause in non-arbitrary
18 decisionmaking with respect to the continuation of TPS status. See Compl. ¶¶ 113-15. Plaintiffs
19 assert that Defendants‘ termination decisions must at least pass a rationality test, and that ―[t]he
20 government . . . has not articulated, and cannot establish, any rational basis for reversing course on
21 decades of established TPS policy and ignoring the current capability of TPS countries to safely
22 receive longtime TPS holders, their families, and their U.S. citizen children.‖ Compl. ¶ 115.
23 Plaintiffs assert two bases for the liberty interest asserted here: a ―property‖ interest
24 conferred by the TPS statute in remaining in the U.S. so long as their countries of origin are
25 unsafe, and a liberty interest based on the right to live and work in the United States conferred by
26 the TPS statute. The Court analyzes each in turn.
27 a. Property Interest
28 ―[A] person receiving . . . benefits under statutory and administrative standards defining
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1 eligibility for them has an interest in continued receipt of those benefits.‖ Nozzi v. Hous. Auth.,
2 806 F.3d 1178, 1190-91 (9th Cir. 2015) (citation omitted). A statute does not give a claim of
3 entitlement, however, when availability of the benefit is entirely discretionary. See Kwai Fun
4 Wong v. United States, 373 F.3d 952, 967-68 (9th Cir. 2004) (no procedural or substantive due
5 process interest in ―temporary parole status‖ where ―the statute makes clear that whether and for
6 how long temporary parole is granted are matters entirely within the discretion of the Attorney
7 General‖); Meachum v. Fano, 427 U.S. 215, 228 (1976) (holding that a prisoner has no due
8 process interest against transfer from one prison to another within the same state system, but there
9 was no statute purporting to grant him any entitlement to a particular prison). To constitute a
10 protected property interest, an individual must have ―more than an abstract need or desire‖ or
11 ―unilateral expectation‖ for a benefit, but rather a ―legitimate claim of entitlement‖ based on, inter
12 alia, ―existing rules or understandings that stem from an independent source such as state law,‖ a
13 ―statute defining eligibility,‖ a contract ―creat[ing] and defin[ing]‖ certain terms, or some other
14 ―clearly implied promise.‖ See Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576-78
15 (1972) (holding that public employee had no cognizable property interest in re-appointment for a
16 second term where contract did not provide for renewal).
17 Defendants contend that TPS designations are entirely discretionary and that Plaintiffs
18 therefore have no legitimate claim of entitlement protected by due process. That is not entirely
19 correct. The Secretary is given broad discretion in deciding whether to make an initial TPS
20 designation. See 8 U.S.C. § 1254a(b)(1) (―The [Secretary], after consultation with appropriate
21 agencies of the Government, may designate any foreign state . . . .‖ (emphasis added)). An alien
22 from an undesignated country therefore would not appear to have any legitimate entitlement to
23 receive TPS status.
24 The same is not true with respect to extensions and terminations, however. The statute
25 provides that the Secretary ―shall‖ terminate TPS status only if the Secretary ―determines . . . that
26 a foreign state . . . no longer continues to meet the conditions for designation under paragraph (1).‖
27 8 U.S.C. § 1254a(b)(3)(B). If the Secretary does not make that determination, then ―the period of
28 designation of the foreign state is extended for an additional period.‖ Id. § 1254a(b)(3)(C). That
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1 Plaintiffs are entitled to continue receiving benefits until the Secretary makes the determination to
2 terminate pursuant to the process and criteria set forth in the statute brings this case closer to Nozzi
3 than Wong and Meachum.
4 To be sure, Plaintiffs‘ statutory entitlement is narrower than they suggest. The statute does
5 not guarantee that a country will continue to be designated for TPS so long as its conditions in fact
6 warrant. Rather, it merely provides that the Secretary ―shall review the conditions . . . and shall
7 determine whether the conditions for such designation under this subsection continue to be met.‖
8 8 U.S.C. § 1254a(b)(3)(A) (emphasis added). Because Plaintiffs‘ ―reasonable expectation of
9 entitlement is determined largely by the language of the statute,‖ Wedges/Ledges of Cal., Inc. v.
10 City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994) (citation omitted), they can expect no more
11 than the statutorily-mandated ―review‖ and ―determin[ation].‖ And, as explained above, the Court
12 generally may not review the Secretary‘s factual evaluation of country conditions. Nevertheless,
13 if the Secretary‘s determination is unlawful for other reasons, Plaintiffs may state a due process
14 claim. Plaintiffs arguably have a property interest in loss of TPS status, a loss which may not be
15 justified by an unlawful government interest. Accordingly, to the extent Plaintiffs‘ challenge is
16 based on a property-entitlement theory, they have at least a plausible claim co-extensive with their
17 ability to prove that Defendants violated the APA or equal protection guarantee.
18 b. Liberty Interest
19 Plaintiffs‘ also assert a liberty interest arising from the fact that the TPS statute permits
20 them to live and work in this country. Cf. Bridges v. Wixon, 326 U.S. 135, 154 (1945) (observing
21 that deportation ―visits a great hardship on the individual and deprives him of the right to stay and
22 live and work in this land of freedom‖).
23 The Court is doubtful whether Plaintiffs can state such a viable due process claim absent
24 Defendants‘ violation of the APA or Equal Protection. In essence, Plaintiffs claim that although
25 the protection they received was ―temporary‖ in name, it became ―permanent‖ or ―long-term‖ in
26 actual administration and practice and thus gave rise to important interests protected by due
27 process. Cf. Woodby v. I.N.S., 385 U.S. 276 (1966) (highlighting ―the drastic deprivations that
28 may follow when a resident of this country is compelled by our Government to forsake all the
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1 bonds formed here and go to a foreign land where he often has no contemporary identification,‖
2 and noting that ―many resident aliens have lived in this country longer and established stronger
3 family, social, and economic ties here than some who have been naturalized citizens‖). But this
4 theory ignores the explicitly temporary nature of the TPS status.
5 Moreover, Plaintiffs‘ theory, if credited, could undermine the purpose of the TPS statute
6 by deterring this and future administrations from designating and extending TPS designations in
7 order to avoid giving rise to a permanent due process defense against removal. And it could have
8 implications for other nominally temporary immigration statuses, such as student, H-1 and H-2
9 visa holders, if the status is extended long enough for the alien to form the types of ties and
10 interests alleged here. These possible consequences, which in effect could result in a new,
11 judicially-crafted immigration status, might be a reason warranting ―reluctan[ce] to expand the
12 concept of substantive due process.‖ Washington, 521 U.S. at 720 (quotation and citation
13 omitted).
14 While the Court is dubious about whether Plaintiffs‘ asserted due process liberty interest
15 can overcome the government‘s interest in enforcing an otherwise valid immigration law, the
16 Court need not resolve the question at this time because Plaintiffs have stated a plausible due
17 process claim at least to the extent that Defendants‘ termination also violated the APA and/or the
18 equal protection guarantee for the same reasons stated above.
19 4. Equal Protection Claim (Count Two)
20 Plaintiffs allege that both: (1) the decision to terminate TPS for Haiti, Nicaragua, El
21 Salvador, and Sudan, and (2) Defendants‘ alleged change in rule, were motivated by racial animus.
22 Defendants do not deny that President Trump‘s alleged statements evidence racial animus; rather,
23 they argue the President‘s animus is irrelevant because the Secretary of Homeland Security, not
24 the President, terminated TPS for Sudan, Haiti, Nicaragua, and El Salvador. Defendants also
25 argue that in order to state an equal protection claim, Plaintiffs must allege the existence of a
26 similarly situated class of people who were treated more favorably for no rational reason. Finally,
27 Defendants contend that even if Plaintiffs are not required to allege the existence of a comparator
28 group, the Secretary‘s decisions with regard to TPS are subject only to a highly deferential form of
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1 rational basis review, rather than strict scrutiny.
2 After the Court had already issued its order denying the motion to dismiss the equal
3 protection claim ruling, see Docket No. 34, the Supreme Court handed down its decision in Trump
4 v. Hawaii, 585 U.S. ___ (2018). This Court thereafter invited supplemental briefing whether to
5 reconsider its earlier holding. For the reasons stated herein, the Court affirms its denial of the
6 motion.
7 The Court first analyzes whether the President‘s animus is attributable to the Secretary.
8 Then, the Court decides whether a comparator group need be alleged. Next, the Court discusses
9 whether Trump v. Hawaii alters the legal standard or outcome in this case. Finally, the Court
10 examines whether Plaintiffs‘ allegations plausibly state a claim under the correct legal standard.
11 a. President Trump‘s Alleged Animus is Attributable to the Secretary of
12 Homeland Security
13 Plaintiffs concede that they have not alleged direct evidence of animus by Acting Secretary
14 Duke or Secretary Nielsen. Defendants claim that this failure is dispositive, notwithstanding
15 President Trump‘s alleged animus.
16 Defendants are incorrect. Even if Acting Secretary Duke and Secretary Nielsen do not
17 personally harbor animus towards TPS-beneficiaries from Haiti, El Salvador, Nicaragua, and
18 Sudan, their actions may violate the equal protection guarantee if President Trump‘s alleged
19 animus influenced or manipulated their decisionmaking process. For example, in Poland v.
20 Chertoff, 494 F.3d 1174 (9th Cir. 2007), the Ninth Circuit permitted the animus of a subordinate
21 employee to be imputed to his employer, announcing a general holding that ―if a subordinate . . .
22 sets in motion a proceeding by an independent decisionmaker that leads to an adverse employment
23 action, the subordinate‘s bias is imputed to the employer if the plaintiff can prove that the
24 allegedly independent adverse employment decision was not actually independent because the
25 biased subordinate influenced or was involved in the decision or decisionmaking process.‖ Id. at
26 1182. Similarly, in Avenue 6E Investments, LLC v. City of Yuma, Ariz., 818 F.3d 493 (9th Cir.
27 2016), in considering an allegation that a city discriminated against a group of developers to please
28 constituents who had expressed racial animus, the Ninth Circuit held that ―[t]he presence of
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1 community animus can support a finding of discriminatory motives by government officials, even
2 if the officials do not personally hold such views.‖ Id. at 504.
3 There is no logical reason why this principle should not apply with equal force when the
4 superior entity or authority (here, the President) influences a subordinate (here, a cabinet member)
5 to perform an action charged to the latter. See Batalla-Vidal, 291 F.Supp.3d at 279 (holding that
6 ―[i]f, as Plaintiffs allege, President Trump himself directed the end of the DACA program, it
7 would be surprising if his ‗discriminatory intent [could] effectively be laundered by being
8 implemented by an agency under his control‘‖). The central question, simply put, is whether the
9 challenged decision was infected by the tainted influence.
10 Defendants appear to concede that the White House was involved in the termination
11 decisions, Reply at 9 (―Of course something of this nature would involve the White House . . .‖),
12 so they do not necessarily reject this ―cats‘ paw‖ theory of animus in principle. Instead, they
13 argue that the White House‘s involvement ―does not mean that Secretaries Duke and Nielsen did
14 not independently consider the evidence before them in making their decisions.‖ Id. Even if that
15 were the case, however, ―[i]f there are two alternative explanations, one advanced by defendant
16 and the other advanced by plaintiff, both of which are plausible, plaintiff‘s complaint survives a
17 motion to dismiss under Rule 12(b)(6).‖ Starr, 625 F.3d at 1216. Here, the claim of President
18 Trump‘s influence is plausible; as explained in more detail below, for example, President Trump
19 described Haiti as a ―shithole‖ in a meeting with Secretary Nielsen where he expressed desire not
20 to welcome Haitians in the United States, just days before DHS announced it would terminate
21 Haiti‘s status. See Compl. ¶¶ 66, 720, 72, 81, 84. Whether President Trump‘s animus altered the
22 outcome of DHS‘s independent decisionmaking process is a question of fact to be resolved in this
23 litigation.
24 b. Under Arlington Heights, Plaintiffs Need Not Rely on a Comparator Group
25 and May Rely Instead on Direct Evidence of Discriminatory Intent
26 Plaintiffs bring their claim under Vill. of Arlington Heights v. Metro. Hous. Dev. Corp.,
27 429 U.S. 252 (1977). Under Arlington Heights, government action may violate equal protection if
28 a discriminatory purpose was one motivating factor. Arlington Heights, 429 U.S. at 265-66.
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1 Under this standard, the Court may look behind the stated reasons for government action to other
2 circumstantial evidence to find evidence of discriminatory purpose, such as:
3  a decision‘s historical background ―if it reveals a series of official actions taken for
4 invidious purposes;‖
5  ―[t]he specific sequence of events leading up [to] the challenged decision;‖
6  ―[d]epartures from the normal procedural sequence;‖
7  ―[s]ubstantive departures . . . particularly if the factors usually considered important
8 by the decisionmaker strongly favor a decision contrary to the one reached;‖ and,
9  ―[t]he legislative or administrative history . . . especially where there are
10 contemporary statements by members of the decisionmaking body, minutes of its
11 meetings, or reports.‖
12 Arlington Heights, 429 U.S. at 267-78.

13 The Government argues that Plaintiffs must identify a group of similarly situated persons
14 who were treated more favorably to state an equal protection claim. That is incorrect. Plaintiffs
15 may state a claim by alleging that ―defendants acted with an intent or purpose to discriminate
16 against the plaintiff based upon membership in a protected class.‖ Lee v. City of Los Angeles, 250
17 F.3d 668, 686 (9th Cir. 2001) (quotation and citation omitted). While one method alleging a
18 viable claim of discrimination is for the plaintiff to allege that the defendants (i) withheld a benefit
19 from the plaintiff (ii) for which he or she was qualified (iii) which was extended to other similarly
20 situated persons (iv) and that the defendants had no reasonable basis for treating plaintiff
21 differently, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-803 (1973), there are alternate
22 paths to proving discrimination. A plaintiff need not satisfy the McDonnell Douglas framework;
23 Arlington Heights permits more generally ―a sensitive inquiry into such circumstantial and direct
24 evidence of intent [to discriminate] as may be available.‖ 429 U.S. at 266. As the Ninth Circuit
25 explained in Pac. Shores Props., LLC v. City of Newport Beach, 730 F.3d 1142, 1158-59 (9th Cir.
26 2013), ―[o]ur cases clearly establish that plaintiffs who allege disparate treatment under statutory
27 anti-discrimination laws need not demonstrate the existence of a similarly situated entity who or
28 which was treated better than the plaintiffs in order to prevail. [That] is only one way to survive
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1 summary judgment on a disparate treatment claim.‖ (Emphasis in original.) See Ave. 6E
2 Investments, LLC v. City of Yuma, Ariz., 818 F.3d 493, 504-507 (9th Cir. 2016) (holding that
3 plaintiffs stated a claim that city‘s denial of development permit violated Equal Protection Clause
4 based on statements evidencing racial animus without allegation that similarly-situated developers
5 were treated more favorably). See also U.S. Department of Justice, Title VI Legal Manual, ¶ B,
6 available at https://www.justice.gov/crt/fcs/T6Manual6#PID (explaining that Arlington Heights
7 and McDonnell Douglas are alternative frameworks for proving intentional discrimination).
8 Thus, Plaintiffs need only plausibly plead direct or circumstantial evidence of
9 discriminatory intent; they do not need specifically to plead that a group of similarly situated
10 persons were treated more favorably to demonstrate discriminatory intent.
11 c. AADC Does Not Apply to This Case
12 The Government argues that, under Reno v. Am.-Arab Anti-Discrimination Comm., 525
13 U.S. 471 (1999) (―AADC‖), strict scrutiny does not apply in the immigration context even where a
14 claim of animus against a protected group is plausibly alleged. In AADC, a group of aliens alleged
15 that the Attorney General had selectively initiated removal proceedings against them on the basis
16 of their political beliefs and affiliations in violation of the First Amendment. The Supreme Court
17 explained that ―[a]s a general matter . . . an alien unlawfully in this country has no constitutional
18 right to assert selective enforcement as a defense against his deportation.‖ 525 U.S. at 488-89.
19 However, it did not ―rule out the possibility of a rare case in which the alleged basis of
20 discrimination is so outrageous that the foregoing considerations can be overcome.‖ Id. at 491.
21 Importantly, the AADC standard confining discrimination claims to ―outrageous‖ cases is
22 limited to challenges to the exercise of prosecutorial discretion, i.e., the ―discretion to choose to
23 deport one person rather than another.‖ Kwai Fun Wong v. U.S., 373 F.3d 952, 970 (9th Cir.
24 2004). The reason for this limitation stems from the purpose of the AADC rule itself: namely, that
25 ―in deportation proceedings the consequence [of invading prosecutorial discretion] is to permit and
26 prolong a continuing violation of United States law,‖ and ―[t]he contention that a violation must
27 be allowed to continue because it has been improperly selected is not powerfully appealing.‖
28 AADC, 525 U.S. at 490-91. Thus, Kwai Fun Wong held that AADC did not apply where an alien
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1 challenged the discriminatory denial of adjustment of status and revocation of parole rather than
2 the decision to pursue removal. See also Batalla Vidal v. Nielsen, 291 F.Supp.3d 260, 275
3 (E.D.N.Y. 2018) (―Rather than alleging that they in particular are being targeted for removal
4 because of their race—in which case judicial review of their suit would presumably be limited by
5 [the AADC standard]—Plaintiffs allege that the categorical decision to end the DACA program,
6 which provided them with some limited assurance that they would not be deported, was motivated
7 by unlawful animus.‖).
8 This case is similar to Kwai Fun Wong. The challenge here is not to a specific removal
9 decision, where the continued presence of the alien in the U.S. prolongs an established continuing
10 violation of law and the only thing that stands in the way of removal is a claim of prosecutorial
11 misconduct in the selection of persons for removal. Rather, as in Kwai Fun Wong, the challenge
12 here is several steps removed from the prosecutorial decision to seek removal of any particular
13 individual.32 Moreover, the challenge here is on a programmatic level; it does not challenge an
14 individualized prosecutorial decision.
15 Although the Government contends that even programmatic challenges to immigration
16 policies independent of prosecutorial discretion in selecting individuals for removal are subject to
17 review under AADC, citing Kandamar v. Gonzales, 464 F.3d 65 (1st Cir. 2006) and Hadayat v.
18 Gonzales, 458 F.3d 659 (7th Cir. 2006), these cases do not support the Government‘s argument.
19 In Kandamar, a Moroccan petitioner was placed in removal proceedings based on statements he
20 made indicating that he had overstayed his visa in an interview required by the National Security
21 Entry-Exit Registration System (―NSEERS‖) program. NSEERS required young male
22 nonimmigrant aliens from certain designated countries, including Morocco, to ―appear before,
23 register with, answer questions from, and present documents . . . to DHS.‖ Kandamar, 464 F.3d at
24 67. In his removal proceedings, Kandamar filed a motion to suppress his NSEERS interview
25 statements arguing, in part, that NSEERS ―constitutes racial profiling and discrimination based on
26 national origin‖ and was fundamentally unfair because it was used ―to entrap nationals of certain
27
32
28 Apart from TPS status, affected individual may have claims for, e.g., adjustment of status,
asylum, or otherwise.
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1 countries.‖ Id. at 68. Tellingly, the First Circuit did not apply AADC‘s narrow standard of review
2 to Kandamar‘s programmatic attack on NSEERS. Rather, it applied the traditional level of review
3 under the equal protection doctrine for Congressional line-drawing with respect to ―immigration
4 criteria based on an alien‘s nationality or place of origin,‖ id. at 72, the rational basis test. The
5 Court did not apply the specialized AADC test to the challenge to the NSEERS program.
6 Separate from this programmatic challenge in the context of his motion to suppress,
7 Kandamar argued that he was ordered removed based on national origin; the First Circuit agreed
8 that ―a person in the same situation [as Kandahar] but not from one of the NSEERS countries
9 would not have been placed in removal proceedings.‖ Id. at 74. But because this aspect of
10 Kandamar‘s challenge pertained to the decision to remove him (rather than the decision to
11 interview him pursuant to NSEERS), the First Circuit followed AADC and held that ―[t]here is
12 nothing in this record to demonstrate outrageous discrimination.‖ Id. Thus, the AADC standard
13 was only applied to the challenge to the decision to pursue removal.
14 In Hadayat, the Seventh Circuit considered a similar claim by an Indonesian petitioner
15 alleging that he was placed in removal because of NSEERS whereas a similarly situated person
16 from another country would not have been. In that context, the Seventh Circuit applied AADC to
17 conclude that ―Hadayat‘s conclusory comments regarding the allegedly discriminatory effect of
18 NSEERS do not come close to meeting [AADC‘s] high burden.‖ 458 F.3d at 665 (emphasis
19 added). The AADC standard was applied because the programmatic attack arose in the context of
20 his challenge to removal. Hadayat contended ―he was unconstitutionally targeted for registration
21 and removal based on his ethnicity and religion‖ id. at 664-65.
22 Thus, Kandamar and Hadayat are inapposite because they did not apply AADC beyond the
23 narrow context of direct challenges to the exercise of prosecutorial discretion in removing
24 individuals from this country.33 Cf. Wong, 373 F.3d at 974, 974, n.29 (refusing to ―countenance
25
26 33
The Government‘s reliance on Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016)
27 is also inapposite because it has to do with the doctrine of consular nonreviewability with respect
to the denial of a visa application, for which judicial review is limited to confirming that the
28 executive branch has cited a ―facially legitimate and bona fide reason.‖ This case does not involve
the denial of visa applications and the doctrine consular nonreviewability.
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1 that the Constitution would permit immigration officials to engage in such behavior as rounding
2 up all immigration parolees of a particular race solely because of a consideration such as skin
3 color,‖ without ―address[ing] the question whether racial, ethnic, or religious discrimination
4 against immigration parolees is tested by the usual heightened scrutiny applicable to such
5 classifications‖).
6 d. Trump v. Hawaii Does Not Require a Different Outcome
7 In light of the Supreme Court‘s decision in Trump v. Hawaii, 585 U.S. ___, 138 S.Ct. 2392
8 (2018), the Court must determine whether Trump alters that analysis by mandating deferential
9 rational basis review rather than traditional strict scrutiny under Arlington Heights even where
10 government conduct is motivated by race, color, or ethnicity. The Court is not persuaded that
11 Trump‘s standard of deferential review applies here.
12 In Trump, the President had issued a Proclamation which ―placed entry restrictions on the
13 nationals of eight foreign states whose systems for managing and sharing information about their
14 nationals the President deemed inadequate‖ for purposes of ―assess[ing] whether nationals of
15 particular countries present ‗public safety threats.‘‖ Id. at 2404. The President declared that the
16 restrictions ―were necessary to ‗prevent the entry of those foreign nationals about whom the
17 United States Government lacks sufficient information‘; ‗elicit improved identity-management
18 and information-sharing protocols and practices from foreign governments‘; and otherwise
19 ‗advance [the] foreign policy, national security, and counter-terrorism‘ objectives of the United
20 States. Id. at 2405. Further, the restrictions ―would be the ‗most likely to encourage cooperation‘
21 [of foreign governments] while ‗protect[ing] the United States until such time as improvements
22 occur.‘‖ Id. The Proclamation purported to be an exercise of statutory authority under 8 U.S.C. §
23 1182(f), which permits the President to ―suspend the entry of all aliens or any class of aliens‖
24 whenever he ―finds‖ that their entry ―would be detrimental to the interests of the United States.‖ 8
25 U.S.C. § 1182(f).
26 Notwithstanding the facially neutral text of the proclamation, the Trump plaintiffs alleged
27 in part that the President‘s vitriolic anti-Muslim statements prior to taking the oath of office and
28 thereafter demonstrated that the proclamation was motivated by religious animus in violation of
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1 the First Amendment‘s establishment clause. The principal question on review was what level of
2 scrutiny would apply to the President‘s Proclamation in light of the alleged religious animus.
3 The Supreme Court explained that two factors informed the standard of review applied in
4 Trump: that ―plaintiffs seek to invalidate a national security directive regulating the entry of aliens
5 abroad,‖ and that the executive order was ―facially neutral toward religion‖ and thus required
6 ―prob[ing] the sincerity of the stated justifications for the policy by reference to extrinsic
7 statements.‖ Id. at 2418 (emphasis added). The court noted that ―[f]or more than a century, this
8 Court has recognized that the admission and exclusion of foreign nationals is a ‗fundamental
9 sovereign attribute exercised by the Government‘s political departments largely immune from
10 judicial control.‘‖ Id. (emphasis added). ―Because decisions in these matters may implicate
11 ‗relations with foreign powers,‘ . . . such judgments are ‗frequently of a character more
12 appropriate to either the Legislature or the Executive.‘‖ Id. (quoting Mathews v. Diaz, 426 U.S.
13 67, 81 (1976)). Moreover, because the persons in question were foreign nationals abroad seeking
14 admission with ―no constitutional right to entry,‖ the scope of review was already
15 ―circumscribed‖—review was available only to the extent that denial of the alien‘s admission
16 imposed ―burdens [on] the constitutional rights of a U.S. citizen.‖ Id. at 2419. Taking these
17 factors together, the Supreme Court concluded that ―[t]he upshot . . . in this context is clear: ‗Any
18 rule of constitutional law that would inhibit the flexibility‘ of the President ‗to respond to
19 changing world conditions should be adopted only with the greatest caution,‘ and our inquiry into
20 matters of entry and national security is highly constrained.‖ Id. at 2419-20 (quoting Mathews,
21 426 U.S. at 81-82 (holding that Congress may condition an alien‘s eligibility for participation in
22 federal medical insurance on duration of residency and permanent resident status)). Further, the
23 proposed inquiry could ―intrud[e] on the President‘s constitutional responsibilities in the area of
24 foreign affairs.‖ Id. at 2419.
25 Applying these considerations—the entry of aliens from outside the United States, express
26 national security concerns and active involvement of foreign policy—the Supreme Court applied a
27 standard of review ―considers whether the entry policy is plausibly related to the Government‘s
28 stated objective to protect the country and improve vetting procedures.‖ Id. at *21. The Supreme
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1 Court ―assume[d] that [it] may look behind the face of the Proclamation to the extent of applying
2 rational basis review‖ including consideration of ―plaintiffs‘ extrinsic evidence [of President
3 Trump‘s anti-Muslim statements].‖ Id. at 2420. It held, however, that taking these statements into
4 consideration, it would ―uphold the policy so long as it can reasonably be understood to result
5 from a justification independent of unconstitutional grounds.‖ Id.
6 The case at bar is distinguishable from Trump in several respects. First, Defendants herein
7 did not cite national security as a basis for terminating TPS. Rather, the stated basis purports to be
8 nothing more than a factual determination that conditions in the ground in four countries no longer
9 meet the statutory criteria of the TPS statute and thus the humanitarian (not national security)
10 purposes underpinning TPS status have been obviated.
11 Second, unlike the Proclamation in Trump, Defendants have not claimed that TPS has been
12 terminated for foreign policy reasons. The government‘s decision to terminate TPS status was not
13 intended to induce the cooperation or action of a foreign government. Compare Trump, 138 S.Ct.
14 at 2421 (noting that Proclamation was ―expressly premised on legitimate purposes: preventing
15 entry of nationals who cannot be adequately vetted and inducing other nations to improve their
16 practices‖).
17 Third, the TPS-beneficiaries here, unlike those affected by the Proclamation in Trump, are
18 already in the United States. They are not aliens abroad seeking entry or admission who ―have no
19 constitutional right of entry‖ id. at 2419;34 TPS-beneficiaries have been admitted to the United
20 States. See Ramirez v. Brown, 852 F.3d 954, 958-61 (9th Cir. 2017). As Plaintiffs currently
21 reside lawfully in the United States, id., this case is unlike Trump; it does not implicate ―the
22 admission and exclusion of foreign nationals,‖ Trump, 138 S.Ct. at 2418, who have ―no
23 constitutional rights regarding [their] application‖ in light of the ―sovereign prerogative‖ ―to admit
24 or exclude aliens.‖ Landon v. Plasencia, 459 U.S. 21, 32 (1982). Hence, the basis for invoking
25
26
34
27 Thus, their situation is unlike persons physically present at a United States port of entry who
had not been admitted but sought to be paroled. See Nadarajah v. Gonzales, 443 F.3d 1069, 1082-
28 83 (9th Cir. 2006) (reviewing agency‘s discretion to grant parole to alien under a deferential
―facially legitimate and bona fide‖ reasons standard).
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1 broad judicial deference to executive action in excluding aliens does not apply.35
2 Fourth, relatedly, aliens within the United States have greater constitutional protections
3 than those outside who are seeking admission for the first time. See Zadvydas v. Davis, 533 U.S.
4 678, 693 (2001) (explaining that ―certain constitutional protections available to persons inside the
5 United States are unavailable to aliens outside of our geographic borders,‖ id., ―[b]ut once an alien
6 enters the country, the legal circumstance changes, for the Due Process Clause applies to all
7 ‗persons‘ within the United States, including aliens‖). The aliens affected by the President‘s
8 Proclamation in Trump were outside the United States and had ―no constitutional rights regarding
9 [their] application,‖ Landon, 459 U.S. at 32; the courts could therefore only ―engage[] in a
10 circumscribed judicial inquiry when the denial of a visa allegedly burdens the constitutional rights
11 of a U.S. citizen.‖ Trump, 138 S.Ct. at 2419. TPS-beneficiaries in the United States in contrast
12 have ties to the United States, many with deep, long-term ties. For example, 88% of Salvadoran
13 and 81% of Haitian TPS holders are employed, 11% are entrepreneurs, and 30% (45,500
14 households with Savaldoran TPS holders and 6,200 with Haitian TPS holders) have mortgages.
15 Compl. ¶ 48. See Landon, 459 U.S. at 32 (―[O]nce an alien gains admission to our country and
16 begins to develop the ties that go with permanent residence his constitutional status changes
17 accordingly.‖). Although Landon refers to permanent resident aliens, the alien‘s ties to the United
18 States, not his or her formal immigration status, confer increased constitutional protection. See
19 U.S. v. Verdugo-Urquidez, 494 U.S. 259, 271 (1990) (―[A]liens receive constitutional protections
20 when they have come within the territory of the United States and developed substantial
21 connections with this country.‖); Johnson v. Eisentrager, 339 U.S. 763, 770 (1950) (―The alien, to
22 whom the United States has been traditionally hospitable, has been accorded a generous and
23 ascending scale of rights as he increases his identity with our society. Mere lawful presence in the
24 country creates an implied assurance of safe conduct and gives him certain rights[.]‖); see also
25 Ibrahim v. Dep’t of Homeland Security, 669 F.3d 983, 997 (9th Cir. 2012) (holding that alien with
26 nonimmigrant student visa had ―established ‗significant voluntary connection‘ with the United
27
35
28 Indeed, TPS benefits may only be extended to admissible aliens, unless the Government
extends a waiver to inadmissibility. See 8 U.S.C. § 1254a(c)(1)(A)(iii); id. § 1254a(c)(2)(A).
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1 States such that she has the right to assert claims under the First and Fifth Amendments,‖ even
2 though she had left the country and been denied re-entry while outside the country).
3 Fifth, the executive order at issue in Trump was issued pursuant to a very broad grant of
4 statutory discretion: Section 1182(f) ―exudes deference to the President in every clause‖ by
5 ―entrust[ing] to the President the decisions whether and when to suspend entry . . .; whose entry to
6 suspend . . .; for how long . . .; and on what conditions.‖ Trump, 138 S.Ct. at 2408. In contrast,
7 Congress has not given the Secretary carte blanche to terminate TPS for any reason whatsoever.
8 Rather, the TPS statute empowers the Secretary of Homeland Security discretion to initiate,
9 extend, and terminate TPS in specific enumerated circumstances. 8 U.S.C. § 1254a(b). Even
10 though the statute circumscribes judicial review, see supra, Congress prescribed the discretion of
11 the Secretary in administering TPS. Cf. Trump, 138 S.Ct. at 2424 (Kennedy, J., concurring)
12 (“There are numerous instances in which the statements and actions of Government officials are
13 not subject to judicial scrutiny or intervention. That does not mean those officials are free to
14 disregard the Constitution and the rights it proclaims and protects.”).
15 For these reasons, the facts, legal posture, and legal issues in Trump are substantially and
16 materially different from the present case. Trump did not address the standard of review to be
17 applied under the equal protection doctrine when steps are taken to withdraw an immigration
18 status or benefit from aliens lawfully present and admitted into the United States for reasons
19 unrelated to national security or foreign affairs. Trump therefore does not alter the Ninth Circuit‘s
20 refusal to ―countenance that the Constitution would permit immigration officials to . . . round[] up
21 all immigration parolees of a particular race solely because of a consideration such as skin color.‖
22 Wong, 373 F.3d at 974, 974, n. 29. The equal protection guarantee applies with its conventional
23 force to all persons in the United States. Cf. Yick Wo v. Hopkins, 118 U.S. 356, 369 (1886)
24 (explaining that the Fourteenth Amendment‘s ―provisions are universal in their application, to all
25 persons within the territorial jurisdiction, without regard to any differences of race, of color, or of
26 nationality‖ and holding that the administration of a race-neutral law in a prejudicial manner
27 violates Equal Protection Clause). TPS beneficiaries residing in the United States are such
28 persons. Accordingly, the deferential standard of review in Trump does not apply.
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1 e. Application to Plaintiffs‘ Allegations
2 Having clarified that the Arlington Heights framework applies to review of Defendants‘
3 actions and that President Trump‘s stated animus may be attributed to the Secretary if he
4 influenced an otherwise independent decision-making process, the Court now reviews whether
5 Plaintiffs‘ factual allegations plausibly state a claim.
6 Plaintiffs chiefly rely on a set of anti-immigrant, anti-Muslim comments made by President
7 Trump to support their claim of animus. As set forth in detail above, President Trump has
8 allegedly expressed animus toward ―non-white, non-European people,‖ Compl. ¶ 9, including by
9 labeling Mexican immigrants as criminals and rapists, id. ¶ 67, ―compar[ing] immigrants to snakes
10 who will bite and kill anyone foolish enough to take them in,‖ id. ¶ 68, complaining that 40,000
11 Nigerians in the United States ―would never ‗go back to their huts‘ in Africa,‖ id. ¶ 69, and
12 ―disseminat[ing] a debunked story about celebrations of the September 11, 2001, attacks [by
13 Arabs living in New Jersey],‖ id. President Trump also specifically made derogatory comments
14 about Haitians, including that the 15,000 admitted to the United States ―all have AIDS,‖ id. One
15 week before TPS was terminated, President Trump asked aloud regarding Latin American and
16 African countries, including Haiti and El Salvador, ―Why are we having all these people from
17 shithole countries come here?‖ He expressed a preference instead for Norwegians, who are
18 overwhelmingly white. Id. ¶ 70. The President also asked ―Why do we need more Haitians?‖ and
19 insisted they be removed from an immigration deal. Id. ¶ 70. Plaintiffs characterize these
20 statements and other evidence as evidence of ―racial and national-origin animus.‖ Compl. ¶ 66.
21 These allegations are more than sufficient to support a plausible inference of the President‘s
22 animus based on race and/or national origin/ethnicity against non-white immigrants in general and
23 Haitians, Salvadoreños, Nicaraguans, and Sudanese people in particular. 36
24
36
25 Insofar as Plaintiffs allege national origin discrimination, see Compl. ¶ 111, the Court construes
it as a reference to ethnicity in light of the nature of the President‘s alleged comments relying on
26 stereotypes about the physical or cultural characteristics of persons from the countries in question.
Cf. Wong, 373 F.3d at 968, n.21 (construing allegation of national origin discrimination as being
27 based on ethnicity); cf. 29 C.F.R. § 1606.1 (defining ―national origin discrimination‖ under Title
VII of the Civil Rights Act of 1964 to include ―denial of equal employment opportunity because
28 of an individual‘s, or his or her ancestor‘s place of origin; or because an individual has the
physical, cultural or linguistic characteristics of a national origin group‖ (emphasis added)).
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1 Moreover, Plaintiffs plausibly allege that President Trump‘s animus was a factor in the
2 TPS termination decisions in question. According to Plaintiffs‘ allegations, President Trump
3 repeatedly expressed his animus towards non-white immigrants on the campaign trail and after
4 entering office, and explicitly linked those sentiments to his proposed immigration policies and
5 priorities. Most directly, at a meeting about TPS on January 11, 2018, President Trump expressed
6 his disdain for persons from Haiti and El Salvador,37 and his administration then took action to
7 terminate TPS status for those countries a mere 7 days later. Compl. ¶ 70. Although the
8 termination of Sudan and Nicaragua in October and December 2017 pre-date the January 11, 2018
9 meeting, they post-date the other statements made by President Trump reflecting animus against
10 non-white immigrants and other persons of Latino or African origin. See Compl. ¶¶ 67
11 (categorical labels of Mexican immigrants as criminals and rapists), 69 (complaining that migrants
12 from Nigeria would never ―go back to their huts‖ in Africa); id. (disseminating a false anti-Arab
13 rumor about celebrations of the September 11, 2001 attacks in New Jersey). Thus, Plaintiffs
14 plausibly allege that President Trump harbored racial and national origin/ethnic animus as of the
15 time of all four TPS decisions challenged in this case.
16 Further, Plaintiffs plausibly allege that President Trump influenced DHS‘s decision to
17 terminate TPS status. Most directly, Secretary Nielsen was present at the January 11, 2018
18 meeting where the President referred to Haiti and El Salvador (at least) as ―shithole countries‖ and
19 questioned why the United States would welcome their people here. Compl. ¶ 72. Haiti and El
20 Salvador‘s TPS designations were terminated seven days later. Id. ¶¶ 81, 84. Further, Plaintiffs‘
21 allege that on November 6, 2017, with respect to Honduras—which is not at issue in this case—
22 the White House Chief of Staff John F. Kelly and White House Homeland Security Adviser Tom
23 Bossert ―repeatedly called Acting Secretary Duke and pressured her to terminate the TPS
24 designation for Honduras.‖ Id. ¶ 73. Kelly was reportedly traveling with President Trump at the
25
37
26 President Trump did not merely call Haiti and El Salvador ―shithole countries.‖ He asked
―Why are we having all these people from shithole countries come here?‖ and ―Why do we need
27 more Haitians?‖ Compl. ¶ 70. These are not merely comments about a place, but can reasonably
be understood as comments about the people who come from those places and their intrinsic
28 worth. It is reasonable to infer racial or national-origin/ethnic animus from these statements, as
confirmed by the reaction of listeners who were present. Id. ¶ 71
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1 time. Id. Another news article cited by Plaintiffs (and thus incorporated into the complaint) notes
2 that as early as June 2017 President Trump was ―berating his most senior advisers,‖ including
3 then-DHS Secretary John Kelly, about immigrants who had entered the country that year from
4 Afghanistan, Haiti, and Nigeria. Id. ¶ 69, n.33. Together, these allegations support a plausible
5 inference that the White House has proactively inserted itself into DHS‘s TPS termination
6 decisions during the relevant time period of October 2017 to January 2018 when the termination
7 decisions were announced as part of its broader agenda on immigration. Indeed, Defendants
8 effectively concede that President Trump has insinuated himself into the TPS process. See Reply
9 at 9 (―Of course something of this nature would involve the White House . . .‖).
10 In light of the allegations above, Plaintiffs have plausibly pled that President Trump‘s
11 racial and national-origin/ethnic animus was a motivating factor in DHS‘s TPS termination
12 decisions and thus have plausibly stated an equal protection claim. Defendants‘ motion to dismiss
13 is DENIED.
14 IV. CONCLUSION
15 In sum, the Court holds that Section 1254a does not preclude judicial review of
16 Defendants‘ APA claim to the extent Plaintiffs challenge the sub silentio departure from a prior
17 practice or policy. Further, Section 1254a does not preclude judicial review of Plaintiffs‘
18 constitutional due process and equal protection claims. Defendants‘ motion to dismiss under Rule
19 12(b)(1) is DENIED.
20 Defendants‘ motion to dismiss is also DENIED. Plaintiffs have plausibly alleged that
21 Defendants‘ sub silentio departure from a prior practice or policy violates the Administrative
22 Procedure Act (Fourth Claim). Plaintiffs have also plausibly pled that the TPS termination
23 decisions, as well as Defendants‘ adoption of a new interpretation of the TPS statute, were
24 motivated by racial and/or ethnic animus in violation of the equal protection guarantee of the
25 ///
26 ///
27 ///
28 ///
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1 constitution (Second Claim). Finally, Plaintiffs have plausibly pled that Defendants‘ termination
2 decisions violate Plaintiffs‘ substantive due process rights, at least to the extent that the decisions
3 violated the APA and/or equal protection guarantee and therefore did not involve pursuit of a
4 legitimate governmental interest.
5 This order disposes of Docket No. 20.
7 IT IS SO ORDERED.
9 Dated: August 6, 2018
10
11 ______________________________________
EDWARD M. CHEN
12 United States District Judge
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Case 1:18-cv-10340-DJC
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UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS
__________________________________________
)
)
CENTRO PRESENTE, JUAN CARLOS )
VIDAL, ANNE CHRISTINE NICOLAS, )
CHRIS JEAN BAPTISTE, MERCEDES )
MATA, CAROLINA MATA, WILL ARIAS, )
JUAN AMAYA, MARIA GUERRA, )
HAITIAN-AMERICANS UNITED, INC., )
JOSUE DORFEUILLE, NATACHA )
DORFEUILLE, YESY PATRICIA CARBAJAL, )
JUAN GUERRERO, JAIME YANES )
and JOSE OMAR RODRIGUEZ VARELA, )
)
Plaintiffs, ) Civil Action No. 18-10340
)
v. )
)
)
UNITED STATES DEPARTMENT OF )
HOMELAND SECURITY, DONALD J. )
TRUMP, KIRSTJEN NIELSEN and ELAINE )
COSTANZO DUKE, )
)
Defendants. )
)
)
__________________________________________)
MEMORANDUM AND ORDER
CASPER, J. July 23, 2018
I. Introduction
Plaintiffs Centro Presente, Haitian-Americans United, Inc., Juan Carlos Vidal, Anne
Christine Nicolas, Chris Jean Baptiste, Mercedes Mata, Carolina Mata, Will Arias, Juan Amaya,
Maria Guerra, Josue Dorfeuille, Natacha Dorfeuille, Yesy Patricia Carbajal, Juan Guerrero, Jaime
Yanes and Jose Omar Rodriguez Varela (collectively, “Plaintiffs”) have filed this lawsuit against
the United States Department of Homeland Security (“DHS”), President Donald J. Trump
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(“President Trump”) in his official capacity, Secretary Kirstjen Nielsen (“Nielsen”) in her official
capacity and Deputy Secretary Elaine Costanzo Duke (“Duke”) in her official capacity
(collectively, “Defendants”) regarding Defendants’ decisions to terminate the designation of Haiti,
El Salvador, and Honduras for temporary protected status (“TPS”). D. 21. Defendants have
moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim.
D. 24. For the following reasons, the Court ALLOWS Defendants’ motion to dismiss with respect
to the mandamus claim (Count V) and DENIES Defendants’ motion to dismiss in all other respects.
II. Standard of Review
“To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, ‘to state a claim to relief that is plausible on its face.’” Coll. Hill Properties, LLC
v. City of Worcester, 821 F.3d 193, 195–96 (1st Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Iqbal, 556 U.S. at 678. “This standard is ‘not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has acted unlawfully.’” Saldivar v. Racine,
818 F.3d 14, 18 (1st Cir. 2016) (quoting Iqbal, 556 U.S. at 678). “[W]here a complaint pleads
facts that are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility of entitlement to relief.” In re Ariad Pharm., Inc. Sec. Litig., 842 F.3d
744, 756 (1st Cir. 2016) (quoting Iqbal, 556 U.S. at 678). In reviewing a motion to dismiss, the
Court “accept[s] as true all well-pled facts alleged in the complaint and draw all reasonable
inferences in [the plaintiff’s] favor.” Miller v. Town of Wenham, 833 F.3d 46, 51 (1st Cir. 2016)
(quoting Evergreen Partnering Grp., Inc. v. Pactiv Corp, 720 F.3d 33, 36 (1st Cir. 2013) (second
alteration in original)).
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“Where, as here, a dismissal for want of [subject matter] jurisdiction is based solely on the
complaint, we accept ‘the well-pleaded factual averments contained therein and indulg[e] all
reasonable inferences in the [plaintiff’s] favor.’” Gordo-Gonzalez v. United States, 873 F.3d 32,
35 (1st Cir. 2017) (quoting Muñiz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003)).
III. Factual Background
Unless otherwise noted, the following facts are drawn from the amended complaint, D. 21,
and are accepted as true for the purposes of considering the motion to dismiss.
A. The Parties
The fourteen individual plaintiffs are each recipients of TPS. D. 21 ¶¶ 26, 29, 31, 33, 38,
41, 44, 47, 51, 54, 59, 62, 65. Of the fourteen, six are immigrants from El Salvador, four are
immigrants from Haiti and four are immigrants from Honduras. Id.
Haitian-Americans United is a non-profit organization founded “to improve the quality of
life for Haitians and Haitian-Americans through education, community empowerment, and
cultural development.” D. 21 ¶ 18. It has a number of members who are Haitian immigrants with
TPS status. D. 21 ¶ 20. Centro Presente is a non-profit organization “dedicated to the self-
determination and self-sufficiency of the Latin American immigrant community of
Massachusetts.” D. 21 ¶ 12. Centro Presente has a number of members who are immigrants from
El Salvador and Honduras with TPS status. D. 21 ¶ 14.
DHS is the administrative agency charged with administering certain immigration laws and
policies, including the TPS program. D. 21 ¶ 70. Nielsen has been the DHS Secretary since
December 6, 2017. D. 21 ¶ 71. Duke was the Acting DHS Secretary from July 31, 2017, to
December 6, 2017, and thereafter served as Deputy DHS Secretary until her retirement on April
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15, 2018. D. 21 ¶ 72. Both have served in the executive branch under President Trump. D. 21 ¶
69.
B. The Legislative Framework Regarding Temporary Protected Status
The Secretary may grant an individual TPS if two conditions are met: first, the individual
is a national of a foreign state that has been designated by the DHS Secretary; and second, the
individual meets certain eligibility criteria. 8 U.S.C. § 1254a(a)(1). 1 While an individual has TPS,
the Secretary may not remove the individual from the United States and must authorize the
individual to engage in employment in the United States. Id.
The Secretary may designate a foreign state under the statute only if, “after consultation
with appropriate agencies of the Government,” the Secretary finds that at least one of three
conditions is met: first, that “there is an ongoing armed conflict within the state,” such that
returning aliens to that state “would pose a serious threat to their personal safety;” second, that
“there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the
state resulting in a substantial, but temporary, disruption of living conditions in the area affected,”
such that “the foreign state is unable, temporarily, to handle adequately the return to the state of
aliens who are nationals of the state” and “the foreign state officially has requested designation;”
or third, that “there exist extraordinary and temporary conditions in the foreign state that prevent
aliens who are nationals of the state from returning to the state in safety,” and “permitting the
aliens to remain temporarily in the United States” would not be “contrary to the national interest
of the United States.” 8 U.S.C. § 1254a(b)(1). The effective period of designation “is the period,
specified by the [Secretary], of not less than 6 months and not more than 18 months.” Id. §
1
Although the statute references the Attorney General as the decisionmaker for TPS designations,
the authority to administer the TPS program was transferred from the Attorney General to the DHS
Secretary in 2003. See Homeland Security Act of 2002, Pub. L. No. 107-296, 116 Stat. 2135
(2002); D. 21 at 18 n.13.
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1254a(b)(2). At least sixty days before the end of the effective period of designation, the Secretary,
“after consultation with appropriate agencies of the Government, shall review the conditions in the
foreign state” to “determine whether the conditions for such designation . . . continue to be met.”
Id. § 1254a(b)(3)(A). The Secretary must publish in the Federal Register “notice of each such
determination[,] including the basis for the determination,” and the length of any extension. Id.
An extension of designation may be for a period of six, twelve, or eighteen months. Id. §
1254a(b)(3)(C). The 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 under this subsection.” Id. § 1254a(b)(5)(A).
In addition to being a national of a foreign state that has been designated, a foreign national
must also meet certain individual criteria to qualify for TPS. Among other criteria, the foreign
national must have been “continuously physically present in the United States since the effective
date of the most recent designation” of the foreign state, id. § 1254a(c)(1)(A)(i); the foreign
national must not have been convicted of certain categories of criminal offenses, id.
§ 1254a(c)(2)(A)(iii); and the foreign national must not be otherwise inadmissible in certain ways,
including being present in the United States without being admitted or paroled into the United
States, id. § 1254a(c)(1)(A)(iii); § 1254a(c)(2), § 1182(a)(6), or having been previously removed,
id. § 1182(a)(9). The criteria for an individual to qualify for TPS is not at issue in this case as the
individual plaintiffs have already received TPS. D. 21 ¶¶ 26, 29, 31, 33, 38, 41, 44, 47, 51, 54, 59,
62, 65. Instead, Plaintiffs’ claims concern Defendants’ actions to change TPS designations for El
Salvador, Haiti and Honduras.
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C. The TPS Designations of El Salvador, Haiti and Honduras
There are currently approximately 400,000 TPS recipients residing in the United States,
including over 262,500 from El Salvador, approximately 58,550 from Haiti, and approximately
86,000 from Honduras. D. 21 ¶ 7.
1. El Salvador
On March 1, 2001, then Attorney General John Ashcroft (“Ashcroft”) gave El Salvador
TPS designation. D. 21 ¶ 83. That designation was based upon a determination that, due to three
earthquakes earlier in the year that had resulted in the deaths of at least 1,100 people and the
displacement of approximately 1.3 million people, El Salvador would be “unable, temporarily, to
handle adequately the return of its nationals.” D. 21 ¶¶ 83-84. On July 11, 2002, Ashcroft
extended the designation, finding that the earthquakes had caused substantial damage to the
country’s infrastructure and that subsequent droughts had left farming families “destitute” and
200,000 people “threatened by food insecurity.” D. 21 ¶¶ 85-86. On July 16, 2003, then DHS
Secretary Tom Ridge (“Ridge”) extended the designation, stating that the “economy of El Salvador
[was] not yet stable enough to absorb returnees from the United States.” D. 21 ¶¶ 87-88. Ridge
again extended the designation on January 7, 2005, based on a determination that the economy of
El Salvador had not yet recovered. D. 21 ¶¶ 89-90. On June 15, 2006, then DHS Secretary Michael
Chertoff (“Chertoff”) extended the designation for El Salvador, finding that new natural disasters,
including a volcanic eruption and a hurricane that resulted in mudslides and flooding, had slowed
rebuilding efforts. D. 21 ¶¶ 91-92. Chertoff again extended the designation on August 21, 2007,
and October 1, 2008, citing his determination that El Salvador had “still not completed
reconstruction of the infrastructure damaged by several severe 2001 earthquakes” and was
therefore still limited in its ability to absorb potential returnees. D. 21 ¶¶ 93-96. On July 9, 2010,
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then DHS Secretary Janet Napolitano (“Napolitano”) extended the designation, stating that El
Salvador continued to “suffer a public security crisis that threaten[ed] to undermine sustained
development and confidence in democratic governance” and finding “increasing levels of violent
crime.” D. 21 ¶¶ 97-98. On January 11, 2012 and May 30, 2013, Napolitano again extended the
designation, based on findings of infrastructural deficiencies and subsequent natural disasters. D.
21 ¶¶ 99-102. On January 7, 2015, then DHS Secretary Jeh Johnson (“Johnson”) extended El
Salvador’s designation, based on the recent eruption of a volcano and a recent tropical storm. D.
21 ¶¶ 103-104. On July 8, 2016, Johnson again extended El Salvador’s designation. D. 21 ¶ 105.
The effective period for the extension was September 10, 2016 to March 9, 2018. D. 21 ¶ 105.
Johnson cited, in his extension decision, a substantial rise of violence and “an environment of
impunity” for corruption, violent crimes, and gang activity. D. 21 ¶ 106.
2. Haiti
On January 21, 2010, Napolitano gave Haiti TPS designation, finding that a recent
earthquake there had “destroyed most of the capital city” and affected “one-third of Haiti’s
population.” D. 21 ¶¶ 107-108. Napolitano re-designated Haiti with TPS on May 19, 2011, based
on the earthquake’s lasting damage to Haiti’s infrastructure, the high numbers of displaced persons
following the earthquake, the outbreak of a cholera epidemic and a rise in gender-based violence. 2
D. 21 ¶ 109-110. Napolitano extended the designation on October 1, 2012, based on similar
findings. D. 21 ¶ 111-12. On March 3, 2014, Johnson extended the designation, citing the slow
2
It appears that re-designation differs, in at least one respect, from an extension of a
designation. If a country is re-designated, nationals of that country may qualify for TPS if they
have been continuously present in the United States since the re-designation date, whereas if a
country’s designation is extended, nationals of that country may only qualify if they have been
continuously present since the initial designation date. See 8 U.S.C. § 1254a(c)(1)(A)(i); see also
D. 25 at 15 (citing Extension of Designation and Redesignation of Liberia under TPS Program, 62
Fed. Reg. 16,608-01, 16,009 (April 7, 1997)).
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pace of the economic recovery and new natural disasters, including Hurricane Sandy, which had
caused additional displacement, damage and death. D. 21 ¶¶ 113-14. On August 25, 2015,
Johnson again extended the designation. D. 21 ¶ 115. The effective period for the extension was
January 23, 2016 to July 22, 2017. D. 21 ¶ 115. The extension was based on continued
infrastructural damage, high rates of food insecurity, the lack of emergency services and the lack
of a “functioning legislative branch or duly elected local authorities.” D. 21 ¶ 116.
3. Honduras
On January 5, 1999, then Attorney General Janet Reno designated Honduras for TPS based
on findings that Hurricane Mitch had rendered Honduras temporarily unable to handle the return
of Honduran nationals. D. 21 ¶¶ 117-18. On May 11, 2000, Reno extended the designation for
Honduras, determining that Honduras had made “little progress” in recovering from Hurricane
Mitch and that the reconstruction had “not sufficiently countered the devastation” caused by the
hurricane. D. 21 ¶¶ 119-120. On May 8, 2001, Ashcroft extended Honduras’ designation based
on findings that only a fraction of the necessary housing units had yet been constructed and that
many Hondurans remained in shelters, notwithstanding some progress in the recovery efforts. D.
21 ¶¶ 122-23. On May 3, 2002, Ashcroft again extended Honduras’ designation, noting that
“[a]lthough there are strong indications of progress in recovery efforts, recent droughts as well as
flooding from Hurricane Michelle in 2001 have added to the humanitarian, economic, and social
problems initially brought on by Hurricane Mitch in 1998.” D. 21 ¶¶ 123-24. On May 5, 2003,
Ridge extended the designation, determining that prolonged drought and flooding after Hurricane
Michelle had compromised food security and disrupted reconstruction efforts. D. 21 ¶¶ 125-26.
On November 3, 2004, Ridge again extended the designation, finding that Honduras was still
recovering from damage to its water and power supplies. D. 21 ¶¶ 127-28. On March 31, 2006,
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Chertoff extended Honduras’ designation, citing both continuing vulnerability after Hurricane
Mitch and serious storms in 2005. D. 21 ¶¶ 129-130. On May 29, 2007, Chertoff again extended
the designation, determining that there was continued social and economic stress caused by
Hurricane Mitch, with ongoing challenges in the areas of health, infrastructure, and employment.
D. 21 ¶¶ 131-32. On October 1, 2008, Chertoff extended the designation for a third time, based
on findings that much of the newly built housing lacked electricity and water, that more than
600,000 Hondurans lived in flood-prone areas and that much of the drinking water remained
contaminated. D. 21 ¶¶ 133-34. On May 5, 2010, Napolitano extended Honduras’ TPS
designation, noting that “Honduras continue[d] to rely heavily on international assistance” and that
recovery from Hurricane Mitch and subsequent disasters remained incomplete. D. 21 ¶¶ 135-36.
On November 4, 2011, Napolitano again extended the designation, based on a recent series of
natural disasters in Honduras and the determination that Honduras’ security situation was
“critical,” negatively affecting its ability to re-assimilate returning Hondurans. D. 21 ¶¶ 137-38.
On April 3, 2013, Napolitano extended Honduras’ designation a third time, citing a drought in
2012 and a tropical storm in 2011 that had contributed to ongoing problems with water,
infrastructure, and sanitation. D. 21 ¶¶ 139-140. On October 16, 2014, Johnson extended the
designation, finding that Honduras suffered from both food insecurity caused by a drought in 2014
and ongoing problems stemming from Hurricane Mitch and subsequent natural disasters. D. 21
¶¶141-142. On May 16, 2016, Johnson again extended Honduras’ designation. D. 21 ¶ 143. The
effective period for the extension was July 5, 2016 to January 5, 2018. D. 21 ¶¶ 143. Johnson
based the extension on findings that Honduras still had a housing deficit of 1.1 million homes; that
Honduras was one of the poorest countries in the Western Hemisphere; that Honduras suffered
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damage caused by Tropical Storm Hanna in 2014; and that Honduras experienced an increase in
mosquito-borne disease in 2014 and 2015. D. 21 ¶ 144.
D. Allegations Regarding Defendants’ Bias
Plaintiffs allege that President Trump, the head of the Executive Branch in which the DHS
Secretary serves, has personally made “numerous statements reflecting bias and prejudice against
immigrants of color, particularly Latino and Haitian immigrants.” D. 21 ¶ 148. In support of this
allegation, Plaintiffs cite several, alleged statements by President Trump. On or about June 16,
2015, while then-candidate Trump announced his presidential campaign, he stated that “[w]hen
Mexico sends its people, they’re not sending their best. . . . They’re sending people that have lots
of problems, and they’re bringing those problems with us. They’re bringing drugs. They’re
bringing crime. They’re rapists. And some, I assume, are good people . . . It’s coming from more
than Mexico. It’s coming from all over South and Latin America.” D. 21 ¶ 149. A few months
later, on or about August 6, 2015, then-candidate Trump declared during a debate that the Mexican
government was “send[ing] the bad ones over, because they don’t want to pay for them, they don’t
want to take care of them.” D. 21 ¶ 150. On or about August 21, 2015, then-candidate Trump was
asked about an incident in which two men beat and urinated on a sleeping Latino man and one,
after his arrest, stated that “Donald Trump was right; all these illegals need to be deported.” D. 21
¶ 151. He allegedly responded by stating that “[i]t would be a shame . . . I will say that the people
who are following me are very passionate. They love this country and they want this country to
be great again. They are passionate.” D. 21 ¶ 151. During a presidential debate in October 2016,
then-candidate Trump responded to a question on immigration policy by stating that “[w]e have
some bad hombres here and we’re going to get them out.” D. 21 ¶ 152. In December 2016, after
having been elected President, in referring to an article about a crime wave on Long Island,
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President-elect Trump said, as alleged, “[t]hey come from Central America. They’re tougher than
any people you’ve ever met. They’re killing and raping everybody out there. They’re illegal. And
they are finished.” D. 21 ¶ 153.
Plaintiffs also rely on certain actions and statements made by President Trump since he
assumed office. On August 25, 2017, the President pardoned former Maricopa County Sheriff Joe
Arpaio, who was to be sentenced for criminal contempt for failing to comply with a federal court
order to stop racially profiling Latinos. D. 21 ¶ 154. During a meeting in the Oval Office in June
2017, President Trump reportedly reacted to a report that 15,000 Haitians had received visas to
enter the United States in 2017 by stating that Haitian immigrants “all have AIDS.” D. 21 ¶ 155.
In January 2018, during a discussion at the White House of a legislative proposal to reallocate
visas from other groups of foreign nationals to TPS recipients, President Trump allegedly said
about TPS recipients “[w]hy are we having all these people from shithole countries come here?”
D. 21 ¶¶ 157-160. President Trump also allegedly asked “[w]hy do we need more Haitians?” and
demanded that the Senators with whom he was meeting “[t]ake them out” of the plan. D. 21 ¶
161. President Trump then reportedly stated that policies should encourage immigration from
countries like Norway, a predominantly white country, D. 21 ¶¶ 161, while, as Plaintiffs note, El
Salvador and Honduras are predominately Latino countries and Haiti is a predominately black
country. D. 21 ¶ 165. President Trump later denied having made such comments, D. 21 ¶ 163,
but others present at the meeting dispute this denial, D. 21 ¶ 162.
Plaintiffs also allege actions taken by DHS as evidence of bias on the part of Defendants.
First, they allege that in April 2017, DHS officials sought evidence regarding criminal records and
welfare use by Haitians living in the United States, which they allegedly sought to use to support
a decision to rescind TPS status. D. 21 ¶ 167. Second, on February 14, 2018, DHS issued a press
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release regarding a legislative proposal on immigration with the headline “[t]he McCain-Coons
Proposal Would Increase Illegal Immigration, Surge Chain Migration, Continue Catch and
Release, and Give a Pathway to Citizenship to Convicted Alien Felons.” D. 21 ¶ 171. The release
also characterized the legislative proposal as a “[m]ass [l]egalization [b]ill.” D. 21 ¶ 171. Third,
on February 15, 2018, DHS characterized a proposal to provide conditional permanent resident
status for TPS recipients as part of “a [m]ass [a]mnesty [b]ill for [i]llegal [a]liens of [a]ll [a]ges.”
D. 21 ¶ 172.
E. Termination of TPS Designations for El Salvador, Haiti and Honduras
1. El Salvador
On January 18, 2018, Nielsen terminated El Salvador’s TPS designation, effective
September 9, 2019. D. 21 ¶ 173. In doing so, Nielsen stated that “the conditions supporting El
Salvador’s 2001 designation for TPS on the basis of environmental disaster due to the damage
caused by the 2001 earthquakes are no longer met.” D. 21 ¶ 174. Plaintiffs allege that Nielsen
made clear a “new rule” that the Secretary “would not consider intervening country conditions”
but rather would only consider whether the conditions supporting the initial TPS designation
continue to be met. D. 21 ¶ 174. Plaintiffs also allege that El Salvador is still unable to accept
returning nationals safely because the country “lacks viable infrastructure, is low on housing, []
suffers from pervasive and widespread violence,” has a high underemployment and poverty rate,
and has suffered several intervening natural disasters. D. 21 ¶ 175-78. Economic growth in El
Salvador has been stagnant, with high levels of unemployment, and the economy depends heavily
on remittances sent from Salvadoran nationals living here. D. 21 ¶¶ 179-181. An estimated
220,000 people were forced to flee violence from El Salvador in 2016 alone, due to the widespread
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human rights abuses and violence, including high levels of gender-based violence. D. 21 ¶¶ 182-
186.
Plaintiffs allege that Nielsen’s stated rationale was pretext for invidious discrimination, as
evidenced by the adoption of a new rule focusing on the conditions that created the initial
designation rather than the general state of the country and the current inability of El Salvador to
accept returnees safely. D. 21 ¶¶ 187-192. Plaintiffs also allege that Nielsen’s reliance on the
recent increase in the GDP raises an inference of pretext, because the factors responsible for the
increase in GDP included an increase in remittances, which overwhelmingly come from the United
States. D. 21 ¶¶ 181, 193. Plaintiffs further point to internal DHS reports documenting that El
Salvador is one of the “leading countries of nationality for persons granted either affirmative or
defensive asylum.” D. 21 ¶ 195. Finally, Plaintiffs contend that the statements by President Trump
described above further support the inference of discriminatory animus. D. 21 ¶¶ 239-242.
2. Haiti
On May 24, 2017, then DHS Secretary John Kelly extended Haiti’s TPS designation for
six months, effective from July 23, 2017 to January 22, 2018. D. 21 ¶ 196. This extension was
based upon Kelly’s finding of a high number of internally displaced persons in Haiti, high levels
of gender-based violence and the continuing cholera epidemic. D. 21 ¶ 197. Kelly, however, only
extended the designation for a six-month period, stating that it was “in the best interest of [Haitian]
TPS beneficiaries to prepare for their return to Haiti.” D. 21 ¶ 198. On June 6, 2017, while
testifying before the Senate, Kelly stated that TPS designations are “for a specific event. [In] Haiti,
it was the earthquake. Yes, Haiti had horrible conditions before the earthquake, and those
conditions aren’t much better after the earthquake. But the earthquake was why TPS was [] granted
and [] that’s how I have to look at it.” D. 21 ¶ 244. On January 16, 2018, after Nielsen became
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the DHS Secretary, she similarly stated that “the law does not allow me to look at the country
conditions of a country writ large. It requires me to look very specifically as to whether the country
conditions originating from the original designation continue to exist.” D. 21 ¶ 245.
On November 20, 2017, Duke announced the termination of Haiti’s TPS designation,
effective July 22, 2019. D. 21 ¶ 199. In doing so, Duke cited a decrease in the number of internally
displaced persons. D. 21 ¶ 200. Plaintiffs allege that Duke “did not consider all country conditions
that might justify TPS designation for Haiti, but rather focused only on the original basis for
designation and whether those conditions continued to be met.” D. 21 ¶ 200. Plaintiffs allege that
Haiti is unable to support a safe return of Haitians currently holding TPS status. D. 21 ¶ 201.
Plaintiffs base this allegation on their claims that Haiti remains one of the poorest countries in the
Western Hemisphere; that Haiti’s GDP growth has slowed in recent years; that over 37,000 people
in Haiti are located in internal displacement camps, with tens of thousands more displaced but not
recorded; the settling of many Haitians in inadequate housing; a continued food shortage and
severe malnutrition; the recent damage caused by Hurricane Matthew in October 2016; and Haiti’s
political instability. D. 21 ¶¶ 201-205, 210-211. On or about November 3, 2017, the United States
Citizenship and Immigration Services (“USCIS”), a branch of DHS, authored a report stating that
“[m]any of the conditions prompting the original January 2010 TPS designation persist, and the
country remains vulnerable to external shocks and internal fragility. Haiti . . . continues to be
affected by a convergence of humanitarian needs, including food insecurity, internal displacement,
an influx of returnees from the Dominican Republic, the persistence of cholera, and the lingering
impact of various natural disasters.” D. 21 ¶ 220 & n.184.
Plaintiffs allege that Duke’s stated reasoning for terminating Haiti’s TPS designation is
pretext for invidious discrimination. D. 21 ¶¶ 213-214. In support of this allegation, they contend
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that Duke improperly failed to consider recent conditions in Haiti, including conditions as
documented by the USCIS report and similar reports from the Department of State. D. 21 ¶¶ 217-
218. Plaintiffs also allege that, in addition to President Trump’s statements supporting an inference
of discriminatory animus, D. 21 ¶¶ 239-42, Duke’s reliance on the withdrawal of United Nations
forces from Haiti also contributes to an inference of discrimination because such withdrawal
cannot be attributed to progress in Haiti but rather a function of controversy related to that mission.
D. 21 ¶ 219.
3. Honduras
On December 15, 2017, Duke extended Honduras’ TPS designation, with an effective
period from January 5, 2018 to July 5, 2018. D. 21 ¶ 221. This extension, however, was automatic
because of Duke’s failure to make a determination by the statutory deadline of November 6, 2017.
D. 21 ¶ 222; 8 U.S.C. § 1254a(b)(3)(C). Plaintiffs allege that on or about November 6, 2017,
Kelly, now White House Chief of Staff, and Tom Bossert, the White House Homeland Security
Advisor, pressured Duke to terminate Haiti’s TPS designation, notwithstanding that Duke had
made no findings regarding whether the statutory requirements for terminating the designation had
been satisfied. D. 21 ¶ 223.
On May 4, 2018, Nielsen terminated Honduras’ TPS designation, effective January 5,
2020. D. 21 ¶ 224. Plaintiffs allege that the report in the Federal Register focused “only on the
original basis for designation and whether those conditions continued to be met.” D. 21 ¶ 224.
Plaintiffs further allege that Honduras is not able to handle safely the return of Honduran TPS
holders, due to several recent natural disasters, recent outbreaks of disease, periodic drought, high
levels of entrenched poverty and rampant violent crime, including gang violence and gender-based
violence. D. 221 ¶¶ 225-231. Finally, Plaintiffs allege that the termination of Honduras’ TPS
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designation was based on invidious discrimination, based upon President Trump’s aforementioned
statements, D. 21 ¶¶ 149-65, and upon Nielsen’s departure from what they contend is DHS’s
ordinary decision-making process. D. 21 ¶¶ 236-38.
F. Plaintiffs’ Claims and Request for Relief
Plaintiffs assert the following claims against Defendants: violation of the equal protection
clause of the Fourteenth Amendment as incorporated through the Fifth Amendment, based upon
unlawful discrimination by race, ethnicity, and/or national origin (Count I); violation of the due
process clause, based upon “irrational government action” (Count II); violation of the
Administrative Procedures Act (“APA”) for arbitrarily and capriciously narrowing the scope of
review for TPS designations (Count III); violation of the APA for failure to provide notice and
comment (Count IV); a count for mandamus relief (Count V); and a count for a declaratory
judgment that Defendants’ actions are illegal and have caused injury to Plaintiffs and those
similarly situated (Count VI). D. 21 ¶¶ 257-286. Plaintiffs further seek an injunction enjoining
Defendants from implementing or enforcing the termination of the TPS designation as to the three
subject countries. D. 21 at 79.
IV. Procedural History
On February 22, 2018, Plaintiffs filed their complaint against Defendants. D. 1. On May
9, 2018, Plaintiffs filed an amended complaint. D. 21. On May 23, 2018, Defendants moved to
dismiss. D. 24. On June 22, 2018, the Commonwealth of Massachusetts filed an amicus brief,
joined by a number of other states and the District of Columbia. D. 37. On July 12, 2018, the
Court heard argument on the motion and took the matter under advisement. D. 44.
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V. Subject Matter Jurisdiction
As an initial matter, Defendants contend that the Court lacks subject matter jurisdiction to
hear any of Plaintiffs’ claims. D. 25 at 23-24. The statute states 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 under this subsection.” 8 U.S.C. § 1254a(b)(5)(A). Defendants
argue that this provision completely bars all judicial review, including any constitutional and
statutory claims related to TPS designation decisions. D. 25 at 23-24.
Plaintiffs respond that, notwithstanding this provision, the Court retains jurisdiction over
both constitutional and statutory claims because Congress has not stated with the requisite clarity
that the Court lacks subject matter jurisdiction. D. 35 at 15-16. As to the constitutional claims,
Plaintiffs cite Webster v. Doe, 486 U.S. 592, 603 (1988). D. 35 at 15. In that case, the Supreme
Court held that “where Congress intends to preclude judicial review of constitutional claims its
intent to do so must be clear.” Id. at 603. It required “this heightened showing in part to avoid the
‘serious constitutional question’ that would arise if a federal statute were construed to deny any
judicial forum for a colorable constitutional claims.” Id. (quoting Bowen v. Michigan Acad. of
Family Physicians, 476 U.S. 667, 681 n.12 (1986)); see Reno v. Catholic Soc. Servs., Inc., 509
U.S. 43, 64 (1993) (stating that the court would only “find an intent to preclude” any “judicial
review of administrative action” if “presented with clear and convincing evidence”) (internal
citation omitted); Johnson v. Robison, 415 U.S. 361, 366-67 (1974) (holding that, before
interpreting a statute to strip federal courts of jurisdiction over constitutional challenges, which
would “raise serious questions concerning the constitutionality” of that statute, the court would
“first ascertain whether a construction of the statute is fairly possible by which the (constitutional)
question(s) may be avoided”). With respect to the statutory claims, Plaintiffs rely upon Bowen v.
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Michigan Acad. of Family Physicians, 476 U.S. 667, 670 (1986), in which the Supreme Court
stated that there is a “strong presumption that Congress intends judicial review of administrative
action.” Id. at 670. That presumption may be overcome by “specific language or specific
legislative history that is a reliable indicator of congressional intent, or a specific congressional
intent to preclude judicial review that is fairly discernible in the detail of the legislative scheme.”
Id. at 673 (citation omitted).
Defendants make two arguments in response. First, they contend that these presumptions
do not apply because individuals with TPS may obtain judicial review by bringing their claims in
removal proceedings. D. 25 at 24; see Elgin v. Dep’t of Treasury, 567 U.S. 1, 9 (2012) (holding
that “Webster’s heightened standard . . . does not apply where Congress simply channels judicial
review of a constitutional claim to a particular court”). Second, they contend that Section
1254a(b)(5)(A) is written with the requisite clarity to preclude judicial review, even if that removal
of jurisdiction would deprive Plaintiffs of the ability to bring their claims. D. 25 at 23-24.
The Supreme Court’s opinion in McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991)
speaks to both issues. In McNary, the plaintiffs, a group of undocumented foreign nationals,
alleged that the process by which the federal government granted special agricultural worker
(“SAW”) status violated their statutory and constitutional rights by failing to provide competent
interpreters, failing to provide applicants with the opportunity to challenge adverse evidence,
preventing applicants from presenting witnesses on their behalf and other procedural faults. Id. at
487. Like temporary protected status, SAW status provides work authorization and protection
from removal. 8 U.S.C. § 1160(a)(1), (a)(4); McNary, 498 U.S. at 484. There was a statutory
provision that limited “judicial review of a determination respecting an application” for SAW
status to the judicial review available in removal proceedings. Id. at 485-86, 486 n.6; 8 U.S.C. §
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1160(e). The Supreme Court held that a federal district court had jurisdiction to hear the plaintiffs’
challenges to the process by which the agency made decisions regarding applications for SAW
status. McNary, 489 U.S. at 483-84. The court began by explaining that textually, a bar to review
of “a determination respecting an application” did not bar review of challenges to the process by
which the determinations were made, focusing on the use of the singular “a” and “an” in the statute.
Id. at 492. The court also noted that Congress had used “broader statutory language” in limiting
judicial review in other immigration statutes than it had used in the SAW statute. Id. at 494.
The defendants in McNary challenged the distinction the plaintiffs attempted to draw
between the challenge to an individual determination and the process by which determinations
were made, citing Heckler v. Ringer, 466 U.S. 602 (1984). McNary, 498 U.S. at 494. In Heckler,
the court held that a claim cast as a challenge to the procedure by which reimbursement decisions
under the Medicare Act were made was, “at bottom,” only a claim that the plaintiffs should have
been reimbursed, and was, therefore, subject to a statutory jurisdictional bar. McNary, 498 U.S.
at 494 (quoting Heckler, 466 U.S. at 614). The court in McNary rejected the comparison to
Heckler for two reasons. First, it stated that “[u]nlike [] in Heckler, the individual respondents in
this action do not seek a substantive declaration that they are entitled to SAW status[, n]or would
the fact that they prevail on their purportedly procedural objections have the effect of establishing
their entitlement to SAW status.” Id. at 495. Second, it stated that “[u]nlike in Heckler, if not
allowed to pursue their claims in the District Court, respondents would not as a practical matter be
able to obtain meaningful judicial review of their application denials or of their objections to INS
procedures,” notwithstanding the ability to seek judicial review in removal proceedings. Id. at
496.
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In support of its conclusion that removal proceedings would not offer meaningful judicial
review, the Supreme Court explained in McNary that judicial review in removal proceedings is
not available “unless the alien is [] apprehended and deportation proceedings are initiated,” so
“most aliens denied SAW status can ensure themselves review in courts of appeals only if they
voluntarily surrender themselves for deportation. Quite obviously, that price is tantamount to a
complete denial of judicial review for most undocumented aliens.” Id. at 496-97. The court further
noted that asserting the constitutional claims at issue would require bringing in “a substantial
amount of evidence, most of which would have been irrelevant in the processing of a particular
individual application,” so “a court of appeals reviewing an individual SAW determination
[would] therefore most likely not have an adequate record as to the pattern of [the agency’s]
allegedly unconstitutional practices” and “also lack the factfinding and record-developing
capabilities of a federal district court.” Id. at 497. Moreover, the court recognized that, even aside
from the risk of deportation, the work authorization that SAW status carried was a separate
constitutional interest that required constitutionally fair procedures. Id. at 491.
This case is like McNary in several important respects. Plaintiffs, like the plaintiffs there,
bring both constitutional and statutory claims that they frame as challenges to Defendants’ process
of adjudication rather than the content of any particular adjudication. D. 21 ¶ 257-279; D. 35 at
30; McNary, 498 U.S. at 484, 495-96. The jurisdiction-stripping provision here, like the
jurisdiction-stripping provision at issue in McNary, is framed in the singular. Compare 8 U.S.C.
§ 1254a(b)(5)(A) (barring judicial review of “any determination of the [Secretary] with respect to
the designation, or termination or extension of a designation”) with 8 U.S.C. § 1160(e)(1) (barring
judicial review of “a determination respecting an application for adjustment of status under this
section”).
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Moreover, in both cases, there are comparable examples of jurisdiction-stripping
provisions in which Congress used broader language than it did in the provision at issue. In
McNary, the Court pointed out that Congress used more expansive language, barring review of
“all questions of law and fact,” in a provision limiting judicial review of claims for veterans’
benefits. McNary, 498 U.S. at 494 (citing 38 U.S.C. § 211(a) (1991)). Plaintiffs here point to the
more expansive language Congress used to channel judicial review into removal proceedings. D.
35 at 16. That provision, 8 U.S.C. § 1252(b)(9), precludes “[j]udicial review of all questions of
law and fact, including interpretation and application of constitutional and statutory provisions”
outside of the specific process provided for in that statute. The language at issue in Section
1254a(b)(5)(A) in this case, barring review of “any determination of the [Secretary] with respect
to the designation, or termination or extension of a designation, of a foreign state” is less explicitly
broad than Section 1252(b)(9), because it lacks the specific language of “all questions of fact and
law, including interpretation and application of constitutional and statutory provisions.” “When
Congress includes particular language in one section of a statute but omits it in another, this Court
presumes that Congress intended a difference in meaning.” Dig. Realty Tr., Inc. v. Somers, __
U.S. __, 138 S. Ct. 767, 777 (2018) (internal citation omitted). As a result, if the presumptions in
favor of review outlined in Webster and Bowen apply, there are sound textual reasons to conclude
that Congress has not spoken with the requisite clarity to bar all judicial review of challenges to
the process by which TPS designation determinations are made.
Defendants contend that the presumptions in favor of review should not apply because,
unlike in McNary, there remains an avenue for individual plaintiffs to bring their claims, namely,
removal proceedings. D. 25 at 24. In support of this argument, they cite Elgin v. Dep’t of the
Treasury, 567 U.S. at 9, contending that the clear statement rule in Webster would not apply if
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Congress merely channeled judicial review into a particular forum. D. 24 at 24. This argument is
unavailing because here, as in McNary, there would be no meaningful opportunity for review of
Plaintiffs’ constitutional and statutory claims in removal proceedings. Like the constitutional and
statutory claims at issue in McNary, the assertion of the claims here would require developing a
record that would not be possible or relevant in any one individual plaintiff’s removal proceeding.
See, e.g., Aguilar v. U.S. Immigration & Customs Enf’t Div. of Dep’t of Homeland Sec., 510 F.3d
1, 11 (1st Cir. 2007) (explaining that “because removal proceedings are confined to determining
whether a particular alien should be deported,” there are “certain claims [which], by reason of the
nature of the right asserted, cannot be raised efficaciously within” removal proceedings).
Moreover, the employment authorization that comes with TPS would stop being valid on the
effective date of the termination, 8 C.F.R. § 244.12(a), but removal proceedings could occur some
time after the effective date of the termination of a country’s TPS designation, leaving Plaintiffs
either unable to vindicate their asserted right to work authorization for a substantial period of time
or forced to submit to removal proceedings voluntarily.
Defendants do not explain convincingly how individuals could successfully vindicate their
claims in removal proceedings. D. 25 at 24; D. 40 at 10. Defendants contend instead that Elgin
supports their claim that Webster’s clear statement rule does not apply where Congress channels
review into alternative forum, even a more limited one. D. 40 at 10. But in Elgin, the Supreme
Court held that the alternative forum (there, review by the Federal Circuit of decisions by the Merit
Systems Protection Board) had the “authority to consider and decide petitioners’ constitutional
claims,” and “[t]o the extent such challenges require factual development, the [statute] equips” the
administrative body with the “tools to create the necessary record.” Elgin, 567 U.S. at 20. The
court concluded that the “petitioners’ constitutional claims can receive meaningful review within
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the” alternative forum. Id. The same cannot be said here as to any statutory or constitutional
claims regarding TPS designation in any one individual’s removal proceedings.
Finally, Defendants contend that, even though Plaintiffs’ claims are framed as a challenge
to the criteria applied by the Secretary in making decisions regarding extensions of TPS
designations, Plaintiffs’ claims amount to a challenge to the TPS designation decisions themselves.
D. 40 at 18. It is true that Plaintiffs seek the relief of setting aside the decisions made by the
Secretary pursuant to what they allege was the application of unlawful criteria. D. 21 ¶¶ 274, 279.
Plaintiffs, however, do not seek a substantive declaration from the Court that they are entitled to
any particular new TPS determination by the Secretary – the relief that they seek is a declaration
that the current termination decisions are “void and without legal force or effect,” and an injunction
restraining Defendants from “implementing or enforcing” those terminations or “taking any further
action” to terminate designations “in violation of the U.S. Constitution or other applicable laws.”
D. 21 at 78-79. If this Court were to grant Plaintiffs the relief they seek, the prior TPS
determinations would be set aside and the Secretary would need to make new determinations,
applying the allegedly lawful criteria, which could result in the same or different TPS
determination as to each of the three countries. This stands in contrast to the plaintiffs in Heckler,
who sought “a ‘substantive’ declaration from [the Secretary] that [certain expenses] are
reimbursable under the Medicare Act,” notwithstanding the objections the plaintiffs offered to
some of the procedures followed. Heckler, 466 U.S. at 614. Thus, seeking the remedy of setting
aside the Secretary’s earlier TPS decisions does not convert Plaintiffs’ claim about unlawful
process into a substantive challenge to each of the determinations at issue.
Defendants contended at the motion hearing that, even if Plaintiffs’ claim for relief is cast
as a redetermination rather than a particular substantive decision, the policy change challenged by
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Plaintiffs is a mere change in the weighing of factors involved in a TPS designation determination,
and such a challenge is in fact substantive, in contrast to the claims in McNary concerning the
availability of interpreters. D. 45. As described below, however, Plaintiffs allege that the current
administration adopted a new policy that TPS designation determinations are to be made solely on
the basis of whether the conditions that created the initial designation persist rather than a broader
view of whether the country is safely able to accept returning nationals. The allegation is not that
Defendants changed the relative weight given to the persistence of conditions justifying the initial
designation versus intervening events or that Defendants changed the balancing of the various
factors involved in making a determination of whether the country may safely accept returning
nationals changed. The allegation is rather that Defendants are giving no weight to any facts except
those regarding whether the conditions that created the initial designation persist. Thus, like the
plaintiffs in McNary, Plaintiffs here allege that the decision is being made on the basis of an
improperly narrow record. The difference is that in McNary, the additions to the record – such as
the evidence that the plaintiffs would have offered had they had the opportunity to present
witnesses – were not available to the decisionmaker, whereas here, Plaintiffs allege that the
additions to the record – that is, factfinding regarding intervening conditions – are allegedly being
ignored by the Secretary despite being potentially available. That distinction, however, does not
change the collateral nature of Plaintiffs’ challenge. For all of the aforementioned reasons, the
Court thus concludes that Plaintiffs’ challenge is sufficiently collateral that the Court has
jurisdiction over both the constitutional and statutory claims.
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VI. Plausibility of Claims
A. Counts I and II: Constitutional Claims
1. The Proper Standard of Review
Plaintiffs allege that Defendants violated their rights under the equal protection clause of
the Fourteenth Amendment and the due process clause of the Fifth Amendment by adopting an
unreasoned change in policy regarding the applicable standard for TPS designations that was
motivated by unlawful animus and applying that new standard to terminate the TPS designations
of El Salvador, Haiti and Honduras. D. 35 at 8-9.
Defendants first argue that the Secretary’s decisions regarding TPS designations are subject
to rational basis review. D. 25 at 25. In support of this contention, they cite a series of decisions
holding that classifications based on foreign citizenship in the context of immigration policy are
not suspect classifications and are, therefore, subject only to rational basis review. D. 25 at 25-26;
D. 40 at 15-16; Vieira Garcia v. I.N.S., 239 F.3d 409, 414 (1st Cir. 2001) (explaining that rational-
basis review applies to distinctions based on foreign national status); Narenji v. Civiletti, 617 F.2d
745, 747 (D.C. Cir. 1979) (holding that “[d]istinctions based on nationality may be drawn in the
immigration field” and “must be sustained” unless “wholly irrational”); Kandamar v. Gonzales,
464 F.3d 65, 72 (1st Cir. 2006) (stating that “Congress may permissibly set immigration criteria
based on an alien’s nationality or place of origin”); Bruns v. Mayhew, 750 F.3d 61, 66 (1st Cir.
2014) (holding that “[b]ecause Congress acts with plenary authority when it legislates the rights
and benefits to be afforded aliens present in this country, such congressional acts are appropriately
afforded rational basis judicial review”). Plaintiffs, however, do not contend that the Secretary’s
decision to terminate TPS designations involves the suspect classification of national origin and
is, therefore, subject to scrutiny more searching than rational basis review. Plaintiffs instead
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contend that the decision to alter the criteria by which TPS designation decisions were made was
motivated by racial animus, and, therefore, is subject to heightened scrutiny even if that decision
did not explicitly invoke a suspect classification. D. 35 at 9.
In support of that contention, Plaintiffs cite Village of Arlington Heights v. Metro. Hous.
Dev. Corp., 429 U.S. 252 (1977). In that case, the Supreme Court reviewed the plaintiffs’ claims
that the city’s decision to deny a rezoning request was motivated by racial animus in violation of
the equal protection clause. Id. at 258-59. The court stated that most facially neutral decisions by
legislators and administrators, including those that “result[] in a racially disproportionate impact,”
are subject only to judicial review to determine if the decision was “arbitrar[y] or irrational[]” –
that is, rational basis review – “because legislators and administrators are properly concerned with
balancing numerous competing considerations.” Id. at 264-65. The Supreme Court explained,
however, that “racial discrimination is not just another competing consideration,” so “[w]hen there
is a proof that a discriminatory purpose has been a motivating factor in the decision, this judicial
deference is no longer justified.” Id. at 265-66. The court recognized that “[d]etermining whether
invidious discriminatory purpose was a motivating factor demands a sensitive inquiry into such
circumstantial and direct evidence of intent as may be available,” including “the impact of the
official action;” “[t]he historical background of the decision;” “[t]he specific sequence of events
leading up to the challenged decision;” any “[d]epartures from the normal procedural sequence;”
any “[s]ubstantive departures . . . particularly if the factors usually considered important by the
decisionmaker strongly favor a decision contrary to the one reached;” the “legislative or
administrative history,” including “contemporary statements by members of the decisionmaking
body, minutes of its meetings, or reports;” and finally, in “extraordinary circumstances,” testimony
of members “concerning the purpose of the official action.” Id. at 266-68.
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To challenge the constitutionality of the TPS designations, Defendants respond that
Plaintiffs must meet not only the standard laid out by Arlington Heights but also must allege that
the discrimination was “outrageous,” citing Reno v. Am.-Arab Anti-Discrimination Comm., 525
U.S. 471, 491 (1999) (“AADC”). D. 25 at 30-31. In AADC, the Supreme Court reviewed a claim
that a foreign national had been unlawfully targeted for deportation based on his political views.
Id. at 488. The court held that “[a]s a general matter . . . an alien unlawfully in this country has no
constitutional right to assert selective enforcement as a defense against his deportation.” Id. The
Supreme Court explained that “[e]ven in the criminal-law field, a selection prosecution claim is a
rara avis [rare bird],” and the rationale for barring selective prosecution claims was magnified in
the deportation context where delay would “permit and prolong a continuing violation of United
States law.” Id. at 489-90. The court then stated that it “need not rule out the possibility of a rare
case in which the alleged basis of discrimination is so outrageous that the foregoing considerations
can be overcome.” Id. at 491. The “outrageous” standard in AADC was thus confined to claims
of selective prosecution, which Plaintiffs do not assert here. AADC did not purport to set out a
general rule with respect to all equal protection challenges in the immigration context. In fact, the
Supreme Court recently applied heightened scrutiny in the context of an equal protection challenge
to a gender-based classification in the immigration context. Sessions v. Morales-Santana, __ U.S.
__, 137 S. Ct. 1678, 1686, 1690 (2017) (holding that statute that provided different rights to the
children of unwed U.S. citizen mothers than the children of unwed U.S. citizen fathers violated
the equal protection clause).
Defendants further contend that, notwithstanding Arlington Heights, the Supreme Court’s
recent decision in Trump v. Hawaii, __ U.S. __, 138 S. Ct. 2392 (2018) indicates that rational basis
review should apply here. That decision, however, does not challenge the foregoing analysis.
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Hawaii concerned an Establishment Clause challenge to an executive order restricting entry to
foreign nationals of particular countries. Id. at 2403. The court’s decision to apply rational basis
review was based on two considerations not at issue here: first, the limited due process rights
afforded to foreign nationals seeking entry into the United States, id. at 2418-20, and the particular
deference accorded to the executive in making national security determinations, id.
As to the first factor, the foreign nationals here, the individual Plaintiffs, are already
lawfully present in the United States and are accorded a higher level of due process than foreign
nationals seeking admission to the country. See Landon v. Plasencia, 459 U.S. 21, 32 (1982)
(explaining that “once an alien gains admission to our country and begins to develop the ties that
go with permanent residence his constitutional status changes accordingly”); Zadvydas v. Davis,
533 U.S. 678, 693 (2001) (collecting cases). The individual Plaintiffs have developed substantial
ties with the United States. Some have been in the United States since 1999 or 2001. D. 21 ¶¶ 26,
33, 38, 41, 44, 47, 62, 65. Several have U.S. citizen children. D. 21 ¶¶ 27, 35, 39, 43, 46, 49, 53,
56, 64. They work in a variety of fields. D. 21 ¶¶ 28, 32, 34, 42, 45, 52, 60, 63, 66. Some have
obtained educational degrees in the United States. D. 21 ¶¶ 30, 32. They are active in their
communities, through churches, community organizations and extended family networks. D. 21
¶¶ 36, 40, 50, 54, 57, 64. The individual Plaintiffs thus have developed or begun to develop the
ties of permanent residence in the United States and their constitutional status is therefore different
from that of foreign nationals seeking admission.
As to the second factor, the determination at issue in this case does not concern national
security. The court in Hawaii emphasized the particular importance of deferential review in the
context of the executive branch’s role in the national security realm. Hawaii, 138 S. Ct. at 2419-
20. The determinations at issue here are the Secretary’s determinations of whether “there has been
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an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a
substantial, but temporary, disruption of living conditions in the area affected,” such that “the
foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are
nationals of the state,” 8 U.S.C. § 1254a(b)(1)(B), with respect to El Salvador and Honduras, see
66 Fed. Reg. 14214, 14214 (2001); 64 Fed. Reg. 524, 524 (1999), or whether there are
“extraordinary and temporary conditions in the foreign state that prevent aliens . . . from returning
to the state in safety, unless . . . permitting aliens to remain temporary in the United States is
contrary to the national interest of the Unites States,” 8 U.S.C. § 1254a(b)(1)(C), with respect to
Haiti, 75 Fed. Reg. 3476, 3476 (2010). The statutory provision at issue with respect to the
designations of El Salvador and Honduras involve no national security judgments, and while the
statutory provision at issue with respect to Haiti makes an exception for where the Secretary
determines designation would not be in the national interest, the 2018 termination decision with
respect to Haiti stated “the conditions for Haiti’s designation for TPS” were “no longer met,” not
that the Secretary determined that permitting aliens to remain would be contrary to the national
interest of the United States. 83 Fed. Reg. 2648, 2650 (2018). Hawaii established a narrower
proposition than Defendants contend, namely, that decisions by the government regarding
admission of aliens, particularly in the context of the executive’s authority to make national
security judgments, are subject to rational basis review. See Hawaii, 138 S. Ct. at 2420.
Finally, Defendants argue that “it cannot be that a litigant could avoid deference in the
immigration context by recasting a distinction drawn on the basis of alienage as one drawn alone
racial lines,” because such a tactic “would largely defeat the deference the Supreme Court and
lower courts have reserved for the Executive in this sensitive arena.” D. 40 at 16. Defendants thus
argue that Arlington Heights is not applicable in the context of immigration decisions based upon
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national origin. Defendants, however, provide no support for this contention. Applying review
under Arlington Heights would not vitiate the deference that courts typically afford the other
branches in immigration policy, but would only limit that deference upon a proper showing of
unlawful animus on the basis of a protected category. The Court thus concludes that Arlington
Heights lays out the relevant standard.
2. Whether Plaintiffs Have Properly Alleged the Existence of a New Policy
Before applying the Arlington Heights standard to the allegedly new policy adopted by the
Secretary regarding the standard applicable to TPS designations, however, the Court must address
an additional threshold question. Defendants argue that there was no new policy at all, because,
contrary to the allegations in the complaint, the decisions to terminate the TPS designations of El
Salvador, Haiti and Honduras were accompanied by an examination of not just whether the
conditions that led to the initial designation had been ameliorated but also a broader look at the
country’s capacity to accept returnees safely. D. 40 at 19-20. Although Defendants do so in the
context of challenging Plaintiffs’ claims under the APA, D. 40 at 20, the non-existence of a new
policy would affect the viability of Plaintiffs’ challenge under Arlington Heights.
Drawing all reasonable inferences in favor of Plaintiffs at this stage, as the Court must, see
Miller, 833 F.3d at 51, there is a plausible inference to be drawn that there is a new policy.
Plaintiffs rely upon public statements by Kelly and Nielsen that they adopted the policy that
extension is only warranted if the conditions causing the initial designation persist. D. 21 ¶ 244
(alleging that Kelly stated that “the earthquake [in Haiti] is why TPS . . . was granted . . . and that’s
how I have to look at it”); D. 21 ¶ 245 (alleging that Nielsen stated that “[t]he law does not allow
me to look at the country conditions of a country writ large. It requires me to look very specifically
as to whether the country conditions originating from the original designation continue to exist”).
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Given the reliance of earlier administrations on current country conditions writ large in making
TPS designation decisions, D. 21 ¶¶ 92-144, these statements support the reasonable inference that
Defendants have adopted a new policy with respect TPS designation decisions.
Defendants contend that prior administrations “terminated TPS for countries despite
ongoing crises” and also “linked TPS extensions to the failure to recover adequately from the crises
underlying the initial designation,” and that, therefore, there is no “new policy” to challenge. D.
40 at 20. Defendants point to earlier decisions published in the Federal Register in support of this
contention. D. 40 at 20. The publications in the Federal Register are susceptible to judicial notice
and referenced in the complaint, so are properly considered by the Court in consideration of
Defendants’ motion to dismiss. See Schatz v. Republican State Leadership Comm., 669 F.3d 50,
55 (1st Cir. 2012).
The termination determinations at issue are all based on findings that the conditions
supporting the initial determination no longer persist. Specifically, the rationale for the 2018
decision terminating the TPS designation for El Salvador begins by stating that “DHS has reviewed
conditions in El Salvador. Based on the review, including input received from other appropriate
U.S. government agencies, . . . the Secretary . . . has determined that the conditions supporting El
Salvador’s 2001 designation for TPS on the basis of environmental disaster due to the damage
caused by the 2001 earthquakes are no longer met.” 83 Fed. Reg. 2654, 2656-57 (2018). Similar
language referencing the conditions supporting the initial determination appears in the decisions
terminating the TPS designations for Haiti and Honduras. 83 Fed. Reg. 2648, 2650 (2018) (stating
that “the Acting Secretary . . . determined . . . that the conditions for Haiti’s designation for TPS –
on the basis of ‘extraordinary and temporary conditions’ relating to the 2010 earthquake that
prevented Haitian nationals from returning in safety – are no longer met”); 83 Fed. Reg. 26074,
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26076 (stating that “the Secretary . . . has determined that the conditions supporting Honduras’s
1999 designation for TPS on the basis of environmental disaster due to the damage caused by
Hurricane Mitch in October 1998 are no longer met”). The rationales provided for the 2018
termination decisions for all three countries do also include some reference to current conditions
beyond the reconstruction efforts from the natural disaster that caused the initial designation. 83
Fed. Reg. at 2656 (noting, as to El Salvador, the current GDP and unemployment rate); 83 Fed.
Reg. at 2650 (noting, as to Haiti, the successful completion of a presidential election in 2017,
recent GDP growth and progress in countering the recent cholera epidemic); 83 Fed. Reg. at 26076
(noting, as to Honduras, recent increase in coffee bean production, the abatement of drought
conditions and recent increases in GDP). But the critical determination made by the Secretary in
each case – in the sentence that includes the phrase “the Secretary . . . determined” – is that the
conditions supporting the initial designation are no longer met. 83 Fed. Reg. at 2655-56 (El
Salvador); 83 Fed. Reg. at 2650 (Haiti); 83 Fed. Reg. at 26076 (Honduras). The earlier TPS
termination decisions cited by Defendants largely do not contain such language. D. 40 at 20; see
65 Fed. Reg. 33356, 33356 (2000) (stating that “the Attorney General finds that conditions in the
Kosovo Province no longer support a TPS designation”); 68 Fed. Reg. 3896, 3896 (2003) (stating
that “the Attorney General finds that conditions in Angola no longer support a TPS designation”);
69 Fed. Reg. 40642, 40643-44 (2004) (stating that “the Secretary . . . finds that Montserrant no
longer continues to meet the conditions for designation under the TPS program”). The one
exception is the termination decision for Guinea. 81 Fed. Reg. 66064, 66065 (2016) (stating that
“the Secretary has determined that the termination of the TPS designation of Guinea . . . is required
because the extraordinary and temporary conditions that prompted Guinea's designation for TPS
have substantially resolved and no longer prevent nationals of Guinea from returning in safety”).
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Nothing indicates, however, that there were any intervening conditions in Guinea for the Secretary
to review, so the Secretary’s failure to review intervening conditions in that case alone does not
render the inference that there exists a new policy an implausible one.
It appears correct that prior administrations have based extension decisions on a country’s
failure to recover from the conditions causing the initial designation. See, e.g., 81 Fed. Reg. 30331,
30333 (2016) (stating that “Secretary [Johnson] has determined that an 18-month extension is
warranted because conditions in Honduras supporting its designation for TPS persist”); 68 Fed.
Reg. 42071, 47072 (2003) (stating that Secretary Ridge “finds that the conditions that prompted
designation of El Salvador . . . continue to be met”). Such facts, however, are not inconsistent
with Plaintiffs’ contention. Prior administrations appear to have taken the position that if the
conditions that caused the initial determination persist, then extension is warranted, but that
extension may also be warranted if new conditions justify a finding that there has been, for
example, a natural disaster rendering a foreign state unable to safely accept returnees, such that a
termination decision may require more than a determination of solely whether the conditions
causing the initial determination persist. Plaintiffs have plausibly alleged that the current
administration has adopted the policy that extension is only warranted if the conditions that caused
the initial determination persist, which is a shift from the prior policy.
3. Review under Arlington Heights
The Arlington Heights factors for determining whether a facially neutral action has been
taken with a discriminatory motive may, as previously noted, include the “historical background
of the decision;” the “specific sequence of events leading up to the challenged decision;”
“[d]epartures from the normal procedural sequence;” “contemporary statements by members of
the decisionmaking body,” and “substantive departures . . . , particularly if the factors usually
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considered important by the decisionmaker strongly favor a decision contrary to the one reached.”
Arlington Heights, 429 U.S. at 267. Plaintiffs contend that the complaint sufficiently alleges,
based on those factors, that a discriminatory purpose was the motivating factor in changing the
policy regarding the criteria for TPS determinations. D. 35 at 19-25. As support for this argument,
Plaintiffs point to the adoption of the new policy that resulted in the termination of TPS
designations for Haiti, El Salvador, and Honduras, which will primarily affect Black and Latino
individuals, D. 21 ¶ 165; that the sequence of events leading up to the new policy involved
statements from President Trump demonstrating that he held the view that Latino immigrants and
Haitian immigrants should be made to leave the country because of discriminatory beliefs he held
about these groups, D. 21 ¶¶ 149-61, 165; and that the new policy was adopted without any
accompanying legal process or explanation, D. 21 ¶¶ 174, 244.
Defendants argue that the allegations regarding statements by Trump are irrelevant because
animus held by the President cannot be imputed to Duke or Nielsen, the two officials who
terminated the TPS designations at issue, notwithstanding allegations that the White House was
closely monitoring decisions regarding TPS designations. D. 25 at 31-32; D. 21 ¶ 223. The
Arlington Heights analysis considers, however, not only the “contemporary statements by
members of the decisionmaking body” but also more broadly “the historical background of the
decision” and “the specific sequence of events leading up to the challenged decision.” Arlington
Heights, 429 U.S. at 267. Courts have repeatedly held, however, that “liability for discrimination
will lie when a biased individual manipulates a non-biased decision-maker into taking
discriminatory action.” Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279 (E.D.N.Y. 2018)
(collecting cases); see Staub v. Proctor Hosp., 562 U.S. 411, 420-22 (2011) (explaining that where
a biased supervisor performs an act motivated by animus that causes an employer to take an
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adverse action, the employer will be liable even if the employer was not directly motivated by
animus). 3 The complaint alleges that the White House, acting through then-Homeland Security
Advisor Kelly, pressured Duke specifically regarding the designation of Haiti, to the point of
encouraging Duke to act unlawfully in terminating Haiti’s TPS designation without any findings.
D. 21 ¶ 223. The complaint alleges that Kelly called Duke while he was travelling with President
Trump in Japan and told her that extending the designation would prevent President Trump’s
administration’s “wider strategic goal” on immigration. D. 21 ¶ 223. The fact that Duke did not
ultimately take that unlawful action does not discredit the permissible inference that such animus
played a role in the decision to terminate the TPS designations at issue. Moreover, because the
exact time that the new policy regarding the criteria for TPS designations was made and the exact
participants involved in that decision are unclear, it would be premature to conclude that President
Trump had nothing to do with that decision such that his statements would be irrelevant.
This Court finds that the combination of a disparate impact on particular racial groups,
statements of animus by people plausibly alleged to be involved in the decision-making process,
and an allegedly unreasoned shift in policy sufficient to allege plausibly that a discriminatory
purpose was a motivating factor in a decision. See Arce v. Douglas, 793 F.3d 968, 977–78 (9th
Cir. 2015) (stating that “when relying on Arlington Heights to demonstrate that an action was
motivated by a discriminatory purpose, a plaintiff need provide very little such evidence to raise a
genuine issue of fact; any indication of discriminatory motive may suffice to raise a question that
can only be resolved by a fact-finder” (internal citation omitted)); Ríos-Colón v. Toledo-Dávila,
641 F.3d 1, 5 (1st Cir. 2011) (concluding that allegations that a supervisor who used “abusive and
3
While Staub and other cases cited in Batalla Vidal arise in the employment discrimination
context, nothing in the reasoning of those opinions makes them inapplicable in a constitutional
context.
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derogatory slurs expressing explicit anti-black bias” had recommended a less qualified white
candidate over the black plaintiff were “sufficient to plead a cognizable claim under the Equal
Protection Clause”).
Under Arlington Heights review, once plaintiffs have made out a prima facie case that
discrimination motivated a facially neutral law, the burden shifts to Defendants to show that the
same decisions would have been made even without that motivation. Hunter v. Underwood, 471
U.S. 222, 228 (1985) (holding that “[o]nce racial discrimination is shown to have been a
‘substantial’ or ‘motivating’ factor behind enactment of the law, the burden shifts to the law’s
defenders to demonstrate that the law would have been enacted without this factor”). As described
above, Plaintiffs have successfully made out their prima facie case. Consistent with Defendants’
claim that there is no new policy, Defendants make no argument that the new policy would have
been reached without the alleged unlawful animus.
4. Rational Basis Review
Finally, even if rational basis review were to apply, Plaintiffs’ claims, at this early stage of
litigation, would still survive. To prevail under rational basis review, Plaintiffs “are required to
show that the governmental infringement is not rationally related to a legitimate government
purpose.” Mulero-Carrillo v. Román-Hernández, 790 F.3d 99, 107 (1st Cir. 2015). Defendants
contend that there is no new policy and do not alternatively set forth any legitimate governmental
purpose to be advanced by the alleged new policy that decisions about extending a TPS designation
must focus exclusively on whether the conditions creating the initial designation have abated. D.
40 at 17-18. Defendants contend that their actions pass rational basis review, citing the facts laid
out in the termination decisions in the Federal Register. D. 25 at 28-30. Consistent with
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Defendants’ denial of the existence of the new policy, Defendants offer no justification of the new
policy, plausibly alleged by Plaintiffs, to change to criteria by which TPS designations are made.
The Supreme Court’s application of rational basis review in Hawaii is not to the contrary.
In applying rational basis review, the court relied on the express statement of purpose in the
executive order at issue and the extensive review process involved in its creation. Hawaii, 138 S.
Ct. at 2422. In this case, by contrast, there is no justification, explicit or otherwise, for Defendants’
switch to focusing on whether the conditions that caused the initial designation had abated rather
than a fuller evaluation of whether the country would be able to safely accept returnees. The
complaint does not allege, and Defendants do not present, any rationale for such a focus or any
explanation of the process by which the decision to shift focus in that manner was made. Thus,
even under rational basis review, Plaintiffs have plausibly stated constitutional claims. For all of
the foregoing reasons, Defendants’ motion to dismiss Count I and Count II is DENIED.
B. Counts III and IV: APA Claims
Plaintiffs assert claims under the APA, contending that Defendants’ new policy changing
the criteria for making TPS designation decisions was “arbitrary [and] capricious,” 5 U.S.C. §
706(2)(A) and taken without “observance of procedure required by law,” id. § 706(2)(D).
Defendants move to dismiss both claims. First, Defendants contend that the claims are barred
under the APA, which by its own terms does not apply “to the extent that . . . statutes preclude
judicial review.” 5 U.S.C. § 701(a)(1); D. 25 at 33. The Court has explained above why the statute
at issue does not preclude judicial review, so this provision is not applicable. Second, Defendants
contend that there is no new policy changing the criteria for making TPS designation decisions.
D. 25 at 34. The Court has already rejected that argument as discussed above. Third, Defendants
contend that to the extent there is a new policy, that new policy is not “in tension with [the] statute
that vests TPS decision making in the judgment of the Secretary.” D. 25 at 35. The Court need
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not, however, resolve the issue of whether the new policy is in tension with the applicable statute.
Even if the new policy is a permissible interpretation of the statute, it still may be an unjustified
shift from earlier practice. The Supreme Court has made clear that an “unexplained inconsistency
in agency policy is a reason for holding an interpretation to be an arbitrary and capricious change
from agency practice.” Encino Motorcars, LLC v. Navarro, __ U.S. __, 136 S. Ct. 2117, 2126
(2016) (internal citation omitted). To survive arbitrary and capricious review when changing
policy, an agency must “at least display awareness that it is changing position,” “show that there
are good reasons for the new policy,” and “be cognizant that longstanding policies may have
engendered serious reliance interests that must be taken into account.” Id. (citation omitted). The
record, as it exists before this Court, shows none of these. Defendants’ motion to dismiss Count
III is, therefore, DENIED.
With respect to Count IV, regarding the procedure by which the new policy was made,
Defendants contend that, to the extent a new policy exists, it would be merely an interpretive rule,
interpreting the statutory provision regarding the criteria for TPS determinations, rather than a
legislative rule, and therefore not subject to notice and comment procedures. D. 25 at 36. In
support of this contention, they cite Perez v. Mortg. Bankers Ass’n, 135 S. Ct. 1199, 1206 (2015)
(stating that “[b]ecause an agency is not required to use notice-and-comment procedures to issue
an initial interpretive rule, it is also not required to use those procedures when it amends or repeals
that interpretive rule”). Plaintiffs contend that the alleged new policy is a regulatory rule rather
than an interpretive rule, and cite New Hampshire Hosp. Ass’n v. Azar, 887 F.3d 62, 71 (1st Cir.
2018) in support of that contention. D. 35 at 35. In that case, however, the First Circuit explained
that where Congress does not provide a standard for making a decision, the agency’s promulgation
of a standard – even one contained in an informal document like a “Frequently Asked Questions”
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document – is likely a legislative rule and thus subject to notice and comment. Id. at 69, 70-71.
Here, by contrast, Congress articulated a standard for making TPS designation determinations.
The Court, however, need not resolve at this stage the issue of whether the alleged new
policy is interpretive or legislative. If the new policy is interpretive, even interpretive changes
“must be addressed expressly, at least by the agency’s articulate recognition that it is departing
from its precedent.” Nat’l Labor Relations Bd. v. Lily Transportation Corp., 853 F.3d 31, 36 (1st
Cir. 2017). Defendants contend that Lily Transportation is not applicable because that case
involved an express change in policy. D. 40 at 21. As explained above, however, Plaintiffs have
plausibly alleged that Defendants adopted a new policy which Secretary Nielsen and then
Secretary Kelly communicated in testimony before Congress. D. 21 ¶¶ 244-245. Thus, under the
logic of Lily Transportation, even if the alleged new policy is interpretive, Defendants would be
required to provide some rationale acknowledging the change in position to provide the
“observance of procedure required by law,” 5 U.S.C. § 706(2)(D), even though Defendants would
not be required to go through a full notice-and-comment process. As addressed above, Defendants
have given no explanation at all – much less one acknowledging the change in position – for the
new policy. Thus, Defendants’ motion to dismiss Count IV is DENIED.
C. Count V: Mandamus Relief
Plaintiffs allege in their complaint that they are entitled to mandamus relief because
Defendants have failed in their mandatory and nondiscretionary duties set forth in 8 U.S.C. §
1254a(b)(3). D. 21 ¶ 281. Defendants contend that Plaintiffs’ claims do not meet the narrow
criteria for mandamus relief. D. 25 at 36-37. Mandamus relief is “intended to provide a remedy
for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes
him a clear nondiscretionary duty.” Heckler, 466 U.S. at 616. Here, the Plaintiffs assert
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substantive claims for relief under the Constitution and the APA and seek injunctive relief for
those claims. D. 21 at 74-79. Plaintiffs have thus not yet exhausted all other avenues of relief.
Plaintiffs appear to recognize this when they state that because they “have direct causes of action
by way of the Constitution and the APA,” the Court “need not reach the cause of action for
mandamus” at this juncture, but that the Plaintiffs “reserve the right to address the appropriate
mechanisms for relief at the merits stage.” D. 35 at 35 n.7. Plaintiffs have not stated a claim for
mandamus relief in the complaint. The Court thus ALLOWS Defendants’ motion to dismiss Count
V, for mandamus relief.
D. Count VI: Declaratory Judgment
Plaintiffs seek a declaratory judgment that “Defendants have violated the U.S. Constitution
and other laws.” D. 21 ¶ 284. Defendants seek to dismiss this claim, on the grounds that Plaintiffs
fail to state a claim under the Constitution or other laws. D. 25 at 37. As explained above,
however, the Court finds that Plaintiffs have stated claims that Defendants have violated the
Constitution and the APA. Thus, the Court DENIES Defendants’ motion to dismiss Count VI.
E. Motion to Dismiss President Trump as a Defendant
Finally, Defendants seek to dismiss President Trump as a defendant. D. 25 at 37. They
cite Franklin v. Massachusetts, 505 U.S. 788 (1992), in which a plurality of the Supreme Court
stated that a “grant of injunctive relief against the President himself is extraordinary, and should
[raise] judicial eyebrows.” Id. at 802. The plurality opinion explained that, in general, a federal
court may not “enjoin the President in the performance of his official duties,” but that the Supreme
Court had “left open the question whether the President might be subject to a judicial injunction
requiring the performance of a purely ‘ministerial’ duty.” Id. The plurality opinion then stated
that it would not address the question of whether injunctive relief against the President was
appropriate in that case because “the injury allegedly [was] likely to be redressed by declaratory
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relief against the Secretary alone.” Id. Defendants thus contend that equitable relief against the
President is not warranted here and, therefore, that President Trump should be dismissed as a
Defendant. D. 25 at 37. Plaintiffs respond that the issues raised by Defendants are properly
considered by the Court if and when the Court fashions appropriate relief for Plaintiffs’ alleged
injuries. D. 35 at 36-37.
Injunctive relief against the President is an “extraordinary” remedy, but one that may be
available in limited circumstances. Franklin, 505 U.S. at 802. The factors to consider in
determining whether such relief would be appropriate are whether injunctive relief against a lower
official or declaratory relief would be an adequate remedy and the level of intrusion into the
President’s authority. See Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir.),
as amended (May 31, 2017), as amended (June 15, 2017) (reasoning that the President was not a
proper defendant because “[r]eview of the legality of Presidential action can ordinarily be obtained
in a suit seeking to enjoin the officers who attempt to enforce the President's directive” (citation
omitted), vacated and remanded on other grounds sub nom. Trump v. Int’l Refugee Assistance, __
U.S. __, 138 S. Ct. 353 (2017); Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982) (stating that “a
court, before exercising jurisdiction, must balance the constitutional weight of the interest to be
served against the dangers of intrusion on the authority and functions of the Executive Branch”);
Knight First Amendment Inst. at Columbia Univ. v. Trump, 302 F. Supp. 3d 541, 579 (S.D.N.Y.
2018) (declining to issue an injunction against the President, even if such an injunction would be
largely ministerial, where declaratory relief would suffice). A record has not yet been developed
regarding, for some examples, what relief would be appropriate if Plaintiffs prevailed on their
claim or whether an injunction against lower officials or declaratory relief would be sufficient. It
is thus premature to determine whether this case has the potential to be the rare case in which such
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an extraordinary remedy might be justified. The Court thus DENIES Defendants’ motion to
dismiss with respect to Defendant President Trump.
VII. Conclusion
For the foregoing reasons, the Court ALLOWS Defendants’ motion to dismiss, D. 24, with
respect only to Plaintiffs’ mandamus claim (Count V), but DENIES Defendants’ motion in all
other respects.
So Ordered.
/s/ Denise J. Casper

United States District Judge
42
Exhibit 3
Exhibit 4
Exhibit 5
Haiti One Year Later:

The Progress to Date
and the Path Forward
A Report From the Interim Haiti Recovery Commission
January 12, 2011
Contents
INTRODUCTION 2
The ChallengE 4
The Earthquake’s Impact and the IHRC’s Role in the Recovery
Progress To Date 14
What Is Working and Next Steps
Moving forward 28
A Plan to Get Help Where It Is Needed Most
How everyone can help 34

What the Recovery Needs to Succeed
Appendix 39
2010 Recovery Activities and Results for 10 Largest Donors
2 Interim Haiti Recovery Commission
INTRODUCTION
Official U.S. Air Force

O ne year after the earthquake in Haiti, the damage is still
fresh. Tent camps and uncleared rubble are reminders of
the tremendous reconstruction tasks that remain, and the chol-
mental organizations (NGOs), Diaspora, private sector, and
civil society – to identify reconstruction priorities, encourage
projects to align with Haiti’s priorities, and enhance coordi-
era outbreak and Hurricane Tomas have exposed the fragility nation.
of recovery.
As Haiti marks the anniversary of the January 2010 earth-
Amid these challenges, there are signs of hope and progress. quake, those involved in the reconstruction are taking
Thousands have returned to their homes. Hundreds of thou- a thoughtful and objective look at the progress made and
sands of children, the future of the country, have returned to the urgent challenges remaining. Moving forward requires
school. Several new hospitals are under construction, and a drawing lessons from experience and communicating a clear
recently concluded agreement has paved the way for a new vision for the next phase of rebuilding.
industrial park that is expected to create more than 60,000
Although the IHRC is not responsible for implementing
new jobs. Building back better is under way.
reconstruction improvements on the ground – its role is
Much of this progress has been facilitated by the Interim to identify priorities and enhance coordination among the
Haiti Recovery Commission (IHRC), a first-of-its-kind implementers – its inclusive nature provides it with a unique
institution in a post-disaster environment, established by perspective on what is working and what could be better.
the Haitian government to bring together all stakeholders In alignment with its efforts to encourage transparency,
in the reconstruction – the government, donors, nongovern- the IHRC offers in this report a candid evaluation of the
Haiti One Year Later: The Progress to Date and the Path Forward 3
Recovery in Numbers
Scale of destruction
Lost lives 220,000

federal work force
LIVES LOST 17%
Debris created,
cubic meters 19,000,000
Homes destroyed/
in need of repair 190,000
People living in camps
6 months after earthquake 1,500,000
People living in camps
11 months after earthquake 1,000,000
Hospitals destroyed
or seriously damaged 30
Schools destroyed
or seriously damaged 3,978
response so far
Funding pledged for 2010 and 2011
(public sector donors), $ million 5,574
Funding disbursed as of december 2010,
$ million 1,276
Projects approved by IHRC,
number 74
total budget, $ million 3,000
total funding secured, $ million 1,500
EDV Media Director
Targets for October 2011

Additional people who have
relocated from camps to safe housing 400,000
reconstruction in relation to three major objectives: ensuring
development is in the best interests of the Haitian people,
additional Debris removed
safely, cubic meters 4,000,000
promoting transparency and accountability, and demonstrating
a new model for development and cooperation.
Hospitals/Clinics rebuilt 10
The IHRC’s findings are applicable to everyone involved in
Hospitals/Clinics under construction 30
the recovery. Already represented on the IHRC’s board and
secretariat are the international community of governments,
Share of people with access
to potable water (2% today) 50%
multilateral institutions, and NGOs, as well as the Haitian
Share of people with access
to sanitation (27% today) 50%
government, labor unions, civil society, and the private sector.
The success of the IHRC will continue to depend on their
Funding needed to
reach targets, $ million 990
leadership. The IHRC is committed to building on progress SOURCE: Government of Haiti, United Nations – Office of the Special Envoy, OCHA,
IOM – HAITI Camp Coordination Camp Management Cluster, THE New York Times, IHRC
and meeting the challenges that remain.
THE CHALLENGE
The Earthquake’s Impact and the IHRC’s Role in the Recovery
The Earthquake’s Impact impassable and airports inoperable, the first shipments of for-
eign aid could not reach the people who most needed them.
The 7.0-magnitude earthquake that struck Haiti on January 12,
Even days after the event, many Haitians lacked adequate food,
2010, launched a humanitarian crisis of unprecedented scale.
water, and shelter, and survivors were digging their neighbors
An estimated 220,000 Haitians were killed, some 300,000 were
out of the rubble of collapsed buildings.
injured, and six months after the earthquake, 1.5 million were
living in camps. The extent of destruction in Port-au-Prince What distinguishes Haiti’s tragedy from other recent large-
made rescue work difficult, and with many surrounding roads scale disasters – Hurricane Katrina or the 2004 tsunami that
Experiencing the Day of the Earthquake
T he general feeling in Haiti at the end of 2009 was one

of cautious optimism for the future of the country. I
could see it in the more positive press, and I could hear it
on our stomachs to find a way out, we realized that had we
taken two or three additional steps in either direction, we
would have been crushed.
in my conversations with my friends. Was Haiti finally turn- The only source of light that we had was from my
ing the corner? friend’s cell phone, which is how I realized that the index
Then on January 12, 2010, shortly before 5 p.m., all and middle fingers of my right hand were badly crushed.
hell broke loose and all hopes ended. We saw a little bit of daylight through a hole, and
What started as just another day turned into a night- we worked together to enlarge it and to quickly squeeze
mare when the earth shook with unimaginable intensity, our bodies through it before an aftershock closed it on us.
leading to many buildings collapsing like houses of cards. Finally, we were outside. I thought, “Oh my God, what a
I was unfortunate enough to be in one of the build- relief. We made it out alive.” By then, I was in terrible,
ings that collapsed, trapping me inside its concrete pieces excruciating pain.
for almost one hour. Yet I was fortunate enough to have Then we looked around us and saw, in shock and in
been there with one of my very good friends. Not being awe, the enormity of the disaster. We knew that Haiti had
alone in a situation like that makes a big difference. been dealt a blow that could be insurmountable for such a
It took us a while to grasp the situation and to realize fragile and weak country. Our thoughts went immediately
that we were indeed still alive – but for how long? Will we to our family members and friends, worrying and wonder-
have to endure a slow and painful death while hoping to ing if they were alive.
be rescued? Rescued by whom? It was impossible to reach While I am extremely thankful for not having lost any
anyone by phone. family members or close friends, I am mourning for my
My first thought was to remind God that the one of country, for my fellow citizens who went and are still going
the few things I have always asked of him is that death through so much suffering.
for me, whenever it comes, be as quick and as painless I now know for a fact that anything that does not kill
as possible. It did not look like He was going to grant me you makes you stronger. Through the IHRC, I will try to do
my wish. my best to make sure the same applies to Haiti.
The little space that my friend and I shared under the
concrete felt like a dust-filled tomb, with the ceiling so low Martine Jean-Claude
on our heads that we had to remain lying down. Crawling Chief of Staff, IHRC
struck Indonesia – is the extent to which it damaged Haiti’s

capacity to rebuild. With 17 percent of the federal work force Haiti Has a History of
killed and all but one ministry building destroyed; most hos- Natural Disasters
pitals damaged or ruined; and economic losses approaching
$7-8 billion – equivalent to 120 percent of gross domestic 1770 Earthquake devastates Port-au-Prince
product – Haiti lost the resources it needed to respond to the
crisis. The earthquake left Haiti’s capital city in ruins. It devas-
Earthquake destroys Cap-Haitien and
tated an already weakened infrastructure and set back years of 1842 other cities
painstaking progress.
The earthquake followed years marked by instability and natu-

ral disasters. In August and September 2008 nearly 800 Hai-
1935 Storm kills 2,000 people
tians were killed and hundreds more injured in a series of dev-

astating storms that brought international attention to Haiti’s
crisis. If tropical storms exposed the poor conditions and con-
1946 Tsunami kills more than 1,500 people
struction in Haiti’s cities and communities, they also highlight-

ed the country’s steady progress. The government’s response to
the storms restored confidence in its capacity for development
1954 Hurricane Hazel kills hundreds of people
and inspired action to help Haiti rebuild.
1963 Hurricane Flora kills thousands of people
1994 Hurricane Gordon kills hundreds of people
Tropical storm Jeanne causes flooding in the

2004 North, kills nearly 3,000 people
2005 Hurricane Dennis kills more than 45 people
4 storms batter Haiti, killing nearly 800 people

2008 and causing more than $1 billion in damage
2010 7.0 Earthquake kills more than 220,000 people

January
2010 F irst cases of cholera identified,

October claiming more than 3,500 lives as of now
2010 Hurricane Tomas hits Haiti, claiming few

lives, but causing severe flooding
November
IFRC
A Conversation with Ray Nagin, To the Haitian government and the IHRC, your sacri-
Former Mayor of New Orleans fices will never be fully appreciated. Plan well, stay focused,
and ignore critics. Your good works will be understood better
Is there a message for the Haitian people you would like later.
to share?
What happened to New Orleans with Hurricane Ka- After one year, what did the situation feel like and what were
trina was not fair, and what is happening to you right now is the key challenges you faced ahead of you? How did you
not fair. Major help is on the way; it just has to go through address them?
too many filters. The fact is the average recovery from a The first year was very frustrating. In New Orleans,
major disaster is extremely hard work and normally takes recovery dollars from the U.S. federal government barely
10 to 15 years. moved, and citizen expectations did not match this reality.
This is a new beginning. Haiti will recover because We lobbied constantly for resources, encouraged volunteers
great places always reinvent themselves. Better days are to work on housing, and used every communication tool we
ahead for you if you stay focused on your future, which is had to try to get more support and our message out.
yours to shape.
How would you communicate what has been and still needs
Is there a message for the people working on the recovery to be done in the recovery? How would you keep people
effort that you would like to share? motivated?
To the donors, thank you for helping this country to The Haitian leaders and the IHRC must communicate
recover. The Haitian people desperately need your support consistently to both internal and external stakeholders. It
to have a solid chance at full recovery. Trust the established is extremely critical that the affected Haitian people feel
process to deliver a transparent, fully recovered Haiti that like they are involved and heard. Town-hall meetings, radio,
you will be proud of. and TV are good vehicles. Consistent, honest communica-
To the workers on the ground, you are doing God’s tion motivates people and gives them hope. A very effective
work. In New Orleans, workers and volunteers helped to tool for us was to set up a comprehensive website so that
jump-start our recovery, as actual recovery dollars were also external people could track our progress in real time.
slow to hit devastated areas.
2009 was then a year of hope and progress. The government there were newspaper headlines about Haiti’s potential, not just
worked with donors to come up with a plan for long-term Haiti’s plight. That Haiti was on a path of remarkable progress
economic development. Paul Collier, working for the U.N., by 2010 makes January’s disaster all the more devastating. But
wrote a report highlighting Haiti’s high potential for growth. the earthquake – and the global action it has inspired – also pro-
“If the international community cannot succeed here, it is vides an opportunity to help Haitians build their country back
hard to see it succeeding elsewhere,” he wrote. With Haiti better than it was before the disaster. In March 2010 donors
having attained the “Completion Point” under the Highly-in- pledged more than $11 billion to the long-term reconstruction
debted Poor Countries (HIPC) initiative, the World Bank, the of Haiti. This commitment was an important first step toward
putting Haiti on the path to sustainable development by creat-
Inter-American Development Bank (IDB), and other debtors
ing the conditions necessary to attract further investment in
relieved more than 80 percent of Haiti’s public debt, laying
Haiti’s future.
the groundwork for long-term growth. Foreign investment in
Haitian businesses grew to $400 million from only $100 mil- But significant challenges remain. The recent cholera outbreak
lion three years before, fueling an economic renewal. In 2009, has shifted resources toward containing the crisis and preventing
Oxfam International
Cautious Optimism in 2009
“ After years of upheaval and reversals, Haiti

is making significant progress: Its streets are
“
safer, politics is more stable and business [R]ebuilding the country seems plausible this
is growing.
”
South Florida Sun-Sentinel, December 20, 2009
time, after years of false starts.
Reuters, October 2, 2009 ”
“ Haiti and Guyana are the two countries in

the Caribbean that are expected to post
positive growth this year, despite a global
“ Investors insisted that money-making
opportunities were everywhere in Haiti.
”
the New York Times, October 5, 2009
economic crisis.
”
The Miami Herald, November 10, 2009
“ [Haiti] has won the respect of the fund, the
“ ”
IMF, as a country that has serious long-term Investors start to see Haiti in a new light.
”
economic policies.
The Miami Herald, November 10, 2009
Caribbean360.com, October 2, 2009
future outbreaks. The transition from emergency relief to sus-

Pledges at New York Conference, tainable recovery and growth has revealed even more work to
Top 24 Donors be done. And the overwhelming show of support for Haiti in
$ million for 2010 and 2011, including debt relief the form of funding, supplies, and projects, while remarkable
and admirable, means that there is an even greater need for
Venezuela 1,336 efficient coordination of recovery efforts and for transparent
governance.
USA 1,152
IDB 544 To help meet these needs and expedite the recovery, the IHRC
was created as a coordinator of the recovery effort for 18
IMF 420 months until the Haitian Development Agency could be built
Canada 325 by Haitians to lead the recovery through its full term.
EC 294
France 273
The IHRC’s Role in the Recovery
Spain 258
In the days and weeks after the quake, the global response to
World Bank 227
Haiti’s tragedy was extraordinary. Governments, individuals,
Brazil 164 and relief organizations – some of them formed in the wake
Norway 107 of the crisis – channeled millions of dollars in aid, which
Japan 100
Italy 53
Germany 52
OAS 36
CDB 35
Switzerland 25
Sweden 20
Qatar 20
Argentina 18
Ireland 17
Australia 12
Finland 10
Kuwait 10
Living Water International www.water.cc
Others 67
Total $5,574
Source: United Nations – Office of the special envoy for Haiti,

Data as of December 2010
directly funded essentials like food, water, and temporary shel- reconciling conflicting goals or efforts or for creating an overall
ters, as well as medical supplies and volunteers. Because of this strategy; and a lack of transparency.
quick and unparalleled response, lives were saved, and the pre-
The IHRC was formed to overcome these challenges. With an
dicted health crises were initially largely avoided.
overarching goal of building a better Haiti, the IHRC works to
But as the emergency began to subside, a new category of meet the following major objectives:
need arose. The large scale of the destruction on Haiti’s gov-
■ Ensuring that the work of recovery is in line with
ernment and infrastructure hampered the ability to start long-
the best interests of the people of Haiti;
term rebuilding.
■ Increasing transparency and accountability;
On the other hand, the extent of destruction also means that
■ Showcasing a new model for aid and development.
the possibilities for recovery are far reaching. Today, Haitians
have the opportunity to build back better and create the country The IHRC prioritizes the needs of the Haitian people by ensur-
they deserve. But recovery efforts often share common obstacles ing planning is inclusive and led by Haitians, coordinating the
including the urgent need to clearly define goals and targets; international community, and communicating clear outputs
overlapping or conflicting efforts among donors and imple- desired by the government for recovery. The IHRC requests
menters; lack of monitoring mechanisms to measure outcomes bilateral and multilateral donors, civil-society organizations,
and efficiency; bypassing of government; absence of a forum for and private efforts to submit their projects, and the IHRC then
Oxfam International
A Message From the Co-Chairs
W
hen we were asked to co-chair the Interim Haiti Recov-
ery Commission in April 2010, it wasn’t a question of
if we would do it but how quickly we could get started. Three
months after the earthquake, it was clear how much work
was needed to help the people of Haiti rebuild their com-
Kendra Helmer
munities and their lives. Equally apparent was the need for a
centralized body to coordinate the reconstruction efforts from
donors, NGOs, the private sector, and the Haitian government
itself to reduce duplication, ensure transparency, and align
people who can see tangible results in their own lives.
projects with the priorities the Haitian people have envisioned
No one expected Haiti to recover overnight from the recent
for themselves.
tragedy and the 200 years of oppression, poverty, and neglect
This is the mission and the mandate of the IHRC, mod-
that came before it. But we should expect things to get better
eled after the successful approach after the tsunami in South
day by day, project by project. We should expect that projects
Asia and progressing at a similar pace. The board itself is a
will be held accountable to their donors and the international
remarkable compilation of Haitians from all backgrounds, rep-
community. We should expect that people will make good on
resentation from the government, and donors worldwide work-
their promises and not turn their backs at a critical moment in
ing together rather than as separate entities. Since August, the
Haiti’s future.
board has approved $3 billion in projects that will improve more
The IHRC is here to oversee that these things that the Hai-
than 1 million lives through job creation, improved education
tians expect and downright deserve take place. And we stand by
and health care services, housing and infrastructure construc-
this mission as strongly as we did the day we accepted our roles as
tion, and community enhancements.
co-chairs. We are proud to work alongside staff, volunteers, NGOs,
We’ve made progress despite the setbacks of a threaten-
private businesses, members of the Haitian Diaspora, and Haitian
ing hurricane season and a devastating cholera outbreak. But
ministers who are as dedicated to fulfilling this mission as we are,
we know that in many ways, the true work has just begun. As
who work every day in the midst of difficult circumstances.
we approach the one-year anniversary of the earthquake, donors
After 18 months, the IHRC will transition into whatever
have yet to fulfill all of their pledges. Rubble removal and hous-
the Haitians would like it to be. But until then, it will be up to
ing remain top priorities for the millions still living in shelters.
each of us, from the IHRC board to the project implementers, to
People need and desire jobs to help them support their families
ensure that we are working as efficiently, transparently, and ur-
and build a better life.
gently as possible to help the people of Haiti build a nation that
But the opportunities in Haiti’s reconstruction are just as
truly reflects their dreams and desires and realizes the enormous
pressing as the challenges, and the IHRC is focusing on seven
promise and potential the country holds.
sectors that are particularly important to long-term recovery, in-
cluding job creation, housing, education, health care, and debris
removal. We have shifted our strategy to emphasize these ar-
eas that will make the biggest impact in the lives of the Haitian Jean-Max Bellerive
people, and quickly.
At the end of our mandate, the success of the IHRC will
be determined not by how many projects we review or how many
pledges donors fulfill. These are important, but even more criti- William J. Clinton
Co-Chairs of the Interim Haiti Recovery Commission
cal are the improvements on the ground and the number of
reviews projects to ensure that efforts are not duplicated and that
investments meet government-established priorities. Effective Key Dates in IHRC’s Brief History
coordination of projects also requires that rebuilding efforts not
only replace damaged infrastructure and services but also focus 21-APR-10 Presidential Decree creates the IHRC
on Haiti’s long-term development. By working closely with gov-
ernment institutions, the IHRC aims to ensure that the projects
it approves will have a lasting positive impact on Haiti’s future. Letters sent to donors asking them to
And by working with the government to identify its goals for
26-May-10 nominate board members to the IHRC
development, the IHRC ensures that Haiti gains the capacity to
manage and improve its own infrastructure and address future
crises – thereby reducing Haiti’s dependence on foreign aid. 31-May-10 IHRC Website goes live
To increase transparency and accountability, the IHRC aims to be

a one-stop shop for information about the recovery projects and
maintains a website with information on all approved recovery 1-Jun-10 Initial briefing for the IHRC board
projects. Transparency in all activities improves coordination

and implementation by ensuring that open communication
IHRC building opens for business in
channels exist for all stakeholders and that all parties involved 7- J u n - 1 0 Port-au-Prince
can collect and share information about ongoing and planned
projects. Moreover, the IHRC is establishing a Performance and
Anti-Corruption Office that will rigorously monitor recovery first board meeting establishes
17-Jun-10 bylaws and codes of conduct
resources to ensure accountability to the people and government
of Haiti, as well as to donors and the larger public.
By its very existence, the IHRC is implementing and showcas- Gabriel Verret appointed executive
22-Jul-10 director
ing a new model for effective aid and development so other
countries and regions might benefit from Haiti’s process and
progress. In Haiti, the IHRC is a unique – and unprecedent- second board meeting sets high-level
ed – forum for donors and Haitian representatives to work 17-Aug-10 priorities and approves $1.7 billion
in projects
collaboratively, create priorities, and enhance coordination, all
third board meeting approves $777
6-Oct-10 million in projects and Performance
and Anti-Corruption Office
11-Nov-10 IHRC launches improved website
Joint two-day workshop between

12-Nov-10 ministries and IHRC staff
fourth board meeting launches strategic

Oxfam International
14-Dec-10 plan for remainder of the mandate and

approves $431 million in projects
in ways that uplift longer-term Haitian capacity. By actively

What does the IHRC do? promoting cross-sector partnerships, the IHRC improves the
Ensure development is in the best interest of Haitian people effectiveness of projects, resolves conflicts or duplications of
effort, and leverages stakeholder resources. The IHRC also
n Set out clear priorities tracks the disbursement of pledges and coordinates with fund-
ing resources to encourage the urgent advancement of projects
n Review all projects based on defined criteria
that are approved. Moreover, the IHRC continually works with
(including select private-sector efforts)
the Haitian government, its ministries, and senior officials to
n Coordinate projects to avoid overlap enhance the sustainability of coordination efforts.
n Improve project concepts together with implementers Put simply, by facilitating and monitoring recovery projects in
line with Haitians’ priorities, the IHRC seeks to maximize the
Provide transparency and accountability impact and sustainability of donor, NGO, and private-sector
efforts and to ensure the best possible recovery for Haiti. The
n Collect and share information on projects and
subsequent implementation of reconstruction projects that are
pledges in a single location
approved by the IHRC – and the real-world impact of projects
n Monitor high-level progress of projects in the lives of Haitians – depends on the funding committed by
n Ensure performance and anti-corruption through donors, the capacities of the implementing organizations, and
the PAO the ability of the Haitian government to facilitate progress.
n Hold public meetings of the board
Showcase a new model for aid and development

Why I Work at the IHRC
n Bring together donors, government, and Haitian
n
civil society
Conduct proactive outreach to stakeholders

“ My motivation for working
for the IHRC is my desire
to participate in the
reconstruction of my
country by putting at its
service my expertise and
What does the IHRC not do?
n Direct government, donor, or NGO activities
operationally
knowledge.
”Rachel Coupaud
IHRC Project Review and Standards Setting Officer
“
n Create large technical capacity within IHRC, When the earthquake
duplicating existing mechanisms happened, I believed that
reconstruction in Haiti
n Replace the financial tracking functions and
would be an opportunity
responsibilities of implementing agencies and donors
to make a sustainable
n Act as a bottleneck and prevent urgently needed
change in the quality of
projects from being launched
people’s housing and their
communities, so when I
Fund projects directly was offered the opportunity to contribute to
”
n
making that happen, I had to say yes!
n Implement projects Priscilla Phelps
Housing Sector Lead
Messages from Donors on Why Inter-American Development Bank

the IHRC Fills an Important Role One important side effect of the January 12 earthquake is
in the Recovery the global attention focused on Haiti, not only from the tradi-
tional donors such as multilateral and bilateral agencies but
BRAZIL also NGOs as well as big corporations. All are keen either to
The challenges faced by the Brazilian government during the strengthen or to initiate their engagement with the country.
recovery efforts in Haiti are related to our relatively new role However, building and maintaining coordination and partner-
as an international donor and to the depth of our engagement ships between international and local actors is both difficult
in Haiti. There have been four main challenges: 1) finding and costly and requires dedicated institutions and organiza-
the appropriate institutional and budgetary mechanisms to tions in place to proceed efficiently and effectively. This is a
enable a continuous and significant flow of disbursements; 2) critical role that the IHRC has played and will hopefully con-
tinue to play until its work ends in October 2011.
Another consequence of the earthquake is that the ca-
pabilities of the state to plan and to administer the influx of
foreign aid were seriously denuded. The volume and com-
plexity of interactions have been increasing at a time when
the physical and human capital available to the government
EDV Media Directorl
has been at its weakest in the recent past. The IHRC has
contributed to ensuring that the proposed actions of the in-
ternational actors are aligned with national priorities identi-
fied in the Action Plan for the Recovery and Development
providing incentives to a deeper engagement of the domestic of Haiti.
civil society (NGOs, private sector) in the recovery efforts; 3) Finally, the life of the IHRC straddles the end of one
overcoming local difficulties during project implementation administration and the first months of a new one. Govern-
(for example, provision of land titles for the construction of ment transitions are always difficult, not least in periods of
health units); and 4) finding partners to co-finance sizable recovery from a natural disaster. In this regard, the IHRC
projects (for example, the Artibonite 4C dam and hydroelec- plays a continuity role, establishing criteria for the evaluation
tric power). of priority projects as well as sector policies in key areas of
The IHRC can help overcome these sorts of challeng- housing, debris removal, job creation, and welfare provision.
es. Being at the same time comprehensive and representa- These actions provide the policy platform for the interna-
tive, its board contributes to the level of political engage- tional community to undertake with confidence the financing
ment in the recovery efforts, raising the profile of that issue of programs and projects focused on generating beneficial
in the international and domestic agendas. On the other impacts for the Haitian population at large and particularly
hand, its structural features – presence of a board and of a those most affected by the earthquake.
secretariat, periodic convening of regular meetings – help
establish and consolidate more direct channels among bi- Haiti Response Group
Inter-American Development Bank
lateral donors, the government of Haiti, international orga-
nizations, and civil-society organizations.
Ambassador Antonio Simões

Representative of Brazil to the IHRC
PROGRESS TO DATE
What Is Working and Next Steps
The First Nine Months – Defining a Practical Plan for Recovery in the Best
From Vision to Recovery Interests of the Haitian People
In March 2010, just two months after the earthquake, the gov- At the start of the recovery, donors and the government voiced
ernment of Haiti presented its Action Plan for National Recovery the critical need to focus efforts where help is needed the most.
and Development of Haiti (PARDN). The plan set an ambitious The IHRC responded. In August, following consultations with
vision for the country to build back better from the earthquake. government ministries, donors, and other key stakeholders, it
presented three-month priorities based on or aligned with Hai-
Based on this, the international community pledged approxi-
tian priorities in key sectors that needed funding. In Decem-
mately $5 billion over the next 18 months to Haiti’s recovery
ber, following additional consultations, the IHRC followed up
and development in addition to $1 billion in debt relief. And
with a more comprehensive cross-sector plan for Haiti’s recovery
in June the IHRC began the work of coordinating Haiti’s vision
through the end of the IHRC’s mandate in October 2011.
and donors’ promises.
The plan provides a clear road map for how donors can com-
This section outlines some of the IHRC’s accomplishments and
mit their pledges from nine months ago to projects that will
the road ahead.
Allison Shelley
Building Strong Partnerships –

T
he 2010 earthquake had a severe impact on Haiti’s frag-
MSPP and IHRC Health Team ile health care system. Local volunteers, members of the
Diaspora, and international partners responded within hours
W
ith the IHRC, a new space was created: an open and continued their support over months. However, many
forum for exchanges about better coordination, im- have struggled with how to contribute over the long term.
proved planning, and greater alignment. Using our govern- To ensure alignment of the many interested in contrib-
ment’s national plan, existing documents, and our interim uting to Haiti’s recovery, the IHRC Health Team first worked
goals, we worked with the IHRC Health Team on quarterly on understanding the Ministry of Health’s priorities and on
priorities and on setting clear 2011 targets to ensure that encouraging coordination with the government. This began
the IHRC can best contribute to the overall reconstruction. by studying the current Ministry of Health’s plan and devel-
Dr. Pierre, as a physician, senior adviser, and sector oping a close relationship with the Minister of Health, the
lead, brings just the right combination of health and policy Ministry’s liaison to the IHRC, and other key departments at
expertise and interpersonal skills to enact this mandate. the Ministry.
She consistently and gracefully bridges the worlds of public The strength and dedication of the Ministry of Health
and private, national staff –working with
and community, significantly fewer
donor and imple- resources than
menter – ensuring, their international
always, that the counterparts un-
government’s lead- der the most dif-
ership includes the ficult conditions
perspectives of all imaginable – are
stakeholders – and, just remarkable. In
ultimately, guides every department,
Caption description goes here
all key decisions in the sector. The IHRC Health Team is people who had been directly impacted by the earthquake
hardworking. They have thoughtfully studied approaches to continued to work daily and graciously engaged with the
improving the system overall, engaging MSPP staff across IHRC Health Team, accepting feedback and making nuanced
levels and leveraging their expertise. Working with the IHRC recommendations. The Minister of Health’s commitment to
Health Team has been a true pleasure. a better future is palpable. He quickly welcomed the IH RC
Overall, the IHRC-MSPP relationship has been a place Health Team, including us in major conversations, openly
of true partnership toward a better health system, setting bi- sharing the history and social impact of key programs, and
ases aside to reach joint decisions that will respond to true joining us in drafting and discussing the IHRC’s 2011 health-
needs. A new public sector approach is needed. The IHRC- sector targets.
MSPP partnership represents a first step toward rebuilding It is an honor to work with our ever more committed
trust in Public Health. We look forward to our continued work, partners: donors, academics, NGOs, members of the private
to touching lives, and to working together under a solid health sector, and the Ministry of Health. Together we will build a
plan able to provide safe and high-quality health care for all. better public health care system for Haiti.
Ministre Alex Larsen, MD Claire-Cecile Pierre, MD

Ministère de la Sante Publique et de la Population Senior Health Advisor – Health Sector Lead, IHRC
Examples of Donors Who Have Provided Funds to Approved Projects

Donor(s) Project Contribution
United states, Reconstruct the State University Hospital of Haiti in $25 million each
France Port-au-Prince
Canada National School Feeding Programs and Support Water and $20 million
Sanitary Equipment in Schools
Canada Reconstruction and Strengthening of Integrated Reproductive $4.5 million

Health Services for Women and Children Affected by (soon to be formalized)
the Earthquake
European Union Evaluation of Public Administration in 10 Departmental $1 million

Chefs-Lieux (soon to be formalized)
SOURCE: UNITED NATIONS
benefit Haitians the most now. It also identifies priority sectors Further, in order to be most effective, funding must be chan-
for the next nine months, sets targets based on what is achiev- neled to the most urgent needs on the ground.
able, and outlines the specific projects and programs needed,
Of the $5 billion the international community pledged to Hai-
and the funding required, to meet those targets.
ti for 2010 and 2011, $2 billion was programmed for 2010,
While exercising this leadership, the IHRC has continually and of this, only $1.2 billion (63 percent) had been disbursed
invited collaboration and input. It has coordinated with gov- by November. This is an improvement from the 19 percent
ernment ministries to define practical plans for key recovery that had been disbursed as of early July, and reflects the co-
sectors, such as housing, debris removal, health, and water and chairs’ continuing outreach to the highest levels of donor gov-
sanitation, while refining and updating others. ernments, but the IHRC has approved more than $1 billion in
projects that remain unfunded.
The IHRC continues to deliver on its mandate to identify
priorities that best serve the needs and interests of Haitians. At present, the funds that have begun to materialize are insuf-
Although it does not implement projects, it encourages all im- ficient to address Haiti’s most pressing needs, and have been
plementing organizations to accelerate their work to match the balanced in a way that doesn’t necessarily reflect the Haitians’
scale and urgency of the needs of the Haitian people. Given priorities. For example, a combined $500 million is committed to
its unique position in the reconstruction effort, the IHRC has education and transportation infrastructure, far more than the
observed two key challenges that, if addressed, could dramati- roughly $350 million committed to debris removal, housing,
cally expand improvements in the lives of the Haitian people. and health, combined. As context, the IHRC estimates that
Haiti needs $160 million to clear 40 percent of the remain-
The first challenge is funding. Reconstruction plans must be
ing debris from Port-au-Prince by October 2011. The IHRC
funded in order to be implemented, and in Haiti much of the
continues to encourage donors to urgently provide support for
funding that was pledged by donors remains to be disbursed.
projects they have approved via the IHRC, so that implementa-
tion can begin as soon as possible.
1
Pledges from the top 24 donors at the New York City donors conference in March 2010
Oxfam International
The second challenge and opportunity is that there remain key The IHRC also has helped to better align projects to govern-
policy decisions that government can make to expedite the re- ment recovery strategies. All project proponents receive written
covery. feedback from the IHRC, and many take the opportunity to
consult with relevant sector teams. This collaboration has al-
To help address this issue, the IHRC has compiled in the strategic
ready produced results. The U.N. and Norway agreed to revise
plan a list of the most pressing policy decisions. Issues of land
a key element of one of their agriculture project proposals – a
ownership, land tenure security, financial assistance to dis-
subsidy for farmers – to ensure its alignment with the Ministry
placed persons, and demolition of structurally unrecoverable
of Agriculture’s policies. In another case, the U.S. worked close-
(“red”) houses have delayed reconstruction efforts in critical
ly with the IHRC to ensure that its housing projects aligned
sectors such as debris removal and housing. The IHRC, the
with the housing-sector framework the IHRC had helped to
relevant sector ministries, and government commissions have
create.
discussed responses to these policy questions, and the IHRC
remains committed to continue to work together to identify The IHRC has matured, collecting more data on the recovery
the choices that can expedite the recovery. efforts and making connections with key stakeholders, it has
been able to help increase collaboration among different groups
Promoting Effective Coordination Toward Recovery whose efforts could be complementary. For instance, the IHRC
Objectives connected a project proposing an agricultural credit facility to
the relevant officials in the Ministry of Agriculture and referred
The IHRC has approved and coordinated more than $3 billion
another project proposing a micro-lending facility to World
in projects advancing Haiti’s own stated development goals. It
Bank, Inter-American Development Bank (IDB), and Bank of
has intervened in several cases to reduce duplication of efforts
the Republic of Haiti officials already working on similar proj-
and instead encourage partnership. In one such case, the gov-
ects.
ernment and the U.N. separately proposed to remove debris in
the same area of downtown Port au Prince – and through the There are several ways in which the IHRC will continue to
IHRC, they agreed to work together. improve coordination.
A great many partners are working on critical aspects of Haiti’s recov-

Beginning to Build the ery and development. The IHRC is eager to add to its group
IHRC Secretariat of sector experts in order to gain the full benefit of cooperation
with these partners. By inviting such involvement, the IHRC
T
he implementation of the seeks to build more relationships with stakeholders working in
IHRC’s secretariat was each sector and further shape the project pipeline on the front
a very challenging endeavor. end: suggesting project concepts, understanding and filling
Since the Commission was funding gaps, and working with project proponents early to
starting from scratch, we had provide advice as they develop new proposals.
to quickly establish and rank
the priorities. In this dramatic The number of projects submitted to the IHRC has been ex-
context and urgent situation, traordinary. There have been more than 350 projects submitted
the focus was originally put on the project review and into the IHRC’s electronic system and the IHRC receives tens,
approval activities at the expense of some other func- if not hundreds, of inquiries every week from people asking
tions or initiatives. During the first seven months of its how they can help. The IHRC invites such participation and
existence, the IHRC has approved 74 projects coming will continue to respond to these inquiries.
from a broad spectrum of sectors and in line with the
The IHRC also will continue to encourage more project im-
recovery strategy of the government of Haiti.
plementers – including NGOs – to submit their projects to
At the same time, it had to put in place its ad-
be coordinated with the overall reconstruction effort. The co-
ministrative structure without having direct access to
chairs have led several outreach efforts to engage a wide array
the financial capacity necessary to pay operational ex-
of implementers, however it appears there are many projects
penses. Without reinventing the wheel, the IHRC had
underway that have not been submitted to the IHRC. This has
to innovate on a constant basis. The working days were
made it more difficult for the IHRC to accurately identify re-
often long, self-sacrifice being the norm. We can prob-
covery activities and key gaps. The effectiveness of the IHRC in
ably be proud of that, but above all, we owed that to the
coordinating efforts will continue to rest on the participation of
people of Haiti.
the reconstruction actors.
Sylvain CÔté
Director of Shared Services
Ensuring Transparency and Accountability
The IHRC’s work has substantially increased transparency. That
this report could be written at all, providing a candid perspec-
tive on the overall progress of the recovery, is an example of this
increased transparency.
The work of the recovery is public. IHRC board meetings have

been open to the press, and these public discussions have cov-
ered topics like the design of important Commission functions,
projects recommended for approval, sector strategies, and the
IHRC’s operations. The IHRC also has conducted outreach
meetings with government officials, the NGO community, the
Haitian private sector, and international donors. These meet-
ings provide stakeholders with an important window into the
progress of the recovery and help keep the IHRC and its part-
ners accountable to the Haitian people they serve.
The IHRC’s redesigned website shows summaries of all ap- The IHRC has begun to put in place the structures and per-
proved development projects, information about the IHRC’s sonnel to keep the public informed on a more regular basis by
operations, and the targets and plan for the recovery. In the increasing outreach efforts, updating its website more frequent-
past, this information would have been scattered across dif- ly, and making it easier to contact relevant staff with questions.
ferent places in different formats. Now it is easily accessible to
The IHRC also will continue to encourage partners to help pro-
the public, and the value of the information collected will only
vide transparency and accountability. The IHRC does not have
increase over time. Furthermore, the IHRC plans to launch a
the capacity to perform day-to-day field monitoring of every
database and an analytics engine to help make it easier to track
project. When the IHRC requests information for its reporting
the progress of the recovery.
or auditing, it is therefore critical that donors and project propo-
To hold projects accountable for fulfilling promises, the IHRC nents be ready to respond quickly and accurately to keep their
has begun to collect and share information on the approved actions transparent. The IHRC also encourages a more sustain-
projects’ progress and challenges. At its October 6 board meet- able model wherein donors and implementers provide regular
ing, the IHRC provided an update on the progress achieved reports on their progress and challenges.
by all approved projects. At its December 14 board meeting, it
presented impacts that projects are having on the ground. As
Building Strong Partnerships and Increasing Engagement
projects progress further and more receive approval, this func-
tion will increase in importance. The IHRC represents a new model for cooperation. Never be-
fore have the international community and a disaster-struck
Finally, a critical tool for transparency and accountability, the country like Haiti agreed to work so closely together – sup-
Performance and Anti-Corruption Office, was approved by the porting the development priorities of the country through a
board at its meeting on October 6, and now is being staffed. common forum.
The IHRC hopes this unit will continue its work long after the
IHRC’s mandate transitions to the Haitian development entity The IHRC has demonstrated the value of its model through
envisioned in Haitian law. four board meetings, which have brought together donors
with representatives of the Haitian government and civil so-
The IHRC will continue to expand its work on monitoring ciety to work together to direct the recovery. The IHRC has
projects and encouraging transparency. demonstrated that it can make meaningful ties with the gov-
ernment and work with ministries to get things done. And it
has demonstrated that it can help bring stakeholders together
and encourage partnerships where there could have been over-
lapping or conflicting efforts.
What follows is an assessment of how the IHRC has been

able to work with each of the major stakeholder groups in
the recovery.
The IHRC’s board brings together representatives of the major

donors and Haitian society. Together they have discussed recovery
priorities, submitted to each other their projects for review and ap-
proval, held each other accountable, and candidly aired concerns.
The IHRC is eager to more fully capture the potential of engag-

ing with its board. A more engaged board cognizant of the chal-
IHRC website lenges that the IHRC faces can be an invaluable resource. For
instance, upon learning what sector teams need to be effective,

In-Kind Support to the IHRC a representative of an international donor on the IHRC’s board,
agreed to provide information on the early-stage projects they
Donor NATURE OF IN-KIND are working on. To date, the IHRC has substantively engaged
CONTRIBUTION the board through its four meetings, and it continues to explore
additional structured channels – such as participation in sector
5 staff members, IHRC
Canada office facilities and committees and involvement in stakeholder outreach initiatives
maintenance -- to get the board more involved.
USAID 8 staff members The government and the IHRC have begun to build strong ties.
In November the IHRC held a two-day working session with
7 staff members, short-term ministry representatives that focused on making the partnership
IDB technical assistance (most more productive. This cooperation quickly bore fruit – ministries
devote 20% of their time)
were instrumental in shaping the IHRC’s cross-sector recovery
4 staff members, short-term
plan, presented to the board in December, and have played a far-
UNDP
technical assistance more active role in evaluating projects put forward for approval.
All projects approved by the IHRC will continue to be reviewed
Telecommunications by representatives of the relevant government ministries.
equipment for meetings,
World Bank
short-term technical
assistance, 1 staff member There are additional opportunities for collaboration and capacity
building that the IHRC will continue to encourage. One im-
Telecommunications portant opportunity that the IHRC has identified is bringing
Digicel
equipment for board meetings ministry staff into the IHRC as secondees. The seconded staff
would create additional meaningful links between ministries and
Logistical, production, the IHRC, and gain a deeper knowledge of the work being done
Clinton Foundation
and operations support in their sector. They would also help clear obstacles by providing
someone in-house at the IHRC who could help projects dealing
Accenture, with various obstacles.
Burson-Marsteller,
Hogan Lovells,
Donors and the IHRC also have worked together productively.
Korn/Ferry The IHRC would not be functional today if it were not for the
International, Pro bono professional services generous support of donors. In particular, Canada, IDB, the
NewLink, U.N., the United States, and the World Bank have provided the
Pricewaterhouse- IHRC with the secondees who have been a valuable addition to
Coopers,
the staff. In fact, some, such as the United Nations, have hired
McKinsey & Company
people specifically requested by the Commission in order to sec-
Number of staff members contributed represents total contribution over time
for any length of time; not all staff members listed are currently working
ond them immediately. Donors also have provided critical short-
with the IHRC. SOURCE: IHRC term support to the IHRC’s operations when asked.
One example is the IHRC’s peer-review panel, which comprises

officials from the IDB, United Nations, and World Bank who
work together and in consultation with government ministries
to assist the IHRC with technical evaluations of projects. Coop-
eration like this is important not just because it helps to link the
IHRC with donors but also because it fosters ties among staff
from different organizations, creating an opportunity for them been invaluable in Haiti. NGOs have provided staff and oth-
to harmonize priorities and learn from each other. er technical expertise to help the IHRC with strategy devel-
opment and project evaluation.
The IHRC will continue to invite donors (multinational as well
as national) to provide support to the IHRC by providing sec- Given the large size of the NGO community in Haiti, the
ondees to fill open positions, technical staff to give short-term IHRC invites more NGOs to collaborate their efforts with
support, or funding for the IHRC’s operations. the overall reconstruction priorities, via the IHRC. The
IHRC is committed to continuing to expand its own out-
The private sector remains essential in making Haiti’s recovery
reach efforts to the NGO community, to answer questions
sustainable. Meaningful job growth depends on a healthy private
and help NGOs to improve project design and to refer them
sector, as do the continuation of public services now paid for by
to like-minded partners and donors. The IHRC also encour-
the international community.
ages NGOs to share perspectives from the field, including to
The private sector also needs the public sector to make the con-
ditions right for increased investment. The IHRC can help. It
can shape projects to maximally stimulate the local economy,
and this is an important criterion for project approval. It also
can approve projects creating outputs that will make Haiti more
open to investment in the long term.
To date, the IHRC has engaged with the private sector via out-
reach meetings. Going forward, the IHRC aims to work with the
private sector to highlight ways in which the private sector can
further assist the overall recovery effort.
Oxfam International
NGOs and the IHRC have had a productive relationship,

and there is potential for even more effective partnerships.
The contributions of NGOs such as Partners in Health have
identify key gaps in the recovery or successful approaches and

examples of innovative solutions.
Impact on the Ground
House repair project
Lives Impacted by Approved Projects Danielle Antoine was in her house with her five children
when the earthquake hit. Her family escaped harm, but sur-
Amid all of the IHRC’s accomplishments and challenges, its
viving the immediate danger was only the beginning of their
people never lose sight of the one thing that really matters – im-
worries. The violent shaking severely damaged her house.
proving the lives of as many Haitians as possible.
“A wall had partially collapsed, and there were many
The IHRC’s strategic choices for the remainder of its mandate cracks in the ceiling,” she recalls. “They prevented us from
are designed to improve as many lives as possible, as quickly as living there safely.”
possible. So Ms. Antoine and her family joined more than 1
million other displaced people looking for a place to live
And when they are completed, IHRC-approved projects will
safely. Like many in their neighborhood, they moved to a
impact millions. For example, an industrial park in the north
camp nearby.
of Haiti will create at least 60,000 direct jobs; 250,000 children
But today, Ms. Antoine and her family are back in
will receive school subsidies; and 50,000 households will receive
their home. A project approved by IHRC and implemented
new water connections.
through USAID helped her repair her home so that it is safe
Projects are beginning to make tangible improvements on the to live in again.
ground. IHRC staff members have visited several projects and “This fills me with joy,” she says. “We can begin to
have seen the potential for tremendous progress as more and live again and hope for better days. That they have rebuilt
more projects begin to do their work. You can read some of the my house is the greatest service that the IHRC could have
stories of those affected in the boxes to the right. done for me.”
Ms. Antoine is not the only one to benefit from the
Yet, there are a number of obstacles that projects face as they
work toward improving lives. The list below is based on moni-
toring conversations with a majority of the projects approved
by the IHRC. The IHRC is releasing a more detailed report to
accompany this section. It will be available at www.cirh.ht.
Funding – Many projects are still waiting for funding. More

than $1.3 billion of projects are unfunded. The international
community has disbursed approximately 63 percent of the
funds they pledged for the 2010 fiscal year, and we commend
them for that. But, all unfunded projects cannot start without
funding. So, we cannot settle for anything less than 100 percent
AIDG
disbursement rate.
Donor processes – Many projects are ambitious long-term repairs. Her house was fixed by local workers who have
development efforts aimed at building back better. They re- learned safer techniques for building. Not only will Ms. An-
quire approval from their organizations’ internal boards. They toine and her family be safer, but many other Haitians will
must draw up detailed operations manuals and program documen- return to stronger, more resilient homes.
tation before being permitted to proceed, and this has taken Knowing her house is safer now than ever brings Ms.
some projects more than four months. Organizations can Antoine comfort. “I feel that the misfortunes we have expe-
help deliver impact sooner by phasing projects so the most urgent
rienced are a thing of the past,” she says. Artisan Project, Haitian Exports
But Ms. Antoine also recognizes she is among the Magalie Dresse is the owner of Caribbean Crafts, a company
fortunate. Six months after the earthquake, there were that makes handmade items from metal and papier-mâché
1.5 million people in camps. Since then, the number has for export. On January 12, 2010, Ms. Dresse, like many in
declined by 500,000. But 1 million people – 10 percent Haiti, lost everything her company had in the earthquake.
of the population – are still waiting. She was determined to rebuild while also helping other
“It is a great service they bring for the Haitian peo- people who lost everything.
ple,” she says, referring to the housing projects, “but if

all the people could benefit, it certainly would bring big
changes and a better future.”
Neighborhood Debris Removal Project

Marie-Mireille Jean has lived in Leogane all her life. As
long as she can remember, so has her family. But the
earthquake destroyed almost the entire city, including her
house – “a legacy of my father.”
She was determined to rebuild on the site where her
family had lived, where her father had built their house.
No other place felt like home. But like many, she strug- Caribbean Crafts now employs nearly 700 people, most
gled to find a way to rebuild on her own. Even removing of them still homeless. They are working on a special project
to make bracelets for export. Her company now trains people
the wreckage of her house proved difficult.
to make bracelets and other goods and provides those who
“I was discouraged because it was impossible to re-
are able to work alone with materials to bring back to the
pair my house, and we had to destroy it completely. It
camps where they live.
required money, which I did not have.”
With the help of buyers in the U.S. and Europe, Ms.
But a project to help neighborhoods rebuild, work-
Dresse has also started a daily meals program for her employ-
ing with local authorities, provided assistance. The local
ees. Not only are her employees earning a steady stream of
government designated Ms. Jean to be a team leader for
income, but they are also earning food security.
debris removal, and the project hired 50 local employees
“This is why we can speak of a bright future in the
to help.
middle of these tough times for everyone,” she says. “Buyers
“It provides jobs to local residents, and it will allow
are able to see that despite all the disasters, we can achieve
us not only to rebuild my house but the entire city of Leo-
our goals, making them feel that they are making a safe in-
gane,” she says, looking toward the future. vestment.”
House by house, neighborhood by neighborhood, The IHRC hopes to replicate Ms. Dresse’s experience
projects like the one that helped Ms. Jean can help Hai- many times over. Exporting Haitian products to nearby mar-
tians rebuild. The IHRC’s strategy calls for many more kets has the potential to create many thousands of jobs, and
projects like this, which work with local authorities to already the IHRC has approved projects that will create hun-
help people return to their old neighborhoods. And by the dreds of thousands of jobs. Soon, despite the disaster, the
end of its mandate, the IHRC hopes that many thousands world may realize, as Ms. Dresse’s buyers have, that Haiti can
more people will be repeating Ms. Jean’s story. achieve its goals. It is certainly ready for investment.
priorities, such as those listed in the IHRC’s plans, are planned

Value of Approved Projects ($ million) and started first. And they can also utilize expedited proce-
dures for priority projects, much like the World Bank did for
Funded / Total: $1,613 Not Funded / Total: $1,379 its cholera-response project.
Education TOTAL Policy questions – Some projects are waiting for policy questions
308 369 677 to be answered before they are able to start working at full ca-
Agriculture pacity. The IHRC will continue to work with and encourage the
256 51 Haitian government, the international and NGO communities,
307
and everyone involved in the reconstruction efforts to develop the
Transport/Infrastructure
necessarily guidelines and make key decisions in order to make
223 397 620 this a successful effort.
Job Creation
176 65 241 Coordinating with partners – Projects starting up must con-
stantly coordinate with other partners. They might have to
Health
145 57
wait to sign memoranda of understanding or comply with
202
partners’ procedures before receiving the support they need.
Finance/Investment
Projects may also have to find implementing partners like
123 12 135 NGOs or put out a request for proposals for providers, which
Water/Sanitation takes time. Sometimes partners in a project need to find a
115 85 200 mutually selected arbiter to resolve funding disputes that arise
Housing
106 86 192
Budget Support
55 55
Debris Removal
27
25 52
Disaster Preparedness
27
15 42
Energy
14
197 211
Humanitarian
14
3 17
Women and Children
10
9 19
Capacity Building
8 8
Cross-Sector
6
8 14
Earthspark International
Environment
1 1
SOURCE: IHRC
during the project implementation. Occasionally, projects

must negotiate with government agencies or state companies Impact of Approved Projects
such as Electricité d’Haïti (EDH) to discuss how the neces- on Lives
sary infrastructure for projects will be provided and to arrange
funding. The IHRC, as a coordination forum, can help solve n 30,000 farmers will receive training in

many of these issues, but it will need stakeholders to agree to sustainable agriculture practices, and 100,000
regularly work through these issues with the IHRC and proac- farmers will be given access to enhanced agricultural
tively seek its help. inputs and services
n More than 50,000 new water connections and

Learning From Others 300 new sanitation systems will be created
At this inflection point in its mandate, the IHRC must consider n More than 60,000 direct jobs will be created by a
the key elements that need to be in place for it to continue to
new industrial park
be successful in some areas and improve in others. In addition
to analyzing its performance so far, the IHRC also looked to the
experience of others to see how recovery challenges evolve over
n 1,000 health agents and 500 health workers

will receive training
time and what it needs to do to make sure it is ready to tackle
them. The following section describes some further lessons from
Aceh, Indonesia, about what the recovery will continue to re-
n 50,000 people in poor neighborhoods in Port-au-

Prince will have their homes secured and improved,
quire in the coming year.
and 2,000 local workers will be employed
The Disaster in Aceh, Indonesia
n A state-of-the-art hospital that will serve up to 500
Haiti is not the first case in recent years where a country has people a day will be constructed
had to rebuild in the aftermath of a catastrophic natural disaster.
Between 2004 and 2009, Indonesia worked with the interna- SOURCE: Submitted project concepts, IHRC
tional community to rebuild after a massive tsunami struck 800

km (500 miles) of coastline in the Aceh and Nias regions. The
effects were tragic. The waves killed more than 120,000 people
and displaced another 500,000 people. Another 93,000 people Common Project Roadblocks
were missing. Entire communities were wiped out. More than
750,000 people lost their livelihoods.
n Not enough funding to get started
Fortunately, Aceh is today not seen as a story of just tragedy or n Donor processes for project management and
continued misery. It is an inspiring example of how a region approval take time
can rebuild. The destruction was massive – 140,000 houses,
100,000 small- and medium-sized enterprises, and 74,000 hect- n Coordinating with partners to agree on
ares (183,000 acres) of agricultural land were destroyed. But four key implementation questions and resolve disputes
years later, 140,000 houses had been rebuilt, 200,000 small- and takes time
medium-sized enterprises had received assistance, and 70,000
hectares (173,000 acres) of agricultural land had been reclaimed.
On the anniversary of Haiti’s earthquake, Aceh’s recovery offers

important lessons and hope. It reminds us that recoveries are not
instantaneous and smooth. They can face various obstacles. Above
all, they can be frustrating for everyone, because help can never ahead of it. But the IHRC is determined to keep working for as
reach people in need too quickly. Kuntoro Mangkusubroto, the long as it takes in order to achieve real, lasting change in the lives of
director of Indonesia’s executing agency for reconstruction (BRR), the Haitian people.
used to tell his people in the face of constant criticism to “stay relaxed,
continue working. What else can you do? [The] performance will tell.”
Lessons From Aceh for the IHRC
The BRR’s performance certainly did tell. In the end, 93 percent of The IHRC has made good progress relative to the BRR’s
funds that were pledged by the international community to Indo- achievements in a similar amount of time. At the one-year anni-
nesia were disbursed. By that measure, Haiti still has a long journey versary of the tsunami, the BRR had put strategic plans in place
A Conversation with in the beginning, I did not know what I would face. But one
Kuntoro Mangkusubroto thing I knew for sure is that I didn’t want to be restricted
and slowed down by bureaucracy.
K untoro Mangkusubroto was the Head of Executing

Agency for the Rehabilitation and Reconstruction of
Aceh and Nias (BRR), the agency charged with rebuilding
On building a strong organization
I selected the first 50-100 people myself. My requirements
the Aceh and Nias regions of Indonesia after a devastating were: They must be totally committed. They must move to
tsunami in December 2004. When the tsunami struck, Aceh Aceh and they must live there. They have to be competent
had experienced three decades of conflict. The isolated prov- and professional. The most important thing was that I had
ince was the fourth poorest province in the country. The chal- to fully trust them. They were going to make decisions. They
lenge to rebuild the destroyed area was immense. were going to be implementing on my behalf.
Mr. Kuntoro led the agency from when it was estab-
lished in April 2005 until its mandate ended in April 2009. On acting fast, accepting mistakes and doing
His leadership of the organization drew praise both from his better next time
employees and the international community and built trust Don’t wait until you have your perfect plan. No textbook
and confidence in the Indonesian government. “What keeps can tell you what to do. Just do. But be prepared to face
me here is a firm belief in our leadership,” said one staff mistakes. Once you have made mistakes, you rectify them.
member in 2009. As the BRR finished its mandate, a direc- Then you act again.
tor at USAID reflected, “One of the strong positives coming
out of this tragedy is that the government is doing things On his thoughts on the first anniversary of
right.” the tsunami
The IHRC’s leadership team spoke with Mr. Kuntoro One year is still far away from the finish. After the first year,
about his experience in late December. Here are some of the we were nervous and stressed. We had done something on the
thoughts he shared. ground – 10,000 houses were built. But we were very nervous
whether we could do it better in the next year, and the pres-
On the importance of building trust sure was fairly high. I was really worried we would fail.
and accountability
Different types of disasters need different approaches. But On looking forward
one thing is the same: trust. When there is no trust, the We reached “cruising speed” 18 months after we built the
money will stop … Everyone from around the world must be organization. That is when we hit our stride. But even then,
able to watch you and the progress – what is built where and we kept changing the structure and learning new processes.
who is using it. This is important.
His message to the IHRC
On the importance of political support Stay healthy, highly spirited, and motivated. Everyone here
The first thing I requested was total political support from feels that [the BRR and IHRC] are brothers. We have both
the president and the central government … When I started been given the honor of helping our countries.
to direct the recovery, created a system to approve projects, and included at least 18 in the sector team for infrastructure,
achieved initial success on the ground. For example, 10,000 housing and spatial planning, 17 focused on planning and
units of housing had been rebuilt, many resulting from projects programming, and 15 in a department to liaise with donors
that had started before the BRR had been created. To monitor and other stakeholders. Each unit had a clear leader and, in
these projects, the BRR established its anti-corruption unit, most cases, at least one deputy. Today the IHRC has much
which is similar to the one IHRC board recently approved. less capacity.
The BRR’s experience calls out two things as important con- The IHRC’s accomplishments over the past seven months are
ditions for keeping the momentum going: strong political remarkable considering that it was designed and launched,
leadership and a robust organization that can meet the ex- created a strategy, approved $3 billion in projects and held
traordinary demands of the recovery effort. Neither can hap- four board meetings, all while continuing to build its orga-
pen without conscious effort and constant attention. nization.
Leadership is paramount. In order to face the challenges ahead and fulfill its aspirations,
In Aceh, Mr. Kuntoro understood that his organization re- the IHRC is actively working to add further human resources
quired the right conditions to be successful, and he fought to address priority areas, such as sector expertise and project
hard for them. He said, “I’ll be the one in Banda Aceh put- monitoring.
ting my neck on the table. I will be putting up everything:
my reputation. If I make a small mistake, I’ll be finished.
And that mistake could be because of the constraints and
conditions, not me.” It became clear over time that the BRR
had the strong backing of Indonesia’s president, and this was
crucial for clearing roadblocks and expediting the recovery
process.
The new president of Haiti and his or her administration will

inherit the work of building Haiti back better. To operate suc-
cessfully, the IHRC will continue to need strong support from
the leadership of the country – a continuation of the mandate
alone will not be sufficient for success.
Active leadership would help the IHRC make the recovery

stronger. Leadership at the highest level must ensure that cru-
cial policy decisions are made in a timely manner and that
ministries continue to work productively with the IHRC to
flesh out plans and review projects.
Mr. Kuntoro built a first-class organization in Aceh by push-

ing hard to attract and retain the best talent from all sources.
So when the recovery started to get off the ground, the BRR
was ready to keep the momentum going.
When Mr. Kuntoro arrived in Aceh, he brought with him

Allison Shelley
his executive team of eight deputies. Recruiting began in ear-

nest immediately afterward, and within eight months of its
establishment, the BRR had about 300 staff members. This
MOVING FORWARD
A Plan to Get Help Where It Is Needed Most
Nine months ago, the huge scope of the challenge ahead was mandate. It will continue to direct the recovery and send help to
clear, but the way to meet it was not. Today there are still many the Haitians who need it most by executing its cross-sector strategy.
challenges ahead, but there is also a plan for how to address It will also build on the work it has done to increase transparency
them working together. The recovery has direction and is build- and accountability, focusing on overseeing projects through its re-
ing momentum. cently approved Performance and Anti-Corruption Office, increas-
ing the frequency of communication, and unveiling tools that will
The IHRC will continue to work hard to get these things in place,
help everyone learn more about the progress of the recovery. And it
but it will also need the help of Haiti’s leaders, as well as those in every
will build on one of its most unique assets – creating strong partner-
economic sector, and the leaders of the international community.
ships among all involved in the recovery – to help accomplish tasks
In addition to getting the conditions for success in place, the IHRC quicker and more effectively. This section outlines what the IHRC
has set for itself several strategic imperatives for the remainder of its expects to do to achieve these objectives.
Promoting Development in the Best ing water. Donors and implementers have been called upon
to plan their role in these projects. The IHRC stands ready to
Interests of the Haitian People work with them to help design projects that meet urgent needs
In December 2010 the IHRC introduced a comprehensive and are well coordinated with the rest of the recovery effort.
cross-sector plan for recovery and development efforts in Haiti
through October 2011, the end of the Commission’s current The funding required is significant. Overall, the IHRC estimates
mandate. The IHRC’s focus now will be to execute the plan in that approximately $990 million will be needed in addition to
order to impact as many lives as possible. the funds already allocated to approved projects if the objec-
tives set for the eight priority sectors are to be achieved. This is
This section provides an introduction to the plan, which will not an impossible target to reach. Based on the pledges made
be made available in full at www.cirh.ht. so far by the 24 largest donors, there is currently $400 million
The plan identifies seven sectors as the focus areas for the re-
covery in 2011: housing, debris removal, energy, health, job
creation, water, and sanitation. Furthermore, ensuring the gov- Additional Funding Needed to Reach
ernment of Haiti has the capacity to continue to lead Haiti’s Targets in Strategic Plan
recovery is an overarching imperative. The table to the right lays $ million through October 2011 (preliminary estimate)
out the targets for each sector.
17 capacity buiding
The IHRC, together with the government, identified these pri-
ority sectors and targets for 2011 based on four principles:
Prioritize
■ sectors directly affected by the earthquake, 153 160
where the vulnerability of the people can be reduced,
DEBRIS
EDUCATION
REMOVAL
notably through a “build back better” approach;
■ Create tangible improvements in people’s lives, with

particular focus on the most vulnerable;
155
hEALTH
■ chieve significant, measurable progress within the
A 350
mandate of the Commission; HOUSING
■ Lay the foundation for longer-term development.
70
water & 85
The plan also provides for each sector an outline for how to
SANITATION
achieve the targets by laying out the following:
ENERGY
■ Projects required
TOTAL: $989 MILLION
■ Funding needs for the required projects
Debris Removal: 160 Health: 155
■ olicy decisions and institutional enablers that will
P
Housing: 350 Education: 153
help projects to start or achieve results faster
Energy: 85 Capacity Building: 17
Examples of projects and programs include the need to set up Water and Sanitation: 70
24 debris-removal operations with 15 trucks each, repair 25
percent of “yellow” houses (homes that are currently uninhabit- The gap is estimated based on The cost as defined by IHRC costings for
able but can be made safe again) in certain neighborhoods, and recovery in these sectors in strategic plan and information currently
available on funding in place
install in-home chlorination solutions that provide safe drink-
in unallocated funds from 2010 and $2.5 billion pledged for

2011. The IHRC is calling on donors to direct their funding to
these priorities. Further, the IHRC asks that donors put half of
their unallocated funds in the HRF, from which money can be
directed flexibly to fill the biggest gaps.
In many areas, policy decisions or institutional enablers are need-

ed. The IHRC is ready and eager to work with the government
of Haiti to develop these solutions. It welcomes the assistance
of donor and NGO experts and members of Haitian civil soci-
ety and the Diaspora in this work.
Finally, one overarching enabler for the plan is having a competi-

tive contracting capability to put out requests for proposals to fill
gaps.
It is important to recognize that the plan is not set in stone

and will necessarily need to be refined over time. The IHRC
staff is already working to add further details to the plan and
will continue to do so over the coming months with donors,
implementing partners, the government, and others who want
to contribute.
Promoting Effective Coordination

Toward Recovery Objectives
Executing the plan will require efficient coordination of a multi- can help coordination by alerting the IHRC to their plans at
tude of different stakeholders. The IHRC will focus on improv- an early stage. Donors and project implementers can also help
ing two aspects of its coordination efforts to facilitate the effective by registering with the IHRC all of their ongoing or planned
implementation of its plan. projects, including those that were started before the IHRC
was created.
As the IHRC continues to increase its number of experts work-
ing on priority sectors, they will increase outreach to the affect-
ed communities and all the relevant stakeholders in their sector.
They will also take a more active role in shaping important
Ensuring Transparency and
projects earlier in their development to make sure they align Accountability
with targets and can be implemented quickly. The IHRC recognizes that bringing transparency and account-
ability to the recovery is necessary to maintain the credibility of
The IHRC will also add more resources to communication
the recovery effort and maximize the support provided by inter-
and project review to help ease the process for project propo-
national donors.
nents. It will work to make the project-submission system less
confusing and provide better technical support. There are several key initiatives that the IHRC has created to in-
crease transparency and accountability.
Of course, coordination can only happen if all the stakehold-
ers involved are willing to work together. Project proponents The IHRC is currently staffing the Performance and Anti-
What I Want to Achieve With

W
orking at IHRC will hopefully ful-
the IHRC fill my hunger to actively partici-
pate in Haiti’s recovery process. I would
D
uring the next 11 months, I would like to contrib-
like to be able, at the end, to shout
ute mainly to a better articulation between the
out loud that I was present and have
IHRC and the sector-tables mechanism in the prospect
worked to guarantee that our fellow citi-
of an effective aid management under Haitian govern-
zens have access to health care, decent
ment leadership.
housing, education, security, justice, and infrastructure, that
Emmanuel Calixte they have gained back their dignity as human beings and no
IHRC Project Review and Standard Setting Officer longer consider eating three times a day and having electric-
ity 24/7 to be a luxury.
I
imagine a day in the life of the IHRC where a staff full I would like to be able to prove that in Haiti, we can
of energy, creativity, enthusiasm, and vision is hard at still have some quality life; that we can go out without fear-
work under the tent and in meetings throughout Haiti. ing violent protests or kidnappings; and that our children can
The goal: a Haitian-led and Haitian-centric approach to be raised in a favorable environment and are not forced to
lead Haiti to a place when she can be, once again, the abandon their dreams.
Pearl of the Antilles. I still have faith. I still believe in a better future for
Haiti, and I am grateful to the Canadian International Devel-
Kysseline ChÉrestal
opment Agency for giving me this opportunity.
HR Consultant
Alexandra Dorcéan
Senior Administrative Assistant
Corruption Office (PAO), which was approved by the board at people access information, the IHRC will try to reach the broadest
its meeting of October 6, 2010. The PAO will play a major role audience possible through radio, print, and the web.
in monitoring projects approved by the IHRC, ensuring they
Finally, the IHRC’s information technology group has been hard
follow good business practices and deliver what they promised.
at work making a database of recovery and development activities
It will help prevent potential corruption through risk assessment
in Haiti available to the public and donors online. The tool will
and monitoring and intervene when fraud is detected. And its
provide valuable project output, sector, and budget information,
monitoring of projects’ progress will provide the information the
enabling anyone to follow on-the-ground progress and providing
IHRC needs to update the public on how help is reaching people
actionable information to enable donors and implementers to as-
in need. The IHRC expects for the PAO to be operational within
sess needs and avoid duplicating efforts.
the next month.
The IHRC is also implementing a communications plan in order

to inform the Haitian people and the international community Building Strong Partnerships and
about what the Commission is doing and how the recovery Increasing Engagement
is progressing. This will involve increasing substantially the In the next year, the IHRC will work to expand and strengthen
frequency with which documents, updates, details of approved its unique position as a convening body for everyone involved in
projects, and point-of-contact information will be presented the recovery.
to the Haitian public. Recognizing the different ways in which
The IHRC will expand its outreach to stakeholder groups, creat- As mentioned, the IHRC is requesting that the government
ing more frequent forums to discuss candidly how cooperation second ministry employees to the IHRC, where they will sit
can improve. The IHRC will use its workshop model, which side by side with IHRC sector teams to work on strategy and
helped to markedly increase the productivity of cooperation be- project review. Through this close collaboration, IHRC and
tween the IHRC and ministries, to work with other vital part- ministry staff will forge stronger ties and learn from each other,
ners in the NGO community and the private sector. boosting everyone’s capacity to get things done.
Outreach is just the first step. Increasing the effectiveness of Finally, the IHRC secretariat will strive for closer collaboration
partnership also means increasing the capacity of partners. A pri- with the IHRC’s board members. It will continue to increase
ority for the IHRC in the next year will be to help the Haitian the frequency of contact between board meetings in order to
government build its capacity so it is as equipped as possible to make it easier for board members to provide help and guid-
lead the recovery effort after the IHRC’s mandate ends. ance and oversight. It will also seek to support the board as
it increases cooperation among members. The secretariat will,
The IHRC, together with the government, will build the govern-
at the board’s request, help to organize and support working
ment’s planning capacity by helping ministries lead sector tables
groups on important issues such as private-sector growth.
and establish supporting secretariats composed of ministry staff.
The IHRC will also help build capacity for project management
and implementation. For example, in debris removal, the IHRC
Transitioning to the Haitian
can help the Ministry of Public Works, Transport and Com-
munications (MTPTC) train its employees to oversee the day-
Development Agency at the End of
to-day management of projects. The IHRC will also continue the IHRC’s Mandate
to encourage and approve important capacity-building projects The IHRC was created as a steward to oversee the beginning
submitted by donors. of the recovery and help direct resources to urgent recovery
The IHRC’s Path Forward: each of the areas identified as critical to the reconstruc-
tion effort and the longer-term development of Haiti. Al-
A Message From the ready, strategies have been advanced for debris removal
Executive Director and housing in addition to the sector strategies already
S
ome three months after the earthquake of January 12, developed by the government for education, health and
the Haitian Parliament voted into law the Emergency agriculture.
Powers Act that, inter alia, created the Interim Haiti Re- Such strategies are critical if the IHRC is to induce
covery Commission (IHRC) “to carry out the Development the international partners (including NGOs) whose fund-
Plan” against which the international community had just ing and human resources are being relied upon to launch
pledged some U.S. $11 billion over the next five years of the reconstruction to channel those resources first and
which $6 billion was to come over the next 18 months. foremost into the defined priorities of the government.
In late April, President Préval and the government of Haiti But agreement is by definition a two-way street, which is
published the Executive Order (Arrêté) delimiting the scope why such strategies must also challenge the government
of action and defining its powers. The IHRC held its inaugu- to address long-neglected policy constraints: housing
ral board meeting on June 17, approving one small shelter financing processes, land titling and the devolution of
project and channeling U.S. $55 million in urgently need- public lands, lack of access to public education, and
ed budget support to the Public Treasury. Since then, the laws and procedures antithetical to investment and sus-
IHRC has approved projects ranging from the reconstruc- tained job creation, to name but a few.
tion of the State University Hospital to the development The Secretariat of the IHRC has worked tirelessly,
of an industrial park that could provide 60,000 new jobs with the support of the Co-chairs of the Commission and
in northern Haiti in the near future; from debris removal the entire board of the IHRC, since its establishment
to new agricultural credit mechanisms; from transitional barely seven months ago to put in place the strategies,
shelters to new roads; from short-term job creation to an structures and personnel required for the achievement
additional U.S. $150 million in budget support to the na- of its mission and one would hope, the transfer of its ac-
tional budget. cumulated resources and capabilities to a fully national
Those are the visible results. Removed from the un- entity that will have to be defined by Haiti’s leadership
trained eye, however, but perhaps even more critical to the over the course of 2011.
reconstruction of Haiti are the strategies that the IHRC, The work has only begun: the challenge is enor-
working in collaboration with the sector ministries of the mous, the opportunity is greater still.
government of Haiti, as well as the international community Gabriel Verret
and national stakeholders, has begun to put in place for Executive Director
priorities. The agency responsible for Haiti’s recovery and all it can to ensure a smooth transition. It will transfer the
development in the long term is the Haitian Development systems, tools, and processes that it created and piloted. It
Agency (HDA), which does not yet exist. will also help build the capabilities of those who will take on
the functions of the IHRC and ensure its experiences are cata-
Planning now for the long term is essential. The recovery was
logued so that Haitians and the international community can
never expected to last only 18 months. Recoveries from disasters
benefit from the lessons it has learned.
of a similar scale took much longer.
Whatever the Haitian government decides, the IHRC will do

HOW EVERYONE CAN HELP

What the Recovery Needs to Succeed
The previous sections of this report demonstrate the IHRC’s high

aspirations for itself. The IHRC’s staff will work tirelessly to do What Donors, Investors, and
whatever it can with the resources it has to accomplish the IHRC’s Implementers Can Do Now
goals and targets. The Haitian people deserve nothing less.
n Expedite implementation of existing projects
But the IHRC is not alone in working for the Haitian people.
There are many groups working toward the same goal – do- n Develop new projects in line with strategic targets
nors, project implementers, the government, investors, private
enterprises, and individual citizens. All have a vital role to play n Fund existing projects that are not fully funded
in Haiti’s recovery.
There are three areas in particular where the IHRC needs addi- n Fund new, strategic projects and contribute to the HRF
tional help: addressing urgent recovery needs, providing fund-
ing for priority projects, and identifying additional staff sup- n Provide staff and technical expertise
port to scale up its operations.
waterdotorg
A Call to Action From the ■ Expertise. All partners have valuable skills, resources,
Co-Chairs and capacities that can continue to contribute to the re-
T
he challenges Haiti faces are immense and require an covery process. We hope that partners with specific ex-
unprecedented, coordinated effort from donors, NGOs, pertise, particularly within the strategic target areas, will
the private sector, the Diaspora, and the Haitian government. provide short-term guidance to specific projects, support
There are several ways everyone can work with the IHRC to IHRC board working groups, and support the sector tables
move the recovery process forward quickly and successfully. that help expand the capacity of the Haitian government.
■ Strategic Plan. The IHRC has developed a strategic ■ Continued Engagement. As the groundwork for re-
plan to guide efforts on specific priorities that make the construction continues to be laid, and as the emergency
most immediate and critical difference in the lives of the passes, it’s important that everyone continue to stay in-
Haitian people. In order to be successful, this plan re- volved with the IHRC. For example, board members can
quires broad input and constant refinement. We hope that engage in working groups and serve as the IHRC’s ambas-
stakeholders will work quickly with the IHRC to provide sadors to their organizations and networks to apprise them
feedback on the plan and help chart specific, thoughtful of the IHRC’s efforts and goals. Donors and NGOs can
next steps. In addition, we hope that any organization continue to submit projects and work with the IHRC to
proposing a project to the IHRC or making investments maintain transparency and accountability on the ground.
will do so in alignment with this plan and its targets. The private sector can work with the IHRC to define ways
Finally, the prime minister will continue to encourage to grow the private sector in Haiti. And the government
ministries to be committed to make quickly the policy can continue to work alongside the IHRC to create the
decisions necessary to help move the implementation of policies and conditions necessary to expedite the recovery
the plan forward. process and transition the IHRC’s responsibilities to the
government at the end of the IHRC’s mandate.
■ Funding. $990 million is urgently needed to carry out
the projects required to complete the IHRC’s strategic As always, we appreciate your collaboration and assis-
plan. Donors can help fill this gap by directing funding to tance and look forward to working together over the weeks
the targets identified in the strategic plan and by provid- and months ahead.
ing unrestricted funds to the Haiti Reconstruction Fund.
As announced at the December 14 board meeting, if do-
nors were to contribute half of their unallocated funds, it
would result in another $750 million that the IHRC could
Jean-Max Bellerive
put to work to accelerate and execute recovery plans.
■ Staffing. The IHRC will need to reinforce its capacity in

certain areas, particularly with regards to sector experts.
We ask that donors, NGOs, and government ministries that William J. Clinton
Co-Chairs of the Interim Haiti Recovery Commission
have the capacity to do so loan us qualified staff who can
help address the challenges that lie ahead. We also would
welcome the participation of the Haitian Diaspora and the
private sector to identify and recruit qualified candidates
for these positions.
Addressing Urgent Recovery Needs In many cases, the success of a project or program is dependent on
a given policy decision being made (such as designation of dump
To achieve the targets in the IHRC’s cross-sector plan, the sites for debris) or an institutional enabler being put in place (such
IHRC needs donors and project implementers to develop spe- as the provision of land title). Many stakeholders, government
cific programs and projects that align with the targets, and en- among them, can help to inform these issues.
sure their timely implementation.
For these topics, the natural points of contact will be the
Further, donors and implementers of already approved projects IHRC’s team of sector leads. If you wish to contact a sector
need to do whatever they can to achieve results on the ground team lead, please send an email to info@cirh.ht with a descrip-
as quickly as possible; for example, by using emergency or ex- tion of your inquiry or suggestion, and it will be forwarded to
pedited procedures. the appropriate person.
Message From Norway on the time down the road, they may hold the IHRC to account by
comparing its input with its output. This is really unique.
Role of the IHRC Second, legitimacy. An intriguing characteristic of
T
he Interim Haiti Recovery Commission – the IHRC – is the IHRC is the broad participation on the Haitian side.
clearly the most innovative creation in the international To ensure true Haitian ownership, it was decided that the
community’s response to the devastating earthquake in Haiti number of Haitians should be equal to that of foreign mem-
in January 2010. In short, it is the coordination body for the bers. New groups therefore have an important voice in or-
recovery efforts in Haiti and as such represents an ambitious ganizing the development of their country, notably national
partnership between Haitian and foreign actors. NGOs, civil society, businesses, and the Haitian diaspora,
Before the earthquake, Norway was never among the to mention some. Experience from many countries tells us
main donors in Haiti. After the earthquake, when we wanted that such groups have important contributions to make.
to make a substantial contribution, we saw a potential in this The fact that they now have a seat on the Commission is
new Commission and were keen to have a seat on it. Other therefore very good news indeed, provided all members of
donors may similarly have seen the IHRC as a better provider the IHRC have sufficient facilities and support in order to
of coordination between donors and recipients and thus have fulfill their mandates and communicate with their respec-
been more willing to contribute financially. The IHRC has tive constituencies. Should they lack such facilities, they
thus probably contributed to increased international finan- must be provided for by the Commission.
cial support to Haiti. To sum up, the IHRC represents an innovative ap-
This is good, but in my view, there are two other as- proach to complex, large-scale reconstruction and devel-
pects that are even more crucial. opment efforts. It is also an opportunity for usually under-
First, transparency. The IHRC is the embodiment of a represented groups in Haitian society to make their voices
more transparent way to organize international development heard. That – in my view – is why the IHRC is critical to the
cooperation. By declaring that all development projects must continued recovery efforts in Haiti.
be approved by the Commission and by making all the docu-
Ambassador Espen Rikter-Svendsen
ments and Acts of the Commission publicly accessible on
Norwegian Special Envoy to Haiti
the Internet, the people of Haiti (as well as donors, journal-
ists, and others) can easily look into what is going on. Some-
Providing Funding for Priority Projects

Haiti needs considerable resources to meet the challenges
A Message From the
ahead. Realizing the targets in the Strategic Plan for the Re- Representative of the Haitian
mainder of the IHRC’s Mandate will alone require approxi- Business Community on the
mately $1 billion beyond current commitments. This cost Board of the IHRC
is considerable, but it represents only a fraction of the more
T
he IHRC plays a major role in the reconstruction
than $5 billion (not including debt relief ) pledged at the New
of Haiti. The broadly encompassing composition
York City donors conference in March 2010 and the $1.5
of its board reflects a necessity to involve the Haitian
billion of those pledges that is still unallocated for 2010 and
people in the decision-making process for the actions
2011 (as of November).
and activities that are to be selected and financed.
The future of IHRC will be bright as long as a
communication strategy and action plan is laid out in
Important Projects That Are Still Not a manner that increases the transparency over projects
Fully Funded approved and the implementation of the activities. It is
crucial that the Haitian population, to whom the IHRC
n Project to expand the water and sanitation network in
is accountable, has access to adequate information
Port-au-Prince and create additional coverage is missing
about the achievements of the commission and how
more than $80 million out of a $200 million budget
the projects being implemented will affect their lives.
To accomplish this, it is imperative that the IHRC
n Reconstruction of the Sanatorium of Sigueneau in
quickly release its planned dashboard that will list all
Leogane to treat lung-related illness needs additional
$8 million in funding projects financed, the geographical area to be covered,
the population to benefit from them, the activities im-
n Project to construct school buildings needs $10 plemented to date, the results achieved, and the im-
million out of a $25 million budget pact expected and obtained.

Transparency is a critical issue in the success
of the Commission. Donors and the IHRC, through its
Performance and Anti-Corruption Office, must work
very hard together to show exactly where money flows
and that it is being used to benefit the population. This
is an absolute must in our quest to ensure that the
IHRC is seen as a beacon of anti-corruption by a popu-
lation that has become suspicious about development
activities that in the past rarely changed their lives but
mostly benefited others.
This is an urgent call to action to the IHRC
secretariat, my fellow board members, donors, and
implementers.
Reginald Boulos, M.D.

Donors should accelerate their disbursements to already

Staff and Technical Support
approved projects in alignment with the strategic plan.
Further, donors should channel future contributions to The IHRC is encouraging donors, NGOs, ministries, and pri-
projects that focus on achieving the targets outlined in the vate firms to provide second skilled people to the IHRC for the
plan. This requires that donors directly fund projects that remainder of its mandate. The IHRC would also appreciate
are explicitly targeted toward priority outcomes or provide the help of the Diaspora and private sector in identifying and
money to the HRF. recruiting good candidates. Additionally, targeted technical
expertise for specific, time-bound projects can prove valuable.
The HRF is and will continue to be an essential source of
funding for the strategic development priorities of the IHRC If you wish to discuss contributions of staff and technical as-
and the government of Haiti. To that end, the co-chairs are sistance, please write to info@cirh.ht, and your email will be
requesting that donors allocate at least half of their unallo- forwarded to the appropriate manager.
cated funds to the HRF. This could raise $750 million that
can be directed to projects that will help reach vital recovery
targets. The needs in Haiti are great, but there are also many
people and organizations that have the motivation, exper-
For funding topics, the IHRC’s projects team is the ap- tise, and resources to make a positive impact on many lives
propriate group to contact. They can be reached at and help Haitians create a bright future for their country.
projects@cirh.ht. For HRF-specific inquiries, please email in- Through the IHRC, a mechanism exists to direct help,
quiries@haitireconstructionfund.org. in whatever form it comes, to where it is needed most.
Anyone interested in helping Haiti rebuild is encouraged
to contact the IHRC to find out how they can contribute.
APPENDIX
2010 Recovery Activities and Results for 10 Largest Donors
Pledges 2010 and 2011
DONOR 2010 recovery activities
($ million)
pledged Cash Activities Highlights of achievements from grants

Disbursed1
Brazil 163.6 95.0 n Disbursed $55 million to the Haiti Reconstruction Fund in n Commenced training of 58 health workers, and signed five
May from its New York pledge, including $15 million in budget agreements in preparation for implementation of the health
support for the Government of Haiti. program in 2011.
n Initiated a health program totalling $94.5 million, from which
it has disbursed $40 million from its New York pledge.

n Supported over $14 million in technical assistance across 9
sectors, including agriculture, food relief, health, job creation,

justice, transport and water and sanitation.
Canada 325.0 89.2 n Disbursed $31.3 million to the Haiti Reconstruction Fund No information on results was available at the time of printing.
from its New York pledge. Please see the website of the Office of the Special Envoy for new
n Disbursed over $24 million and committed an additional information on achievements. The projects funded are expected
$107.8 million to grants from its New York pledge. Funds were to show results in the areas of school feeding, agriculture and
disbursed to the agriculture and education sectors. food security.
n Disbursed $33.9 million in debt relief as part of New York pledge.
n Disbursed an additional $55 million and committed $226
million from other funding sources for the recovery efforts.
EC 294.3 97.2 n Disbursed over $76 million in budget support to the n As one of the highest contributors to budget support in 2010,
Government of Haiti from its New York pledge. the EC helped restore the vital functions of the state and
n Disbursed over $21 million and committed an additional ensure its economic and fiscal stability.
$352 million to grants from its New York pledge. Funds were
disbursed to grants in democratic institutions, disaster
management and prevention, education and job creation.
n Disbursed an additional $49.7 million from other funding
sources for the recovery efforts.
France 272.2 121.5 n Disbursed $26.3 million in budget support to the Government n Initiated planning for the reconstruction of the
of Haiti, including $6 million through the Haiti Reconstruction State University Hospital (co-financed with the US).
Fund from its New York pledge. n Initiated support to land surveying and reform in five sites to
n Disbursed $19.6 million and committed an additional $44 set up a system to secure land rights.
million to grants for the recovery efforts from its New York n Funded training initiatives in the agriculture, health and
pledge. Funds were disbursed to grants in the following justice sectors, trained an additional 100 public servants
sectors: agriculture, democratic institutions, economic rebuild- and provided scholarships to 10 public servants in French
ing, education, national planning and local development, universities.
regional hubs and urban development and strengthening n Awarded scholarships for 350 Haitian students in French
the administration. Universities, and supported e-learning programs in 12 Haitian

n Finalized $75.6 million in debt relief from its New York pledge. universities.
n Provided technical assistance to the Ministry of Education,
including for teacher training.
IDB 544.0 176.1 n Disbursed $50 million in budget support to the government n Built and equipped 700 provisional classrooms in 50 schools,
from its New York pledge. and provided training to 350 engineers and architects in
n Disbursed $126 million in grants to recovery activities from earthquake and hurricane-proofing.
its New York pledge. Funds were disbursed to the following n Financed the expansion of the water distribution network in
sectors: agriculture, education, disaster management and Saint Marc as well as the installation of home meters. Service
prevention, finance, health, housing, reconstruction, strength- has increased from 9 hours per week to 9 hours per day, the
ening the government, transport and water and sanitation. highest in all urban zones in Haiti.
n Helped the state company EDH to restore service to 80% of
the pre-earthquake level.

n Established the Partial Credit Guarantee Fund.
Continued On Next Page

pledged Cash Activities Highlights of achievements from grants

Disbursed1
Norway 107.0 57.0 n Disbursed $32 million to the Haiti Reconstruction Fund from No information on results was available at the time of printing.
its New York pledge, including $15 million in budget support Please see the website of the Office of the Special Envoy for new
for the Government of Haiti. information on sector allocations and achievements.
n Disbursed an additional $18 million in grants from its
New York pledge.

n Disbursed an additional $7 million in debt relief from its
New York pledge.
Spain 258.2 141.9 n Disbursed $141.9 million and committed an additional $20.6 No information on results was available at the time of printing.
million in grants to support the recovery efforts from its New Please see the website of the Office of the Special Envoy for new
York pledge. Funds were disbursed to the following sectors: information on achievements. The projects funded are expected
education, housing, reconstruction and water and sanitation. to show results in the areas of housing, reconstruction and water
n Disbursed $15 million in grants and $36.6 million in debt and sanitation.
relief from other funding sources in support of recovery efforts.
USA 1,151.8 324.0 n Disbursed $120 million to the Haiti Reconstruction Fund in n Employed over 350,000 people through cash-for-work jobs,
November from its New York pledge. injecting $19 million into the economy.
n Disbursed $204 million in debt relief in November from its n Cleared 1.2 million cubic meters of rubble.
New York pledge. n Invested more than $63 million to build more than 12,000
n Obligated an additional $405 million from other sources of transitional shelters—half of the total number built to date.
funding for the recovery efforts. n Provided primary health care to 4.8 million; trained 2,200
health care workers; immunized 1 million; provided anti-

retrovirals for 27,900 HIV+ individuals; signed MOU with
France and Haiti to rebuild primary University Hospital in
Port-au-Prince.
n Cleared rubble from 65 school sites, constructed 322 primary
school classrooms, and distributed 144,900 textbooks to

enable 80% of children to return to school.
n Increased agriculture production by 75% in USG supported
corridors by providing fertilizers, seeds, tools, technical

assistance; repairing 95 km of irrigation canals; building
40 km of roads; and planting 1 million trees.
n Initiated plans for 2 industrial parks with 20,000 jobs; opened
the Haiti Apparel Center to train over 3,000 people/year in

garment fabrication; launched the Commercial Registry with
Commerce Registry, which already resulted in a reduction from
195 to 105 days required to start a business.
n Built space for the President, Prime Minister, Parliament, and
three key ministries.
Venezuela 1,335.5 523.2 n Disbursed $117.7 million in grants from its New York pledge. n Built 10 diagnostic centres and provided energy to
Funds were disbursed to: disaster management and preven- health clinics.
tion, education, energy, health, regional hubs and urban n Supported the remodelling of the Cap Haitien airport.
development, and strengthening the government. n Supported efforts to increase the efficiency of rice production.
n Provided $405.5 million in debt relief from New York pledge.
World 227.2 128.6 n Disbursed over $42.5 million in budget support to the No information on results was available at the time of printing
Government of Haiti from its New York pledge. on achievements to date. Please see the website of the Office
Bank n Disbursed over $86.1 million and committed an additional of the Special Envoy for new information on achievements. The
$184 million to grants from its New York pledge. Funds projects funded are expected to show results in the areas of
were disbursed to grants in the following sectors: agriculture, agriculture, disaster management and prevention, economic
disaster management and prevention, economic rebuilding, rebuilding, education, energy, transport, strengthening the
education, energy, transport, strengthening the administration administration and water and sanitation.
and water and sanitation.
1
Disbursed funds are those that have been transferred to an implementing partner (e.g., the Government of Haiti, an NGO or other non-state service provider).
Haiti One Year Later: The Progress to Date and the Path Forward
To find out more, visit
www.cirh.ht
The Interim Haiti Recovery Commission (IHRC) was created by Haitian

presidential decree on April 21, 2010, in the wake of the devastating
earthquake that struck Haiti on January 12, 2010. The mission of the IHRC
is to undertake the expeditious planning and coordination of development
COVER PHOTO: Allison Shelley
projects and priorities, including reviewing and approving projects and

programs funded by bilateral and multilateral donors, NGOs, and the private
sector. The IHRC is co-chaired by Haitian Prime Minister Jean-Max Bellerive
and President Bill Clinton and is guided by a board, which includes Haitian
and non-Haitian stakeholders in reconstruction efforts.
Exhibit 6
Extraordinary Conditions:
A Statutory Analysis of Haiti’s Qualification for TPS
Table of Contents
Acknowledgements i
Executive Summary 1
I. TPS Designation: Statutory Criteria 4
II. Introduction: An Unprecedented Natural Disaster and Public Health 7

Crisis—Compounded by Hurricane Matthew
III. Country Conditions: Extraordinary and Temporary Conditions 9

Remain that Prevent the Safe Return of Haitian Nationals
9
A. Country Condition 1: IDP Camps Have Shut Down, but
Displacement Persists
B. Country Condition 2: The Earthquake Decimated Homes and 11

Physical Infrastructure—and After Years of Rebuilding, Matthew
Caused Setbacks
C. Country Condition 3: Public Health—From Earthquake to 15

Outbreak—Incomplete Cholera Recovery Places Public Health
at Risk
D. Country Condition 4: Continued Food Insecurity Constitutes a 18

Major Threat to Potential Returnees
IV. Haiti Is in a Moment of Unique Transition—The Need for Stability Is 22

Particularly Acute and Would Be Jeopardized by the Termination of TPS
V. Conclusion 26
Cover Photo: Canaan, Haiti. January 2011. Credit: Ellie Happel
c
EXTRAORDINARY CONDITIONS: A STATUTORY ANALYSIS OF HAITI’S QUALIFICATION FOR TPS

Acknowledgements
Global Justice Clinic

The Global Justice Clinic (GJC) at New York University School of Law*
provides high-quality, professional human rights lawyering services to
individual clients and nongovernmental and intergovernmental human
rights organizations, partnering with groups based in the United States and
abroad. Acting as legal advisers, counsel, co-counsel, or advocacy partners,
GJC students work side by side with human rights activists from around the
world. Since its founding, GJC has worked on human rights issues in Haiti.
Margaret Satterthwaite is Director of GJC; Ellie Happel is Director of the GJC
Haiti Project and Staff Attorney.
Principal Authors Contributing Authors Editor
Ellie Happel Hira Ahmed Margaret L. Satterthwaite
Nathan Yaffe Marc Cohen, Oxfam America
Jennifer Ismat
Selene Nafisi
Advice, Editorial Review, Cite Checking Photos

and Other Support Hira Ahmed Ellie Happel
Jessica Hsu Deirdre Dlugoleski Jessica Hsu
Nikki Reisch Ava Haghighi Allison Shelley
Alyssa Isidoridy
Copy Editing Alexander Levin Design and Layout
Boomie Aglietti Selene Nafisi John Emerson
Sara Robinson SooYoung VanDeMark
Extraordinary Conditions: A Statutory Analysis of Haiti’s Qualification for TPS

© October 2017, Global Justice Clinic.
* Communications from NYU law clinics do not purport to represent the school’s views, if any.
i

Executive Summary
Since the U.S. government designated Haiti for extraordinary and harsh, they are temporary. The
Temporary Protected Status (TPS) in January Haitian government has made impressive prog-
2010 after one of the world’s worst natural disas- ress in reducing the number of cases of cholera
ters, the country has undergone two additional and resulting deaths. As of 2017, Haiti finally has
catastrophies: the outbreak of cholera, intro- an elected president and a full parliament, for the
duced into Haiti’s waterways through reckless first time since 2012.
sanitation at a United Nations military base, and This report presents the extraordinary con-
Hurricane Matthew, the strongest hurricane to hit ditions in Haiti that prevent nationals from safely
Haiti in more than half a century. The Department returning today. This report also discusses the
of Homeland Security (DHS) designates countries unique political moment in which Haiti finds it-
for TPS in cases of ongoing armed conflict, natu- self—a moment which contributes to the coun-
ral disaster, or other extraordinary and temporary try’s challenges with stability and security, im-
conditions that prevent the nationals of those peding its ability to safely receive its nationals.
countries who have emigrated from safely return- But it also shows where progress has been made,
ing to their home country. The DHS redesignated demonstrating that the conditions described
Haiti for TPS in 2011, emphasizing the gravity of here—while together constituting a pressing so-
the damage that the earthquake had caused and cial and public health crisis—remain temporary.
the severity of one of the world’s worst cholera
outbreaks. TPS has been extended for Haiti four Displacement Continues
times since redesignation.1 The Haitian government is still working to provide
The conditions for which TPS is in effect effective solutions to the massive displacement
remain, making it unsafe for Haitian nationals to caused by the 2010 earthquake and Hurricane
return. These conditions include a housing crisis Matthew. Immediately after the 2010 earth-
that has left families stranded in camps and in un- quake, more than 2.3 million individuals were
safe, makeshift shelters to this day; a cholera out- displaced.3 As of September 2017, an estimated
break, sparked by United Nations troops just 10 37,967 of those uprooted by the earthquake re-
months after the earthquake, which has caused main in formal displacement camps, though the
nearly 10,000 deaths and more than 815,000 cas- data is incomplete and likely does not reflect the
es of illness—in a country of fewer than 11 million full extent of the problem.4 The ongoing migration
people;2 and a period of extreme hunger and mal- crisis on the Haiti-Dominican Republic border,
nutrition caused by drought and storms and ex- coupled with Hurricane Matthew’s recent devas-
acerbated by the economic shocks of the earth- tation of homes and livelihoods in the southern
quake and Hurricane Matthew. Matthew hit one of departments of Haiti, has caused further home-
Haiti’s key food-producing areas. lessness. Hurricane Matthew displaced 180,000
Although these events and conditions are individuals in October 2016, many of whom have
1
fled to overcrowded and unsafe living situations from the international community, the ongo-
in Port-au-Prince and other larger cities to ac- ing epidemic continues to make Haiti unsafe for
cess shelter, food and education.5 Thousands return at this time. In 2016, Haiti was home to
more Haitians live in squalid camps on the Haiti- nearly one in three cases of cholera worldwide.8
Dominican Republic border. After Hurricane Matthew, the monthly number
of suspected cholera cases more than doubled,
Unsafe Housing Remains a Challenge from 2236 in September 2016 to 5100 in October
It is unsafe for Haitians living in the United States 2016.9 Hurricane Matthew not only exacerbat-
to return to Haiti at this time because of the ed the cholera epidemic but also has impeded
continuing housing crisis and the degradation progress on the necessary infrastructure to keep
of living conditions in Haiti occasioned by the Haitians safe from cholera. The United Nations
earthquake, which have been exacerbated by has projected that 30,000 people in Haiti will fall
Hurricane Matthew. Most of the post-earthquake ill with cholera by the end of 2017.10 The Haitian
reconstruction and response efforts were tem- government needs more time to effectively ad-
porary measures, leaving individuals vulnerable dress cholera; today, it is focused increasingly on
to inadequate housing conditions and to further long-term control efforts, such as improving the
devastation from future natural disasters. In 2016, water and sanitation systems necessary to pro-
Hurricane Matthew destroyed 104,000 houses vide a durable cholera solution.
and damaged 133,000 others, affecting the well-
being of more than two million people.6 Living Food Insecurity Spiked
conditions across Haiti—particularly in internally Following Matthew
displaced person (IDP) camps and informal set- Recent Caribbean-wide drought and violent hur-
tlements—continue to be largely inadequate and ricanes have caused a spike in food insecurity
unsafe. This report profiles Canaan, a makeshift, in Haiti. Between 2012 and 2015, Haiti’s food se-
informal settlement outside of Port-au-Prince curity showed overall improvement, but food se-
created shortly after the earthquake. Upwards of curity declined rapidly from 2015 to 2016 due to
200,000 people live in Canaan. The conditions
7
natural disaster.11 In 2016, Hurricane Matthew hit
there are dire: individuals lack access to basic one of Haiti’s key food-producing areas, affecting
government services—including water, health two million people and killing more than 350,000
care, and waste management—and violence has farm animals.12 At the beginning of August 2017,
erupted at times due to uncertain land tenure. 2.4 million Haitians (22 percent of the population)
Canaan is but one example of the many informal faced acute food insecurity.13 Hurricanes Irma and
and unsafe settlements across Haiti into which Maria skirted north of Haiti but caused significant
many returning Haitian nationals might be forced damage, turning streets into rivers and destroy-
to move, due to insufficient housing stock across ing farmland.14 The nation remains the most food-
the country. insecure country in the Western Hemisphere.15
Given the follow-on disasters of cholera and
Cholera Continues to Kill Hurricane Matthew, the conditions that led the
While Haiti has made considerable progress in DHS to designate Haiti for TPS continue to exist.
responding to the cholera outbreak with support Haiti’s government, overwhelmed by the need to

cope with these devastating conditions, has re- nationals. In addition, the Haitian economy de-
quested an extension of 18 months. The loss of pends on remittances from its diaspora: Haitian
TPS would risk undermining the progress that TPS beneficiaries working in the United States
Haiti has made addressing post-earthquake con- support an estimated 250,000 of their relatives in
ditions. Haiti is incapable of safely receiving its Haiti.16
3
I. TPS Designation: Statutory Criteria
On January 21, 2010, the Department of Homeland the nation. It also noted the emergence of a new
Security (DHS) designated Haiti for Temporary extraordinary condition: cholera. It concluded
Protected Status (TPS) for 18 months, the maxi- that Haitian nationals “still cannot safely return
mum time allowed under law for designation. As 17
due to continued extraordinary and temporary
stated below, the statute provides that the DHS conditions.”24 The DHS extended TPS for Haiti for
secretary may extend TPS designation as long as 18 months and, at the same time, redesignated
conditions for which TPS is in effect remain. Haiti for TPS, which permitted individuals who ar-
In 2011, 15 months after the earthquake, the rived in the United States before January 12, 2011,
DHS reviewed conditions in Haiti. The agency to apply for and receive TPS.25
documented the gravity of the catastrophic blow Many countries have had TPS longer—in
the earthquake had delivered Port-au-Prince and some cases, far longer—than Haiti, reflecting the
Temporary Protected Status

Temporary Protected Status (TPS) is an immigration status granted under the Immigration and
Nationality Act (INA) that provides humanitarian protection to noncitizens who are unable to
safely return to their country of origin due to an ongoing armed conflict, environmental disaster,
or “other extraordinary and temporary conditions.”18 TPS does not provide a path to permanent
residency. Rather, the status provides protection against deportation, the opportunity to obtain
an employment authorization document (EAD), and travel authorization.
Individuals from countries designated for TPS must apply to receive the status. To receive TPS,
an individual must have been “continuously physically present” since the date of most recent
designation (Haiti’s initial designation date of January 10, 2010, was updated when Haiti was
redesignated for TPS on July 23, 2011). In addition, applicants must not have been convicted of
any felony or two or more misdemeanors; must not be found inadmissible as an immigrant under
INA section 212(a) (which presents the classes of foreigners ineligible for visas or admission);19
and are subject to all of the mandatory bars to asylum—for example, participation in persecution
of another individual or engaging in terrorist activity.20
The DHS can grant TPS for 6, 12, or 18 months. The DHS Secretary must perform a review of the
designated countries at least 60 days prior to the expiration of the designation period,21 and if
the conditions for such designations22 are found to continue to exist, the DHS may extend TPS to
the country for an additional 6, 12, or 18 months.23 The DHS Secretary makes the decision after
consultation with appropriate government agencies. TPS is terminated when the DHS determines
that the foreign state no longer meets the conditions for designation.

The DHS granted TPS to Haiti due to the earthquake ((B)(i)), Haiti’s temporary inability to
adequately handle the return of its citizens ((B)(ii)), and the existence of “extraordinary
and temporary conditions … that prevent aliens … from returning to the state in safety”
((C)). In addition, the Haitian government has officially requested (B)(iii) designation.
§244 b) Designations: 1) DHS can designate a foreign state for TPS only if:
A) the Attorney General finds that there is an ongoing armed conflict within the state and,
due to such conflict, requiring the return of aliens who are nationals of that state to that
state (or to the part of the state) would pose a serious threat to their personal safety;
B) the Attorney General finds that-
i. there has been an earthquake, flood, drought, epidemic, or other environmental
disaster in the state resulting substantial, but temporary, disruption of living condi-
tions in the area affected,
ii. the foreign state is unable, temporarily, to handle adequately the return to the state
of aliens who are nationals of the state, and
iii. the foreign state officially has requested designation under this subparagraph; or
C) the Attorney General finds that there exist extraordinary and temporary conditions in
the foreign state that prevent aliens who are nationals of the state from returning to the
state in safety, unless the Attorney General finds that permitting the aliens to remain tem-
porarily in the United States is contrary to the national interests of the United States.
INA §244 b) 3): Periodic review, terminations, and extensions of designations:

A) A periodic review. At least 60 days before end of the initial period of designation, and
any extended period of designation, of a foreign state (or part thereof) under this section
the Attorney General, after consultation with appropriate agencies of the Government,
shall review the conditions in the foreign state (or part of such foreign state) for which a
designation is in effect under this subsection and shall determine whether the conditions
for such designation under this subsection continue to be met….
B) Termination of designation. If the Attorney General determines under subparagraph
(A) that a foreign state (or part of such foreign state) no longer continues to meet the
conditions for designation under paragraph (1), the Attorney General shall terminate the
designation by publishing notice in the Federal Register of the determination under this
subparagraph (including the basis for the determination)….
5
reality that extraordinary and temporary condi- TPS for Haiti four times. It has noted that condi-
tions cannot always be remedied within a short tions of designation for TPS remain and, more
time. Somalia has held TPS for 26 years; Liberia recently, that new, extraordinary conditions
held TPS for 26 years; Sudan held TPS for 20 (tropical storms, instability and increasing food
years; Honduras and Nicaragua have each held insecurity) have emerged that make Haiti unable
TPS for 17 years; El Salvador has held TPS for 16 to safely receive its nationals. Most recently, in
years; Sierra Leone held TPS for 10 years; and July 2017, the DHS extended TPS for Haiti for a
Guinea-Bissau held TPS for 9 years. 26
“limited period” of six months, noting progress
Even under the best of pre-disaster cir- and concluding that conditions that merit exten-
cumstances, recovery from major disasters—of sion remain.29
the sort Haiti has endured three separate times This report demonstrates that the condi-
since 2010—can take many years, as the experi- tions for extension remain—and that, if anything,
ence of New Orleans following Hurricane Katrina, the July 2017 extension overestimated progress
for example, exemplifies. 27
The Department of in key areas. While Haiti has made partial but sub-
Homeland Security Disaster Relief Fund reported stantial progress toward stabilizing the extraor-
to Congress that for 2017, it anticipates spending dinary and temporary conditions caused by the
USD 439 million on relief efforts related to hurri- earthquake and cholera outbreak, it is definitively
canes Katrina, Rita, and Wilma. The three hurri- not yet ready for the safe return of its nationals.
canes hit in 2005, twelve years ago. 28
Further, the termination of TPS for Haiti could
Since redesignation, the DHS has extended have destabilizing consequences.
Government of Haiti Requests 18-Month Extension

On October 4, 2017, the Haitian Ambassador to the United States, Paul G. Altidor, formally
requested30 an extension of TPS for 18 months on behalf of Haiti’s government. Ambassador
Altidor invited U.S. officials to visit Haiti to “personally see the efforts underway to address the
issues that warranted TPS for Haiti in the first place.” Ambassador Altidor explained that the
Haitian government “sincerely believe[s] that once you see the conditions on the ground, it will
become clear that an additional eighteen months extension or re-designation is in the shared
national interests of both Haiti and the United States.”31
Ambassador Altidor wrote that conditions caused by the 2010 earthquake, the cholera outbreak,
and Hurricane Matthew—and the more recent hurricanes Irma and Maria—have slowed Haiti’s
post-earthquake recovery but that he is hopeful: the administration of President Jovenel Moïse,
he notes, is “in the process of implementing a robust and expansive recovery and redevelopment
plan …. The redevelopment plan is meant not only to significantly improve the lives of Haitians
at home, but also to encourage the return of those living overseas to contribute in the long-term
sustainability and economic prosperity of our country.”32

II. Introduction: An Unprecedented Natural Disaster and

Public Health Crisis—Compounded by Hurricane Matthew
In 2009, Haiti was the poorest country in the temporarily in the United States would not be
Western Hemisphere. contrary to the national interest.”41
In 2010, a devastating earthquake struck But the unprecedented devastation
Port-au-Prince, killing 222,570 people, displac- 33
wrought by the earthquake would soon be paired
ing 2.3 million others—roughly one quarter of the with another catastrophe of historic proportions:
population —and destroying more than 300,000
34
In October 2010, one of the most deadly cholera
homes. 35
In a matter of seconds, the earthquake outbreaks in modern history erupted. Haiti’s dev-
wiped out 120 percent of Haiti’s 2009 GDP. 36
astated infrastructure, including a public health
Further, the earthquake left Haiti hamstrung in system still reeling in the aftermath of the quake,
terms of response capacity: nearly 20 percent of was overwhelmed with the scale of the challenge
the civil servants were killed, and 60 percent of
37
posed by these twin disasters.
government, administrative, and economic infra- In the ensuing years, Haiti has struggled
structure—including courts—was destroyed. 38
with the four country conditions that constituted
Indeed, the United Nations’ humanitarian coor- the core of the crisis, and on which the DHS has
dinator recounted that the international relief based its TPS designation, redesignation, and
effort “swamped” a government that had been extensions: (1) more than two million internally
“weakened” and was “unable to take charge of [] displaced persons (IDPs); (2) decimated housing
coordination.” 39
and public infrastructure; (3) intertwined public
Earthquake damage debilitated Haiti’s al- health emergencies, including cholera; and later
ready fragile political state, weakening the rule (4) hunger and malnutrition, exacerbated by the
of law and making the Haitian people more vul- earthquake and cholera epidemic. Although Haiti
nerable to violence, including sexual and gen- is slowly recovering from the country conditions
der-based violence (SGBV). Conditions in Haiti, that underpin its TPS designation, it faces seri-
while poor, had been improving in 2009, but the ous challenges. In October 2016, natural disaster
January earthquake shook the nation into shock struck again, when much of Haiti was devastated
and crisis. by Hurricane Matthew, a Category 4 storm that
Five days after the earthquake, the struck with 145-mph winds. The worst hurricane
Department of Homeland Security (DHS) des- to hit Haiti in 52 years, Matthew caused Haiti USD
ignated Haiti for Temporary Protected Status 2.7 billion in damage.42 This latest major natural
(TPS).40 The DHS secretary found that “there disaster was a serious setback to a nation still
exist in Haiti extraordinary and temporary condi- striving to emerge from the dual calamities of
tions” preventing Haitian nationals from safely earthquake and cholera.
returning to Haiti. Further, the DHS found that This report describes Haiti’s fragile prog-
“permitting eligible Haitian nationals to remain ress in each of the four areas highlighted above,
7
and explains why an influx of returnees from the TPS is terminated, since returnees to Haiti would,
United States at this time would jeopardize that in many cases, be accompanied by their families.
progress, potentially sparking new crises. It also These families include 27,000 U.S.-born children
describes Haiti’s current political and security and nearly 5,000 Lawful Permanent Resident
transition. As the nation seeks to regain its foot- (LPR) or citizen spouses, along with other part-
ing, achieve political stability, and a professional ners and dependent family members.43 Thus, Haiti
police force, the destabilizing effects of a ma- could be facing the return of as many as 200,000
jor population influx would pose an acute risk to individuals. For the reasons detailed in this re-
progress and peace. port, forced return on this scale risks plunging
It is important to emphasize that an analy- our Caribbean neighbor back into the crisis from
sis that focuses exclusively on the number of TPS which it has steadfastly been seeking to extricate
beneficiaries (50,000) in the United States un- itself. Furthermore, the governing statute does
derstates the size of the potential influx to Haiti if not merit the termination of TPS.

III. Extraordinary and Temporary Conditions Continue to

Prevent the Safe Return of Haitian Nationals
Even as Haiti makes progress in remedying the In the immediate aftermath of the earthquake,
extraordinary and temporary country conditions roughly 2.3 million people, including more than
that justified the TPS designation, its progress 300,000 children, were displaced.45 This num-
in many respects remains fragile. Haiti’s efforts ber constituted more than one fifth of the Haitian
to improve country conditions suffered a serious population—the equivalent proportion of the U.S.
setback in 2016 when it was hit with the country’s population would mean 64 million Americans
most powerful hurricane in more than half a cen- displaced. In July 2010, when standardized data
tury. Thus, the conditions that led the Department first became available, there were an estimated
of Homeland Security (DHS) to designate Haiti for 1.5 million people registered in IDP46 camps.47 An
Temporary Protected Status (TPS) continue to ex- additional 600,000 were estimated to be in tem-
ist. First, more than 37,000 people remain in in- porary arrangements with host families outside
ternally displaced person (IDP) camps, and many the quake-affected area.48 The whereabouts of
tens of thousands more are displaced but not re- many hundreds of thousands more were simply
corded in official statistics because tracking ends unknown to the government and its international
when people leave formal camps or when camps partners.
are reclassified. Second, a housing and physical Displaced people, especially women and
infrastructure crisis means that many people have girls, faced heightened risks of sexual and gen-
left camps only to settle in equally inadequate der-based violence in the insecure environment
homes—many of which were damaged in the of the tent camps.49 According to one study of
earthquake—in neighborhoods where structurally pregnant teenagers after the earthquake, approx-
unsound buildings are the rule rather than the ex- imately two thirds reported that their pregnancies
ception. Third, Haiti continues to combat cholera had resulted from rape, while more than one third
as the disease sickens and kills Haitian people. reported trading sex for goods and services such
In addition to these conditions, which existed in as food or shelter.50 Young women were espe-
Haiti when it was last designated for TPS in 2011, cially vulnerable: through the end of 2011, surveys
food insecurity is now worse. found that more than 60 percent of all reported
rape cases involved a minor victim.51 The sexual
A. Country Condition 1: IDP Camps Have violence crisis afflicted camp-dwellers generally,
Shut Down, but Displacement Persists beyond just minors: in a survey of households in
Although the destruction of infrastructure and four displacement camps, 14 percent of respon-
housing was the most visible consequence of the dents reported that one or more members of the
earthquake, the plight of displaced families and household had been a victim of sexual violence.52
individuals has been the most lasting and difficult Those who left the camps often did not leave
to address. 44
by choice: a plurality were evicted from camps,
9
Figure 1: Displaced People Camp in Delmas 33, Port-au-Prince. January 2010. Credit:
Ellie Happel
while others left due to poor material conditions, the number of IDPs, the numbers dramatically
security concerns, or flooding caused by extreme understated the problem of insecure housing.56
weather events.53 Over time, service provision Indeed, at certain points, drops in numbers of re-
within the camps diminished, making living con- ported IDPs merely reflected a decision by IOM to
ditions in many camps dire 54
and further acceler- reclassify existing IDP sites.57 Thus, transitioning
ated involuntary departures from IDP camps. All off of the IDP rolls did not necessarily signify that
told, fewer than one in twenty residents of IDP a family had obtained safe housing; indeed, such
camps reported leaving because their home had falling numbers may have actually been associat-
been repaired. 55
As described in detail in the next ed with a decrease in livelihood security. Nothing
section, many returned to homes that were so illustrates how dramatically IDP figures understate
structurally unsound that a survey undertaken by the reality of displacement more clearly than the
engineers indicated the only safe course of action dire situation of Canaan.
was demolition. The existing crisis was dramatically exac-
Even according to the International erbated last year when Hurricane Matthew dis-
Organization for Migration (IOM), which was pri- placed 180,000 people78—a figure that humani-
marily responsible for tracking and reporting on tarian relief workers believe to be an undercount.

Displacements Due to Natural Disaster
2,300,000
806,377
515,961
333,667
0 0 0 0 0 180,000
2010 2011 2012 2013 2014 2015 2016
The conditions in the displacement centers were to the larger cities from Hurricane Matthew areas
described as “squalid,” and displaced families also make it nearly impossible for these host fami-
were again subjected to an increased risk of sex- lies to receive additional family members from the
ual and gender-based violence. Further, as after
79
United States if TPS were terminated.
the earthquake, IDPs experienced forced evic-
tions and forced closures.80 Finally, many of the B. Country Condition 2: The Earthquake
most vulnerable displaced people “fell between Decimated Homes and Physical
the cracks.”81 Most hurricane victims have not Infrastructure—and After Years of
received adequate aid needed to rebuild their Rebuilding, Matthew Caused Setbacks
homes, farms and businesses, and a severe hun- Given the scale of the challenge and the recent
ger crisis is spreading in the area. As a result, setbacks caused by Hurricane Matthew, new
many hurricane victims are migrating to other cit- housing plans need time to yield results. The
ies such as Port-au-Prince to access resources. problems of insecure housing—and the broad-
Often these living situations with family or friends er IDP crisis that comprised Country Condition
are overcrowded, squalid, and pose security risks 1—can be remedied only if there is sustainable
to women, especially young women. The migration progress in constructing durable housing. The
11
Canaan
Canaan, which sits on the hills above the
ocean approximately 20 kilometers north of
Port-au-Prince, is a jarring visual reminder of
the impact of the earthquake. It lies in plain
view, and challenges the notion that Haiti has
been able to provide an adequate solution to
its crisis of displacement. After withholding
aid for fear of drawing additional settlers, the
government and international organizations
have finally recognized the need to provide
services to, and support the development
of, Canaan. More time is needed to improve Figure 2: Canaan, February 2010.
Credit: Ellie Happel
living conditions and establish a government
presence. Canaan would be a likely destination
for TPS beneficiaries if forced to return to Haiti, and would no doubt see new insecurity and
discontent following a population influx.
Canaan is not a camp for internally displaced persons (IDPs).58 Rather, it is a makeshift
settlement that arose out of the devastation of the 2010 earthquake in Haiti.59 Residents of
Canaan have constructed most of the makeshift infrastructure in the area.60 Many live in shacks
or other shoddy housing constructed in a manner similar to that of homes that collapsed during
the earthquake.61 Before 2010, the area of Canaan was uninhabited.62 Individuals and families
started settling on the barren, windswept hills after President René Préval issued a presidential
decree declaring the area of Canaan a public utility zone. Although the decree never became
law, earthquake victims—desperate to escape the horrors of the tent camps but without other
options—settled in Canaan by the thousands.63 Today, an estimated 200,000 individuals live in
Canaan.64 The legal status of Canaan continues to be contested.65 Its residents thus live in great
insecurity and many now face forced evictions66 and, in some cases, violence.
Living conditions in Canaan are generally worse than the already poor living conditions in the
rest of Haiti. Canaan residents have less access to sanitation,67 waste management,68 and
healthcare69 than the average Haitian. Canaan is on exposed, wind-blown, dusty hills; dust
inhalation is a serious health risk.70 Cholera and malaria appear in waves.71 Residents have very
limited access to electricity.72
While residents demand greater access to basic services and opportunities for economic
participation, the government has no steadfast implementation strategies for developing

infrastructure or for creating economic opportunities.73 Even though UN Habitat and the
Haitian government agency in charge of reconstruction have jointly devised the Urban
Development Initiative for Canaan as a collaborative effort between international and local
actors, implementation of urban projects for Canaan remain incomplete.74 As yet, no plans exist to
assist residents in Canaan with housing construction.75 Finally, the exclusion of Canaan from the
International Organization for Migration (IOM)’s Displacement Tracking Matrix—which counts,
and tracks aid to, those displaced—has essentially prevented humanitarian interventions in
Canaan.76
Canaan illustrates that despite decreases in IDP figures, permanent solutions to Haiti’s
displacement crisis have yet to materialize. Closing or reclassifying IDP camps is no guarantee
of improved living conditions, and certainly not a sign that Haiti is ready to receive its nationals
back from the United States.77
possible return of more than 200,0000 nation- the Ministry and public administration buildings”
als could impede progress on housing, creating a in the capital, including the Presidential Palace,
bottleneck and sparking a new crisis as demand Parliament, and the country’s highest court.86
outstrips capacity. TPS should be extended to al- The disaster touched every sector of the
low new housing efforts to come to fruition. Haitian economy and every facet of Haitian life.
The earthquake destroyed or severely dam- The sheer scale of the debris is hard to describe.
aged more than 300,000 homes, all within a mat- The 190 million cubic meters of rubble blocked
ter of seconds. 82
The most visible scar left by the roadways and hampered reconstruction efforts.87
earthquake was the rubble where houses, hospi- By the time the DHS redesignated Haiti for TPS in
tals, and civil service buildings had stood—and 2011, less than 5 million cubic meters had been
the related problem of roads rendered impass- cleared.88
able by this debris. In addition to destroying the In the months after the earthquake, the
housing sector, the earthquake took a dramatic Haitian government undertook an assessment of
toll on vital public institutions. For example, 4992 more than 360,000 buildings to determine their
schools were affected, among which 3978 were structural stability, need for repairs, and fitness
destroyed or damaged to such an extent that for habitability or other use.89 Engineers work-
they had to close.83 This figure accounts for 60 ing under the direction of the Haitian government
percent of the schools in the South and West de- coded buildings green (safe to inhabit), yellow
partments—areas that include the most popu- (limited occupation feasible, but structural re-
lous, highest-density cities in the country—and pairs needed), or red (unsafe to inhabit, demoli-
roughly one quarter of all schools in the country. 84
tion needed) depending on the level of damage.90
In affected areas, 60 percent of hospitals—sixty- The results, released in January 2011, were telling:
seven in total—were also severely damaged or almost half of the buildings surveyed—more than
destroyed. 85
The earthquake claimed “most of 165,000—were coded either yellow or red.91
13
Figure 3: Port-au-Prince, January 2010. Credit: Ellie Happel
While the estimated number of people dis- sound house; the remainder were living in tents or
placed in Haiti has steadily decreased, there is similarly makeshift structures, damaged homes,
great uncertainty as to where residents have gone. or other precarious and temporary situations.93
Declining IDP numbers does not, alone, suggest The problem of unsafe returns as IDPs leave
substantive progress. Many studies suggest that official camps is related to a lack of investment
families move on to live in conditions that are no in permanent housing solutions. Although the in-
better than those that characterize camps. A May ternational community pledged over USD 13.34
2011 Building Assessments and Rubble Removal billion to post-earthquake humanitarian relief ef-
(BARR) report estimated that two thirds of Port- forts, only a fraction of pledged funds was direct-
au-Prince’s 84,866 buildings marked “red” as ed to housing reconstruction efforts. Further, the
beyond possible repair had been re-inhabited. 92
money pledged remains greater than the money
Consistent with this finding, a March 2011 IOM delivered.94 Moreover, less than 20 percent of
report found that only about 40 percent of those post-earthquake reconstruction initiatives have
who had left camps made it back to a structurally resulted in long-term housing solutions.95 Most

Court building is near completion. Construction

Unsafe Returns: on the new National Palace is set to begin before
The Housing Crisis in Haiti the end of 2017.
• A March 2010 assessment of more 2. New Setbacks, but also New Possibilities
than 350,000 buildings concluded Hurricane Matthew delivered a significant blow
that less than half were safe to in- to Haiti’s effort to provide housing to its people.
habit. The storm destroyed another 104,000 houses
• A May 2011 assessment reported that and damaged an additional 133,000, affecting
64 percent of the homes marked red more than two million people.97 Housing loss and
for “unsafe to inhabit” had been re- damage totaled USD 856 million. The hurricane
inhabited. destroyed or damaged 133 hospitals, clinics, and
health posts and affected 1670 schools. The 2017
• A March 2011 International Organiza- Haiti Humanitarian Needs Overview reported that
tion of Migration (IOM) report esti- “in the worst hit areas, 90 per cent of homes are
mated that only 40 percent of those estimated to be destroyed” and that “approxi-
who had left camps made it back to a mately 525,000 [people] need shelter and non-
structurally sound house. That same food-item (NFI) assistance.”98
report found that fewer than 5 percent There is new hope, however, as the inter-
reported leaving because their home national community and the Haitian government
had been repaired. The majority of start on a new chapter in housing redevelopment,
camp residents left due to eviction or the goal of which is to “create the conditions nec-
threats of eviction. essary for Haitians to obtain improved housing
and secure settlement solutions themselves.”99
By emphasizing access to finance, working with
of the post-earthquake reconstruction response local developers to build supply-side capacity,
efforts were temporary measures, leaving indi- and prioritizing local control, the United States
viduals and households vulnerable to inadequate Agency for International Development (USAID)
housing conditions in the long term and to further and the Haitian government promise to turn a new
devastations from future natural disasters. page on Haiti’s housing crisis.100 An extension of
TPS is necessary to allow new housing efforts to
1. Progress in the Face of Incredible Challenges come to fruition.
Nonetheless, the progress in Haiti since the
earthquake is visible: the vast majority of rubble—
C. Country Condition 3: Public Health:
which could have filled 4000 Olympic-size swim- from Earthquake to Outbreak,
ming pools96—has now been removed. Clearing Incomplete Cholera Response Puts
the rubble was an essential hurdle; progress on Public Health at Risk
rubble management is allowing for other develop- In October 2010, what was at the time the worst
ment and recovery efforts to proceed at a faster cholera outbreak in recent history exploded
pace. Roads have been paved, and a new Supreme in central Haiti.101 In the first six months of the
15
Figure 4: Father and Son, Cholera Victim. Credit: Allison Shelley
epidemic, nearly 4000 people died.102 The in- Supply and Sanitation, or DINEPA) have done their
ternational community bears heavy responsibil- utmost to address the crisis since the beginning.
ity for cholera in Haiti, since the United Nations’ The devastation caused by the cholera epi-
peacekeeping force, the Mission des Nations demic can be understood only in light of the ef-
Unies pour la stabilisation en Haïti (United Nations fects of the earthquake that had struck 10 months
Stabilization Mission In Haiti, or MINUSTAH), earlier. The earthquake had dramatically under-
sparked the Haitian cholera outbreak. The out- mined Haiti’s already limited capacity to respond
break quickly overwhelmed the country’s already to new public health crises. In the South and West
stunned health system—one that had never before departments, 60 percent of hospitals—sixty-sev-
experienced a cholera outbreak. However, Haiti’s en in total—were severely damaged or destroyed
Ministère de la Santé Publique et de la Population by the earthquake.103 This figure included the only
(Ministry of Public Health and Population, or national teaching and reference hospital, as well
MSPP) and Direction Nationale d’Eau Potable et as the Ministry of Health building.104 An estimat-
d’Assainissement (National Directorate for Water ed 50 percent of health care professionals were

living in tents in the immediate aftermath of the

quake.105 Ebola and TPS
Even before the cholera outbreak, the public
The DHS designated three West African
health situation was precarious. Water, sanitation,
countries—Guinea, Liberia and Sierra
and hygiene (WASH) services were extremely lim-
Leone—for TPS in 2014 due to the Ebola
ited after the earthquake. At the end of 2011, in
outbreak.116 In total, 2544 deaths were
light of the shelter, displacement, and infrastruc-
recorded in Guinea, 3956 in Sierra Leone,
ture challenges detailed above, access to toilets
and 4810 in Liberia.117 The DHS terminated
and clean water was extremely limited. The inter-
TPS for those nations in 2017, many
nationally led WASH initiative had to deliver the
months after the last case of Ebola was
daily minimum of water for one million individu-
documented in West Africa.118
als—amounting to 7000 cubic meters of water
daily.106 To meet the needs of displaced families
and the broader homeless population, relief work-
ers installed 15,309 emergency latrines and deliv- tens of thousands of Haitians rely on for drinking,
ered 327,300 hygiene kits (to be used by families washing, and farming.
of five for one to three months).107 Just more than a week after the confirma-
While international actors and the Haitian tion of the outbreak, Hurricane Tomas made land-
government struggled to meet basic needs follow- fall in Haiti. Significant flooding caused a spike
ing the earthquake, the quake’s aftermath creat- in cholera cases, as pit latrines overflowed and
ed new public health threats. Lack of facilities and tent camps flooded. The weekly number of cas-
inability to clear rubble led to intermingling of does reached 25,000 in November and December
mestic waste with urban debris.108 Decomposing 2010.114 By mid-2011, there had been 200,000
bodies, blocked wastewater drainage, and haz- cases and nearly 4000 deaths.115 The speed and
ardous or polluting materials trapped under debris scale of the cholera outbreak, accelerated by its
further exacerbated public health threats within coincidence with the hurricane season, stretched
the capital and surrounding region.109 Haiti’s struggling post-quake public health infra-
And then came the cholera epidemic. Cholera structure past the breaking point.
appeared in Haiti in October 2010 for the first time
in the country’s history.110 The first suspected Fragile Progress: Despite A Spike
case was recorded on October 16; four days lat- Following Hurricane Matthew, Cholera
er, national authorities confirmed an epidemic.111 Cases Continue to Decline
Genetic and epidemiological studies have es- In 2010 and 2011, more than half of the cases of
tablished that cholera was introduced to Haiti by cholera worldwide were in Haiti.119 There was a
a United Nations peacekeeping contingent from precipitous drop in cholera cases between 2011
Nepal, where cholera is endemic. 112
The soldiers and 2012, following concerted mitigation efforts
were stationed at a MINUSTAH base where im- by the Haitian government and international com-
proper sanitation practices resulted in untreated munity.120 These numbers dropped nearly in half
sewage entering into the Meye Tributary. This in 2013 and again in half in 2014.
tributary flows into the Artibonite River, 113
which As with Country Conditions 1 and 2, Hurricane
17
Matthew reversed progress on Country Condition health situation makes Haiti unsafe for nationals
3. After Matthew struck in October 2016, the num- to return. People in unstable or temporary hous-
ber of suspected cholera cases spiked from 2236 ing have been the most vulnerable—and most
to 5100. 121
Hurricane Matthew not only exacer- difficult to treat—victims of the cholera epidem-
bated the cholera epidemic but also has impeded ic. This fact became evident as cholera ripped
progress in eliminating the disease across the is- through IDP camps and poor neighborhoods in
land. After Hurricane Matthew, half of new cases post-quake Haiti and again when cholera surged
nationwide were reported across the southern with displacement from Hurricane Matthew. On
peninsula, in the Grand’Anse and Sud depart- each of the first three country conditions—dis-
ments. 122
The southern peninsula has since ef- placement, housing, and cholera—Haiti has
fectively addressed the cholera spike. Before the made, and is poised to continue making, substan-
hurricane, less than 10 percent of cases came tial progress. However, nothing would jeopardize
from those areas. In August 2017, cases of cholera progress on these interrelated areas more surely
were concentrated in the capital city and in the than a large-scale return of individuals for whom
Artibonite and Central departments. 123
The lin- housing and medical treatment may be lacking.
gering effects of Matthew partly account for the
United Nations’ projection that by the end of 2017, D. Country Condition 4: Continued Food
30,000 people in Haiti will have contracted chol- Insecurity Constitutes a Major Threat to
era this year.124 This represents a steady decline Potential Returnees
in the number of annual cases—demonstrating The twin natural disasters of the earthquake and
progress—and yet 30,000 projected victims to a Hurricane Matthew have had devastating effects
violent disease makes cholera a continued, con- on Haiti’s agriculture.
cerning threat. Although food insecurity is not one of the
Nonetheless, the overall trajectory is one of enumerated conditions for TPS, the DHS found
progress, and the government of Haiti and inter- that the agricultural crisis leading to extreme
national actors are poised to finish the job of con- hunger warranted an extension of TPS in 2012
trolling—if not eliminating—future cholera cases. and 2017.128 Those conditions remain. In July 2017,
In late 2016, the MSPP created a document (the the DHS again named food insecurity as a con-
National Cholera Elimination Plan—Medium Term, dition that makes Haiti an unsafe destination for
or PNEC-MT) that set out specific steps to elimi- return.129
nate cholera.125 Shortly after the publication of The quake directly caused USD 295 million
the plan, the United Nations committed to mo- in damage in the food and nutrition sector.130
bilizing a total of USD 400 million for three years However, between 2012 and 2015, Haiti’s food
to support the plan. 126
Although the plan is far security showed moderate overall improvements.
from fully funded, several countries have recent- Under the pressure of extreme weather events
ly committed to redirecting the unspent funds from 2015 to 2016, that progress rapidly came to
from MINUSTAH—which finishes its withdrawal in a halt.131 USAID says that the devastating food
October 2017—to the cholera control effort.127 security impact of Hurricane Matthew, combined
When considered in conjunction with the with three years of drought (2014-2016) stemming
displacement and housing crises, the public from El Niño, significantly exacerbated Haiti’s

Figure 5: Les Irois, after Hurricane Matthew, October 2016. Credit: Jessica Hsu
structural food insecurity in the last few years. As 1 per day.134 In March 2017, USAID found that “Haiti
a result, fully half of the population is now under- has made progress but still ranks ‘alarming’ in the
nourished, and more than one in five preschool 2015 Global Hunger Index…. [R]oughly 50 percent
children suffer from stunting due to chronic mal- of Haiti’s population is undernourished, which has
nutrition.
132
Half of Haitian women of reproduc- been exacerbated by a longstanding drought and
tive age experience anemia, as do 65 percent of a devastating hurricane in 2016 that severely af-
preschoolers, primarily because of iron-deficient fected 2 million people.”135
diets. Just 30 percent of pregnant women get ad- In 2016, Haiti was the most food-insecure
equate dietary iron, with negative consequences country in the Western Hemisphere, according to
for themselves and their babies. 133
the Global Hunger Index.136
Sustainable access to food is a major problem
for many Haitians. According to USAID, 60 percent Matthew Makes Hunger Worse—
of the population lives on less than USD 2 per day, Nutrition Needs Remain Unmet
and nearly one in four people live on less than USD Matthew hit one of Haiti’s key food-producing
19
Number of people facing food insecurity
2,500,000
2,350,000
2,100,000
1,900,000
1,500,000
800,000 820,000
600,000 600,000
2009 Jan Jan- Jan- Jan- Jan- Jan- Jan- Jan-

2010 Dec Dec Dec Dec Dec Dec July
2011 2012 2013 2014 2015 2016 2017
The table above demonstrates the trend in the number of people facing food insecurity
in Haiti. It should be noted that the number fluctuates throughout the year depending
on the seasonal food availability and, therefore, the numbers are only approximations
of the situation at any given time.
areas. The hurricane affected some 428,000 ag- without assistance. In the hurricane’s aftermath,
ricultural households, affecting more than 2 mil- more than 800,000 people urgently needed food
lion people and killing more than 350,000 farm assistance.139
animals.137 Irrigation systems, crop and livestock In August 2017, the United Nations Office for
farms, agricultural processing enterprises, ca- the Coordination of Humanitarian Affairs report-
cao trees, coffee ecosystems, and fisheries all ed that 2.35 million Haitians (22 percent of the
suffered considerable damage and loss, includ- population) still faced acute food insecurity.140
ing loss of equipment. In all, the USD 573 million The United Nations World Food Programme re-
damage and loss in the agriculture and fishing ports that agricultural productivity remained low
sector was equivalent to 31 percent of the coun- in Haiti through the end of June 2017 as a result
try’s agricultural GDP. 138
The small-scale produc- of Hurricane Matthew. This diminished produc-
ers who account for the vast majority of the food tion led to 22 percent increases in the price of lo-
production in the affected areas have very weak cally produced rice in the South and South-East
capacity to restart farming and fishing activities departments.141 Damaged infrastructure meant

significant inflation (between 13 and 30 per- 1,300 hectares of crops in the Northeast depart-
cent, depending on the department) for imported ment, with likely increases in food insecurity as a
wheat flour. 142
Favorable spring harvests nation- result.146
wide between June and August 2017 increased USAID considers Haiti’s high levels of both
supplies of corn, beans, and other vegetables chronic and transitory food insecurity to pose a
and reduced prices in local markets. 143
However, serious challenge to sustainable development:
Haiti imports more than half of its food and 80 “Haiti cannot achieve economic growth and na-
percent of its rice, its dietary staple.144
The prices tional stability if food security is not addressed.”147
of imported rice and corn remain high, despite re- With so many already in need of food assistance
cent exchange rate stability. 145
In September and and with Haitians struggling to stabilize the agri-
October of 2017, heavy rainfall and flooding asso- cultural sector, a massive influx of families could
ciated with Hurricanes Irma and Maria destroyed only exacerbate an already dire situation.
Figure 6: Les Irois Farmland after Hurricane Matthew, October 2016. Credit: Jessica Hsu
21
IV. Haiti is in a Moment of Unique Transition: The Need for

Stability is Particularly Acute and Would be Jeopardized by
the Termination of TPS
Haiti finds itself in the midst of a crucial transi- will inevitably result in many being housed in tem-
tion, during which the effect of an influx of return- porary shelter—conditions would worsen so sig-
ees could be particularly destabilizing. After two nificantly that they would threaten to reverse the
years of political dysfunction—in 2015, Parliament security and protection progress made in recent
was dissolved and President Martelly ruled by years.
decree; 148
in 2016, elections failed due to irregu- In addition to continuing recovery from po-
larities and fraud, and an interim government was litical turmoil and recurring natural disasters,
installed 149
—in February 2017 a new executive another vital area for human protection in which
assumed power and a new Parliament took seat. Haiti has made fragile progress is policing and the
The government negotiated the withdrawal of rule of law. A national police academy was created
forces from the Mission des Nations Unies pour la in 2012 to professionalize, as well as to increase
stabilisation en Haïti (United Nations Stabilization the numbers and capacity of, the police force.153
Mission In Haiti, or MINUSTAH).150 MINUSTAH was It has made significant progress, meeting two
replaced by the Mission des Nations Unies pour thirds of its personnel training and development
l’appui à la justice en Haïti (United Nations Mission goals.154 However, nearly one quarter of police su-
for Justice Support in Haiti, or MINUJUSTH), a pervisory positions remain unfilled, and the police
smaller force with the primary goal to “strength- have a presence in fewer than half of Haiti’s 570
en rule of law” and support the Police Nationale communal sections.155 Through the end of the
d’Haïti (Haitian National Police, or PNH),151 which mission, the PNH relied on MINUSTAH police pa-
do not yet adequately provide the protection and trols to discharge their basic functions, with tens
security that Haitian people need. of thousands of joint patrols and hundreds of joint
The newly installed Haitian government must operations in a six-month period. 156
have time to establish itself; now is not the mo- Moreover, a well-functioning police force
ment to return thousands of Haitian nationals who requires oversight, the capacity for which is de-
are making important contributions to the Haitian veloping, albeit slowly. The Office of the Inspector
economy through remittances. The diaspora is, General (OIG)—tasked with oversight of the
in fact, an important contributing factor to do- PNH—has made rapid progress in developing in-
mestic progress and recovery. Were Haiti to ex- stitutional capacity in recent years, but it has far
perience a large influx of individuals who would to go to ensure an effective and safe police force.
transform instantly from net contributors into a In 2013, for example, the OIG conducted a large-
population requiring support from the country— scale investigation into police misconduct that
especially when Haiti’s inability to resettle people resulted in recommendations to dismiss several

USAID Statement on Democracy and Governance in Haiti, March 2017
“Haiti has experienced a series of political set-backs in recent history that continue to detract
from efforts to improve governance institutions and enforceable legal norms. Although the
country has the formal structures of a democracy, many of these have yet to become fully
functional, as evidenced by recurring periods of political and institutional instability. Haiti’s state
institutions are under-resourced, and provide limited services to only a small percentage of the
population. Despite these challenges, some progress has been made in recent years to advance
the functioning of national and local government, civic engagement, voter education, access to
justice services, and protection of human rights.”152
Figure 7: Ragged Coast of Abricots, after Hurricane Matthew, November 2016.

Credit: Jessica Hsu
23
PNH officers; however, the Ministry of Justice dis- effective, and responsive police force, women
missed the Inspector General shortly thereafter— and children suffer most from failures of the cur-
before any punitive action could be taken. 157
In rent system. It is important to note that Haitian
contrast, by the end of 2015, the oversight func- Temporary Protected Status (TPS) beneficiaries
tions of the OIG were working more robustly: 76 have nearly 30,000 U.S.-born, citizen children,
police officers had been dismissed for police rule who, along with many thousands more spouses
infractions, and there were nearly 1000 ongoing and other dependent family members, could all be
investigations. 158
Nevertheless, investigations forced to migrate to Haiti upon the deportation or
continue to be pursued only after great delay, and return of TPS beneficiaries.
reform of the OIG’s function is a centerpiece of Haiti needs time to solidify the progress it
the strategic development plan for the police from has made in achieving greater security and sta-
2017 to 2021. 159
bility. For example, PNH has recently launched 36
Although the PNH is clearly not yet ready reception units for the management and investi-
to provide for comprehensive physical security gation of SGBV cases.172 However, these recep-
and civilian protection, important progress is be- tion units are largely untested. The reduction of
ing made—and will continue to be made under SGBV is a core focus of the MINUJUSTH police
MINUSTAH’s successor mission, MINUJUSTH. support mission and has been recognized as es-
One of MINUJUSTH’s key goals is to consolidate sential to improving security conditions in Haiti
gains in the security sector. 160
Toward that end, as a whole.173 Personnel training174 and gover-
MINUJUSTH primarily consists of a small police nance and oversight of the police force have
unit, providing patrols and enforcement support similarly been recognized as areas of priority and
as well as continued technical assistance, in or- are new endeavors.175 In these and other areas,
der to “strengthen rule of law institutions in Haiti; MINUJUSTH will be doing vital work with PNH
[and] further support and develop the [PNH].” 161
and the justice sector to promote security and
As Haiti struggles to establish a safe, protection.

Women and Children at Risk

The women and children at risk of deportation to Haiti if TPS is terminated face particularly
concerning conditions. More than 200,000 children are involved in the worst forms of child
labor.162 Already, one in four women experiences physical violence by the time she reaches age
15; a significant number of these cases involve sexual and gender-based violence (SGBV).163
Given post-earthquake security concerns, the United Nations Office for the Coordination of
Humanitarian Affairs (OCHA) has determined that currently “children, elderly, women and single-
headed households are particularly exposed to abuse, exploitation and violence, including
sexual and gender-based violence.”164 And Haitian women face violence at work as well as at
home: one study found that nearly three quarters of female workers have been victimized by
harassment—mainly sexual harassment—at work, and nearly two thirds have been induced to
have sexual relations with employers or supervisors simply to keep their jobs.165 Prosecution of
such work-place violence, as with violence against women generally, is extremely rare.166 The
Secretary-General of the United Nations has described the “culture of impunity” surrounding
gender-based violence as “pervasive.”167
Women’s rights monitors have found that the earthquake made it difficult, if not impossible, to
make concrete improvements to respect for human rights and rule of law. They note that SGBV
increased since the earthquake:
women and girls continue to be subjected to widespread gender discrimination and

mistreatment and . . . pervasive gender-based violence against women and girls represents
the most severe manifestation of discrimination in the country, and . . . it has increased
significantly after the earthquake owing to the increased poverty and disastrous housing
situation. 168
Currently, the country lacks specific legislation criminalizing rape, domestic violence, or sexual
harassment.169 In 2015, Haiti noted in response to human rights monitors that legal reforms on
gender violence were necessary and under consideration but had yet to be adopted due to
political turmoil and delayed elections.170 In recent years, the Ministère à la Condition Féminine et
aux Droits de la Femme (Ministry of Women’s Affairs, or MCFDF) has worked toward comprehensive
violence against women legislation; however, progress has stalled, and a law has not yet been
passed.171
25
IV. Conclusion
The Temporary Protected Status statute under Thus, the conditions that led the DHS to
the Immigration and Nationality Act requires a designate Haiti for TPS continue to exist: (1) more
periodic review, at least 60 days before the end than 37,000 people remain in IDP camps, with
of designation, of the conditions in Haiti for which many tens of thousands more displaced but not
Temporary Protected Status (TPS) is in effect. recorded in official statistics because tracking
This report demonstrates that Haiti continues to ends when people leave formal camps or when
meet the conditions for designation and shows camps are reclassified; (2) a housing and physi-
that the country remains unable to safely repatri- cal infrastructure crisis means that many people
ate its nationals. have left camps only to settle in equally inade-
The 2010 earthquake was one of the most quate homes—many of which were damaged in
devastating disasters in recorded history. More the earthquake—in neighborhoods where struc-
than 220,000 people were killed, and much of turally unsound buildings are the rule rather than
Port-au-Prince was decimated, including public the exception; (3) Haiti continues to combat one
health and government institutions and infra- of the world’s most violent cholera outbreaks;
structure. Despite unprecedented challenges, and (4) hunger and malnutrition are now worse.
Haiti has made steady, albeit limited, progress It is in the best interest not only of Haiti
on remedying problems posed by each of these but also the United States to extend TPS for
country conditions. Yet, in October 2016, Haiti’s 18 months. Haiti has requested this exten-
progress to improve country conditions suffered sion, which it sees as necessary to ensure that
a serious setback when the country was hit with those returning can “contribute in the long-term
its most powerful hurricane in more than half a sustainability and economic prosperity of our
century. country.”176

Endnotes
1 Extension of the Designation of Haiti for Temporary Protected Status, 82 Fed. Reg. 23830, 23831
(May 24, 2017).
2 A cholera outbreak of equal proportion in the United States would sicken over 23 million and
kill nearly 300,000 Americans. UN OCHA, Haiti: Cholera Figures (Aug. 31, 2017) [hereinafter UN
OCHA, Haiti Cholera Figures (Aug. 2017)], https://www.humanitarianresponse.info/system/files/
documents/files/hti_cholera_figures_august_2017_en.pdf.
3 U.N. Office for the Coordination of Humanitarian Affairs (U.N. OCHA), Haiti: One Year Later (Jan. 18, 2011)
[hereinafter Lessons] http://www.unocha.org/issues-indepth/haiti-one-year-later.
4 U.N. OCHA, Haiti: Humanitarian Snapshot (Aug. 2017) [hereinafter Haiti: Humanitarian Snapshot],
https://www.humanitarianresponse.info/system/files/documents/files/hti_humanitarian_snapshot_
august2017-en_0.pdf.
5 Refugees International, Two Steps Back: Haiti Still Reeling from Hurricane Matthew 13 (2017) [hereinafter Still
Reeling], https://www.refugeesinternational.org/reports/2017/4/6/haiti.
6 UNDP & République d’Haiti: Evaluation des Besoins Post Catastrophe Pour Le
Cyclone Mathieu 37 (2016) [hereinafter Evaluation des Besoins], http://www.
ht.undp.org/content/haiti/fr/home/library/crisis_prevention_and_recovery/
evaluation-des-besoins-post-catastrophe-pour-le-cyclone-mathieu/.
7 Amnesty Int’l, ‘15 Minutes to Leave’ Denial of the Right to Adequate Housing in Post-quake Haiti 48 (2015)
[hereinafter 15 Minutes to Leave], https://www.amnestyusa.org/files/amr360012015en.pdf (“At
present the settlement is estimated to be home to around 200,000 people.”).
8 World Health Organization, Global Health Observatory Data: Number of Reported Cholera Cases,
http://www.who.int/gho/epidemic_diseases/cholera/cases/en/ (last visited Oct. 14, 2017).
9 U.N. OCHA, Haiti: Cholera figures (Dec. 23, 2016), https://reliefweb.int/sites/reliefweb.int/files/
resources/hti_cholera_figures_nov_2016_en.pdf.
10 U.N. OCHA, Haiti: Humanitarian Snapshot (July 2017), https://reliefweb.int/sites/reliefweb.int/files/
resources/HTI_Humanitarian_Snapshot_july%202017-EN.pdf.
11 The Economist Intelligence Unit, Global Food Security Index: Year-on-year trends (Sept. 2017), http://
foodsecurityindex.eiu.com/Index (last visited Oct. 11, 2017).
12 Food and Agriculture Organization of the U.N., Haiti: Hurricane Matthew Situation Report (Oct.
12, 2016), https://reliefweb.int/sites/reliefweb.int/files/resources/FAOSituationReport_
HurricaneMatthew_121016.pdf.
13 U.N. OCHA, Haiti: Humanitarian Snapshot (July 2017), https://reliefweb.int/sites/reliefweb.int/files/
14 See, e.g., Jacqueline Charles, Irma Mostly Spared Haiti. But for Struggling Farmers, the Damages are
Devastating, Miami Herald (Sept. 30, 2017), http://www.miamiherald.com/news/nation-world/world/
americas/haiti/article172268857.html.
15 The Economist Intelligence Unit, Global Food Security Index: Haiti (Sept. 2017), http://foodsecurityindex.
eiu.com/Index (last visited Oct. 11, 2017).
16 Estimates based on email exchange with Dr. Manuel Orozco, Director, Migration, Remittances
and Development, Inter-American Dialogue (Aug. 18, 2017) (on file with authors). Haiti is the most
27
remittance-dependent nation in the world. See Manuel Orozco, Remittances to L atin America and
the Caribbean in 2016, at 16 (Appendix) (Feb. 10, 2017) http://www.thedialogue.org/wp-content/
uploads/2017/02/Remittances-2016-FINAL-DRAFT.pdf
17 See Designation of Haiti for Temporary Protected Status, supra, note 1.
18 INA § 244 (b)(3)(A), 8 U.S.C. §1254 (2012).
19 INA § 212(a) (presenting health related grounds, criminal grounds, security grounds, public charge,
labor certification, illegal entry, documentation, ineligibility for citizenship, prior removal, and
requirement of a guardian to maintain health as classes that are ineligible for a visa).
20 INA § 244 (c)(2)(B)(i), 8 U.S.C. §1254 (2012).
21 INA § 244 (b)(3)(A), 8 U.S.C. §1254 (2012).
22 INA § 244(b)(1), 8 U.S.C. § 1254 (2012).
23 INA § 244(b)(3)(C), 8 U.S.C. § 1254 (2012).
24 Extension and Redesignation of Haiti for Temporary Protected Status, 76 Fed. Reg. 29,000 (May 19,
2011).
25 Id.
26 United States department of Justice, Temporary Protected Status, https://www.justice.gov/eoir/
temporary-protected-status (last visited Oct. 19, 2017).
27 Ryan Struyk, FEMA Actually Can Stay in Puerto Rico Indefinitely, CNN (Oct. 12, 2017), http://www.
cnn.com/2017/10/12/politics/fema-trump-hurricane-puerto-rico/index.html.
28 United States Department of Homeland Security Federal Emergency Management Agency, Disaster Relief Fund:
Monthly Report 6 (July 31, 2017), https://www.fema.gov/media-library-data/1502382921399-0c5cb
3af822a83ef9ead6369c64f22e9/REVISED-July2017DisasterReliefFundReport.pdf.
29 Extension of the Designation of Haiti for Temporary Protected Status, 88 Fed. Reg. 23,830 (May 24,
2017).
30 See Letter to the Honorable Elaine C. Duke (October 4, 2017), http://www.ijdh.org/wp-content/
uploads/2016/10/10.04.2017_Haiti-Amb.-Altidor-Letter-to-the-Honorable-Elaine-C.-Duke.pdf
[hereinafter Letter to the Honorable Elaine C. Duke] (requesting an 18 month extension or re-
designation of TPS for Haiti).
31 Id.
32 Id.
33 U.N. OCHA, Haiti: One Year Later (Jan. 2011), http://www.unocha.org/story/haiti-one-year-later.
34 U.N. Office of the Secretary-General’s Special Adviser on Community-Based Medicine & Lessons from Haiti,
Lessons from Haiti: Key Statistics (2012) [hereinafter Lessons ], http://www.lessonsfromhaiti.org/
lessons-from-haiti/key-statistics/#section-two.
35 Id. Roughly one-third of these were completely destroyed, and two-thirds were partially collapsed or
otherwise badly damaged.
36 ONU-Haiti, Report of the United Nations in Haiti 2010: Situation, Challenges And Outlook 8 (2011)
[hereinafter Situation, Challenges], https://reliefweb.int/sites/reliefweb.int/files/resources/
F9DE84C8F12B844B8525781B0053C3F6-Full_Report.pdf (“[E]xperts . . . concluded that the country
had lost the equivalent of over 120 percent of its gross domestic product in the seconds following
the devastating earthquake.”). See also World Bank Group, Haiti Earthquake PDNA: Assessment of damage,
losses, general and sectoral needs 6 (March 2010) [hereinafter PDNA], https://siteresources.worldbank.
org/INTLAC/Resources/PDNA_Haiti-2010_Working_Document_EN.pdf.

37 Interim Haiti Recovery Commission, Haiti One Year L ater: The Progress to Date and the Path Forward 3 (2011)
[hereinafter One Year Later], http://www.lessonsfromhaiti.org/download/Report_Center/IHRC_
Haiti_One_Year_Later_EN__original.pdf.
38 Inter-Agency Standing Committee, Response To The Humanitarian Crisis In Haiti Following The 12 January 2010
Earthquake 4 (2010) [hereinafter IASC Response] (listing “Finance Ministry, the Ministry of Education,
the Ministry of Public Works, the Ministry of Communication and Culture, the Palais de Justice
(Supreme Court building), the Superior Normal School, the National School of Administration, the
Institut Aimé Césaire, and the Palais Législatif (National Assembly building)” among those buildings
destroyed).
39 United Nations, Report of the United Nations in Haiti 2010: Situation Challenges and Outlook 8 (2010),
http://www.un.org/en/peacekeeping/missions/minustah/documents/un_report_haiti_2010_en.pdf.
40 Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3476 (Jan. 21, 2010). Note that TPS
went into affect 11 days after the earthquake on January 21.
41 Id.
42 United Nations News Centre, UN Calls for support to recovery plan as Haiti loses $2.7 billion in
Hurricane Matthew, (March 6, 2017), http://www.un.org/apps/news/story.asp?NewsID=56294#.
WedjexOPJAZ.
43 Robert Warren and Donald Kerwen, A Statistical and Demographic Profile of the US Temporary
Protected Status Populations from El Salvador, Honduras, and Haiti, 5(3) J. Migration & Hum. Sec.
577, 581 (2017).
44 IASC Response, supra note at 38 (“The biggest operational challenge of all continues to be the safe
settlement of the displaced population. . .”).
45 See Lessons, supra note 3; see also Situation, Challenges, supra note 36 at 16.
46 Francis M. Deng (Representative of the Secretary-General), Guiding Principles on Internal
Displacement, U.N. Doc E/CN.4/1998/53/Add.2 (Feb. 11 1998) [hereinafter Guiding Principles on
Internal Displacement]. Under the Guiding Principles on Internal Displacement, an IDP is defined
as a “person … forced or obliged to flee or to leave their homes or places of habitual residence,
in particular as a result of or in order to avoid the effects of … situations of generalized violence,
violations of human rights or natural or human-made disasters.” Id. Annex, para 2.
47 Situation, Challenges, supra note 36, at 12.
48 Inter-Agency Standing Committee, Response to the Humanitarian Crisis in Haiti 5 (2010) (https://www.
unicef.org/evaldatabase/files/IASC-Haiti_6Mos_Review_USA-2010-005-1.pdf.
49 World Bank Group, Haiti: Towards a New Narrative: Systematic Country Diagnostic 25 (2015), http://www.
lessonsfromhaiti.org/download/Report_Center/haiti-scd-final.pdf [hereinafter New Narrative]
(“Vulnerability [to sexual violence] is particularly high among internally displaced people in camps
and areas affected by the 2010 earthquake . . . .”); see also Situation, Challenges supra note 36 at 51.
50 PotoFi Haiti Girls Initiative, Gender Aftershocks: Teen Pregnancy And Sexual Violence In Haitian Girls: Final
Results of an Adolescent Field Survey 1 (2012), https://potofi.files.wordpress.com/2012/12/summary-
report-poto-fi-girls-gbv-field-survey.pdf.
51 Id.
52 Ctr. For Human Rights & Global Justice, Sexual Violence in Haiti’s IDP Camps: Results of a Household Survey 3
(2011), http://www.chrgj.org/publications/docs/HaitiSexualViolenceMarch2011.pdf; see also MADRE
et al., Gender-Based Violence Against Haitian Women & Girls in Internal Displacement Camps,
in Universal Periodic Review, Republic Of Haiti: Submission To The United Nations 87, 88 (Inst. for Justice
& Democracy in Haiti and Bureau des Avocats Internationaux, eds., 2011), http://www.ijdh.org/
29
wordpress/wp-content/uploads/2011/04/LERN-Compiled-UPR-Submissions1.pdf (“The Solidarité

des Femmes Haïtiennes, a civil society organization providing medical assistance to rape victims,
documented 718 cases of gender-based violence in its clinics between January and June 2010.”).
53 Id.
54 Int’l Org. for Migration, HAITI Camp Coordination Camp Management Cluster Displacement Tracking Matrix
V2.0 Update 9 n.65 (2011), http://www.lessonsfromhaiti.org/download/Report_Center/DTM_V2_
Report_16_March_2011_English.pdf.
55 Id. See also Timothy T. Schwartz et al., U.S. Agency for International Development, Building Assessments and
Rubble Removal in Quake-Affected Neighborhoods in Haiti (2011), http://pdf.usaid.gov/pdf_docs/Pnady468.
pdf.
56 Int’l Org. for Migration, HAITI Camp Coordination Camp Management Cluster Displacement Tracking Matrix V2.0
Update 9 (2011), http://www.lessonsfromhaiti.org/download/Report_Center/DTM_V2_Report_16_
March_2011_English.pdf (“[W]hile it is observed that the number of IDPs living in IDP sites continues
to decrease, this does not necessarily imply that durable solutions have been achieved . . . [A]
considerable number of IDPs that have left the sites have moved into precarious and temporary
situations in the neighborhoods”).
57 Jake Johnston, IOM Reports Big Drop in IDP Population after Removing 3 Areas from “Official” Camp
List, Ctr. For Econ. & Policy Research: Haiti: Relief & Reconstruction Watch (Oct. 22, 2013), http://cepr.
net/blogs/haiti-relief-and-reconstruction-watch/iom-reports-big-drop-in-idp-population-after-
removing-3-areas-from-official-camp-list (describing reclassification of three areas, housing 54,045
individuals, as no longer IDP sites but new permanent settlements).
58 Noël Richener, Reconstruction and the Environment in the Metropolitan Region of Port-au-Prince: Canaan – A
NeighboUrhood Built from Scratch 2 (2012) [hereinafter Reconstruction], http://www.urd.org/IMG/pdf/
Canaan_-_a_neighbourhood_built_from_scratch_Abstracts.pdf (“Canaan is unusual in that it is not
really an IDP camp and it is not yet a neighbourhood.”).
59 Steffen Nijhuis & Daniel Jauslin, Urban Landscape Infrastructures: Designing Operative Landscape
Structures for the Built Environment, 3.1 Research in Urbanism Series 13 (Apr. 2015), http://dx.doi.
org/10.7480/rius.3.874.
60 Stephanie Ott, Haiti Earthquake: A New Start in Canaan for Survivors, Al Jazeera, (Mar. 21, 2016)
[hereinafter New Start in Canaan], http://www.aljazeera.com/indepth/features/2016/03/haiti-
earthquake-start-canaan-survivors-160308083308750.html (“The area was completely uninhabited
before the earthquake.”).
61 Jacob Kushner, Haiti: They Call It Canaan, Pulitzer Center, (Apr. 14, 2017) [hereinafter They Call
It Canaan], http://pulitzercenter.org/reporting/haiti-they-call-it-canaan (“Tens of thousands of
Haitians flocked to the area, arriving from the camps that had erupted throughout the capital”).
62 See Reconstruction, supra note 58.
63 They Call It Canaan, supra note 61 (“Tens of thousands of Haitians flocked to the area, arriving from
the camps that had erupted throughout the capital”).
64 15 Minutes to Leave supra note 7 at 48 (2015), https://www.amnestyusa.org/files/amr360012015en.pdf
(“At present the settlement is estimated to be home to around 200,000 people”).
65 Alice Corbet, Community After All? An Inside Perspective on Encampment in Haiti, 29 J. of Refugee
Stud. 166, 175 (2015) (discussing how NGOs had been kept waiting for the legal status of Canaan,
which was contested by some landowners).
66 15 Minutes to Leave, supra note 7 at 24. (“Several families living in informal settlements located on
the northern outskirts of Port-au-Prince, commonly known as Canaan, were also victims of forced
eviction.”

67 15 Minutes to Leave, supra note 7 at 49.

68 Id.
69 Compare Anna D. Gage et al., Assessing the Quality of Primary Care in Haiti, 95 Bulletin of the World
Health Organization, (Feb. 8, 2017), http://www.who.int/bulletin/volumes/95/3/16-179846/en/(
discussing how over 90% of Haiti’s population lives within 5 kilometers of a primary care provider),
with They Call It Canaan, supra note 61 (discussing how there are no hospitals in Canaan).
70 Etant Dupain and Bri Kouri Nouvèl Gaye, Kanaran: Haiti’s Largest New Shantytown, Let Haiti Live, (Jul.
24, 2014, 9:05 AM), http://www.lethaitilive.org/news-english/2014/7/24/kanaran-haitis-largest-
new-shantytown.html (describing that dust is a major cause of illness in the area).
71 New Start in Canaan, supra note 60 (“[E]very month there are cases of diseases like cholera and
malaria.”).
72 They Call It Canaan, supra note 61 (“A few years after people began arriving, there was still no
electricity in Onaville”).
73 They Call It Canaan, supra note 61 (explaining that while UCLBP hopes to encourage microfinance
but that neither economic opportunities nor infrastructure have materialized).
74 Reconstruction, supra note 58 (discussing that development plans have not yet been made public)..
75 15 Minutes to Leave, supra note 7, at 49 (“The programme does not include a housing component”).
76 15 Minutes to Leave, supra note 7, at 49 (“In September 2013 ... Canaan was excluded from the IOM’s
Displacement Tracking Matrix” … Exclusion … had the consequence of leaving thousands of IDPs
outside the scope of intervention by humanitarian organizations”).
77 Ins. for Just. & Democracy in Haiti, Haiti Needs Sustainable Alternatives to IDP Camps (Jul. 4, 2014),
http://www.ijdh.org/2014/07/topics/housing/haiti-time-to-push-for-development-to-achieve-
durable-solutions-for-the-internally-displaced-and-the-vulnerable/(citing Chaloka Beyani, former
Special Rapporteur on the Human Rights of IDPs, who states that “the closure of IDP camps by itself
does not mean that durable solutions have been found,” and that “much more needs to be done”).
78 Still Reeling supra note 5, at 13 (discussing that the Haitian Ministry of Interior initially estimated
175,000 to be displaced by the disaster).
79 Id. at 13 (“The squalid, unsafe conditions reported in these centers – including lack of functioning
toilets, separate latrines and bathing facilities for men and women, and education for children – are
particularly alarming”).
80 Id. (discussing that displacement was widespread and that some IDPs in collective centers were not
profiled and registered).
81 Id. at 14.
82 Id. (describing that about one-third of homes were completely destroyed, and two-thirds were
partially collapsed or otherwise badly damaged).
83 UNICEF, Children of Haiti: Milestones and Looking Forward at Six Months 14 (July 2010) [hereinafter Children
of Haiti], https://www.unicef.org/lac/UNICEF_Haiti_-_Six_Months_Report_Final_final_eng(1).pdf.
84 Id. at 14.
85 IASC Response, supra note 38, at 6.
86 PDNA, supra note 36, at 24.
87 See One Year L ater, supra note 37, at 3; see also PDNA, supra note 36, at 53 (listing four ways that
debris “represent[ed] a threat to the population and environment,” including through hazardous
material exposure, trapping decaying human remains and waste, and disrupting wastewater
drainage).
31
88 ONU-Haiti, Report of the United Nations in Haiti 2011 18 (2011), http://www.lessonsfromhaiti.org/

download/Report_Center/un-haiti-2011-report.pdf (describing that 50 percent of debris had been
cleared). Changing the denominator suggested that half the rubble had been cleared, as opposed
to roughly one-quarter; however, it is not clear that early estimates reflecting a consensus of the
international community had actually been revised, or whether the United Nations simply wished to
contribute to a narrative of progress.
90 15 Minutes to Leave, supra note 7, at 18 (listing the three types of codes and color tags that the Ministry
of Public Works used to categorize earthquake-affected areas).
91 Id. at 18 (describing that 94,002 (26.12%) buildings were classified as Yellow, and 71,230 (19.79%)
were classified as Red).
92 Timothy T. Schwartz et al., Building Assessments and Rubble Removal in Quake-Affected
Neighborhoods in Haiti (May 13, 2011) [hereinafter BARR Report], http://pdf.usaid.gov/pdf_docs/
Pnady468.pdf.
93 IOM/Camp Coordination Camp Management Cluster, Displacement Tracking Matrix V2.0 Update 11
(1Mar. 16, 2011) [hereinafter IOM March 2011], http://www.lessonsfromhaiti.org/download/Report_
Center/DTM_V2_Report_16_March_2011_English.pdf.
94 Amnesty Int’l, Haiti: Three Years on from Earthquake Housing Situation Catastrophic( Jan. 11,
2013) [hereinafter Haiti: Three Years on], https://www.amnesty.org/en/latest/news/2013/01/
haiti-three-years-earthquake-housing-situation-catastrophic/.
95 15 Minutes to Leave, supra note 7 at 15 (describing repairing, rebuilding or building housing have
accounted for less than 20% of the measures).
96 Jacqueline Charles, Rebuilding Haiti: Still a Work in Progress, Miami Herald (Jan. 11, 2015, 7:46 PM),
http://www.miamiherald.com/news/nation-world/world/americas/haiti/article6031617.html (“The
rubble from collapsed buildings and homes that could have filled 4,000 Olympic-size swimming
pools is gone.”).
97 See Evaluation des Besoins, supra note 6.
98 Humanitarian Country Team, 2017 Humanitarian Needs Overview 7 (Nov. 2016) [hereinafter Humanitarian Needs
Overview], https://www.humanitarianresponse.info/system/files/documents/files/haiti_hno_2017.
pdf.
99 USAID, Housing & Settlements, https://www.usaid.gov/haiti/shelter-and-housing (last visited Oct.
11, 2017) [hereinafter Housing & Settlements].
100 Id. (suggesting collaboration between USAID, GOH, and other key partnerships in focusing on
increasing access to housing finance and upgrading infrastructure in existing neighborhoods
through locals’ own efforts).
101 Note that Yemen is now home to the worst cholera outbreak in recent history, with nearly one million
victims. See i.e., Kate Lyons, Yemen’s Cholera Outbreak Now the Worst in History as Millionth Case
Looms, The Guardian, (Oct. 12, 2017). https://www.theguardian.com/global-development/2017/
oct/12/yemen-cholera-outbreak-worst-in-history-1-million-cases-by-end-of-year.
102 Dowell SF and Braden CR. Implications of the introduction of cholera to Haiti. Emerg. Infect. Disease
(July 2011) http://dx.doi.org/10.3201/eid1707.110625.
103 IASC Response, supra note 38, at 6.
105 Id. at 60.


107 Id.
109 Id.
110 Deborah Jensen et al., Cholera in Haiti & Other Caribbean Regions, 19th Century, 17 Emerging Infectious
Diseases J. 2130, 2130 (Nov. 2011).
112 See, e.g., Alejandro Cravioto et al., Final Report of the Independent Panel of Experts on the Cholera Outbreak
in Haiti 12 (2011) [hereinafter UN Independent Panel of Experts Report]; see also Transnational Development
Clinic, Yale L aw School, Global Health Justice Partnership of the Yale L aw School and the Yale School of Public
Health & Association Haïtienne de Droit de l’Environnement, Peacekeeping Without Accountability: The United
Nations’ Responsibility for the Haitian Cholera Epidemic 23-25 (2013), http://www.law.yale.edu/documents/
pdf/Clinics/Haiti_TDC_Final_Report.pdf [hereinafter Yale Report] (reviewing genetic studies of the
Haitian cholera strain and finding that “molecular and genetic studies demonstrate that the Haitian
cholera strain is genetically almost identical to the Nepalese strain”).
113 UN Independent Panel of Experts Report, supra note 112, at 21.
114 Ministry of Public Health and Population, National Plan for the Elimination of Cholera 2013–2022 9 (2013),
https://reliefweb.int/sites/reliefweb.int/files/resources/National%20Plan%20for%20the%20
Elimination%20of%20Cholera%20in%20Haiti%202013-2022.pdf.
115 Extension and Redesignation of Haiti for Temporary Protected Status, 75 Fed. Reg. 2900 (May 19,
2011). By comparison, today there have been nearly one million cases of cholera and approximately
10,000 deaths. See Rick Gladstone, U.N. Brought Cholera to Haiti. Now It Is Fumbling Its Effort
to Atone, NY Times (June 26, 2017) [hereinafter U.N. Brought Cholera to Haiti], https://www.
nytimes.com/2017/06/26/world/americas/cholera-haiti-united-nations-peacekeepers-yemen.
html?mcubz=0.
116 U.S. Citizen and Immigration Service (USCIS), Temporary Protected Status Designations for Liberia,
Guinea and Sierra Leone (May 12, 2014), https://www.uscis.gov/outreach/notes-previous-
engagements/temporary-protected-status-designations-liberia-guinea-and-sierra-leone.
117 Id.
118 Center for Disease Control and Prevention, 2014 Ebola Outbreak in West Africa—Case Count (April 13,
2016), https://www.cdc.gov/vhf/ebola/outbreaks/2014-west-africa/case-counts.html.
119 Cholera Fast Facts, CNN (Sept. 29, 2017), http://www.cnn.com/2013/10/16/health/cholera-fast-
facts/index.html.
120 UN Haiti Fact Sheet on Cholera Prevention (Dec. 2012), http://www.un.org/News/dh/infocus/haiti/
Haiti%20Cholera%20Factsheet%20Dec%202012.pdf.
121 UN OCHA, Haiti: Cholera figures (Dec. 2016), http://reliefweb.int/sites/reliefweb.int/files/resources/
hti_cholera_figures_nov_2016_en.pdf.
122 Paul Namphy, Coord. Nat. Response, Symposium: Responding to, and Eliminating, Cholera in Haiti,
in the Context of Hurricane Matthew and Other Heightened Vulnerabilities (DATE UNKWOWN), Slides
31-38, http://www.colorado.edu/washsymposium/sites/default/files/attached-files/namphy_-_
dinepa_cowash2017.pdf. [hereinafter Coord. Nat. Response] (showing detailed graphs and charts
about the cholera epidemic in the Grand Anse department, where Matthew hit hardest).
123 UN OCHA, Haiti: Cholera Figures, supra note 4.
124 UN OCHA, Haiti: Humanitarian Snapshot (July 2017), http://reliefweb.int/sites/reliefweb.int/files/
33
125 MSPP drafted the document with DINEPA, UNICEF, PAHO-WHO, and other actors, with a budget of
USD 178 million. See Coord. Nat. Response, supra note 122, Slides 31-38, http://www.colorado.edu/
washsymposium/sites/default/files/attached-files/namphy_-_dinepa_cowash2017.pdf.
126 U.N. Brought Cholera to Haiti, supra note 115.
127 UN News, General Assembly Resolution Reaffirms United Nations Support for New Approach to
Cholera in Haiti, Including through Trust Fund (July 13, 2017), https://www.un.org/press/en/2017/
ga11929.doc.htm.
128 See Extension of the Designation of Haiti for Temporary Protected Status, 77 Fed. Reg. 59,943, (Oct.
1, 2012). See also, Extension of the Designation of Haiti for Temporary Protected Status, 80 Fed. Reg.
51,582, (Aug. 25, 2015) (announcing the 2016 extension), and, most recently, in 2017. Extension of the
Designation of Haiti for Temporary Protected Status, 88 Fed. Reg. 23,830 (May 24, 2017) [hereinafter
2017 Extension].
129 Id.
131 Global Food Security Index: Year-on-year trends, The Economist Intelligence Unit (Sept. 2017), http://
foodsecurityindex.eiu.com/Index [hereinafter Global Food Security Index] (last visited Oct. 11, 2017).
132 See USAID Haiti, Agriculture & Food Security Fact Sheet (Mar. 2017), https://www.usaid.gov/sites/
default/files/documents/1862/FINAL_Food_Security_March_2017.pdf; see also, El Niño, Drought
Blamed As Severe Food Insecurity Doubles In 6 Months In Haiti, World Food Programme (Feb. 9,
2016) https://www.wfp.org/news/news-release/el-nino-drought-blamed-severe-food-insecurity-
doubles-6-months-haiti [hereinafter Agriculture & Food Security Fact Sheet] (stating that Haiti is in
it’s third year of drought and 3.6 million Haitians are food insecure).
133 See Haiti Enquête Mortalité, Morbidité, et Utilization de Services (EMMUS-V) 2012, Institut Haïtien de
l’Enfance, Pétion-Ville, Haïti & MEASURE DHS, ICF International, Calverton, Maryland, USA (Apr. 2013),
https://mspp.gouv.ht/site/downloads/EMMUS%20V%20document%20final.pdf. See also, USAID,
Haiti : Nutrition Profile (June 2014), https://www.usaid.gov/sites/default/files/documents/1864/
USAID-Haiti_NCP.pdf.
134 Agriculture & Food Security Fact Sheet, supra note 132.
135 Id.
136 Global Food Security Index, supra note 131.
137 Food and Agriculture Organization of the U.N., Haiti: Hurricane Matthew Situation Report (Oct.
138 Food and Agriculture Organization of the U.N., Haiti: Hurricane Matthew Situation Report (Nov.
139 Id.
140 Haiti: Humanitarian Snapshot, supra note 4.
141 World Food Programme, Trends and Impacts of Staple Food Prices in Vulnerable Countries, 36 The
Market Monitor (July 2017), https://reliefweb.int/sites/reliefweb.int/files/resources/WFP-0000019676.
pdf.
142 Id.
143 Coordination Nationale de la Securite Alimentaire [Nat’l Coordination of Food Sec.], Famine Early Warning Systems

Network , La saison de printemps a réussi dans la plupart des zones agro-écologiques du pays
[The Spring Season Has Begun in the Majority of the Country’s Agro-Ecological Zones] (Aug. 2017)
[hereinafter Famine Early Warning], http://www.fews.net/sites/default/files/documents/reports/
HT_FSOU_2017_08_FR.pdf.
145 Famine Early Warning, supra note 143.
146 Famine Early Warning Systems Network, Pas de changement de phase pour la période projetée suite aux
cyclones pour l’instant (Sept. 2017), http://www.fews.net/fr/central-america-and-caribbean/haiti/
key-message-update/september-2017.
148 Jacqueline Charles, Martelly Assumes Responsibility for Crisis as Haiti Gets New Government,
Miami Herald (Jan. 19, 2015), http://www.miamiherald.com/news/nation-world/world/americas/haiti/
article7601129.html.
149 David McFadden, Haiti’s President Departs to Make Way for Interim Government,
USA Today (Feb. 7, 2016), https://www.usatoday.com/story/news/world/2016/02/07/
haiti-president-departs-interim-government-martelly/79974362/.
150 Jacqueline Charles, Haiti Opens Army Recruitment, Miami Herald (July 17, 2017), http://www.
miamiherald.com/news/nation-world/world/americas/haiti/article161855593.html.
151 See S.C. Res. 2350, ¶ [pincite to paragraph needed] (Apr. 13, 2017) (“Emphasizing the importance
of the continued support of the United Nations and the international community for the long-term
security . . .”).
152 USAID Haiti, Democracy, Human Rights & Governance Fact Sheet (March 2017), https://www.usaid.
gov/sites/default/files/documents/1862/FINAL_DemocracyGovernance_March_2017.pdf.
153 U.N. Secretary-General, Report of the Secretary-General on the United Nations Stabilization
Mission in Haiti, ¶ 39, U.N. Doc. S/2016/753 (Aug. 31, 2016) [hereinafter SG Report August 2016].
154 U.N. Secretary-General, Report of the Secretary-General on the United Nations Stabilization
Mission in Haiti, ¶ 12, U.N. Doc. S/2017/223 (Mar. 16, 2017) [hereinafter SG Report March 2017].
155 SG Report August 2016, supra note 153, at ¶ 39.
156 SG Report March 2017, supra note 154, at ¶ 16.
157 Eirin Mobekk, UN Peace Operations: Lessons from Haiti 1994–2016 98 (2017).
158 Id.
160 See S.C. Res. 2350 (Apr. 13, 2017) (“Emphasizing the importance of the continued support of the
United Nations and the international community for the long-term security . . .”).
161 Id.
162 Still Reeling supra note 5, at 5.
163 Still Reeling supra note 5, at 9.
164 Humanitarian Needs Overview, supra note 98, at 10.
165 Solidarité Fanm Ayisyen (SOFA) et Réseau National de Défense des Droits Humains (RNDDH), Enquete sur le
harcelement sexuel en milieu du travail en Haiti 4 (2015), http://www.hpnhaiti.com/site/pdf/rapportsofa.
pdf.
166 Bureau des avocats internationaux et al., Gender issues Facing Women and Girls: Submission for the 63rd Session
of the United Nations Committee on the Elimination of All Forms of Discrimination against Women ¶ 23 (2016),
35
http://www.ijdh.org/wp-content/uploads/2009/12/CEDAW-Haiti-Gender-Issues-22.1.16.pdf.
167 S G Report March 2017, supra note 154, at ¶ 12.
168 Comm. on the Elimination of All Forms of Discrimination against Women, Concluding Observations
on the combined eighth and ninth periodic reports of Haiti, U.N. Doc. CEDAW/C/HTI/CO/8-9, at ¶ 9
(2016).
169 Human Rights Watch, Submission on the combined eighth and ninth periodic reports of Haiti to the United
Nations Committee on the Elimination of Discrimination against Women (2016), https://www.hrw.org/
news/2016/01/20/submission-combined-eighth-and-ninth-periodic-reports-haiti-united-nations-
committee [hereinafter HRW Periodic Report]. Rape is prohibited by virtue of executive decree only.
Id.
170 Comm. on Elimination of All Forms of Discrimination against Women, Responses of Haiti, U.N. Doc.
CEDAW/C/HTI/Q/8-9/Add.1, at ¶ 8-9 (2015).
171 Id. A new President took office in February 2017.
173 S.C. Res. 2350 (Apr. 13, 2017) (“Recognizing that strengthening . . . respect for human rights,
including of women and children, due process and combating criminality, sexual and gender-based
violence, and putting an end to impunity and ensuring accountability are essential to ensuring the
rule of law and security in Haiti. . .”).
174 S.C. Res. 2350 (Apr. 13, 2017).
175 Id.
176 Letter to the Honorable Elaine C. Duke, supra note 30 (requesting an 18 month extension or re-
designation of TPS for Haiti).

37
Northwest coast of Haiti after Irma. September 2017. Credit: Samuel Nesner
Exhibit 7
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1:18-cv-01599-WFK-ST Donald Trump
Document announces
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Filed 10/09/18 bid - The Washington
Page 2 of 20PostPageID #: 2528
The Washington Post
Post Politics
Full text: Donald Trump announces a presidential bid
By Washington Post Staff

June 16, 2015
Donald Trump announced Tuesday that he's running for president. Here are his remarks as delivered.
(They vary pretty substantially from the copy of prepared remarks sent to reporters.)
TRUMP: Wow. Whoa. That is some group of people. Thousands.
So nice, thank you very much. That's really nice. Thank you. It's great to be at Trump Tower. It's great to
be in a wonderful city, New York. And it's an honor to have everybody here. This is beyond anybody's
expectations. There's been no crowd like this.
And, I can tell, some of the candidates, they went in. They didn't know the air-conditioner didn't work.
They sweated like dogs.
(LAUGHTER)
They didn't know the room was too big, because they didn't have anybody there. How are they going to
beat ISIS? I don't think it's gonna happen.
(APPLAUSE)
Our country is in serious trouble. We don't have victories anymore. We used to have victories, but we
don't have them. When was the last time anybody saw us beating, let's say, China in a trade deal? They
kill us. I beat China all the time. All the time.
CONTENT FROM WELLS FARGO
"Being a bank doesn't mean you can do everything. If

we stop learning, the game is over."
Read More
(APPLAUSE)
https://www.washingtonpost.com/news/post-politics/wp/2015/06/16/full-text-donald-trump-announces-a-presidential-bid/?utm_term=.3c2449c002cc#fi… 1/19
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AUDIENCE MEMBER: We want Trump. We want Trump.
TRUMP: When did we beat Japan at anything? They send their cars over by the millions, and what do we
do? When was the last time you saw a Chevrolet in Tokyo? It doesn't exist, folks. They beat us all the
time.
When do we beat Mexico at the border? They're laughing at us, at our stupidity. And now they are
beating us economically. They are not our friend, believe me. But they're killing us economically.
The U.S. has become a dumping ground for everybody else's problems.
(APPLAUSE)
Thank you. It's true, and these are the best and the finest. When Mexico sends its people, they're not
sending their best. They're not sending you. They're not sending you. They're sending people that have
lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing
crime. They're rapists. And some, I assume, are good people.
But I speak to border guards and they tell us what we're getting. And it only makes common sense. It
only makes common sense. They're sending us not the right people.
It's coming from more than Mexico. It's coming from all over South and Latin America, and it's coming
probably -- probably -- from the Middle East. But we don't know. Because we have no protection and we
have no competence, we don't know what's happening. And it's got to stop and it's got to stop fast.
(APPLAUSE)
TRUMP: Islamic terrorism is eating up large portions of the Middle East. They've become rich. I'm in
competition with them.
They just built a hotel in Syria. Can you believe this? They built a hotel. When I have to build a hotel, I
pay interest. They don't have to pay interest, because they took the oil that, when we left Iraq, I said we
should've taken.
So now ISIS has the oil, and what they don't have, Iran has. And in 19 -- and I will tell you this, and I said
it very strongly, years ago, I said -- and I love the military, and I want to have the strongest military that
we've ever had, and we need it more now than ever. But I said, "Don't hit Iraq," because you're going to
totally destabilize the Middle East. Iran is going to take over the Middle East, Iran and somebody else
will get the oil, and it turned out that Iran is now taking over Iraq. Think of it. Iran is taking over Iraq,
and they're taking it over big league.
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We spent $2 trillion in Iraq, $2 trillion. We lost thousands of lives, thousands in Iraq. We have wounded
soldiers, who I love, I love -- they're great -- all over the place, thousands and thousands of wounded
soldiers.
And we have nothing. We can't even go there. We have nothing. And every time we give Iraq equipment,
the first time a bullet goes off in the air, they leave it.
Last week, I read 2,300 Humvees -- these are big vehicles -- were left behind for the enemy. 2,000? You
would say maybe two, maybe four? 2,300 sophisticated vehicles, they ran, and the enemy took them.
AUDIENCE MEMBER: We need Trump now.
TRUMP: You're right.
(APPLAUSE)
TRUMP: Last quarter, it was just announced our gross domestic product -- a sign of strength, right? But
not for us. It was below zero. Whoever heard of this? It's never below zero.
Our labor participation rate was the worst since 1978. But think of it, GDP below zero, horrible labor
participation rate.
And our real unemployment is anywhere from 18 to 20 percent. Don't believe the 5.6. Don't believe it.
That's right. A lot of people up there can't get jobs. They can't get jobs, because there are no jobs, because
China has our jobs and Mexico has our jobs. They all have jobs.
But the real number, the real number is anywhere from 18 to 19 and maybe even 21 percent, and nobody
talks about it, because it's a statistic that's full of nonsense.
AUDIENCE MEMBER: We want Trump now.
TRUMP: Our enemies are getting stronger and stronger by the way, and we as a country are getting
weaker. Even our nuclear arsenal doesn't work.
It came out recently they have equipment that is 30 years old. They don't know if it worked. And I
thought it was horrible when it was broadcast on television, because boy, does that send signals to Putin
and all of the other people that look at us and they say, "That is a group of people, and that is a nation
that truly has no clue. They don't know what they're doing. They don't know what they're doing."
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(APPLAUSE)
TRUMP: We have a disaster called the big lie: Obamacare. Obamacare.
Yesterday, it came out that costs are going for people up 29, 39, 49, and even 55 percent, and deductibles
are through the roof. You have to be hit by a tractor, literally, a tractor, to use it, because the deductibles
are so high, it's virtually useless. It's virtually useless. It is a disaster.
TRUMP: And remember the $5 billion Web site? $5 billion we spent on a Web site, and to this day it
doesn't work. A $5 billion Web site.
I have so many Web sites, I have them all over the place. I hire people, they do a Web site. It costs me $3.
$5 billion Web site.
(APPLAUSE)
AUDIENCE: We want Trump. We want Trump. We want Trump. We want Trump.
TRUMP: Well, you need somebody, because politicians are all talk, no action. Nothing's gonna get done.
They will not bring us -- believe me -- to the promised land. They will not.
As an example, I've been on the circuit making speeches, and I hear my fellow Republicans. And they're
wonderful people. I like them. They all want me to support them. They don't know how to bring it about.
They come up to my office. I'm meeting with three of them in the next week. And they don't know -- "Are
you running? Are you not running? Could we have your support? What do we do? How do we do it?"
I like them. And I hear their speeches. And they don't talk jobs and they don't talk China. When was the
last time you heard China is killing us? They're devaluing their currency to a level that you wouldn't
believe. It makes it impossible for our companies to compete, impossible. They're killing us.
But you don't hear that from anybody else. You don't hear it from anybody else. And I watch the
speeches.
AUDIENCE MEMBER: No more free (inaudible).
TRUMP: Thank you.
I watch the speeches of these people, and they say the sun will rise, the moon will set, all sorts of
wonderful things will happen. And people are saying, "What's going on? I just want a job. Just get me a
job. I don't need the rhetoric. I want a job."
And that's what's happening. And it's going to get worse, because remember, Obamacare really kicks in
in '16, 2016. Obama is going to be out playing golf. He might be on one of my courses. I would invite him,
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I actually would say. I have the best courses in the world, so I'd say, you what, if he wants to -- I have one
right next to the White House, right on the Potomac. If he'd like to play, that's fine.
(APPLAUSE)
In fact, I'd love him to leave early and play, that would be a very good thing.
(LAUGHTER)
But Obamacare kicks in in 2016. Really big league. It is going to be amazingly destructive. Doctors are
quitting. I have a friend who's a doctor, and he said to me the other day, "Donald, I never saw anything
like it. I have more accountants than I have nurses. It's a disaster. My patients are beside themselves.
They had a plan that was good. They have no plan now."
We have to repeal Obamacare, and it can be -- and -- and it can be replaced with something much better
for everybody. Let it be for everybody. But much better and much less expensive for people and for the
government. And we can do it.
(APPLAUSE)
AUDIENCE: Trump. Trump. Trump. Trump. Trump. Trump.
TRUMP: So I've watched the politicians. I've dealt with them all my life. If you can't make a good deal
with a politician, then there's something wrong with you. You're certainly not very good. And that's what
we have= representing us. They will never make America great again. They don't even have a chance.
They're controlled fully -- they're controlled fully by the lobbyists, by the donors, and by the special
interests, fully.
Yes, they control them. Hey, I have lobbyists. I have to tell you. I have lobbyists that can produce
anything for me. They're great. But you know what? it won't happen. It won't happen. Because we have
to stop doing things for some people, but for this country, it's destroying our country. We have to stop,
and it has to stop now.
AUDIENCE: It needs Trump.
TRUMP: Now, our country needs -- our country needs a truly great leader, and we need a truly great
leader now. We need a leader that wrote "The Art of the Deal."
AUDIENCE MEMBER: Yes.
TRUMP: We need a leader that can bring back our jobs, can bring back our manufacturing, can bring
back our military, can take care of our vets. Our vets have been abandoned.
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Document announces
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(APPLAUSE)
And we also need a cheerleader.
You know, when President Obama was elected, I said, "Well, the one thing, I think he'll do well. I think
he'll be a great cheerleader for the country. I think he'd be a great spirit."
He was vibrant. He was young. I really thought that he would be a great cheerleader.
AUDIENCE MEMBER: But not a leader.
TRUMP: He's not a leader. That's true. You're right about that.
But he wasn't a cheerleader. He's actually a negative force. He's been a negative force. He wasn't a
cheerleader; he was the opposite.
We need somebody that can take the brand of the United States and make it great again. It's not great
again.
(APPLAUSE)
We need -- we need somebody -- we need somebody that literally will take this country and make it great
again. We can do that.
(APPLAUSE)
And, I will tell you, I love my life. I have a wonderful family. They're saying, "Dad, you're going to do
something that's going to be so tough."
You know, all of my life, I've heard that a truly successful person, a really, really successful person and
even modestly successful cannot run for public office. Just can't happen. And yet that's the kind of
mindset that you need to make this country great again.
So ladies and gentlemen...
(APPLAUSE)
I am officially running...
(APPLAUSE)
... for president of the United States, and we are going to make our country great again.
(APPLAUSE)
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It can happen. Our country has tremendous potential. We have tremendous people.
We have people that aren't working. We have people that have no incentive to work. But they're going to
have incentive to work, because the greatest social program is a job. And they'll be proud, and they'll love
it, and they'll make much more than they would've ever made, and they'll be -- they'll be doing so well,
and we're going to be thriving as a country, thriving. It can happen.
(APPLAUSE)
I will be the greatest jobs president that God ever created. I tell you that.
(APPLAUSE)
I'll bring back our jobs from China, from Mexico, from Japan, from so many places. I'll bring back our
jobs, and I'll bring back our money.
Right now, think of this: We owe China $1.3 trillion. We owe Japan more than that. So they come in,
they take our jobs, they take our money, and then they loan us back the money, and we pay them in
interest, and then the dollar goes up so their deal's even better.
How stupid are our leaders? How stupid are these politicians to allow this to happen? How stupid are
they?
(APPLAUSE)
I'm going to tell you -- thank you. I'm going to tell you a couple of stories about trade, because I'm totally
against the trade bill for a number of reasons.
Number one, the people negotiating don't have a clue. Our president doesn't have a clue. He's a bad
negotiator.
He's the one that did Bergdahl. We get Bergdahl, they get five killer terrorists that everybody wanted
over there.
We get Bergdahl. We get a traitor. We get a no-good traitor, and they get the five people that they wanted
for years, and those people are now back on the battlefield trying to kill us. That's the negotiator we have.
Take a look at the deal he's making with Iran. He makes that deal, Israel maybe won't exist very long. It's
a disaster, and we have to protect Israel. But...
AUDIENCE MEMBER: Yes, we do. Yes, we do.
(APPLAUSE)
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TRUMP: So we need people -- I'm a free trader. But the problem with free trade is you need really
talented people to negotiate for you. If you don't have talented people, if you don't have great leadership,
if you don't have people that know business, not just a political hack that got the job because he made a
contribution to a campaign, which is the way all jobs, just about, are gotten, free trade terrible.
Free trade can be wonderful if you have smart people, but we have people that are stupid. We have
people that aren't smart. And we have people that are controlled by special interests. And it's just not
going to work.
So, here's a couple of stories happened recently. A friend of mine is a great manufacturer. And, you
know, China comes over and they dump all their stuff, and I buy it. I buy it, because, frankly, I have an
obligation to buy it, because they devalue their currency so brilliantly, they just did it recently, and
nobody thought they could do it again.
But with all our problems with Russia, with all our problems with everything -- everything, they got away
with it again. And it's impossible for our people here to compete.
So I want to tell you this story. A friend of mine who's a great manufacturer, calls me up a few weeks ago.
He's very upset. I said, "What's your problem?"
He said, "You know, I make great product."
And I said, "I know. I know that because I buy the product."
He said, "I can't get it into China. They won't accept it. I sent a boat over and they actually sent it back.
They talked about environmental, they talked about all sorts of crap that had nothing to do with it."
I said, "Oh, wait a minute, that's terrible. Does anyone know this?"
He said, "Yeah, they do it all the time with other people."
I said, "They send it back?"
"Yeah. So I finally got it over there and they charged me a big tariff. They're not supposed to be doing
that. I told them."
Now, they do charge you tariff on trucks, when we send trucks and other things over there.
Ask Boeing. They wanted Boeing's secrets. They wanted their patents and all their secrets before they
agreed to buy planes from Boeing.
Hey, I'm not saying they're stupid. I like China. I sell apartments for -- I just sold an apartment for $15
million to somebody from China. Am I supposed to dislike them? I own a big chunk of the Bank of
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America Building at 1290 Avenue of the Americas, that I got from China in a war. Very valuable.
I love China. The biggest bank in the world is from China. You know where their United States
headquarters is located? In this building, in Trump Tower. I love China. People say, "Oh, you don't like
China?"
No, I love them. But their leaders are much smarter than our leaders, and we can't sustain ourself with
that. There's too much -- it's like -- it's like take the New England Patriots and Tom Brady and have them
play your high school football team. That's the difference between China's leaders and our leaders.
They are ripping us. We are rebuilding China. We're rebuilding many countries. China, you go there now,
roads, bridges, schools, you never saw anything like it. They have bridges that make the George
Washington Bridge look like small potatoes. And they're all over the place.
We have all the cards, but we don't know how to use them. We don't even know that we have the cards,
because our leaders don't understand the game. We could turn off that spigot by charging them tax until
they behave properly.
Now they're going militarily. They're building a military island in the middle of the South China sea. A
military island. Now, our country could never do that because we'd have to get environmental clearance,
and the environmentalist wouldn't let our country -- we would never build in an ocean. They built it in
about one year, this massive military port.
They're building up their military to a point that is very scary. You have a problem with ISIS. You have a
bigger problem with China.
And, in my opinion, the new China, believe it or not, in terms of trade, is Mexico.
So this man tells me about the manufacturing. I say, "That's a terrible story. I hate to hear it."
But I have another one, Ford.
So Mexico takes a company, a car company that was going to build in Tennessee, rips it out. Everybody
thought the deal was dead. Reported it in the Wall Street Journal recently. Everybody thought it was a
done deal. It's going in and that's going to be it, going into Tennessee. Great state, great people.
TRUMP: All of a sudden, at the last moment, this big car manufacturer, foreign, announces they're not
going to Tennessee. They're gonna spend their $1 billion in Mexico instead. Not good.
Now, Ford announces a few weeks ago that Ford is going to build a $2.5 billion car and truck and parts
manufacturing plant in Mexico. $2.5 billion, it's going to be one of the largest in the world. Ford. Good
company.
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So I announced that I'm running for president. I would...
(APPLAUSE)
... one of the early things I would do, probably before I even got in -- and I wouldn't even use -- you
know, I have -- I know the smartest negotiators in the world. I know the good ones. I know the bad ones.
I know the overrated ones.
You get a lot of them that are overrated. They're not good. They think they are. They get good stories,
because the newspapers get buffaloed (ph). But they're not good.
But I know the negotiators in the world, and I put them one for each country. Believe me, folks. We will
do very, very well, very, very well.
But I wouldn't even waste my time with this one. I would call up the head of Ford, who I know. If I was
president, I'd say, "Congratulations. I understand that you're building a nice $2.5 billion car factory in
Mexico and that you're going to take your cars and sell them to the United States zero tax, just flow them
across the border."
And you say to yourself, "How does that help us," right? "How does that help us? Where is that good"?
It's not.
So I would say, "Congratulations. That's the good news. Let me give you the bad news. Every car and
every truck and every part manufactured in this plant that comes across the border, we're going to
charge you a 35-percent tax, and that tax is going to be paid simultaneously with the transaction, and
that's it.
Now, here's what is going to happen. If it's not me in the position, it's one of these politicians that we're
running against, you know, the 400 people that we're (inaudible). And here's what's going to happen.
They're not so stupid. They know it's not a good thing, and they may even be upset by it. But then they're
going to get a call from the donors or probably from the lobbyist for Ford and say, "You can't do that to
Ford, because Ford takes care of me and I take care of you, and you can't do that to Ford."
And guess what? No problem. They're going to build in Mexico. They're going to take away thousands of
jobs. It's very bad for us.
So under President Trump, here's what would happen:
(APPLAUSE)
The head of Ford will call me back, I would say within an hour after I told them the bad news. But it
could be he'd want to be cool, and he'll wait until the next day. You know, they want to be a little cool.
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And he'll say, "Please, please, please." He'll beg for a little while, and I'll say, "No interest." Then he'll call
all sorts of political people, and I'll say, "Sorry, fellas. No interest," because I don't need anybody's
money. It's nice. I don't need anybody's money.
I'm using my own money. I'm not using the lobbyists. I'm not using donors. I don't care. I'm really rich. I
(inaudible).
(APPLAUSE)
And by the way, I'm not even saying that in a -- that's the kind of mindset, that's the kind of thinking you
need for this country.
AUDIENCE MEMBER: Absolutely.
TRUMP: So -- because we got to make the country rich.
It sounds crass. Somebody said, "Oh, that's crass." It's not crass.
We got $18 trillion in debt. We got nothing but problems.
We got a military that needs equipment all over the place. We got nuclear weapons that are obsolete.
We've got nothing. We've got Social Security that's going to be destroyed if somebody like me doesn't
bring money into the country. All these other people want to cut the hell out of it. I'm not going to cut it
at all; I'm going to bring money in, and we're going to save it.
(APPLAUSE)
But here's what's going to happen:
After I'm called by 30 friends of mine who contributed to different campaigns, after I'm called by all of
the special interests and by the -- the donors and by the lobbyists -- and they have zero chance at
convincing me, zero -- I'll get a call the next day from the head of Ford. He'll say. "Please reconsider," I'll
say no.
He'll say, "Mr. President, we've decided to move the plant back to the United States, and we're not going
to build it in Mexico." That's it. They have no choice. They have no choice.
There are hundreds of things like that. I'll give you another example.
TRUMP: Saudi Arabia, they make $1 billion a day. $1 billion a day. I love the Saudis. Many are in this
building. They make a billion dollars a day. Whenever they have problems, we send over the ships. We
say "we're gonna protect." What are we doing? They've got nothing but money.
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If the right person asked them, they'd pay a fortune. They wouldn't be there except for us.
And believe me, you look at the border with Yemen. You remember Obama a year ago, Yemen was a
great victory. Two weeks later, the place was blown up. Everybody got out -- and they kept our
equipment.
They always keep our equipment. We ought to send used equipment, right? They always keep our
equipment. We ought to send some real junk, because, frankly, it would be -- we ought to send our
surplus. We're always losing this gorgeous brand-new stuff.
But look at that border with Saudi Arabia. Do you really think that these people are interested in Yemen?
Saudi Arabia without us is gone. They;re gone.
And I'm the one that made all of the right predictions about Iraq. You know, all of these politicians that
I'm running against now -- it's so nice to say I'm running as opposed to if I run, if I run. I'm running.
(APPLAUSE)
But all of these politicians that I'm running against now, they're trying to disassociate. I mean, you
looked at Bush, it took him five days to answer the question on Iraq. He couldn't answer the question. He
didn't know. I said, "Is he intelligent?"
Then I looked at Rubio. He was unable to answer the question, is Iraq a good thing or bad thing? He
didn't know. He couldn't answer the question.
How are these people gonna lead us? How are we gonna -- how are we gonna go back and make it great
again? We can't. They don't have a clue. They can't lead us. They can't. They can't even answer simple
questions. It was terrible.
But Saudi Arabia is in big, big trouble. Now, thanks to fracking and other things, the oil is all over the
place. And I used to say it, there are ships at sea, and this was during the worst crisis, that were loaded
up with oil, and the cartel kept the price up, because, again, they were smarter than our leaders. They
were smarter than our leaders.
There is so much wealth out there that can make our country so rich again, and therefore make it great
again. Because we need money. We're dying. We're dying. We need money. We have to do it. And we
need the right people.
So Ford will come back. They'll all come back. And I will say this, this is going to be an election, in my
opinion, that's based on competence.
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TRUMP: Somebody said -- thank you, darlin'.
(APPLAUSE)
Somebody said to me the other day, a reporter, a very nice reporter, "But, Mr. Trump, you're not a nice
person."
AUDIENCE MEMBER: We don't need nice.
TRUMP: That's true. But actually I am. I think I am a nice person. People that know me, like me. Does
my family like me? I think so, right. Look at my family. I'm proud of my family.
(APPLAUSE)
By the way, speaking of my family, Melania, Barron, Kai, Donnie, Don, Vanessa, Tiffany, Evanka did a
great job. Did she do a great job?
(APPLAUSE)
Great. Jared (ph), Laura and Eric, I'm very proud of my family. They're a great family.
(APPLAUSE)
So the reporter said to me the other day, "But, Mr. Trump, you're not a nice person. How can you get
people to vote for you?"
I said, "I don't know." I said, "I think that number one, I am a nice person. I give a lot of money away to
charities and other things. I think I'm actually a very nice person."
But, I said, "This is going to be an election that's based on competence, because people are tired of these
nice people. And they're tired of being ripped off by everybody in the world. And they're tired of
spending more money on education than any nation in the world per capita, than any nation in the
world, and we are 26th in the world, 25 countries are better than us in education. And some of them are
like third world countries. But we're becoming a third word country, because of our infrastructure, our
airports, our roads, everything. So one of the things I did, and I said, you know what I'll do. I'll do it.
Because a lot of people said, "He'll never run. Number one, he won't want to give up his lifestyle."
TRUMP: They're right about that, but I'm doing it.
Number two, I'm a private company, so nobody knows what I'm worth. And the one thing is that when
you run, you have to announce and certify to all sorts of governmental authorities your net worth.
So I said, "That's OK." I'm proud of my net worth. I've done an amazing job.
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I started off -- thank you -- I started off in a small office with my father in Brooklyn and Queens, and my
father said -- and I love my father. I learned so much. He was a great negotiator. I learned so much just
sitting at his feet playing with blocks listening to him negotiate with subcontractors. But I learned a lot.
But he used to say, "Donald, don't go into Manhattan. That's the big leagues. We don't know anything
about that. Don't do it."
I said, "I gotta go into Manhattan. I gotta build those big buildings. I gotta do it, Dad. I've gotta do it."
And after four or five years in Brooklyn, I ventured into Manhattan and did a lot of great deals -- the
Grand Hyatt Hotel. I was responsible for the convention center on the west side. I did a lot of great deals,
and I did them early and young. And now I'm building all over the world, and I love what I'm doing.
But they all said, a lot of the pundits on television, "Well, Donald will never run, and one of the main
reasons is he's private and he's probably not as successful as everybody thinks."
So I said to myself, you know, nobody's ever going to know unless I run, because I'm really proud of my
success. I really am.
(APPLAUSE)
I've employed -- I've employed tens of thousands of people over my lifetime. That means medical. That
means education. That means everything.
So a large accounting firm and my accountants have been working for months, because it's big and
complex, and they've put together a statement, a financial statement, just a summary. But everything will
be filed eventually with the government, and we don't extensions or anything. We'll be filing it right on
time. We don't need anything.
(APPLAUSE)
And it was even reported incorrectly yesterday, because they said, "He had assets of $9 billion." So I said
(ph), "No, that's the wrong number. That's the wrong number. Not assets."
So they put together this. And before I say it, I have to say this. I made it the old-fashioned way. It's real
estate. You know, it's real estate.
It's labor, and it's unions good and some bad and lots of people that aren't in unions, and it's all over the
place and building all over the world.
And I have assets -- big accounting firm, one of the most highly respected -- 9 billion 240 million dollars.
AUDIENCE MEMBER: Yeah.
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TRUMP: And I have liabilities of about $500 million (ph). That's long-term debt, very low interest rates.
In fact, one of the big banks came to me and said, "Donald, you don't have enough borrowings. Could we
loan you $4 billion"? I said, "I don't need it. I don't want it. And I've been there. I don't want it."
But in two seconds, they give me whatever I wanted. So I have a total net worth, and now with the
increase, it'll be well-over $10 billion. But here, a total net worth of -- net worth, not assets, not -- a net
worth, after all debt, after all expenses, the greatest assets -- Trump Tower, 1290 Avenue of the
Americas, Bank of America building in San Francisco, 40 Wall Street, sometimes referred to as the
Trump building right opposite the New York -- many other places all over the world.
So the total is $8,737,540,00.
Now I'm not doing that...
(APPLAUSE)
I'm not doing that to brag, because you know what? I don't have to brag. I don't have to, believe it or not.
I'm doing that to say that that's the kind of thinking our country needs. We need that thinking. We have
the opposite thinking.
We have losers. We have losers. We have people that don't have it. We have people that are morally
corrupt. We have people that are selling this country down the drain.
So I put together this statement, and the only reason I'm telling you about it today is because we really
do have to get going, because if we have another three or four years -- you know, we're at $8 trillion now.
We're soon going to be at $20 trillion.
TRUMP: According to the economists -- who I'm not big believers in, but, nevertheless, this is what
they're saying -- that $24 trillion -- we're very close -- that's the point of no return. $24 trillion. We will
be there soon. That's when we become Greece. That's when we become a country that's unsalvageable.
And we're gonna be there very soon. We're gonna be there very soon.
AUDIENCE MEMBER: Make America strong.
TRUMP: So, just to sum up, I would do various things very quickly. I would repeal and replace the big
lie, Obamacare.
(APPLAUSE)
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I would build a great wall, and nobody builds walls better than me, believe me, and I'll build them very
inexpensively, I will build a great, great wall on our southern border. And I will have Mexico pay for that
wall.
TRUMP: Mark my words.
(APPLAUSE)
Nobody would be tougher on ISIS than Donald Trump. Nobody.
(APPLAUSE)
I will find -- within our military, I will find the General Patton or I will find General MacArthur, I will
find the right guy. I will find the guy that's going to take that military and make it really work. Nobody,
nobody will be pushing us around.
(APPLAUSE)
TRUMP: I will stop Iran from getting nuclear weapons. And we won't be using a man like Secretary
Kerry that has absolutely no concept of negotiation, who's making a horrible and laughable deal, who's
just being tapped along as they make weapons right now, and then goes into a bicycle race at 72 years
old, and falls and breaks his leg. I won't be doing that. And I promise I will never be in a bicycle race.
That I can tell you.
(APPLAUSE)
I will immediately terminate President Obama's illegal executive order on immigration, immediately.
(APPLAUSE)
Fully support and back up the Second Amendment.
(APPLAUSE)
Now, it's very interesting. Today I heard it. Through stupidity, in a very, very hard core prison,
interestingly named Clinton, two vicious murderers, two vicious people escaped, and nobody knows
where they are. And a woman was on television this morning, and she said, "You know, Mr. Trump," and
she was telling other people, and I actually called her, and she said, "You know, Mr. Trump, I always was
against guns. I didn't want guns. And now since this happened" -- it's up in the prison area -- "my
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husband and I are finally in agreement, because he wanted the guns. We now have a gun on every table.
We're ready to start shooting."
I said, "Very interesting."
So protect the Second Amendment.
(APPLAUSE)
End -- end Common Core. Common Core should -- it is a disaster. Bush is totally in favor of Common
Core. I don't see how he can possibly get the nomination. He's weak on immigration. He's in favor of
Common Core. How the hell can you vote for this guy? You just can't do it. We have to end -- education
has to be local.
Rebuild the country's infrastructure.
TRUMP: Nobody can do that like me. Believe me. It will be done on time, on budget, way below cost, way
below what anyone ever thought.
I look at the roads being built all over the country, and I say I can build those things for one-third. What
they do is unbelievable, how bad.
You know, we're building on Pennsylvania Avenue, the Old Post Office, we're converting it into one of
the world's great hotels. It's gonna be the best hotel in Washington, D.C. We got it from the General
Services Administration in Washington. The Obama administration. We got it. It was the most highly
sought after -- or one of them, but I think the most highly sought after project in the history of General
Services. We got it. People were shocked, Trump got it.
Well, I got it for two reasons. Number one, we're really good. Number two, we had a really good plan.
And I'll add in the third, we had a great financial statement. Because the General Services, who are
terrific people, by the way, and talented people, they wanted to do a great job. And they wanted to make
sure it got built.
TRUMP: So we have to rebuild our infrastructure, our bridges, our roadways, our airports. You come
into La Guardia Airport, it's like we're in a third world country. You look at the patches and the 40-year-
old floor. They throw down asphalt, and they throw.
You look at these airports, we are like a third world country. And I come in from China and I come in
from Qatar and I come in from different places, and they have the most incredible airports in the world.
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You come to back to this country and you have LAX, disaster. You have all of these disastrous airports.
We have to rebuild our infrastructure.
Save Medicare, Medicaid and Social Security without cuts. Have to do it.
(APPLAUSE)
Get rid of the fraud. Get rid of the waste and abuse, but save it. People have been paying it for years. And
now many of these candidates want to cut it. You save it by making the United States, by making us rich
again, by taking back all of the money that's being lost.
Renegotiate our foreign trade deals.
(APPLAUSE)
TRUMP: Reduce our $18 trillion in debt, because, believe me, we're in a bubble. We have artificially low
interest rates. We have a stock market that, frankly, has been good to me, but I still hate to see what's
happening. We have a stock market that is so bloated.
Be careful of a bubble because what you've seen in the past might be small potatoes compared to what
happens. So be very, very careful.
And strengthen our military and take care of our vets. So, so important.
(APPLAUSE)
TRUMP: Sadly, the American dream is dead.
AUDIENCE MEMBER: Bring it back.
TRUMP: But if I get elected president I will bring it back bigger and better and stronger than ever before,
and we will make America great again.
Thank you. Thank you very much.
(APPLAUSE)
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At GOP debate, Trump says 'stupid' U.S. leaders are being

duped by Mexico
By Andrew O'Reilly
Published August 06, 2015
Fox News
Speculation that Donald Trump would tone down his rhetoric on immigration and Mexico during the first prime time Republican
presidential debate crumbled Thursday night when the outspoken billionaire made it clear that none of the candidates would be
talking about immigration if it was not for him.
Trump has taken a particularly tough stance on immigration this summer, drawing criticism in the Latino community for saying
Mexico was sending criminals and rapists to the U.S.
When asked by Fox News host Chris Wallace to provide evidence for his controversial comments, Trump fired back that U.S.
Border Patrol agents have told him the Mexican government is sending criminals because they know the government in America is
"stupid."
"They say this is what's happening because our leaders are stupid, our politicians are stupid," the real estate mogul said, during the
debate inside Cleveland's Quicken Loans Arena. "And the Mexican government is much smarter, much sharper, much more
cunning."
Trump added: "They send the bad ones over, because they don't want to pay for them, they don't want to take care of them. Why
should they, when the stupid leaders of the United States will do it for 'me?"
When asked to respond to comments made by former Florida Gov. Jeb Bush that he was "hurt" by Trump's comments about
Mexicans and immigrants, the businessman-turned-presidential candidate did not turn to his left, where Bush was standing, but
instead said the U.S. needs to build a wall and that he doesn't mind if it has a "big, beautiful door."
Immigration dominated a large portion of the first half of the debate, with most candidates pledging to take a tough stance on the
issue -- but most of them disagreeing on how to fix a broken system.
Bush argued that border security is key to finding a solution to the immigration problem, but stuck by his stance that most
undocumented immigrants come to the U.S. because they feel they have no other choice.
"I believe that the great majority of people coming here do it because they have no other option," Bush said.
Bush, whose wife was born in Mexico, added: "There's much to do. Rather than talking about this as a wedge issue, the next
president will fix this once and for all, as a driver for high, sustained economic growth."
While Ohio Gov. John Kasich dodged an opportunity to criticize Trump on immigration – saying instead that Trump was "hitting a
nerve in this country" -- other candidates were not so reluctant to pull any punches.
A seemingly confident Florida Sen. Marco Rubio took offense to Trump's assertion that Mexico is to blame for America's illegal
immigration problem. Most immigrants coming illegally, Rubio said, are coming from countries such as Guatemala and El Salvador
and are overstaying their welcome, as opposed to sneaking over the border.
Rubio said his Senate office takes phone calls frequently from people who entered the country legally but are frustrated with the
slow legal immigration process and wonder if they should just come illegally.
"This is the most generous country in the world when it comes to immigration," he said.
But, in response to Trump, he said building a wall or fence won't solve the immigration issue.
"If (Mexican drug lord) El Chapo can build a tunnel under that fence, we need to deal with that," he said.
Texas Sen. Ted Cruz, who has not only praised Trump but even made a trip to New York to meet with him – struck a different chord
Thursday evening by saying that he was one of the only candidates on stage who had not supported amnesty for undocumented
immigrants.
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In reference to Trump's comments calling U.S. leaders stupid, Cruz said: "It's not a question of stupidity, it's that they don't want to
reform immigration."
The debate only included the top 10 candidates based on their showing in recent polls. The remaining seven candidates were
relegated to a pre-debate forum, a low-key event in a largely empty arena, where candidates avoided debating each other and
largely stuck to scripted responses on domestic and foreign policy issues.
The Associated Press contributed to this report.
Follow Andrew O'Reilly on Twitter @aoreilly84.
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Exhibit 9
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1:18-cv-01599-WFK-ST Document There are ‘bad hombres’
62-9 Filed in10/09/18
the United States
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of 3 PageID
The Washington Post
Post Politics
Trump on immigration: There are ‘bad hombres’ in the United

States
By Katie Zezima
Katie Zezima
National reporter covering vice
Email  Bio  Follow 
October 19, 2016
Donald Trump, talking about immigration, said there are some “bad hombres” in the United States.
“We have some bad hombres here, and we're going to get them out,” Trump said during the final
presidential debate.
Building a wall along the U.S.-Mexico border has been a central tenet of Trump’s campaign. Trump has
said he wants to deport the 11 million undocumented immigrants in the country, but last month said he
would prioritize the deportation of 5 million to 6.5 million people.
“One of my first acts will be to get all of the drug lords, all of the bad ones — we have some bad, bad
people in this country that have to go out,” Trump said. He argued that building a wall will help stem the
tide of heroin into the United States, something experts said is unlikely.
Trump said once the border is secured, “we'll make a determination as to the rest.”
 8 Comments
Katie Zezima
Katie Zezima is a national correspondent covering drugs, guns, gambling and vice in America. She covered
the 2016 election and the Obama White House for The Washington Post. Follow 
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9/10/2018Case Trump on immigration:
1:18-cv-01599-WFK-ST Document There are ‘bad hombres’
62-9 Filed in10/09/18
the United States
Page- The3Washington Post #: 2552
of 3 PageID
A podcast from
The Post’s
politics team
Listen on Apple Podcasts.
Listen on Stitcher.
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Exhibit 10
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Case Trump Calls
1:18-cv-01599-WFK-ST Some Unauthorized
Document 62-10Immigrants
Filed‘Animals’ in RantPage
10/09/18 - The New
2 York
of 4Times
PageID #: 2554
Trump Calls Some Unauthorized

Immigrants ʻAnimalsʼ in Rant
By Julie Hirschfeld Davis
May 16, 2018
WASHINGTON — President Trump lashed out at undocumented immigrants during a White

House meeting on Wednesday, warning in front of news cameras that dangerous people were
clamoring to breach the country’s borders and branding such people “animals.”
Mr. Trump’s comments came during a round-table discussion with state and local leaders on
California’s so-called sanctuary laws, which strictly limit communication between local law
enforcement and federal immigration officers, and which the Trump administration is suing to
invalidate. It was hardly the first time the president has spoken in racially fraught terms about
immigrants, but it underscored his anger about unchecked immigration — the animating issue of
his campaign and his tenure so far — and his frustration that he has not been able to do more to
seal the nation’s borders.
As he has in numerous private meetings with his advisers at the White House, Mr. Trump used
the session to vent about the nation’s immigration laws, calling them “the dumbest laws on
immigration in the world.” He exhorted his administration to “do much better” in keeping out
undesirable people, including members of transnational gangs like MS-13.
“We have people coming into the country, or trying to come in — we’re stopping a lot of them,” Mr.
Trump said in the Cabinet Room during an hourlong meeting that reporters were allowed to
document. “You wouldn’t believe how bad these people are. These aren’t people, these are
animals, and we’re taking them out of the country at a level and at a rate that’s never happened
before.”
Mr. Trump’s remarks came as the local officials invited for the event took turns praising his
immigration policies and lamenting California’s law, arguing that it was making it more difficult
for their communities to find and deport criminals.
Sheriff Margaret Mims of Fresno County said the statute barred Immigration and Customs
Enforcement authorities from using her databases “to find the bad guys,” or from entering
prisons to locate people who might be in the country illegally.
“It’s really put us in a very bad position,” Sheriff Mims said.
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“It’s a disgrace,” Mr. Trump answered, “and we’re suing on that.”
The president’s language and his focus on California drew a sharp rebuke from Jerry Brown, the
state’s Democratic governor.
“Trump is lying on immigration, lying about crime and lying about the laws of California,” Mr.
Brown said in a statement. “Flying in a dozen Republican politicians to flatter him and praise his
reckless policies changes nothing. We, the citizens of the fifth-largest economy in the world, are
not impressed.”
During the session, Mr. Trump suggested that the mayor of Oakland, Calif., should be charged
with obstruction of justice for warning her constituents in February of an impending large-scale
immigration raid and arrests.
“You talk about obstruction of justice,” said the president, who is himself the subject of a special
counsel’s investigation into whether he sought to thwart a federal examination of Russia’s
meddling in the 2016 elections. “I would recommend that you look into obstruction of justice for
the mayor of Oakland.”
Turning to Jeff Sessions, his attorney general, who sat at the other end of the large wooden
conference table, Mr. Trump said: “Perhaps the Department of Justice can look into that.”
The round table took place exactly one week after Mr. Trump used a closed-door cabinet meeting
to castigate Kirstjen Nielsen, the secretary of homeland security, for failing to do enough to crack
down at the border. On Wednesday, Ms. Nielsen said little when called upon to speak, other than
to thank Mr. Trump for his leadership on the issue.
“You’re doing a good job, and it’s not an easy job,” Mr. Trump told Ms. Nielsen.
He alluded to a recent push by his administration that parents be separated from their children
when families cross illegally into the United States, but blamed Democrats — many of whom have
vehemently opposed the practice — for the new policy.
“I know what you’re going through right now with families is very tough, but those are the bad
laws that the Democrats gave us,” Mr. Trump said. “We have to break up families. The Democrats
gave us that law.”
The president also took aim at Mexico as unhelpful on immigration.
“Mexico does nothing for us,” Mr. Trump said. “Mexico talks, but they do nothing for us,
especially at the border. Certainly don’t help us much on trade, but especially at the border, they
do nothing for us.”
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His harsh criticism came as American and Mexican officials were at a critical stage in their
efforts to renegotiate the North American Free Trade Agreement.
Mr. Trump’s heated remarks on immigration, both private and public, appear to have resonated
with his advisers, who have been moving to put in place ever-stricter policies in line with the
president’s vision. Mr. Sessions said the Department of Justice would be adding immigration
judges and prosecuting twice as many immigration cases this year.
“The president has made clear to all of us that we have to do better,” he said. “We are going to do
better.”
The attorney general, a former senator who helped to derail previous attempts at revamping
immigration laws, also expressed hope that a legislative overhaul could be enacted this year,
although Republicans on Capitol Hill have shown little appetite for undertaking one.
“This is the year that we have to move Congress,” Mr. Sessions said.
A version of this article appears in print on May 16, 2018, on Page A13 of the New York edition with the headline: Trump Rants on Unauthorized Migrants: ʻThese
Arenʼt People, These Are Animalsʼ
READ 436 COMMENTS
Exhibit 11
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Case Stoking Fears, Trump
1:18-cv-01599-WFK-ST Defied Bureaucracy
Document 62-11 toFiled
Advance Immigration Agenda
10/09/18 Page -2TheofNew
15York Times #: 2558
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https://nyti.ms/2DCJqPP
T R U M P ’ S W AY
STOKING FEARS, TRUMP

DEFIED BUREAUCRACY
TO ADVANCE
IMMIGRATION AGENDA
The changes have had far-reaching
consequences, both for the immigrants who
have sought to make a new home in this
country and for America’s image in the world.
Leer en español
By MICHAEL D. SHEAR and JULIE HIRSCHFELD
DAVIS DEC. 23, 2017
WASHINGTON — Late to his own meeting and waving a sheet of numbers,

President Trump stormed into the Oval Office one day in June, plainly enraged.
Five months before, Mr. Trump had dispatched federal officers to the nation’s
airports to stop travelers from several Muslim countries from entering the United
States in a dramatic demonstration of how he would deliver on his campaign
promise to fortify the nation’s borders.
But so many foreigners had flooded into the country since January, he vented to
his national security team, that it was making a mockery of his pledge. Friends were
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calling to say he looked like a fool, Mr. Trump said.
According to six officials who attended or were briefed about the meeting, Mr.
Trump then began reading aloud from the document, which his domestic policy
adviser, Stephen Miller, had given him just before the meeting. The document listed
how many immigrants had received visas to enter the United States in 2017.
More than 2,500 were from Afghanistan, a terrorist haven, the president
complained.
Haiti had sent 15,000 people. They “all have AIDS,” he grumbled, according to
one person who attended the meeting and another person who was briefed about it
by a different person who was there.
Forty thousand had come from Nigeria, Mr. Trump added. Once they had seen the
United States, they would never “go back to their huts” in Africa, recalled the two
officials, who asked for anonymity to discuss a sensitive conversation in the Oval
Office.
As the meeting continued, John F. Kelly, then the secretary of homeland

security, and Rex W. Tillerson, the secretary of state, tried to interject, explaining
that many were short-term travelers making one-time visits. But as the president
continued, Mr. Kelly and Mr. Miller turned their ire on Mr. Tillerson, blaming him
for the influx of foreigners and prompting the secretary of state to throw up his arms
in frustration. If he was so bad at his job, maybe he should stop issuing visas
altogether, Mr. Tillerson fired back.
Tempers flared and Mr. Kelly asked that the room be cleared of staff members.
But even after the door to the Oval Office was closed, aides could still hear the
president berating his most senior advisers.
Sarah Huckabee Sanders, the White House press secretary, denied on Saturday
morning that Mr. Trump had made derogatory statements about immigrants during
the meeting.
“General Kelly, General McMaster, Secretary Tillerson, Secretary Nielsen and all
other senior staff actually in the meeting deny these outrageous claims,” she said,
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referring to the current White House chief of staff, the national security adviser and
the secretaries of state and homeland security. “It’s both sad and telling The New
York Times would print the lies of their anonymous ‘sources’ anyway.”
While the White House did not deny the overall description of the meeting,
officials strenuously insisted that Mr. Trump never used the words “AIDS” or “huts”
to describe people from any country. Several participants in the meeting told Times
reporters that they did not recall the president using those words and did not think
he had, but the two officials who described the comments found them so noteworthy
that they related them to others at the time.
The meeting in June reflects Mr. Trump’s visceral approach to an issue that
defined his campaign and has indelibly shaped the first year of his presidency.
Seizing on immigration as the cause of countless social and economic problems,

Mr. Trump entered office with an agenda of symbolic but incompletely thought-out
goals, the product not of rigorous policy debate but of emotionally charged personal
interactions and an instinct for tapping into the nativist views of white working-class
Americans.
Like many of his initiatives, his effort to change American immigration policy
has been executed through a disorderly and dysfunctional process that sought from
the start to defy the bureaucracy charged with enforcing it, according to interviews
with three dozen current and former administration officials, lawmakers and others
close to the process, many of whom spoke on the condition of anonymity to detail
private interactions.
But while Mr. Trump has been repeatedly frustrated by the limits of his power,
his efforts to remake decades of immigration policy have gained increasing
momentum as the White House became more disciplined and adept at either
ignoring or undercutting the entrenched opposition of many parts of the
government. The resulting changes have had far-reaching consequences, not only for
the immigrants who have sought to make a new home in this country, but also for
the United States’ image in the world.
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“We have taken a giant steamliner barreling full speed,” Mr. Miller said in a
recent interview. “Slowed it, stopped it, begun to turn it around and started sailing in
the other direction.”
It is an assessment shared ruefully by Mr. Trump’s harshest critics, who see a

darker view of the past year. Frank Sharry, the executive director of America’s Voice,
a pro-immigration group, argues that the president’s immigration agenda is
motivated by racism.
“He’s basically saying, ‘You people of color coming to America seeking the
American dream are a threat to the white people,’” said Mr. Sharry, an outspoken
critic of the president. “He’s come into office with an aggressive strategy of trying to
reverse the demographic changes underway in America.”
A Pledge With Appeal

Those who know Mr. Trump say that his attitude toward immigrants long predates
his entry into politics.
“He’s always been fearful where other cultures are concerned and always had
anxiety about food and safety when he travels,” said Michael D’Antonio, who
interviewed him for the biography “The Truth About Trump.” “His objectification
and demonization of people who are different has festered for decades.”
Friends say Mr. Trump, a developer turned reality TV star, grew to see
immigration as a zero-sum issue: What is good for immigrants is bad for America. In
2014, well before becoming a candidate, he tweeted: “Our government now imports
illegal immigrants and deadly diseases. Our leaders are inept.”
Donald J. Trump
@realDonaldTrump
Our government now imports illegal immigrants and

deadly diseases. Our leaders are inept.
7:55 AM - Aug 5, 2014
695 1,049 people are talking about this
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But he remained conflicted, viewing himself as benevolent and wanting to be

liked by the many immigrants he employed.
Over time, the anti-immigrant tendencies hardened, and two of his early
advisers, Roger J. Stone Jr. and Sam Nunberg, stoked that sentiment. But it was Mr.
Trump who added an anti-immigrant screed to his Trump Tower campaign
announcement in June 2015 in New York City without telling his aides.
“When do we beat Mexico at the border? They’re laughing at us, at our

stupidity,” Mr. Trump ad-libbed. “They’re sending people that have lots of problems,
and they’re bringing those problems,” he continued. “They’re bringing drugs; they’re
bringing crime; they’re rapists.”
During his campaign, he pushed a false story about Muslims celebrating in

Jersey City as they watched the towers fall after the Sept. 11, 2001, attacks in New
York. He said illegal immigrants were like “vomit” crossing the border. And he made
pledges that he clearly could not fulfill.
“We will begin moving them out, Day 1,” he said at a rally in August 2016,
adding, “My first hour in office, those people are gone.”
Democrats and some Republicans recoiled, calling Mr. Trump’s messaging

damaging and divisive. But for the candidate, the idea of securing the country
against outsiders with a wall had intoxicating appeal, though privately, he
acknowledged that it was a rhetorical device to whip up crowds when they became
listless.
Senator Tom Cotton, Republican of Arkansas, whom Mr. Trump consults

regularly on the matter, said it was not a stretch to attribute Mr. Trump’s victory to
issues where Mr. Trump broke with a Republican establishment orthodoxy that had
disappointed anti-immigrant conservatives for decades.
“There’s no issue on which he was more unorthodox than on immigration,” Mr.

Cotton said.
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Mr. Trump came into office with a long list of campaign promises that included not
only building the wall (and making Mexico pay for it), but creating a “deportation
force,” barring Muslims from entering the country and immediately deporting
millions of immigrants with criminal records.
Mr. Miller and other aides had the task of turning those promises into a policy
agenda that would also include an assault against a pro-immigration bureaucracy
they viewed with suspicion and disdain. Working in secret, they drafted a half-dozen
executive orders. One would crack down on so-called sanctuary cities. Another
proposed changing the definition of a criminal alien so that it included people
arrested — not just those convicted.
But mindful of his campaign promise to quickly impose “extreme vetting,” Mr.
Trump decided his first symbolic action would be an executive order to place a
worldwide ban on travel from nations the White House considered compromised by
terrorism.
With no policy experts in place, and deeply suspicious of career civil servants
they regarded as spies for President Barack Obama, Mr. Miller and a small group of
aides started with an Obama-era law that identified seven terror-prone “countries of
concern.” And then they skipped practically every step in the standard White House
playbook for creating and introducing a major policy.
The National Security Council never convened to consider the travel ban
proposal. Sean Spicer, the White House press secretary at the time, did not see it
ahead of time. Lawyers and policy experts at the White House, the Justice
Department and the Homeland Security Department were not asked to weigh in.
There were no talking points for friendly surrogates, no detailed briefings for
reporters or lawmakers, no answers to frequently asked questions, such as whether
green card holders would be affected.
The announcement of the travel ban on a Friday night, seven days after Mr.
Trump’s inauguration, created chaotic scenes at the nation’s largest airports, as
hundreds of people were stopped, and set off widespread confusion and loud
protests. Lawyers for the government raced to defend the president’s actions against
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court challenges, while aides struggled to explain the policy to perplexed lawmakers
the next night at a black-tie dinner.
White House aides resorted to Google searches and frenzied scans of the United
States Code to figure out which countries were affected.
But for the president, the chaos was the first, sharp evidence that he could exert
power over the bureaucracy he criticized on the campaign trail.
“It’s working out very nicely,” Mr. Trump told reporters in the Oval Office the
next day.
At a hastily called Saturday night meeting in the Situation Room, Mr. Miller told
senior government officials that they should tune out the whining.
Sitting at the head of the table, across from Mr. Kelly, Mr. Miller repeated what
he told the president: This is what we wanted — to turn immigration enforcement
back on.
Mr. Kelly, who shared Mr. Trump’s views about threats from abroad, was
nonetheless livid that his employees at homeland security had been called into action
with no guidance or preparation. He told angry lawmakers that responsibility for the
rollout was “all on me.” Privately, he told the White House, “That’s not going to
happen again.”
Forced to Back Down

Amid the turbulent first weeks, Mr. Trump’s attempt to bend the government’s
immigration apparatus to his will began to take shape.
The ban’s message of “keep out” helped drive down illegal border crossings as
much as 70 percent, even without being formally put into effect.
Immigration officers rounded up 41,318 undocumented immigrants during the

president’s first 100 days, nearly a 40 percent increase. The Justice Department
began hiring more immigration judges to speed up deportations. Officials threatened
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to hold back funds for sanctuary cities. The flow of refugees into the United States
slowed.
Mr. Trump “has taken the handcuffs off,” said Steven A. Camarota of the Center
for Immigration Studies, an advocacy group that favors more limits on immigration.
Mr. Obama had been criticized by immigrant rights groups for excessive
deportations, especially in his first term. But Mr. Camarota said that Mr. Trump’s
approach was “a distinct change, to look at what is immigration doing to us, rather
than what is the benefit for the immigrant.”
The president, however, remained frustrated that the shift was not yielding
results.
By early March, judges across the country had blocked his travel ban.
Immigrant rights activists were crowing that they had thwarted the new president.
Even Mr. Trump’s own lawyers told him he had to give up on defending the ban.
Attorney General Jeff Sessions and lawyers at the White House and Justice
Department had decided that waging an uphill legal battle to defend the directive in
the Supreme Court would fail. Instead, they wanted to devise a narrower one that
could pass legal muster.
The president, though, was furious about what he saw as backing down to
politically correct adversaries. He did not want a watered-down version of the travel
ban, he yelled at Donald F. McGahn II, the White House counsel, as the issue came
to a head on Friday, March 3, in the Oval Office.
It was a familiar moment for Mr. Trump’s advisers. The president did not mind
being told “no” in private, and would sometimes relent. But he could not abide a
public turnabout, a retreat. At those moments, he often exploded at whoever was
nearby.
As Marine One waited on the South Lawn for Mr. Trump to begin his weekend
trip to Palm Beach, Fla., Mr. McGahn insisted that administration lawyers had
already promised the court that Mr. Trump would issue a new order. There was no
alternative, he said.
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“This is bullshit,” the president responded.
With nothing resolved, Mr. Trump, furious, left the White House. A senior aide
emailed a blunt warning to a colleague waiting aboard Air Force One at Joint Base
Andrews in Maryland: “He’s coming in hot.”
Already mad at Mr. Sessions, who the day before had recused himself in the
Russia investigation, Mr. Trump refused to take his calls. Aides told Mr. Sessions he
would have to fly down to Mar-a-Lago to plead with the president in person to sign
the new order.
Over dinner that night with Mr. Sessions and Mr. McGahn, Mr. Trump relented.
When he was back in Washington, he signed the new order. It was an indication that
he had begun to understand — or at least, begrudgingly accept — the need to follow a
process.
Still, one senior adviser later recalled never having seen a president so angry
signing anything.
Soft Spot for ‘Dreamers’

As a candidate, Mr. Trump had repeatedly contradicted himself about the
deportations he would pursue, and whether he was opposed to any kind of path to
citizenship for undocumented immigrants. But he also courted conservative voters
by describing an Obama-era policy as an illegal amnesty for the immigrants who had
been brought to the United States as children.
During the transition, his aides drafted an executive order to end the program,
known as Deferred Action for Childhood Arrivals. But the executive order was held
back as the new president struggled with conflicted feelings about the young
immigrants, known as Dreamers.
“We’re going to take care of those kids,” Mr. Trump had pledged to Senator
Richard J. Durbin during a private exchange at his Inauguration Day luncheon.
The comment was a fleeting glimpse of the president’s tendency to seek

approval from whoever might be sitting across from him, and the power that
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personal interactions have in shaping his views.
In 2013, Mr. Trump met with a small group of Dreamers at Trump Tower,
hoping to improve his standing with the Hispanic community. José Machado told
Mr. Trump about waking up at the age of 15 to find his mother had vanished —
deported, he later learned, back to Nicaragua.
“Honestly,” Mr. Machado said of Mr. Trump, “he had no idea.”
Mr. Trump appeared to be touched by the personal stories, and insisted that the
Dreamers accompany him to his gift shop for watches, books and neckties to take
home as souvenirs. In the elevator on the way down, he quietly nodded and said,
“You convinced me.”
Aware that the president was torn about the Dreamers, Jared Kushner, his son-
in-law, quietly reached out in March to Mr. Durbin, who had championed legislation
called the Dream Act to legalize the immigrants, to test the waters for a possible deal.
After weeks of private meetings on Capitol Hill and telephone conversations

with Mr. Durbin and Senator Lindsey Graham, a South Carolina Republican
supportive of legalizing the Dreamers, Mr. Kushner invited them to dinner at the six-
bedroom estate he shares with his wife, Ivanka Trump.
But Mr. Durbin’s hope of a deal faded when he arrived to the house and saw
who one of the guests would be.
“Stephen Miller’s presence made it a much different experience than I

expected,” Mr. Durbin said later.
Confronting the ‘Deep State’

Even as the administration was engaged in a court battle over the travel ban, it began
to turn its attention to another way of tightening the border — by limiting the
number of refugees admitted each year to the United States. And if there was one
“deep state” stronghold of Obama holdovers that Mr. Trump and his allies suspected
of undermining them on immigration, it was the State Department, which
administers the refugee program.
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At the department’s Bureau of Population, Refugees and Migration, there was a

sense of foreboding about a president who had once warned that any refugee might
be a “Trojan horse” or part of a “terrorist army.”
Mr. Trump had already used the travel ban to cut the number of allowable
refugees admitted to the United States in 2017 to 50,000, a fraction of the 110,000
set by Mr. Obama. Now, Mr. Trump would have to decide the level for 2018.
At an April meeting with top officials from the bureau in the West Wing’s
Roosevelt Room, Mr. Miller cited statistics from the restrictionist Center for
Immigration Studies that indicated that resettling refugees in the United States was
far costlier than helping them in their own region.
Mr. Miller was visibly displeased, according to people present, when State
Department officials pushed back, citing another study that found refugees to be a
net benefit to the economy. He called the contention absurd and said it was exactly
the wrong kind of thinking.
But the travel ban had been a lesson for Mr. Trump and his aides on the dangers
of dictating a major policy change without involving the people who enforce it. This
time, instead of shutting out those officials, they worked to tightly control the
process.
In previous years, State Department officials had recommended a refugee level

to the president. Now, Mr. Miller told officials the number would be determined by
the Department of Homeland Security under a new policy that treated the issue as a
security matter, not a diplomatic one.
When he got word that the Office of Refugee Resettlement had drafted a 55-
page report showing that refugees were a net positive to the economy, Mr. Miller
swiftly intervened, requesting a meeting to discuss it. The study never made it to the
White House; it was shelved in favor of a three-page list of all the federal assistance
programs that refugees used.
At the United Nations General Assembly in September, Mr. Trump cited the
Center for Immigration Studies report, arguing that it was more cost-effective to
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keep refugees out than to bring them into the United States.
“Uncontrolled migration,” Mr. Trump declared, “is deeply unfair to both the
sending and receiving countries.”
More Disciplined Approach

Cecilia Muñoz, who served as Mr. Obama’s chief domestic policy adviser, said she
was alarmed by the speed with which Mr. Trump and his team have learned to put
their immigration agenda into effect.
“The travel ban was a case of bureaucratic incompetence,” she said. “They made
rookie mistakes. But they clearly learned from that experience. For the moment, all
of the momentum is in the direction of very ugly, very extreme, very harmful
policies.”
By year’s end, the chaos and disorganization that marked Mr. Trump’s earliest
actions on immigration had given way to a more disciplined approach that yielded
concrete results, steered in large part by Mr. Kelly, a retired four-star Marine
general. As secretary of homeland security, he had helped unleash immigration
officers who felt constrained under Mr. Obama. They arrested 143,000 people in
2017, a sharp uptick, and deported more than 225,000.
Later, as White House chief of staff, Mr. Kelly quietly persuaded the president to
drop his talk of Mexico paying for the wall. But he has advocated on behalf of the
president’s restrictionist vision, defying his reputation as a moderator of Mr.
Trump’s hard-line instincts.
In September, a third version of the president’s travel ban was issued with little
fanfare and new legal justifications. Then, Mr. Trump overruled objections from
diplomats, capping refugee admissions at 45,000 for 2018, the lowest since 1986. In
November, the president ended a humanitarian program that granted residency to
59,000 Haitians since a 2010 earthquake ravaged their country.
As the new year approached, officials began considering a plan to separate

parents from their children when families are caught entering the country illegally, a
9/10/2018
10/09/18 Agenda 14
- Theof
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PageID
move that immigrant groups called draconian.
At times, though, Mr. Trump has shown an openness to a different approach. In

private discussions, he returns periodically to the idea of a “comprehensive
immigration” compromise, though aides have warned him against using the phrase
because it is seen by his core supporters as code for amnesty. During a fall dinner
with Democratic leaders, Mr. Trump explored the possibility of a bargain to legalize
Dreamers in exchange for border security.
Mr. Trump even told Republicans recently that he wanted to think bigger,
envisioning a deal early next year that would include a wall, protection for Dreamers,
work permits for their parents, a shift to merit-based immigration with tougher work
site enforcement, and ultimately, legal status for some undocumented immigrants.
The idea would prevent Dreamers from sponsoring the parents who brought
them illegally for citizenship, limiting what Mr. Trump refers to as “chain
migration.”
“He wants to make a deal,” said Mr. Graham, who spoke with Mr. Trump about
the issue last week. “He wants to fix the entire system.”
Yet publicly, Mr. Trump has only employed the absolutist language that defined
his campaign and has dominated his presidency.
After an Uzbek immigrant was arrested on suspicion of plowing a truck into a

bicycle path in Lower Manhattan in October, killing eight people, the president
seized on the episode.
Privately, in the Oval Office, the president expressed disbelief about the visa
program that had admitted the suspect, confiding to a group of visiting senators that
it was yet another piece of evidence that the United States’ immigration policies were
“a joke.”
Even after a year of progress toward a country sealed off from foreign threats,
the president still viewed the immigration system as plagued by complacency.
9/10/2018
10/09/18 Agenda 15
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New
PageID
“We’re so politically correct,” he complained to reporters in the cabinet room,

“that we’re afraid to do anything.”
Matthew Rosenberg and Maggie Haberman contributed reporting.
Get politics and Washington news updates via Facebook, Twitter and the Morning
Briefing newsletter.
A version of this article appears in print on December 24, 2017, on Page A1 of the New York edition with
the headline: Out of Chaos, Trump Reshapes Immigration.
© 2018 The New York Times Company
Exhibit 12
9/10/2018
Case Trump Reopens
1:18-cv-01599-WFK-ST Document an Old Wound
62-12 Filedfor10/09/18
Haitians | The New
PageYorker
2 of 6 PageID #: 2573
N s Desk
Trump Reopens an Old Wound for

Haitians
By Edwidge Danticat December 29, 2017
In 1990, demonstrators protested a ban on blood donations from people of Haitian and sub-Saharan African
origin. An alleged comment by Trump about Haiti and AIDS has revived the stigma.
Photograph by Richard Elkins / AP
n the early nineteen-eighties, soon after cases of Acquired Immunode ciency

I Syndrome ( ) were rst discovered in the United States, the Centers for Disease
Control named four groups at “high risk” for the disease: intravenous drug users,
homosexuals, hemophiliacs, and Haitians. Haitians were the only ones solely identi ed
by nationality, in part because of twenty or so Haitian patients who’d shown up at
Jackson Memorial Hospital, in Miami. “We forwarded these cases to the C.D.C.,” Dr.
Arthur Fournier, who treated some of those rst Haitian patients, told me recently.
https://www.newyorker.com/news/news-desk/trump-reopens-an-old-wound-for-haitians 1/5
9/10/2018
Case Trump Reopens
62-12 Filedfor10/09/18
Haitians | The New
PageYorker
3 of 6 PageID #: 2574
“The media then took off with the sensationalistic headlines.” Suddenly, every Haitian
was suspected of having . At the junior high school I attended, in Brooklyn, some
of the non-Haitian students would regularly shove and hit me and the other Haitian
kids, telling us that we had dirty blood. My English as a Second Language class was
excluded from a school trip to the Statue of Liberty out of fear that our sharing a
school bus with the other kids might prove dangerous to them.
Last week, as many Haitians and Haitian-Americans were preparing for the Christmas
holidays—some burdened by the fear that they or their loved ones might be deported
end Temporary
in a year’s time because of the Trump Administration’s decision to end Temporary
Temporary
Status (T.P.S.)—a Times
Protected Status article about President Trump’s anti-immigrant
Times article
efforts brought back these memories and more. The article described a meeting that
took place at the White House in June, when Trump expressed outrage that, in spite of
his contested January, 2017, executive order barring refugees, particularly those from
seven predominantly Muslim countries, too many immigrants had been granted visas
to enter the United States. According to the Times, Trump was angry that fteen
thousand Haitians were among them. They “all have ,” he allegedly said.
We are used to Trump insulting people of color with callous or racist remarks. He has
referred to Mexicans as criminals and rapists and, in the June meeting described in the
Times, Trump reportedly also complained that forty thousand Nigerian visa recipients
would never “go back to their huts,” while branding Afghanistan a terrorist haven. (The
White House has denied that Trump denigrated immigrant groups during the
meeting.) Still, Trump’s alleged remark about Haiti and cut deep, reopening a
painful wound that goes back several decades.
“It was a dark period in our history as black refugees from the rst independent nation
in the Western Hemisphere,” Marleine Bastien, the executive director of the nonpro t
organization Haitian Women of Miami, recalled. “I was working as a medical social
worker at the time, and every week I saw patients who lost jobs as a result of this. Being
called ‘Haitian’ was the worst possible curse.”
Taina Bien-Aimé, the executive director of the New York-based Coalition Against
Trafficking in Women, was born in New York City to Haitian parents who’d
immigrated to the U.S. in the nineteen- fties. She recalled that, in the eighties, a friend
of hers used a manager’s pen while lling out some nancial documents at a bank.
9/10/2018
Case Trump Reopens
62-12 Filedfor10/09/18
Haitians | The New
PageYorker
4 of 6 PageID #: 2575
When her friend was done, the bank manager, who’d learned that her friend was
Haitian, took the pen back with a tissue, then threw it in the garbage. “You never
know,” he said.
The linguist Michel DeGraff, who is currently the director of the M.I.T.-Haiti
Initiative, came to New York, as a student, in the early eighties. “I still remember a
particularly traumatic moment when I was being introduced to a female student that I
had a crush on. She refused to shake my hands. Then I overheard her say to another
fellow-student, ‘Better stay away from these Haitians so we don't catch .’ ”
At the height of the crisis, the Food and Drug Administration banned Haitians
from
from donating
from blood. Nicole Rosefort, a retired New York City public-school teacher,
donating blood
recalls her father being sick in the hospital and desperately needing a blood
transfusion. “When my sister and I went to donate, we were turned away. We couldn't
give blood for our own father.”
Haitians mobilized against the ban, protesting in large numbers in Washington,

Boston, and Miami. The activism culminated on April 20, 1990, when between fty
thousand and eighty thousand people marched across the Brooklyn Bridge to
denounce the ban and the stigmatization and discrimination connected to it. I was
twenty-one years old and a recent college graduate at the time. My family and I took
part in the march, along with nearly everyone we knew. We felt the bridge shake that
day, as if from the weight of our humiliation and rage.
VIDEO FROM THE N YORKER
9/10/2018
Case Trump Reopens
62-12 Filedfor10/09/18
Haitians | The New
PageYorker
5 of 6 PageID #: 2576
The blood-donation ban was eventually lifted, but the stigma against Haitians lingered,
and occasionally resurfaced in popular culture. In the lm “How Stella Got Her
Groove Back,” from 1998, one of the main character’s sisters scolds her for having
unprotected sex with a Jamaican man because “these people have a history of .”
Another sister corrects her: “That’s Haiti, Miss Manners.” In December of 2010,
decades after many initial misconceptions about the transmission and spread of H.I.V.
and had been debunked, a popular New York radio d.j. declared on air that the
reason he was H.I.V.-negative was that he refrained from having sex with Haitian
women.
President Trump’s alleged remarks have taken many of us back to a time when such
attitudes were commonplace. They are also particularly disturbing in the context of his
larger anti-immigrant program. As Haitian-community advocates are trying to rally
support in Congress and elsewhere to nd a permanent solution for T.P.S. recipients
and their families, we are reminded of a time when all H.I.V.-positive immigrants were
banned from entering the United States, and H.I.V.-positive Haitians were detained, in
deplorable conditions, at Guantánamo
Guantánamo Bay . Trump’s alleged statement re-stigmatizes
both Haitians and people living with H.I.V./ by pegging them as undesirables.
Will the next travel ban be a medical one?
9/10/2018
Case Trump Reopens
62-12 Filedfor10/09/18
Haitians | The New
PageYorker
6 of 6 PageID #: 2577
If there is a positive side to these alleged remarks, it’s that they have the potential to
galvanize. Patricia Lespinasse, an assistant professor of African-American and African
Diaspora Literature at Binghamton University, is the co-director of a documentary
lm, “Proud Blood,” that focusses on Haitians’ mobilization around the blood-donation
ban. Lespinasse was eleven years old when her father, an accountant at a Wall Street
bank, left work to attend the march, and then told her stories about it. While gathering
recollections from the march organizers, activists, and other demonstrators, Lespinasse
came to see the march and the eventual lift of the ban as a triumph against prejudice.
“Much like back in the nineteen-eighties and nineties, when this stereotype was rst
espoused, we should take this opportunity with what the President has allegedly said to
educate a new generation,” she said.
Among the many signs I recall seeing at the march on the Brooklyn Bridge, back in
April, 1990, was one that read, “We are all living with ”—not because we belong to
an arbitrarily assigned high-risk group, or came from a certain country, but because we
are all human. As Lespinasse put it, “It was Haitians then, but tomorrow it could be
any other group.”
The Art
Edwidge Danticat is the author of many books, including, most recently, “The Art of
of Death:
Death:
Writing
Writing the
Writing the Final
the Final Story
Story.” Read more »
Final Story
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Exhibit 13
9/13/2018
Case Trump asked
1:18-cv-01599-WFK-ST why the US62-13
Document needs more Haitians.
Filed Mar-a-Lago Page
10/09/18 may hold2the
ofanswer
5 PageID #: 2579

Who wins from the internal

combustion engine’s demise?
POLITICS
WHITE HOUSE POLICY DEFENSE CONGRESS ELECTIONS EUROPE CHINA ASIA WORLD
Trump asked why the US needs

more Haitians. Mar-a-Lago may
hold the answer
President Donald Trump reportedly stunned lawmakers Thursday when he asked,
"Why do we need more Haitians" in the United States
Yet Trump's own Palm Beach resort, Mar-a-Lago, reportedly employs Haitian
guest workers to do a variety of jobs
Mar-a-Lago received 70 H-2B visas for foreign workers in 2017 — ahead of the
current high season
Christina Wilkie | @christinawilkie


Published 3:14 AM ET Fri, 12 Jan 2018 | Updated 8:43 AM ET Fri, 12 Jan 2018




Davidoff Studios | Getty Images
View towards the pool and spa of the Mar-a-Lago estate, Palm Beach, Florida, February 13, 2017.
"Why do we need more Haitians?" President Donald Trump

reportedly asked a group of lawmakers at the White House on
Thursday, demanding that congressional negotiators "take them
out" of any further talks about extending temporary protected
status.
The members of Congress were there for a meeting on immigration

policy, and Trump's comment about Haitians shocked a number of
the attendees.
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9/13/2018
Case Trump asked
ofanswer
5 PageID #: 2580
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That's because The Mar-a-Lago Club, Trump's mansion-cum-golf
resort in Palm Beach, Florida, reportedly hires more of its seasonal
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foreign workers from Haiti than it does from nearly any other
The most expensive
country.
steak sandwich in
America is served on
Those Haitians come to the United States to work for Trump on H-
Wall Street — here's
2B visas, temporary work permits issued by the Department of
what you get
Labor to employers who can't find enough American workers to fill
Trump told Gary Cohn
their need for low-skilled, seasonal labor. to 'print money' to
 lower the national debt,
At Mar-a-Lago, the season runs from November to April, when according to Bob
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9/13/2018
Case Trump asked
ofanswer
5 PageID #: 2581
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ofanswer
5 PageID #: 2582
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Exhibit 14
9/12/2018
Case Trump called
1:18-cv-01599-WFK-ST Haiti a ‘shithole’
Document 62-14 after Filed
2016 campaign stop in Miami
10/09/18 Page | Miami
2 ofHerald
5 PageID #: 2584
POLITICS
Trump called Haiti a ‘sh--hole’ campaigning in Miami

in 2016, Woodward’s book says
BY ALEX DAUGHERTY
adaugherty@mcclatchydc.com
September 11, 2018 04:37 PM
WASHINGTON — When Donald Trump visited Little Haiti during the 2016 presidential
campaign, he told the Haitian-American community: “I really want to be your biggest champion.”
Minutes later, he was calling Haiti a shithole.
By continuing to use this site, you give your consent to our use of cookies for analytics, personalization and ads. Read m
https://www.miamiherald.com/news/politics-government/article218202540.html 1/9
9/12/2018
Case Trump called
3 ofHerald
5 PageID #: 2585
In Bob Woodward’s new book released on Tuesday, “Fear: Trump in the White House,” the
veteran reporter wrote that Trump used the vulgarity to describe Haiti after a campaign stop in
Little Haiti.
ADVERTISING
inRead invented by Teads
“The idea of ‘shithole countries’ was not a new one for Trump,” Woodward wrote. “During the
2016 campaign, Trump had visited Little Haiti in Miami. Former Haitian leaders had come to the
microphones and accused the Clintons of corruption and stealing from Haiti.”
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“After the event, in private, Trump seemed down. ‘I really felt for these people. They come from
such a shithole.’”
The comments in 2016 came after a Trump campaign event where the then-candidate told
Haitian-Americans they shared “a lot of common values” and railed against the Clinton
Foundation’s spending in Haiti after the 2010 earthquake.
9/12/2018
Case Trump called
4 ofHerald
5 PageID #: 2586
“Whether you vote for me or not I really want to be your biggest champion,” Trump said in
prepared remarks. “Clinton was responsible for doing things a lot of the Haitian people are not
happy with. Taxpayer dollars intended for Haiti and the earthquake victims went to a lot of the
Clinton cronies.”
Michael Barnett, the vice chairman of the Florida Republican Party who helped organize the Little
Haiti event, said he will continue to believe the president when he says he didn’t say it.
“I am still willing to give the President the benefit of the doubt,” he said. “I would like to know
where these allegations have come from; who are the sources? Until I see any concrete proof, I am
willing to believe the president when he says he didn’t say it.”
Barnett was tasked with getting the Little Haiti community to show up to the Trump campaign
event. He said he doesn’t recall the president having any private meeting after and that “he got
into his vehicle and left the cultural center. I don’t know where he went after that.”
Trump’s use of the vulgarity set off a barrage of criticism earlier this year when the president
referred to Haiti and some African nations as “shithole countries” during a much-publicized
January meeting on immigration.
But it wasn’t the first time Trump used the term, according to Woodward.
At the 2018 immigration meeting, Trump reportedly used the word to refer to Haiti and other
countries amid a discussion about Temporary Protected Status, a way for Haitians and others from
countries recovering from disaster or suffering from instability to live and work in the U.S. without
the threat of deportation. The Department of Homeland Security canceled TPS for Haiti and other
countries since Trump took office.
Woodward’s book also gives additional details about the January 2018 immigration meeting. After
South Carolina Republican Sen. Lindsey Graham brought up the TPS issue and visas for
immigrants from African countries, Trump responded.
“Haitians,” Trump said. “We don’t need more Haitians.” In reference to Haiti and the African
countries, Trump said, “Why are we having all these people from shithole countries come here?”
“Time out,” Graham said in response. “I don’t like where this thing’s going. America is an ideal. I
want merit-based immigration, not just Europeans. A lot of us come from shitholes.”
9/12/2018
Case Trump called
5 ofHerald
5 PageID #: 2587
Miami Republican Rep. Mario Diaz-Balart was also present at the meeting, but he has declined to
provide details or confirm Graham’s version of events, saying that he does not comment on private
meetings.
Woodward wrote that Trump called Graham two days after the meeting while he was playing golf
in West Palm Beach, and said to Graham that he didn’t make some of the comments that Graham
had confirmed publicly.
“I didn’t say some of the things that he said I said,” Trump said, referring to Illinois Democratic
Sen. Dick Durbin, who was also present at the meeting.
“Yeah, you did,” Graham responded.
“Well, some people like what I said,” Trump responded.
“I’m not one of them,” Graham said. “I want to help you. I like playing golf with you. But if that’s
the price of admission, count me out. Good luck. Hit ‘em good.”
Woodward’s book has already angered the president after multiple media outlets with advance
copies published excerpts last week.
The Washington Post published an excerpt that quoted White House chief of staff John Kelly
saying “He’s an idiot. It’s pointless to try to convince him of anything. He’s gone off the rails.
We’re in Crazytown. I don’t even know why any of us are here. This is the worst job I’ve ever
had.”
Kelly denied calling Trump an idiot, and the president took to Twitter.
“The Woodward book is a scam. I don’t talk the way I am quoted,” Trump tweeted on Friday. “If
I did I would not have been elected President. These quotes were made up. The author uses every
trick in the book to demean and belittle. I wish the people could see the real facts - and our
country is doing GREAT!”
Miami Herald reporter Jacqueline Charles and McClatchy White House reporter Franco Ordoñez
contributed to this report.
Alex Daugherty, @alextdaugherty, 202-383-6049
SUGGESTED FOR YOU

Exhibit 15
9/10/2018
Case Trump wants fewer
1:18-cv-01599-WFK-ST immigrants from
Document “shithole
62-15 countries”
Filed and more from
10/09/18 places
Page 2 like
of Norway - Vox #: 2589
4 PageID
Trump wants fewer immigrants from “shithole countries”

and more from places like Norway
He reportedly made the racist remarks during a meeting Thursday.
By Jen Kirby jen.kirby@vox.com Jan 11, 2018, 5:55pm EST
Photo by Mark Wilson/Getty Images
President Trump reportedly referred to Haiti and countries in Africa as “shithole countries”
and called for more immigrants from places like Norway at an Oval Office meeting with
lawmakers, two people briefed on the meeting told the Washington Post on Thursday
night.
NBC News later confirmed the account:
Christina Wilkie
@christinawilkie
.@NBCNews source: As Durbin explained how deal would

impact ppl from Haiti, Trump said, "Haiti? Why do we want
people from Haiti here?" Then they got Africa. 'Why do we want
https://www.vox.com/2018/1/11/16880750/trump-immigrants-shithole-countries-norway 1/3
9/10/2018
62-15 countries”
Filed and more from
10/09/18 places
Page 3 like
4 PageID
these people from all these shithole countries here? We should
have more people from places like Norway."
4:52 PM - Jan 11, 2018
5,518 5,918 people are talking about this
The meeting was intended to hammer out an immigration deal that would extend
protections and offer a path to citizenship to DACA recipients, but also include money for
border security and reforms to some immigration programs.
According to the Post, one deal being considered would allow visas from the diversity
lottery to go to immigrants who just lost Temporary Protected Status, which allowed
them to stay and work in the US — including those from Haiti and El Salvador, whose
protections are expiring next year.
That’s the broad context for Trump’s outburst. But this isn’t the first time Trump has
reportedly made racist comments about immigrants from predominantly nonwhite
countries.
A New York Times report in December recounted a meeting in the Oval Office at which
Trump railed against the recipients of US visas in 2017. During it, he reportedly complained
Haitians “all have AIDS” and Nigerians would never “go back to their huts.” The White
House denied Trump made those remarks.
This time, the White House responded with a statement that contained no denials:
“Certain Washington politicians choose to fight for foreign countries, but President Trump
will always fight for the American people,” CNN’s Jim Sciutto reported. “The White House
went on to say Trump wants immigrants who can “contribute to our society, grow our
economy and assimilate into our great nation.” (The White House has not returned Vox’s
request for comment.)
9/10/2018
62-15 countries”
Filed and more from
10/09/18 places
Page 4 like
4 PageID
Jim Sciutto
@jimsciutto
And the WH does not deny POTUS “sh*thole” comments.

5:15 PM - Jan 11, 2018
223 178 people are talking about this
Exhibit 16
Exhibit 17
U.S. Citizenship Refugee, Asylum and

and In1n1igration Int'l Operations
Services Research Unit
Haiti: TPS Addendum
Last Updated: February 7, 2017
Hurricane Matthew
Haiti remains affected by a series of humanitarian crises which were exacerbated by the impact
ofHurricane Matthew in October 2016. 1 In addition to causing an estimated $2.8 billion in
damages and losses, Hurricane Matthew "added to pre-existing humanitarian needs throughout
the country, notably related to the cholera epidemic, the El-Nifio induced drought, the bi-national
migration crisis, and the displaced following the 2010 earthquake." 2 Ofthe 2.1 million people
who were impacted by Hurricane Matthew in Haiti, close to 1. 4 million remain in need of some
form of humanitarian assistance. 3
The international community is providing assistance to support Haiti's recovery from Hurricane
Matthew, with over $151 million dollars contributed as ofF ebruary 6, 4 including more than $86
million dollars from the United States. 5 International organizations, foreign governments, and
non-governmental organizations have worked with the government ofHaiti to: distribute food
and provide food assistance; seek solutions for displaced individuals; provide health, water,
sanitation, and hygiene support to affected families; and to rehabilitate damaged schools. 6 The
number of people facing food insecurity in hurricane affected areas has fallen from one million
people in late October 2016 to an estimated 400,000 people as of late December 2016?
However, it will likely take Haiti years to recover from the damages ofHurricane Matthew. 8
Individuals in the most affected areas "still need immediate help to meet their basic needs," 9 with
the impact of the storm continuing to affect "the provision of basic social services in the most
affected areas of Grand' Anse, Nippes and South" departments. 10 Damages from the hurricane
"exacerbated three years of drought and severe flooding" in Haiti, leaving over 1. 5 million
people throughout the country food insecure as of late December 2016Y Significant losses of
crops and livestock in the south and southwest-particularly in Grand' Anse department (Haiti's
"bread basket")-"renders communities dependent on imported food and increased food prices
by 15-25 percent." 12 Hurricane Matthew struck Haiti as farmers were about to harvest their
crops in the fall of2016Y A "very poor harvest" is projected for January and February 2017
due to damages from the storm in the most affected areas (where approximately 80 percent of the
population relies on subsistence farming). 14 Various non-governmental organizations have
warned of a potential food crisis in Haiti; 15 per the Famine Early Warning Systems Network
(FEWSNET), emergency food needs in Haiti will likely "remain elevated until the July 2017
harvests." 16
Haiti has witnessed a resurgence of cholera since May 2016, and Hurricane Matthew caused an
increase in the number of suspected cases, particularly in affected departments. 17 As of early
February 2017, the United States Agency for International Development (USAID) reported that
"suspected cholera case counts reported in affected areas continue to decline"; 18 over 729,000
people have been vaccinated against cholera in affected regions since October 2016. 19 An
estimated 1. 8 million people have been affected by the partial or total loss of health services in
1
Contact Us:
DPP _00008521

areas ofHaiti that were impacted by Hurricane Matthew. 20 Approximately 750,000 Haitians
lack safe water, which has facilitated the spread of water-borne illnesses and diseases, such as
cholera. 21
Displacement continues to remain a problem in Haiti. Over 55,000 internally displaced persons
(IDPs) from the 2010 earthquake remain in camps without viable options to leave. 22 An
additional 175,000 people impacted by Hurricane Matthew have been left without housing. 23 In
addition, since June 2015, at least 158,000 Haitian migrants have returned to Haiti from the
Dominican Republic "under pressure of various threats, lack of protection and fear of
deportation. " 24
While humanitarian assistance has continued to reach affected populations as roads have been re-
opened and repaired, the security situation reportedly remained challenging during the three
months after the hurricane, as "humanitarian convoys were regularly attacked and looted." 25 An
increase in political demonstrations related to national elections has reportedly had a negative
impact on humanitarian operations in Haiti. 26 In early January 2017, humanitarian assistance
efforts were interrupted by unrest in Grand' Anse department following the arrest of a newly-
elected senator. 27
Elections
On January 4, 2017, Jovenel Moi:se was officially declared the winner ofHaiti's presidential
election that was held in November 2016. 28 Sporadic protests occurred after the results were
announced, but there were no reports of significant violence. 29 On February 7, Moi:se was sworn
in as Haiti's president. 30 However, the election result "is still being contested by the opposition,"
which held protests during Moise's inauguration? 1
On January 29, 2017, Haiti held elections for eight senators and one seat in the lower chamber of
congress? 2 Nationwide municipal elections were also held for the first time since December 5,
2006? 3 The Haitian National Police reported that 49 incidents occurred during the elections, and
20 people were arrested for incidents ranging from "the theft of ballot papers, destruction of
ballots, possession of weapons, to the possession of false documents and attempted fraud." 34
These elections represent the closure of Haiti's "repeatedly derailed electoral cycle that started in
2015." 35
1
lf_qt!LflY_lJl:_qiJ_itwigiJB_?§PQIJ§_?__f'_lr;m_ __:_.f_gJ!_Y_wy)_QlZ__:_J)§_I2§lJJ:Q_?_r__2_QH}_, United Nations Office for the Coordination
of Humanitarian Affairs (UNOCHA)/the United Nations Country Team in Haiti, p.6, Jan. 2017.
2
Haiti: Humanitarian Response Plan -January 2017- December 2018, p.7
3
Haiti: Humanitarian Response Plan -January 2017- December 2018, p.7
4
r_;_gr.tf?_Q_?_@_=_f1Yt:!l9._C!_IJ_?__Mqtt_h_?_w__F_q9_l__$_h_?_?_t_lj)§~__ f)~9__q/__'f_?_g[__ (lf_'[)_)__Ql?, U.S. Agency for International
Development (USAID), p.4, Feb. 6, 2017.
5
Caribbean- Hurricane Matthew Fact Sheet# 18, Fiscal Year (FY) 2017.
6
Caribbean- Hurricane Matthew Fact Sheet# 18, Fiscal Year (FY) 2017.
7
Caribbean- Hurricane Matthew Fact Sheet# 18, Fiscal Year (FY) 2017, p.l.
8
Hurricane Matthew: Three months later, Haiti at risk o[fOod crisis, CARE, Jan. 4, 2017.
9
Haiti: 3 months atler Hurricane Matthew, 7 years atler the earthquake, UN Development Program, Jan. 11, 2017.
10
Haiti: Humanitarian Situation Report- January 2017, United Nations Children's Fund (UNICEF), p.l, Jan. 2017.
2
Contact Us:
DPP _00008522

11
Caribbean -Hurricane Matthew Fact Sheet #18, Fiscal Year (FY) 2017, p.2, Feb. 6, 2017.
12
Seven Years a{ler the Earthquake: Haiti in an unprecedented humanitarian, fOod, and climate crisis, Center for
Economic and Policy Research, Jan. 12, 2017.
13
Ox(Qm warns of hunger in Haiti 3 months a{ler Hurricane Matthew, Oxfam, Jan. 4, 2017; Hurricane Matthew:
Three months later, Haiti at risk offood crisis.
14
Oxfam warns of hunger in Haiti 3 months after Hurricane Matthew; Hurricane Matthew: Three months later,
Haiti at risk offood crisis.
15
Oxfam warns of hunger in Haiti 3 months after Hurricane Matthew; Hurricane Matthew: Three months later,
Haiti at risk offood crisis.
16
Caribbean- Hurricane Matthew Fact Sheet# 18, Fiscal Year (FY) 2017, p.2 ..
17
Haiti: Humanitarian Response Plan -January 2017- December 2018, p.8.
18
Caribbean- Hurricane Matthew Fact Sheet# 18, Fiscal Year (FY) 2017, p.3.
19
fr_Qi?__r;_t_Jj__Qf!f:__:;;_gy_§__fl~_g}(h_lf~_(;_4.§_f?.r§_~§UIJ_!iglti__gf!_?_r__!iwr_~f_qiJ§__ Mqt(h_(;_!Y.,:_YQ!Y.§JQ __$_ypp_wL!i?._q!th_:jiy_§(?JJ1__QIJ
ZthAIJ!Ji.Y_?.!§_W'J!._9f!f:_qr_t_J-;_q_ll_g_lsc?., Project HOPE, Jan. 12, 2017.
20
21
Haiti: Humanitarian Response Plan -January 2017- December 2018, p.25; !f_g_~t_L_!f_ll_!!l9.rJ.IJ.?__M_qtt_h_?_!Y___:__$_j_(y_qt!Q_IJ
B,?_p_Q_r_(__lj_Q_.__ }:f___a__E_?_Q!_ll_gr_-y___~Q_lJ}, United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA),
p.5, Feb. 2, 2017; Seven Years after the Earthquake: Haiti in an unprecedented humanitarian, food, and climate
crisis.
22
23
Haiti: Hurricane Matthew- Situation Report No. 34 (2 February 2017), p.4.
24
25
26
27
Haiti: Humanitarian Situation Report- January 2017, p.l.
28
Haiti: Jovenel Moise confirmed winner o[p_residential election, BBC News, Jan. 4, 2017.
29
Haiti: Jovenel Moise confirmed winner ofpresidential election.
30
Businessman Jovenel Moise Sworn In as Haiti's President, VOA News, Feb. 7, 2017.
31
Haiti: Jovenel Moise sworn in as new p_resident, BBC News, Feb. 7, 2017.
32
Low turnout in Haiti's local elections, AFP, Jan. 29, 2017.
33
McFadden, David, Haiti holds final round of election c-y_cle started in 2015, Associated Press, Jan. 29, 2017;
Charles, Jacqueline, Haiti election c-y_cle nears end with Sunday_ vote and more than 5, 000 seats up_ [Or grabs, Miami
Herald, Jan. 27, 2017.
34
Several arrests mar Haiti's second round of elections, The Jamaica Observer, Jan. 30, 2017.
35
McFadden.
3
Contact Us:
DPP _00008523
Exhibit 18
1
2
3
4
5
Exhibit 19
Exhibit 20
Case 1:18-cv-01599-WFK-ST Document 62-20 Filed 10/09/18 Page 10 of 102 PageID #:
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CCase 1:18-cv-01599-WFK-ST Document 62-20 Filed 10/09/18 Page 30 of 102 PageID #:
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Exhibit 21
Exhibit 22
From: >
Sent: Friday, April 14, 2017 9:47 AM
To: >
Cc: >
Subject: RE: Haiti TPS
Hi, It has been too long. It would be great to chat next week. Maybe you, me, and Brandon can go grab a
coffee and talk TPS and life. We can share more when we talk, but the short answer is that the decision was a
political one by the FO and Sl's advisors. Their position was that Haiti was designated on account of the 2010
earthquake, and those conditions have significantly improved. The extraordinary conditions Haiti currently
faces are longstanding, intractable problems, not "temporary" as the statute requires. S 1 hasn't made a final
decision to terminate yet, but if he does go that way, it's looking most likely that the effective date of the
termination will be 6 months after the current expiration date of July 22, 2017 - so, January 2018.
+ so we can plan a chat next week.
From:
Sent: Thursday, April 13, 2017 4:25:06 PM
To:
Subject: Haiti TPS
Hi It has been too long since we've talked. Maybe we can get together next week and chat? For now, I'm
hoping you can give me your take on the Haiti TPS decision? I'd like to know a little bit more about how it was decided
current conditions "don't merit ongoing TPS designation" and when the current designation will come to an end.
Thanks,
Chief, Research
Refugee, Asylum and International Operations directorate
DHS/USCIS
Visit the RAIO RU homepage on users Connect!
OPP _00018751
Exhibit 23
From:
Sent: Monday, May 1, 2017 5:35 PM
To: Hoefer, Michael D
Padilla A ril Y
Nuebel Kovarik Kath ; King, Alexander R
Putnam-Frenchik, Nicole L
Chiang, Catherine H
Levine, Laurence D
Beveridge, Jennifer L (Jenna)
; Lee, Robert E iiMMEMPOOMMOn.
Perkowski, Thomas B
Cc: Phillips, Mark Porto, Victoria
Lee David L • Roman-
Riefkohl. Guillermo Massey, Scott A
Thomas, Ronnie D
; Woerz, Bret A
Risch, Carl C
Subject: RE: TPS data
Thanks for digging up this additional information and the article links on current conditions in Haiti, This is
helpful information to have.
From:
Sent: Monday, May 01
To: Hoefer, Michael D; Padilla A ril Y. Nuebel Kovarik, Kathy; King, Alexander R; Putnam-Frenchik,
Nicole L; Chiang, Catherine H; Levine, Laurence D; Beveridge, Jennifer L (Jenna); Lee, Robert E;
Perkowski, Thomas B
Cc: Phillips, Mark; Porto, Victoria; Lee, David L; Roman-Riefkohl, Guillermo; Massey, Scott A; Thomas, Ronnie D; Woerz,
Bret A; Risch, Carl C
Unfortunately, conditions in Haiti remain difficult. Please see below:
• Haiti has not fully recovered from the 2010 earthquake. Per an April 27 article by the Miami Herald, "Billions of
dollars in promised aid never materialized, and projects like a new $83 million State University Hospital that's
being financed by the United States and France are years behind schedule. More than 46,000 quake victims
continue to live in tents and under tarps. "
• In October 2016, Hurricane Matthew struck Haiti, causing $2.8 billion worth of damage—equivalent to 1/3 of
Haiti's gross domestic product. After Hurricane Matthew, the United Nations requested "a $139 million
emergency appeal for humanitarian aid of which only $86 million was funded."
• According to a United Nations official, as of mid-April 2017, shelter and food remain scarce in Haiti's southern
peninsula. The official warned that the situation in these areas could get close to a famine "if nothing is done and
the hurricane-ravaged areas miss another planting season." In March 2017, an international non-governmental
organization reported that at least 13 Haitians in Grand'Anse department had died due to hurricane related food
shortages in the region, and some Haitians were reportedly living in caves and eating poisonous plants to survive.
• From April 20 to 24, 2017, heavy rains caused flooding in the departments of the South, South East, Grand'Anse
and Nippes, with South department most affected. At least four people were killed, and nearly 10,000 homes
may have been damaged. At least 350,000 people may have been affected.
DPP_00003417
• Economic challenges in Haiti include double-digit inflation, food insecurity in areas most impacted by Hurricane
Matthew, a depreciating currency, and low levels of investment.
Sources:
Six months after Hurricane Matthew, food, shelter still scarce in Haiti — Miami Herald, Apr. 12, 2017
Desperate Haitians living in caves, eating toxic plants in post-hurricane Haiti — Miami Herald, Mar. 24, 2017.
Haiti: Floods — Apr. 2017 — Relief Web, http://reliefweb.int/disaster/f1-2017-000043-hti (last visited May 1, 2017)
Growth returns to Caribbean Basin, but recovery is uneven — Miami Herald, Apr. 23, 2017.
Chief, Research
Refugee, Asylum and International Operations directorate
DHS/USCIS
Visit the RAIO RU homepacie on USCIS Connect!
From: Hoefer, Michael D

Sent: Monda Ma 01 2017 3:34 PM
To: Padilla, April Y; Nuebel Kovarik, Kathy; King, Alexander R; Putnam-Frenchik, Nicole L; Chiang,
Catherine ; evine, urence D; Beveridge, Jennifer L (Jenna); Lee, Robert E; Perkowski, Thomas B;
and Jenna,
We can provide names, receipt numbers, and A-numbers for Haitian TPS. We will need the list for #2 as well anyway.
Michael Hoefer
Chief, Office of Performance and Quality
U.S. Citizenship and Immigration Services
This email, along with any attachments, is intended solely for the use of the addressee(s) and may contain information
that is sensitive or protected by applicable law. Unauthorized use or dissemination of this email and any attachments is
strictly prohibited. If you are not the intended recipient, please notify the sender and delete or destroy all copies. Thank
you.
From:
Sent: Monday, May 01, 2017 8:03 AM
To: Padilla, April Y; Nuebel Kovarik, Kathy; Hoefer, Michael D; King, Alexander R; Putnam-Frenchik, Nicole L; Chiang,
Catherine H; Levine, Laurence D; Beveridge, Jennifer L (Jenna); Lee, Robert E; Perkowski, Thomas B;
DPP_00003418
Adding Jenna and Rob from RED for counsel on #1 (whether OPQ and RED can conduct a random sampling of files) and
and Tom from RAIO RU on the request for additional stories about conditions in Haiti.
From: Padilla, April Y

Sent: Monday, May 01, 2017 7:33 AM
To: Nuebel Kovarik, Kathy; Hoefer, Michael D; ; King, Alexander R; Putnam-Frenchik, Nicole L;
Chiang, Catherine H; Levine, Laurence D;
Kathy,
SCOPS and OPQ will be discussing #2 tomorrow.
(*tit eaciiiia
Unit Chief, Fraud Detection
Security and Fraud Office
Service Center Operations
USCIS Headquarters
From: Nuebel Kovarik, Kathy

Sent: Friday, April 28, 2017 4:55 PM
To: Hoefer, Michael D; Padilla, Aril Y; King, Alexander R; Putnam-Frenchik, Nicole L; Chiang,
Catherine H; Levine, Laurence D;
Following up on this TPS data request. I had a few thoughts.
#1— can we get OPQ and RED together to figure out to conduct a random sampling of files that we could then use to
generalize the entire population?
#2 — criminal activity — has anyone reached out to ICE to figure out if they have any data whatsoever on Haitians with final
orders of removal?
#3 — would HHS have any data that would be helpful? Can someone try a contact over there?
Please dig for any stories (successful or otherwise) that would show how things are in Haiti — i.e. rebuilding stories, work
of nonprofits, how the U.S. is helping in certain industries. We should also find any reports of criminal activity by any
individual with TPS. Even though it's only a snapshot and not representative of the entire situation, we need more than
"Haiti is really poor" stories.
Thanks, all.
Kathy Nuebel Kovarik

Chief, Office of Policy and Strategy
DPP_00003419
Direct:
Cell:

Sent: Thursday, April 27, 2017 10:08 AM
To: Hoefer, Michael D; Padilla Aril Y; King, Alexander R; Putnam-Frenchik, Nicole L; Chiang,
All — thanks so much for your help on these data requests. I do want to alert you, however, that the Secretary is going to
be sending a request to us to be more responsive. I know that some of it is not captured, but we'll have to figure out a
way to squeeze more data out of our systems. So, we may as well get started. Thanks again!
From: Hoefer, Michael D

Sent: Tuesday, April 25, 2017 2:55 PM
To: Padilla, A ril Y; Nuebel Kovarik, Kathy; King, Alexander R; Putnam-Frenchik, Nicole L; Chiang,
I was just starting to compose something to the effect that we don't have any information to respond to questions 2 and
3. I concur with what is written.
Michael Hoefer
Chief, Office of Performance and Quality
This email, along with any attachments, is intended solely for the use of the addressee(s) and may contain information
that is sensitive or protected by applicable law. Unauthorized use or dissemination of this email and any attachments is
strictly prohibited. If you are not the intended recipient, please notify the sender and delete or destroy all copies. Thank
you.
From:
To: Padilla, April Y; Nuebel Kovarik, Kathy; King, Alexander R; Putnam-Frenchik, Nicole L; Chiang, Catherine H; Levine,
Laurence D;
Cc: Phillips, Mark; Hoefer, Michael D; Porto, Victoria; Lee, David L; Roman-Riefkohl, Guillermo; Massey, Scott A; Thomas,
Ronnie D; Woerz, Bret A; Risch, Carl C
Got it. Thanks, April. Unless OPQ has any additional information to include, here are our best responses:
(1) How many current Haitian TPS folks were illegal pre-TPS designation? —CAN WE PULL? The TPS statute does not
require individuals to have lawful status in order to qualify for TPS. The TPS application form (1-821) does request
the applicant's status at the time of application, and this information is recorded in USCIS systems. However,
since the information is self-reported, we cannot confirm its accuracy. Additionally, not all applicants provide this
information on the form in a standard or recordable fashion. The 2016 annual TPS report to Congress shows that
80 of the 58,706 Haitian TPS beneficiaries have their status reported in USCIS systems as "without inspection."
However, we note that the same report shows that 48,597 of the 58,706 Haitian TPS beneficiaries had their status
DPP_00003420
reported in USCIS systems as unknown. Given the large number of individuals with unknown status, 80 is not a
reliable estimate of the number of Haitian beneficiaries who had no lawful status at the time of applying for TPS.
(2) Since designation, how many have committed crimes? — WE PREVIOUSLY ASKED BUT DATA IS DIFFICULT TO
OBTAIN? WHAT CAN WE SAY HERE? HOW CAN IT BE OBTAINED IF NOT ALREADY? Information regarding
whether TPS beneficiaries have committed crimes is not currently available through USCIS systems. Certain data
elements that may assist in compiling this information may, however, be available to USCIS in paper files or in
various, unconnected USCIS systems. If there is a need to collect this information in a reportable fashion going
forward, we suggest that the Front Office bring the leadership of SCOPS, OPQ, FDNS, and OP&S together to
discuss the feasibility and means of achieving this objective.
(3) Since designation, how many are on public assistance? Out of work? —DIFFICULT TO OBTAIN. HOW COULD WE
OBTAIN GOING FORWARD? TPS beneficiaries are not eligible for the majority of public benefits. We know of no
way internal to USCIS or DHS to determine whether TPS beneficiaries are on public assistance or out of work.
From: Padilla, April Y

To: Nuebel Kovarik, Kathy; King, Alexander R; Putnam-Frenchik, Nicole L; Chiang, Catherine H;
Levine, Laurence D;
Ronnie D; Woerz, Bret A; Risch, Carl C
Importance: High
Kathy,
For Question 2, SCOPS is trying to determine the best way to pull this data. The data elements are stored in different
systems that do not talk to each other. If OPQ can assist, we would welcome any assistance.
In addition, the data that we could pull will only indicate that an individual had an encounter with law enforcement in
which they were fingerprinted. Being fingerprinted does not necessarily indicate that a crime was committed or that the
individual was convicted of any crime for which he was arrested.
For Question 3, SCOPS defers to OPQ.
(*tit cfactilla
Unit Chief, Fraud Detection
Security and Fraud Office
Service Center Operations
USCIS Head uarters
From
To: Nuebel Kovarik, Kathy; King, Alexander R; Putnam-Frenchik, Nicole L; Chiang, Catherine H; Levine, Laurence D;
Ronnie D; Padilla, April Y; Woerz, Bret A; Risch, Carl C
All, we'll work to compile a group response, but would appreciate your input to help us solidify the responses to the three
questions. We've put forward a starting point in red below. Could you please review the responses and weigh in with any
information that your respective offices may have (data or an explanation of why the requested data isn't available) by
DPP_00003421
2:30 today? Thanks!
(1) How many current Haitian TPS folks were illegal pre-TPS designation? —CAN WE PULL? The TPS statute does not
require individuals to have lawful status in order to qualify for TPS. The TPS application form (1-821) does request
the applicant's status at the time of application, and this information is recorded in USCIS systems. However,
since the information is self-reported, we cannot confirm its accuracy. Additionally, not all applicants provide this
information on the form in a standard or recordable fashion. The 2016 annual TPS report to Congress shows that
80 of the 58,706 Haitian TPS beneficiaries have their status reported in USCIS systems as "without inspection."
However, we note that the same report shows that 48,597 of the 58,706 Haitian TPS beneficiaries had their status
reported in USCIS systems as unknown. Given the large number of individuals with unknown status, 80 is not a
reliable estimate of the number of Haitian beneficiaries who had no lawful status at the time of applying for TPS.
OBTAIN? WHAT CAN WE SAY HERE? HOW CAN IT BE OBTAINED IF NOT ALREADY? SCOPS & OPQ, I think you
were looking into this question. Is there any new data we can provide or, if not, can you propose an answer for
why this information is not available?
OB TAIN GOING FORWARD? Mark noted previously that TPS beneficiaries are not eligible for the majority of
public benefits. But for those limited instances in which some may be, OPQ or SCOPS, is there any way we would
be able to obtain how many TPS beneficiaries are 1) on public assistance or 2) out of work?

To: Kin Alexander R; Putnam-Frenchik, Nicole L; Chiang, Catherine H; Levine, Laurence D;
Ronnie D; Padilla, April Y; Woerz, Bret A; Risch, Carl C
I'm back again with a request for data on Haitians with TPS. See below the 3 requests along with information below that
we previously pulled. Can someone please answer the first three questions?
(1) How many current Haitian TPS folks were illegal pre-TPS designation? —CAN WE PULL?
OBTAIN? WHAT CAN WE SAY HERE? HOW CAN IT BE OBTAINED IF NOT ALREADY?
OB TAIN GOING FORWARD?
Demographic Data: see attached charts. You'll note that most of those with Haiti TPS are between ages of 33-49. Also,
many of those with TPS are located in Florida, California, Maryland, New York, Texas and Virginia.
Remittances
According to the World Bank, Haiti received an estimated $2.19 billion in remittances in 2015. Of this amount, an
estimated $1.34 billion were from the United States. Total remittances to Haiti accounted for approximately 25% of Haiti's
GDP in 2015 (Total GDP = $8.77 billion). Remittances from the United States accounted for approximately 15% of
Haiti's GDP in 2015.
How often TPS holders travel back and forth to the island
CBP provided the following preliminary numbers for Haitian national entries (not persons, but entries) for the admission
code "DA" (advanced parole). Note, this includes any Haitian who entered under advance parole, not just Haitian TPS
beneficiaries, but it's a better proxy than the USCIS Advance Parole Document grant data:
• FY 2015 - 1,548
DPP_00003422
• FY 2016 - 1,293
• FY 2017 - 620

Direct:
Cell:
From: King, Alexander R

Sent: Monday, April 10, 2017 2:42 PM
To: Putnam-Frenchik, Nicole L; Nuebel Kovarik, Kathy; Chiang, Catherine H; Levine, Laurence D;
Ronnie D; Padilla, April Y; Woerz, Bret A
Hello,
As of now, I have been unable to verify whether we can systematically pull electronic criminality data (IDENT Fingerprint
records), by type of immigration benefit request, country of citizenship/ country of birth or other biographical
information besides an individual's A-number or name and date of birth.
I know the fingerprint records are stored in an electronic system, but I believe it's a person centric record only tied to the
individual's basic biographical information. In other words, I don't believe the fingerprint records contain the other
pieces of information we're interested in (i.e. aliens with criminal records who also are TPS beneficiaries from Haiti). I've
added Ronnie Thomas from SCOPS SFO to weigh-in on the possibilities of pulling this data. Based on what I know, pulling
this data would likely involve multiple steps and data pulls from different CIS systems.
Additionally, on the adjudications side we have been checking to see if we can systematically pull data based on the
reason for denial of the TPS application/ withdrawal of TPS. Our electronic case processing systems do not indicate the
specific reason for denial/withdrawal, but we are looking into whether we can pull this data from a relatively new
electronic system the service centers use to generate case correspondence.
Thanks,
Alex
From: Putnam-Frenchik, Nicole L

To: Nuebel Kovarik, Kathy; Chiang, Catherine H; Levine, Laurence D; King, Alexander R;
Cc: Phillips, Mark; Hoefer, Michael D; Porto, Victoria; Lee, David L; Roman-Riefkohl, Guillermo; Massey, Scott A
Currently OPQ PAER does not have access to the system that may include criminal history so we are unable to speak to
how it may be captured.
Sincerely
Nicole Putnam-Frenchik
PAER Branch Chief
Office of Performance & Quality I U.S. Citizenship and Immigration Services
Office:
Cell:
DPP_00003423
From:
To: Nuebel Kovarik, Kathy; Chiang, Catherine H; Levine, Laurence D; King, Alexander R;
Cc: Phillips, Mark; Putnam-Frenchik, Nicole L; Hoefer, Michael D; Porto, Victoria; Lee, David L; Roman-Riefkohl, Guillermo;
Massey, Scott A
Looks like that correctly sums up what we know currently. SCOPS or OPQ, is there anything we can say
generally about the availability of any criminal history captured in our systems?

Sent: Monday, April 10, 2017 1:29:52 PM
To: Chiang, Catherine H; Levine, Laurence D; King, Alexander R;
Massey, Scott A
Another question and quick turn-around request (for D1 before his 3:00 meeting). For each question asked, can we
summarize for Mr. McCament whether we track the data or whether we can track if asked by the Secretary. I started
something in red, but could use some help.
- details on how many TPS holders are on public and private relief — information is not collected and to do so would
require....
- any demographic data, including how many with TPS are school aged kids — we collect data on ages as well as the
city/state for each TPS beneficiary.
- how many have been convicted of crimes of any kind (any criminal/detainer stats you can find)
- how often they travel back and forth to the island — CBP would have such data. We have data on how many receive
advance parole.
- remittances data — we can obtain data generally on remittances by country, but it is not broken down by immigration
status/classification
From: Chiang, Catherine H

Sent: Monday, April 10, 2017 11:04 AM
To: Levine, Laurence D; King, Alexander R; Nuebel Kovarik, Kathy
Massey, Scott A
Hi Larry,
We updated column names and table headers to differentiate between information relating to petitioners versus
beneficiaries. We believe the geographic information provided are for petitioners instead.
Please let me know if you have any questions.
Thanks,
Catherine
From: Levine, Laurence D
DPP_00003424
To: King, Alexander R; Chiang, Catherine H; • Nuebel Kovarik, Kathy
Massey, Scott A
Thanks Alex — as soon as you can would be great.
Larry Levine
Senior Advisor
Office of Policy & Strategy
De artment of Homeland Security
This email, along with any attachments, is intended solely for the use of the addressee(s) and may contain information that is sensitive
or protected by applicable law. Unauthorized use or dissemination of this email and any attachments is strictly prohibited. If you are
not the intended recipient, please notify the sender and delete or destroy all copies. Thank you.
From: King, Alexander R

To: Levine, Laurence D; Chiang, Catherine H; Nuebel Kovarik, Kathy
Massey, Scott A
Hi Larry,
I don't have any additional data to provide at the moment. Both SFO SCOPS and the SCOPS TPS portfolio managers are
currently researching whether we can electronically pull data pertaining to TPS criminality.
What's the deadline today for this data?
At the moment I'm not sure what if any data we'll be able to provide regarding criminality for TPS Haiti, but we'll do our
best. Adding Guillermo and Scott from SCOPS.
Thanks,
Alex

To: Chiang, Catherine H; Nuebel Kovarik, Kathy
Cc: Phillips, Mark; King, Alexander R; Putnam-Frenchik, Nicole L; Hoefer, Michael D; Porto, Victoria; Lee, David L
Great! Thanks Catherine.
Larry
Larry Levine
Senior Advisor
DPP_00003425
From: Chiang, Catherine H

To: Levine, Laurence D; Nuebel Kovarik, Kathy
Cc: Phillips, Mark; King, Alexander R; Putnam-Frenchik, Nicole L; Hoefer, Michael D; Porto, Victoria; Lee, David L
Hi Larry,
I've just sent out the TPS information that OPQ is able to provide in a separate email and will forward to you shortly.
Please let me know if there is anything additional we can help with.
Thanks,
Catherine

To: Nuebel Kovarik, Kathy
Cc: Phillips, Mark; King, Alexander R; Putnam-Frenchik, Nicole L; Hoefer, Michael D; Porto, Victoria; Chiang, Catherine H;
Lee, David L
Adding in Alex and OPQ folks — were you able to find any additional data on TPS generally (as well as specific to Haiti)?
Thanks,
Larry
Larry Levine
Senior Advisor
From:
Sent: Saturday, April 08, 2017 12:04 AM
Cc: Pir,at irence i ; hillips, Mark
Kathy, recommend you go ahead and also include Mike Hoefer on any OPQ outreach, as he heads the division.
May help ensure a timely response over the weekend.
DPP_00003426
Let us know if any questions arise that we can help you puzzle through. Hope everyone enjoys their weekends.
From:
Sent: Friday, April 07, 2017 10:11:13 PM
Cc: Levine, Laurence D; Phillips, Mark
Sure. Alex King was working on this from SCOPS and Nicole Putnam-
Frenchik from OPQ.

Sent: Frida , A ril 07, 2017 9:52:33 PM
To:
Thanks again for all of this. I passed a lot of it on to the secretary's office. Can you please give me the contacts in
SCOPS and OPQ? I will have to reach out to them this weekend.
From:
Sent: Friday, April 07, 2017 4:33:57 PM
Kathy,
Knowing we're nearing the 4:30 deadline for this information, we wanted to share what we've received back so far and
let you know what we might still be able to expect next week. Thank you to Mark for providing the information on the
public benefits for which TPS beneficiaries are and are not eligible.
1. Details on how many TPS holders are on public and private relief — Information specific to TPS holders is not
available, but in general, TPS holders don't qualify for federal benefits, because they are considered nonqualified
immigrants (see list below). It appears that TPS holders can qualify for Medicaid or CHIP in select states if the
state elects to extend Medicaid and/or CHIP coverage to certain lawfully residing women and children, some of
whom may be TPS holders. We have not found any Medicaid or CHIP reports that break down enrollment figures
even by U.S. citizen/foreign national, let alone specific immigration status.
Qualified Immigrants
The following foreign-born persons are considered for eligibility for federal benefits:
• LPRs
• refugees
• asylees
• persons paroled into the United States for at least one year
• persons granted withholding of deportation or removal
• persons granted conditional entry (before April 1, 1980)
• battered spouses and children (with a pending or approved spousal visa or a self-petition for relief under the
Violence Against Women Act)
DPP_00003427
• Cuban and Haitian entrants (nationals of Cuba and Haiti who were paroled into the United States, applied for
asylum, or are in exclusion or deportation proceedings without a final order)
• victims of severe human trafficking (since 2000, victims of trafficking and their derivative beneficiaries [e.g.,
children], are eligible for federal benefits to the same extent as refugees/asylees)
Nonqualified Immigrants
Immigrants who do not fall under the qualified immigrant groups, including immigrants formerly considered permanently
residing under color of law (PRUCOLs), persons with temporary protected status, asylum applicants, other lawfully
present immigrants (such as students and tourists), and unauthorized immigrants.
Medicaid & CHIP Coverage for Lawfully Residing Children and Pregnant Women
States have the option to remove the 5-year waiting period and cover lawfully residing children and/or pregnant women
in Medicaid or CHIP. A child or pregnant woman is "lawfully residing" if they're "lawfully present" and otherwise eligible
for Medicaid or CHIP in the state.
Twenty-nine states, plus the District of Columbia and the Commonwealth of the Northern Mariana Islands, have chosen
to provide Medicaid coverage to lawfully residing children and/or pregnant women without a 5-year waiting period.
Twenty-one of these states also cover lawfully residing children or pregnant women in CHIP.
Getting emergency care
Medicaid provides payment for treatment of an emergency medical condition for people who meet all Medicaid eligibility
criteria in the state (such as income and state residency), but don't have an eligible immigration status.
2. Any demographic data, including how many with TPS are school aged kids — OPQ is still working to see whether
they can provide any demographic data, such as age or geographic location
3. How many have been convicted of crimes of any kind (any criminal/detainer stats you can find) — We've asked
SCOPS and OPQ whether they can pull data relating to criminality, but we don't yet have a response. Specifically,
the most promising route may be something relating to the number of Haitian TPS beneficiaries who had their
TPS withdrawn on criminal grounds.
4. How often they travel back and forth to the island — CBP is running a data report for us that should show how
many times in the last year Haitian TPS beneficiaries have been paroled into the United States. We should have
that information later today or on Monday. We do know that 11,786 Haitian TPS beneficiaries had requests for
Advance Parole Documents approved during the current extension period (however, this information does not
reflect whether these individuals actually traveled or where they may have traveled).
5. Remittances data — This information is not available specific to TPS holders, but see the information below for
general Haitian remittances and some analysis that attempts to extrapolate the amount of remittances that could
be attributable to TPS beneficiaries (however, neither of the methods of extrapolation can account for
differences in remittances that may be sent by differently situated individuals).
According to the World Bank, Haiti received an estimated $2.19 billion in remittances in 2015. Of this amount, an
estimated $1.34 billion were from the United States. Total remittances to Haiti accounted for approximately 25% of
Haiti's GDP in 2015 (Total GDP = $8.77 billion). Remittances from the United States accounted for approximately 15% of
Haiti's GDP in 2015.
Using 2015 World Bank remittance data and the most recent estimates of the Haitian immigrant and diaspora population
in the United States, you can make the following calculations:
According to the Migration Policy Institute, per data from the most recent U.S. census, the Haitian diaspora population in
the United States (consisting of individuals born in Haiti or reporting Haitian ancestry) consists of approximately 954,000
people. Assuming all members and only members of the Haitian diaspora are sending remittances back to Haiti, the
average member of the Haitian diaspora would send back approximately $1406.70 per year ($1.342 billion in
DPP_00003428
remittances/954,000 people = average per person). Multiply that amount by 58,000 TPS holders from Haiti and you
would get an estimated $81.6 million in possible remittances from the TPS holding population.
Alternatively, according to the Migration Policy Institute, there were an estimated 604,000 migrants from Haiti in the
United States in 2015. Assuming all and only Haitian migrants send remittances from the United States to Haiti, the
average Haitian migrant would send back approximately $2,221.85 per year in remittances ($1.342 billion/604,000 people
= average per person). Multiply that by the estimated 58,000 Haitian TPS holders and you would get an estimated $128.9
million in remittances.
Sources:
Haitian Immigrants in the United States — Migration Policy Institute, May 29, 2014
Global Remittances Guide — Bilateral Remittance Flows, Migration Policy Institute,
http://www.migrationpolicy.org/programs/data-hub/global-remittances-guide (last visited Apr. 7, 2017)
Haiti
Data — Haiti, The World Bank, http://data.worldbank.org/country/haiti (last visited Apr. 7, 2017)
Migration and Remittances Data: Bilateral Remittance Matrix 2015, The World Bank,
https://www.worldbank.org/en/topic/migrationremittancesdiasporaissues/brief/migration-remittances-data (last visited
Apr. 7, 2017)
We'll provide you with any additional information we receive as we receive it. Happy to discuss if you have any questions.
Thanks,
From:
Sent: Friday, April 07, 2017 1:34 PM
To: Nuebel Kovarik, Kathy; Phillips, Mark
Kathy, we've reached out to and gotten preliminary feedback from several offices on the queries below. In short, we
think we'll be able to get some, but not all of this info. Here's a summary of where we are for your general awareness:
- details on how many TPS holders are on public and private relief — Not available specific to TPS holders.
- any demographic data, including how many with TPS are school aged kids — OPQ may be able to get age/geographic
location.
- how many have been convicted of crimes of any kind (any criminal/detainer stats you can find) — Looking into whether
SCOPS or OPQ can pull data relating to criminality. Specifically, the most promising route may be something relating to
the number of Haitian TPS beneficiaries who had their TPS withdrawn on criminal grounds.
- how often they travel back and forth to the island — We have advance parole document approval numbers from SCOPS,
which may serve as something of a proxy (although not perfect, b/c an AP document grant doesn't reflect actual travel or
where the travel was to if it did happen). We are also looking to see if we can conduct a bounce of CBP systems, which
might give us greater precision or at least another cut at the question.
- remittances data — Looks as though we'll be able to get this generally (although probably not specific to TPS holders).
We'll get you another update and whatever we're able to nail down by COB (5 p.m.) if that works for you. Thanks,
From:
DPP_00003429
To: Nuebel Kovarik, Kathy; Phillips, Mark
Ok, we'll connect with SCOPS, OPQ, and others to see what we can dig up on these and report back by end of day with as
much as we can gather by then.

To: Phillips, Mark
Subject: TPS data
Hey there. I am hoping you guys can help pull some data, to the extent possible by the end of the day. Aside from that
chart already provided with the country/year/number of TPS holders, here's what I need:
- details on how many TPS holders are on public and private relief
- any demographic data, including how many with TPS are school aged kids
- how many have been convicted of crimes of any kind (any criminal/detainer stats you can find)
- how often they travel back and forth to the island
- remittances data
Anything else you think would be helpful to know. Much appreciated.

U.S. Citizenshi and Immigration Services
Direct:
Cell:
DPP_00003430
Exhibit 24
JAMES D. NEALON - 08/14/2018 ·
·1· · · · · · · · ·UNITED STATES DISTRICT COURT

·2· · · · · · · · NORTHERN DISTRICT OF CALIFORNIA
·3· · · · · · · · · · · · ·SAN FRANCISCO
·4
·5· ·- - - - - - - - - - - - - - x
·6· ·CRISTA RAMOS, et al.,· · · ·:
·7· · · · · · · ·Plaintiffs,· · ·:· Case No.
·8· ·v.· · · · · · · · · · · · · :· 3:18-cv-1554-EMC
·9· ·KIRSTJEN NIELSEN, et al.,· ·:
10· · · · · · · ·Defendants.· · ·:
11· ·- - - - - - - - - - - - - - x
12
13· · · · · ·VIDEOTAPED DEPOSITION OF JAMES D. NEALON
14· · · · · · · · · ·Tuesday, August 14, 2018
15· · · · · · · · · · Boston, Massachusetts
16
17
18
19
20
21
22
23· · Job No.:· LA-187775
24· · Pages 1 - 276
25· · Reported By:· Dana Welch, CSR, RPR, CRR
Epiq Court Reporting Solutions - Woodland Hills

1-800-826-0277 www.deposition.com
JAMES D. NEALON - 08/14/2018 Page 127
·1· ·concerning Syria? 12:10:30

·2· · · ·A.· You know, I may have to walk that back. 12:10:32
·3· ·Now that I think about it, I don't recall 12:10:43
·4· ·communicating directly with Department of State 12:10:47
·5· ·about Syria. 12:10:49
·6· · · ·Q.· So besides El Salvador, Honduras and 12:11:01
·7· ·Sudan, were there other countries that were up for 12:11:04
·8· ·TPS review during your tenure at DHS where you 12:11:08
·9· ·communicated with the State Department on 12:11:13
10· ·substantive matters related to the State 12:11:14
11· ·Department's recommendation? 12:11:17
12· · · ·A.· Yes.· So I recall having some 12:11:24
13· ·conversations about Haiti -- yeah, Haiti. 12:11:28
14· · · ·Q.· And with whom did you communicate at the 12:11:48
15· ·State Department concerning substantive matters 12:11:50
16· ·related to Haiti's TPS determination? 12:11:54
17· · · ·A.· So I had far fewer conversations with the 12:11:56
18· ·State Department related to Haiti than I did 12:11:58
19· ·related to Central America, but I would have 12:12:01
20· ·communicated with a gentleman named Ken Merten. I 12:12:03
21· ·believe it's M-e-r-t-e-n, I think. 12:12:09
22· · · ·Q.· And is that Ken or Kent? 12:12:13
23· · · ·A.· Ken, no T.· And he's a Deputy Assistant 12:12:14
24· ·Secretary of State in the Bureau of Western 12:12:22
25· ·Hemisphere Affairs. 12:12:34

1-800-826-0277 www.deposition.com YVer1f
·1· · · ·Q.· Do you recall if he's a career officer or 12:12:34

·2· ·political appointee? 12:12:37
·3· · · ·A.· Career officer. 12:12:38
·4· · · ·Q.· Do you recall when you had communications 12:12:39
·5· ·with Mr. Merten? 12:12:41
·6· · · ·A.· Not specifically, no. 12:12:46
·7· · · ·Q.· Do you recall in general terms the subject 12:12:56
·8· ·matter of your communications with Mr. Merten? 12:12:58
·9· · · ·A.· Yes.· You know, by the time I got to 12:13:01
10· ·Homeland Security, there was a general feeling that 12:13:13
11· ·TPS for Honduras -- I'm sorry, for Haiti was going 12:13:24
12· ·to be terminated, and so I believe I had 12:13:25
13· ·conversations with Mr. Merten about -- about the 12:13:32
14· ·decision itself and about what the implications of 12:13:36
15· ·that decision might be for U.S. policy and what 12:13:40
16· ·sorts of things we could do to help mitigate the 12:13:43
17· ·consequences of that decision. 12:13:47
18· · · ·Q.· You said that by the time you got to DHS 12:13:48
19· ·in early July, there was a general feeling that TPS 12:13:53
20· ·for Haiti was going to be terminated. 12:13:58
21· · · · · ·In your recollection, what created that 12:14:01
22· ·general feeling? 12:14:03
23· · · ·A.· I don't recall anything specific.· I just 12:14:03
24· ·recall when I came on board that that was my 12:14:10
25· ·feeling and observation. 12:14:15

·1· · · ·Q.· So you then described your communications 12:14:17

·2· ·with Mr. Merten as essentially having the backdrop 12:14:29
·3· ·of an expected termination of TPS for Haiti? 12:14:33
·4· · · ·A.· That's my recollection. 12:14:36
·5· · · ·Q.· Is it your recollection that that general 12:14:37
·6· ·feeling around the likely imminent end of TPS for 12:14:38
·7· ·Haiti was from the very beginning of your tenure at 12:14:45
·8· ·DHS? 12:14:48
·9· · · ·A.· I do recall that, because I recall that -- 12:14:48
10· ·that I got that sense from General Kelly. 12:14:54
11· · · ·Q.· Did you have specific communications with 12:14:56
12· ·General Kelly about that? 12:14:59
13· · · · · ·MR. KIRSCHNER:· Object.· I mean, to the 12:15:00
14· ·extent this is getting into internal government 12:15:02
15· ·deliberations of your communications, I would 12:15:06
16· ·instruct you not to answer. 12:15:15
17· · · · · ·MS. MacLEAN:· You can identify whether 12:15:15
18· ·this is a question that you would instruct him not 12:15:15
19· ·to answer or not. 12:15:15
20· · · ·Q.· But did you have specific communications 12:15:19
21· ·that you recall with General Kelly concerning the 12:15:21
22· ·expected termination of TPS for Haiti? 12:15:26
23· · · ·A.· I believe I had one conversation with him 12:15:29
24· ·about Haiti and TPS. 12:15:32
25· · · ·Q.· And was that communication before he left 12:15:34

·1· ·the Department? 12:15:38

·2· · · ·A.· Yes. 12:15:39
·3· · · ·Q.· And was that communication related to the 12:15:40
·4· ·expected end of TPS for Haiti? 12:15:51
·5· · · ·A.· You know what it was, it was a 12:15:53
·6· ·conversation between two old friends. 12:15:58
·7· · · ·Q.· Um-hmm.· Can you say anything further 12:16:04
·8· ·about the conversation? 12:16:07
·9· · · · · ·MR. KIRSCHNER:· Again, I object -- 12:16:07
10· · · ·A.· It was deliberative. 12:16:08
11· · · ·Q.· Okay. 12:16:12
12· · · · · ·MS. MacLEAN:· I understand that lunch is 12:16:29
13· ·ready, so if you don't mind, we'll ask a few more 12:16:31
14· ·questions and then we take a break for lunch unless 12:16:35
15· ·you'd rather take a break right now? 12:16:38
16· · · · · ·MR. KIRSCHNER:· Can we take a two-minute 12:16:38
17· ·break just to see where we are on timing and check 12:16:40
18· ·with Ambassador Nealon where he would want to take 12:16:43
19· ·a break. 12:16:48
20· · · · · ·MS. MacLEAN:· No problem. 12:16:49
21· · · · · ·THE VIDEOGRAPHER:· Time is 12:16.· We are 12:16:50
22· ·off the record. 12:16:52
23· · · · · ·(Proceedings interrupted at 12:16 p.m. and 12:16:53
24· ·reconvened at 1:00 p.m.) 13:00:24
25· · · · · ·THE VIDEOGRAPHER:· Time is 1:00 p.m.· We 13:00:26

·1· ·said. 15:40:32

·2· · · · · ·MS. MacLEAN:· Objection noted. 15:40:33
·3· · · ·Q.· I'm asking the question do you feel this 15:40:35
·4· ·was a different interpretation? 15:40:37
·5· · · · · ·MS. MacLEAN:· But objection noted. 15:40:39
·6· · · ·Q.· So do you feel this was a different 15:40:41
·7· ·interpretation from previous secretaries to 15:40:44
·8· ·secretaries under this administration? 15:40:46
·9· · · · · ·MR. KIRSCHNER:· Objection, foundation for 15:40:48
10· ·what you mean by "this interpretation."· Calls for 15:40:49
11· ·speculation. 15:40:53
12· · · ·Q.· Ambassador Nealon, I'll ask one more time, 15:40:53
13· ·hopefully we can ask this clearly.· But was it your 15:40:56
14· ·understanding that the interpretation of the TPS 15:41:01
15· ·statute that was used by prior administrations that 15:41:04
16· ·allowed for consideration of factors beyond the 15:41:08
17· ·originating condition in the case of Honduras, 15:41:13
18· ·Hurricane Mitch, was different from the 15:41:17
19· ·interpretation of the TPS statute that was used by 15:41:22
20· ·the secretaries under the current administration? 15:41:25
21· · · · · ·MR. KIRSCHNER:· Same objection, foundation 15:41:29
22· ·and speculative. 15:41:30
23· · · ·A.· Yes.· And I think it's important to note 15:41:32
24· ·that I believe both points of view are legitimate. 15:41:37
25· ·Both in my view are -- are rational interpretations 15:41:43

·1· ·of the statute.· So I think that there was a change 15:41:51
·2· ·in policy, but I don't think it was necessarily 15:41:54
·3· ·irrational change in policy.· It's a defensible 15:42:00
·4· ·change in policy. 15:42:06
·5· · · ·Q.· Do you recall conversations within DHS 15:42:06
·6· ·that recognized that this was a change in policy? 15:42:12
·7· · · · · ·MR. KIRSCHNER:· Objection.· Ambassador 15:42:18
·8· ·Nealon, to the extent this question calls for 15:42:20
·9· ·internal government deliberations, I'll instruct 15:42:23
10· ·you not to answer.· To the extent this question 15:42:26
11· ·just calls for whether you are understanding 15:42:28
12· ·conversations to have taken place without revealing 15:42:31
13· ·those deliberations, you can answer. 15:42:33
14· · · · · ·THE WITNESS:· Thank you. 15:42:39
15· · · ·A.· Would you restate the question? 15:42:41
16· · · ·Q.· Yes.· Do you recall conversations during 15:42:43
17· ·your time at DHS that recognized that there was a 15:42:47
18· ·change in policy related to the interpretation of 15:42:52
19· ·the TPS statute? 15:42:56
20· · · ·A.· Yes. 15:42:58
21· · · ·Q.· Can you recall one of those conversations, 15:42:59
22· ·when it took place and with whom? 15:43:05
23· · · ·A.· No.· I don't recall.· Again, this is very 15:43:08
24· ·difficult for me to recall specific conversations 15:43:12
25· ·and who said what and -- but I certainly do 15:43:14

·1· ·remember, yes, conversations related to that issue. 15:43:18

·2· · · ·Q.· Do you recall Secretary -- then Secretary 15:43:22
·3· ·General Kelly being involved in some of those 15:43:33
·4· ·conversations? 15:43:36
·5· · · ·A.· I don't. 15:43:39
·6· · · ·Q.· Do you recall Acting Secretary Duke being 15:43:39
·7· ·involved in those conversations? 15:43:43
·8· · · ·A.· I do. 15:43:45
·9· · · ·Q.· Do you recall Secretary Nielsen being 15:43:46
10· ·involved in those conversations? 15:43:49
11· · · ·A.· I don't. 15:43:50
12· · · ·Q.· Do you recall whether the White House or 15:43:56
13· ·any entity that was a component of the White House 15:44:00
14· ·or connected to -- not connected to -- 15:44:03
15· · · · · ·MS. MacLEAN:· Sorry.· Go back. 15:44:08
16· · · ·Q.· Do you recall whether the White House or 15:44:10
17· ·personnel within the White House were engaged 15:44:13
18· ·directly or indirectly with regard to the 15:44:16
19· ·interpretation of the TPS statute? 15:44:18
20· · · ·A.· So I don't recall anyone from the White 15:44:26
21· ·House speaking to me directly about that.· But I do 15:44:28
22· ·recall hearing that -- that people from the White 15:44:31
23· ·House were engaged with other people in DHS on that 15:44:37
24· ·subject. 15:44:43
25· · · ·Q.· Do you recall who from the White House was 15:44:43

·1· ·was certainly speaking to Mr. Hamilton, and he may 15:47:32

·2· ·have been speaking to others. 15:47:37
·3· · · ·Q.· How do you know that he was speaking to 15:47:39
·4· ·the DHS Chief of Staff?· First of all, which DHS 15:47:41
·5· ·Chief of Staff are you referencing here? 15:47:46
·6· · · ·A.· Chad Wolf. 15:47:48
·7· · · ·Q.· And how do you know that he was speaking 15:47:49
·8· ·to Chad Wolf? 15:47:52
·9· · · ·A.· Chad Wolf told me. 15:47:53
10· · · ·Q.· Did he speak to Mr. Wolf more than once 15:47:55
11· ·about TPS? 15:47:58
12· · · · · ·MR. KIRSCHNER:· Objection, foundation. 15:47:59
13· · · ·A.· So I believe Mr. Wolf told me that he had 15:48:08
14· ·had numerous conversations with Stephen Miller 15:48:10
15· ·about TPS. 15:48:13
16· · · ·Q.· Do you recall when those conversations 15:48:14
17· ·took place? 15:48:17
18· · · ·A.· I don't. 15:48:18
19· · · ·Q.· And how do you know that Mr. Miller was 15:48:20
20· ·having communications with Mr. Hamilton about TPS? 15:48:24
21· · · ·A.· Again, I don't have direct knowledge of 15:48:28
22· ·these conversations, but reference would 15:48:30
23· ·occasionally be made to them in meetings. 15:48:34
24· · · ·Q.· Did Mr. Wolfe elaborate to you the content 15:48:38
25· ·of the conversations he had with Mr. Miller 15:48:54

Exhibit 25
9/10/2018
Case 1:18-cv-01599-WFK-ST DHS Chief John Kelly
Document 62-25 says Congress could fix TPS | Page
Filed 10/09/18 Miami Herald
2 of 4 PageID #: 2779
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HAITI
DHS chief tells Haiti’s president: Start thinking about bringing Haitians on
TPS home
BY JACQUELINE CHARLES
jcharles@miamiherald.com
June 01, 2017 06:43 PM
U.S. Department of Homeland Security Secretary John Kelly continued to cast uncertainty Thursday on the fate of tens of thousands
of Haitians who have been temporarily allowed to live and work in the United States, but he said Congress may ultimately resolve the
issue by changing the legislation.
“This is squarely on them,” Kelly said in an interview with the Miami Herald about the Temporary Protective Status, or TPS, program
that nationals from Haiti, Honduras, El Salvador, Nicaragua and six other countries are currently enrolled in. “I have a law that I am
supposed to enforce and I think the members of Congress who are interested in this, and there are a lot of them, should probably sit
down and talk about it and come up with some legislation to fix it. I think it’s on them.”
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9/10/2018
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Kelly made a brief stop in Miami after a trip to Haiti Wednesday where he spent more than an hour discussing TPS and other Trump
administration concerns with new Haitian President Jovenel Moïse and senior officials with the government and the United Nations
Stabilization Mission in Haiti.
His suggestion to Moïse: Start thinking about how to bring Haiti’s nearly 60,000 TPS recipients back to their home country by issuing
travel documents or identification.
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“TPS is not supposed to continue to be enforced until Haiti’s like Jamaica, or any country with a very functioning democracy [or] a
relatively low unemployment rate. That’s not the point of it,” said Kelly, pushing back on critics who argue abruptly ending TPS will
quickly harm the country’s already fragile economy.
“TPS was granted based on the [2010] earthquake,” he said. “Things in Haiti were tough for decades prior to the earthquake, and
will be tough for decades to come. But the reason TPS was granted was because of the earthquake.”
It should not, he said, have “to remain in place until Haiti is a completely functioning economy with no problems.”
9/10/2018
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U.S. Homeland Security Secretary John Kelly attends a joint press conference with Haiti's President Jovenel Moise at the National Palace in Port-au-Prince,
Haiti, Wednesday, May 31, 2017. Kelly traveled to Haiti for a brief visit less than two weeks after the Trump administration suggested that 58,000 Haitians in
the U.S. should get ready to return home.
Dieu Nalio Chery - AP
Haitians on TPS, Kelly added, “need to start thinking about returning.”
Kelly’s Haiti visit came nine days after he extended the immigration benefit — which was set to expire on July 22 — for Haiti for an
additional six months, which means it will now expire in January unless it is extended again. For months, advocates and lawmakers
had urged an 18-month extension as the Obama administration had done.
In April, the acting director of U.S. Citizenship of Immigration Services, James McCament, recommended a final six-month extension
for Haiti and then termination Jan. 22. Kelly’s decision doesn’t put an absolute end date on the program.
On Thursday, he said the argument that Haiti should keep receiving the benefit seven years after the cataclysmic quake left more
than 300,000 dead, 1.5 million homeless and an equal number injured, is “questionable.”
“I looked at it real hard and decided to extend it for six months, which should give — in the event it’s not extended next time —
opportunities for people that are living here in the United States to settle their issues here ... and by the same token, give the
government of Haiti enough time to start thinking of how to reintegrate,” he said.
Asked whether TPS would be extended now that he’s met with Moïse and other Haitian government officials, Kelly said: “I don’t
know. I literally don’t know.”
One factor that will go into his decision-making in the coming months, he said, will be if the Haitian government starts the process of
reintegrating or preparing to reintegrate TPS recipients by providing them with travel documents.
Kelly said one challenge that he has faced in the top job at Homeland Security is that immigration benefits like TPS seemed to be
automatically renewed.
“I go back to this issue of, the longer that people stay in the United States, the more of an argument they have that they have become
Americanized and ‘Why do I have to leave?’” he said.
His review of the benefit comes as some congressional Republicans are seeking to functionally kill TPS by requiring Congress and the
president to sign off on it, and as some nationals from Central America who also live in the U.S. under TPS are mounting their own
campaign. On Thursday afternoon, Haitian community activists held a town hall in Miami on the issue.
Kelly noted that the U.S. continues to takes in 1.1 million legal immigrants annually, insisting that the current administration is “not
an administration that’s against immigration. It’s an administration that’s against illegal immigration.”
Kelly, the former head of U.S. Southern Command in Miami, said he decided to travel to Haiti to speak to the president after meeting
with the country’s ambassador to the U.S. and the foreign minister on TPS.
“Clearly he would like to see it extended at least another year,” Kelly said of Moïse.
He said several other concerns were raised by the U.S. — which currently does not have an ambassador in Haiti — such as how the
Haitian National Police has to remain apolitical, and work for the people, “not for the president.”
Moïse and others in the administration have been pushing to revive the Haitian army to replace the departing U.N. peacekeepers.
Kelly, a retired Marine Corps general, was not keen on the idea.
“What they need is national police, probably a sub-unit within the national police border guards,” Kelly said. “An army is a lot of
money for a country like Haiti... An Army that doesn’t always have a mission is the ‘Devil’s Workshop,’ with a lot of time on its
hands. ... I think what money he does have he should focus on the national police. Make them better, more professional.”
Exhibit 26
Exhibit 27
WRITTEN TESTIMONY
OF
KIRSTJEN M. NIELSEN
SECRETARY
DEPARTMENT OF HOMELAND SECURITY
FOR A HEARING ON
“Oversight of the United States Department of Homeland Security”
BEFORE THE
UNITED STATES SENATE

COMMITTEE ON THE JUDICIARY
Tuesday, January 16, 2018

Introduction
Chairman Grassley, Ranking Member Feinstein, and members of the Committee, thank you for
the opportunity to testify before you today. The men and women of the Department of
Homeland Security (DHS) are working tirelessly to make our communities safer and our Nation
more secure, and I am honored to speak on their behalf.
While both our Department and this Committee oversee a broad portfolio, today my prepared
remarks will focus on the current threat environment, our efforts to elevate the baseline of our
security posture across the board, and how our Department’s immigration priorities are helping
to secure our Nation by recognizing that the American people are the primary stakeholders in our
Nation’s immigration system.
Protecting Our Open Society in a New Age of Terrorism
Today, we face a serious and persistent terror threat that, according to my assessment, will not
diminish anytime soon. While we have made it harder for terrorists to execute large-scale
attacks, changes in technology have made it easier for adversaries to plot attacks in general, to
inspire and radicalize new followers, and to recruit beyond borders. The problem is compounded
by the use of simple, “do-it-yourself” terror tactics.
Acts of terror and mass violence have become all-too-frequent around the world, and our
enemies continue to target us throughout the West: Paris, San Bernardino, Brussels, Orlando,
Istanbul, Nice, Berlin, London, Barcelona, New York City, and beyond. As the United States
and our allies drive ISIS from its safe haven in Syria and Iraq, we are seeing operatives disperse,
and we are concerned those foot soldiers will start focusing more heavily on external operations
against the United States, our interests, and our allies as they have lost territory.
The October 31, 2017 attack in New York City is a prime example of how terrorism is evolving.
The suspect was apparently radicalized in part by online terrorist propaganda, his attack plotting
went undetected, he choose a public area as his target, and selected a vehicle as his weapon.
At the same time, terrorists overseas are experimenting with more sophisticated tools—including
drones, chemical weapons, and artfully concealed improvised explosive devices—to further
spread violence and fear. In short, what was once a preference for large-scale attacks is now an
“all-of-the-above” approach to terrorism.
Today, I want to highlight the threat to so-called soft targets. Large gatherings and public venues
and events are appealing targets for terrorists and violent criminals because of their accessibility
and the potential to inflict significant physical, psychological, and economic damage. That is
why DHS is working to help our state, local, tribal, territorial, and private sector partners —and
the public—better protect such sites and events. We actively share intelligence bulletins and
analysis with homeland security stakeholders nationwide to make sure they understand the
danger, use best practices to counter nascent attack methods, train frontline defenders to combat
such threats, and are always on alert to the potential for violent incidents.
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Our National Protection and Programs Directorate (NPPD) is helping to lead the charge on soft
target security, and in the coming weeks we expect to roll out additional information about how
we are stepping up our efforts even further. Our goal is to:
• Demonstrably reduce the risk of successful attacks on soft targets;

• Ensure the Department has the capability to support visible efforts to enhance soft target
security in order to safeguard the American people;
• Develop a “center of gravity” for Department-wide resources available to support the
critical infrastructure community in securing soft targets; and
• Promote a dynamic process to identify and address soft target security gaps based on
threats and incidents.
DHS manages programs that provide training and informational resources focused on active
shooter preparedness, which play a key role in preparing facilities and their employees to
proactively think about the role they play in the safety and security of their businesses and
communities. This includes efforts like the Hometown Security Initiative, which develops
critical partnerships between the private sector and the public sector to provide expert counsel
and recommendations about protective measures they can implement to protect facilities and
venues in their communities.
In addition, the DHS Federal Law Enforcement Training Center’s Private Public Partnership
Academy brings together commercial shopping center executives, their private security
professionals, and their local law enforcement representatives to receive standardized training in
active shooter threat mitigation strategies and tactical medical training, and to practice these
skills in large public event gathering exercises. Furthermore, the Science and Technology
Directorate’s SAFETY Act Program provides critical incentives for the development and
deployment of anti-terrorism technologies by providing liability protections for “qualified anti-
terrorism technologies.” This applies to a number of stadiums nationwide, too, which can
leverage the Program to better protect major events and gatherings.
Advance Terrorism Prevention Efforts
In addition to counterterrorism, the Department is rededicating itself to terrorism prevention.

Americans do not want us to simply stop violent plots, they want us to keep them from
materializing in the first place. As part of this effort, we have launched an end-to-end review of
all DHS terrorism-prevention programs, projects, and activities. In the coming months we will
work to ensure our approach to terrorism prevention is risk-based and intelligence-driven,
focused on effectiveness, and provides appropriate support to those on the frontlines whom we
rely on to spot signs of terrorist activity.
DHS efforts to combat terrorist recruitment and radicalization fall into several primary
categories, including: (1) prioritizing education and community awareness; (2) focusing on
counter-recruitment; (3) emphasizing the importance of early warning through better reporting of
suspicious activity; and (4) promoting early intervention.
2
I know this Committee has spent a good deal of time working with the technology companies on
the terror threat. We have had robust and ongoing engagement with the technology sector to
increase its efforts to address terrorists’ use of the internet, including combating terrorist
messaging online. This falls into our “counter-recruitment” line of effort. While the internet
itself is not the source of the problem, it is abused to promote radicalization, recruitment to
violence, and to raise funds for terrorist organizations.
Earlier this year, Deputy Secretary Duke traveled to San Francisco to meet with the Global
Internet Forum to Counter Terrorism (GIFCT), a consortium of tech companies, including
Facebook, Twitter, Microsoft, and Google, which are working to counter terrorists exploiting
their platforms. She also conferred with them at a G7 Interior Ministers Meeting in Italy in
October, and I am pleased to report we have seen progress and responsiveness as a result of these
engagements.
Even though there is still more to be done, the companies are directly addressing our concerns by
taking important steps to make their platforms less hospitable to terrorists. I am going to
continue these high-level engagements to keep up the momentum, and I plan to travel out West
to confer with these companies again in the coming weeks.
Aviation Security
When it comes to counterterrorism priorities, commercial aviation remains a major concern. We

have seen a spider web of threats against the aviation sector, which continues to be a top target
for global jihadist groups. We are working with our partners across the global aviation
community to collaborate, innovate, and implement new security practices in the face of
evolving threats.
This summer, we announced new “seen” and “unseen” security measures, representing the most
significant aviation security enhancements in many years. Indeed, our ongoing Global Aviation
Security Plan is making U.S.-bound flights more secure and will raise the baseline of aviation
security worldwide. We have required the implementation of security measures at all Last Point
of Departure airports to the United States, including enhancements to protect aircraft against
concealed explosives, to counter insider threats, and to better identify suspicious passengers.
In September 2017, we also initiated new measures, utilizing the Transportation Security
Administration’s (TSA) Security Directives and Emergency Amendments (SD/EAs), to address
threats to cargo aircraft inbound to the United States. These measures require certain carriers to
provide additional data to allow U.S. Customs and Border Protection (CBP) to better assess the
risk of shipments prior to loading. We continue to review ways to address threats and raise the
baseline of cargo security screening overseas, including further SD/EAs to expand cargo security
enhancements to additional countries.
International organizations also play a vital role in strengthening transportation security around
the globe. For example, the United States is a Member State of the International Civil Aviation
Organization (ICAO), an arm of the United Nations that sets safety and security standards for
international air travel. TSA is urging ICAO to adopt more rigorous security standards and is
encouraging ICAO members to join us in embracing innovation.
3
TSA’s aggressive pursuit of innovation includes exploring the use of Computed Tomography
systems at airport checkpoints. These systems feature improved 3D-imaging and enhanced
detection capabilities and will play an important role in our Global Aviation Security Plan. TSA
has also started testing credential authentication technologies at a number of airports to help
verify passengers’ identities and their ticketing and vetting status. Other technologies with
promise are mobile handheld solutions that quickly and easily identify explosives. Consistent
with the longstanding practice of the Department, as we pilot, test, or implement these new
technologies and programs, we will continue to review the privacy impacts of their deployment,
report on our findings, and work closely with airports and industry.
In many of these areas, we will continue to need Congressional assistance, especially as we work
to keep up with our enemies’ changing tactics. In some cases, DHS and other departments and
agencies lack certain legal authorities to engage and mitigate the emerging dangers we are
seeing. For example, we lack the authorities needed to counter threats from unmanned aircraft
systems (UAS). We know that terrorists are using drones to conduct aerial attacks in conflict
zones, and already we have seen aspiring terrorists attempt to use them in attacks outside the
conflict zone. This is a very serious concern for the Department.
Last year, the Administration delivered a government-wide legislative proposal to Congress that
would provide additional counter-UAS authorities to DHS and other federal departments and
agencies to legally engage and mitigate UAS threats in the National Airspace System. After
extensive discussions, we are working to provide an updated proposal to Capitol Hill. In the
meantime, I am eager to share our concerns in a classified setting, which we recently did with the
House Homeland Security Committee. I expect to have the legislative proposal to you in the
next few weeks, and I urge the Committee to help champion efforts to resolve this challenge.
Vetting and Screening
At the President’s direction, the Department is undertaking historic efforts to secure our country.
The goal is to prevent national security threat actors, especially terrorists and criminals, from
traveling to the United States, while better facilitating lawful trade and travel. The
Administration has made it a priority to intensify screening and vetting and to provide the
American people the security they deserve. All foreign nationals—no matter how they try to get
into our country—now face tougher vetting and tighter screening. The changes have made it
harder for terrorists, criminals, and other nefarious actors to reach America.
This is important. The majority of individuals convicted on terrorism charges in the United
States since 9/11 were foreign-born. While not all were radicalized before coming to the United
States, we must do everything we can to detect individuals with terror ties or those who have
been radicalized to violence before they reach our country. At the same time, our policies will
be shaped by risk so that we focus on identifying nefarious actors while effectively facilitating
the lawful entry of peaceful, freedom-loving people from around the world.
To that end, DHS is improving almost every stage of the vetting process for immigrants,
refugees, and other U.S.-bound individuals, from applications to arrivals. For instance, we are
enhancing applicant interviews by making them more intensive and helping interviewers better
4
identify hidden terror ties, signs of radicalization, and fraud. We are requiring more data from
applicants on their backgrounds, employment history, associates, travel, and more to verify their
claims and detect unusual activity. We are also better leveraging biometrics to validate traveler
identities and spot persons of interest.
Investigations are also being intensified. DHS is bringing investigations into the digital age by
collecting more social media data from applicants and screening it against classified and
unclassified information, as appropriate. Our frontline personnel are fusing more intelligence
into the immigration and travel process to uncover previously unknown terrorism, criminal, and
other suspicious connections. We are expanding round-the-clock security checks, ensuring that,
where appropriate, individuals are continuously vetted against intelligence and criminal
databases, rather than only at the time of their application.
Additionally, travel and arrival procedures have been tightened. As noted earlier, we are
launching sweeping aviation security enhancements so that all U.S.-bound passenger flights are
better protected against insider threats, concealed explosives, and dangerous travelers. DHS has
bolstered dedicated counterterrorism teams at U.S. ports of entry, allowing us to more effectively
catch terror suspects that may have slipped through the cracks. We have already seen very real
successes from this array of enhancements. I cannot get into the details in this setting, but I can
share that these measures have allowed us to detect and disrupt terror suspects we likely would
not have identified otherwise.
In the medium term, DHS is looking at making further improvements. We are examining broad
ways to streamline how we organize our vetting activities across the interagency. This includes
consolidating screening and vetting functions, further integrating intelligence data where
appropriate, and better leveraging law enforcement information.
The Department has also implemented historic efforts to step up international cooperation. For
the first time ever, DHS established a clear baseline for what countries must do to help the
United States confidently screen travelers and immigrants from their territory. Every country in
the world is now required to meet high security standards and to help us understand who is
coming into our country. As required under President Trump’s Executive Order Protecting the
Nation from Foreign Terrorist Entry into the United States (EO 13780), all foreign governments
have been notified of the new standards, which include the sharing of terrorist identities, criminal
history information, and other data needed to ensure public safety and national security, as well
as the requirement that countries issue secure biometric passports, report lost and stolen travel
documents to INTERPOL, and take other essential actions to prevent identity fraud.
DHS assessed whether countries meet the new standards, in coordination with the Department of
State and the Department of Justice. For countries that failed to do so, DHS recommended to the
President that nationals of those countries be subject to tailored entry restrictions or other lawful
limitations and security enhancements, which he effectuated through a Presidential proclamation
in October. Most foreign governments already meet the minimum standards we outlined or are
on the path to doing so. But we are working closely with the governments that did not meeting
the standards, and we have warned countries that are willfully noncompliant that the
5
United States puts the security of its people first and will continue to enforce these reasonable,
baseline requirements and restrictions.
Let me be clear: this has nothing to do with race or religion, and our goal is certainly not to block
people from visiting the United States. America is proud of its history as a beacon of hope to
those who want to visit our country or become a part of our enduring democratic republic.
Rather, the goal is to protect Americans and ensure foreign governments are working with us—
and not inhibiting us—from stopping terrorists, criminals, and other national security threat
actors from traveling into our communities undetected.
Visa Waiver Program
We are also looking at ways to further strengthen the Visa Waiver Program (VWP). First and
foremost, the VWP is a security partnership program. It mandates high and consistent standards
from partner countries in the areas of national security, law enforcement, and immigration
enforcement to detect and prevent terrorists, criminals, and other potentially dangerous
individuals from traveling to the United States—while still facilitating legitimate travel and
tourism.
Currently, 38 countries participate in the VWP, which allows their citizens to travel to the United
States for business or tourism for stays of up to 90 days after applying and being approved
through the Electronic System for Travel Authorization (ESTA). In return, these countries must
comply with program requirements to enter into information-sharing protocols that enable the
relay of information concerning known and suspected terrorists and criminals; consistent and
timely lost and stolen passport information reporting; and robust border and travel document
screening. As a result of these program requirements, countries have adopted new laws, policies,
and practices that strengthen our mutual security.
The Visa Waiver Program Improvement and Terrorist Travel Prevention Act of 2015, combined
with Secretarial action, have strengthened the VWP’s security provisions over the past two years.
VWP countries are now required to issue high-security electronic passports (e-passports);
implement information sharing arrangements to exchange terrorist identity information; establish
mechanisms to validate e-passports at each key port of entry; report all lost and stolen passports
to INTERPOL or directly to the United States no later than 24 hours after the country becomes
aware of the loss or theft; and screen international travelers against the INTERPOL Stolen and
Lost Travel Documents (SLTD) database and notices. As with other operational activities of
DHS, a full discussion of the privacy impact of these initiatives and how we mitigate the risk to
personal privacy is available on our website.
Since enactment of the Visa Waiver Program Improvement and Terrorist Travel Prevention Act,
DHS has realized an increase in the sharing of terrorist identity information. Several countries
have increased the frequency of their reporting of lost and stolen passports—VWP countries
account for over 70 percent of the almost 73 million lost and stolen travel documents reported to
INTERPOL. All VWP countries are now issuing and using for travel to the United States fraud-
resistant e-passports that meet or exceed the ICAO standards. Over 70,000 ESTA applications
6
have been denied, cancelled or revoked under enforcement of the VWP Improvement Act’s
eligibility restrictions for VWP travel.
But there is always room for improvement. In May 2017, former Secretary Kelly directed the
Department to review and provide options to further enhance VWP. Since then, DHS has
worked—both internally and with our interagency partners—to evaluate a number of
recommendations. Last month I announced new changes, as a result of this review, which will
make our country more secure and make it harder for terrorists to cross international borders and,
ultimately, to get closer to our shores.
Broadly, the new measures will require our foreign partners to use the counterterrorism data we
provide them to screen travelers transiting their territory; expand and standardize our ability to
share and receive information that enhances our ability to identify, monitor, and counter known
and suspected terrorists and other individuals who may pose a threat to the United States; address
the problem of visitors overstaying when traveling under the VWP; and synchronize efforts to
raise security standards under TSA’s Global Aviation Security Plan, in particular by ensuring
foreign partners are taking action to defend against insider threats to aircraft.
The bottom line is that, in order to attain and maintain VWP designation and visa-free travel to
our territory, a country and its nationals cannot represent a threat to the United States and must
be working in partnership with us to prevent terrorist travel. In all instances, as the Secretary of
Homeland Security, I retain and will use the statutory authority to suspend or terminate a
country’s participation in the VWP if there is a credible threat originating from that country that
poses an imminent danger to the United States or its citizens.
Border Security
We are also strengthening our border security and our enforcement of immigration laws. This
Administration’s immigration principles will ensure safe and lawful admissions, defend the
safety and security of our country, and protect American workers and taxpayers. Border security
involves preventing illegal entry of goods and people along more than 7,000 miles of land along
our southern and northern borders, approximately 95,000 miles of shoreline, and at 328 ports of
entry. Overall, apprehensions at the southern border have decreased, which leads us to believe
that fewer people are attempting illegal entry. In Fiscal Year (FY) 2016, there were 408,870
apprehensions at the Southern Border; in FY 2017, there were 303,916. That’s a decrease of
nearly 26 percent and it represents the lowest level in 45 years.
However, make no mistake: that is nearly one thousand illegal immigrants coming across our
border every day. This is an unacceptable risk to public safety and national security.
Additionally, since last spring, we have seen a dangerous increase in border crossings by families
and unaccompanied alien children. We must gain operational control of our borders. DHS
needs Congressional support to deter illegal immigration and fully execute the President’s
Executive Orders on immigration.
In compliance with Executive Order 13767: Border Security and Immigration Enforcement
Improvements, DHS has conducted a comprehensive study of the security of the southern border
7
that addresses all of the elements that provide an integrated solution for the Nation. Our first
priority is to expand on our existing southern border wall system and close legal loopholes that
encourage and enable illegal immigration and create a corresponding backlog in the courts. We
currently have an immigration court backlog of more than 650,000 cases pending before the
Department of Justice’s Executive Office for Immigration Review. We also have a massive
asylum backlog with more than 270,000 pending cases before U.S. Citizenship and Immigration
Services (USCIS). Recognizing the unsustainability of the asylum case backlog, USCIS has
implemented efficiency measures designed to reduce adjudication times. Similarly, the
Department of Justice has taken action to reduce unwarranted case continuances in immigration
courts, which helps reduce the backlog while affording aliens full and fair hearings. To further
reduce the “pull factors” and restore integrity to our immigration benefits adjudication process,
we must tighten case processing standards, including the “credible-fear” standard, impose and
enforce penalties for fraud, and ensure applicants are fully vetted before they are allowed access
to the United States.
We must expedite the removal of illegal border-crossers and ensure that unaccompanied alien
children and their family members are safely and expeditiously returned to their home countries,
if they are not eligible for asylum or other relief from removal, while at the same time
appropriately processing those with valid protection claims. To reduce the immigration court
backlog and make the removal process more efficient, we seek to hire an additional 1,000 ICE
attorneys over the next few years, and support the Department of Justice’s hiring of an additional
370 Immigration Judges. We also seek to discourage illegal re-entry by enhancing penalties and
expanding categories of inadmissibility.
In addition, visa-overstays account for roughly 40 percent of all illegal immigration in the
United States. In FY 2016, more than 628,000 aliens overstayed their visas. By increasing
overstay penalties and expanding ICE’s enforcement tools, we can help ensure that foreign
workers, students, and visitors respect the terms of their temporary visas. We need Congress to
authorize the Department to raise and collect fees from immigration benefit applications to fund
additional enhancements to our immigration system called for by the President’s Executive
Orders.
The President has outlined much of the above in his immigration legislation principles, and with
Congress, we have reached a general consensus on four corners of an immigration deal: border
security, to include the authority to remove people we apprehend quickly, according to the rule
of law and court orders; ending the diversity visa; ending extended family chain migration; and
finding a permanent solution for the current Deferred Action for Childhood Arrival (DACA)
recipients. While there are other items to be addressed, these four pillars are the minimum we
need to secure our country.
We are looking for a permanent solution to our immigration and border security problems. We
cannot be here again debating the same issue in two, five, or ten years. I look forward to
working with any and all members of Congress to find a solution to our immigration and border
security needs.
8
Drugs
In the U.S. the illicit drug consumption has resulted in a national health crisis, as stated by
President Trump regarding the opioid crisis. But the true threat is much broader and includes the
increasing illicit drug supply trafficked into the United States by transnational criminal
organizations. This is a National Security threat as stated in the National Security Strategy: “The
United States must devote greater resources to dismantle transnational criminal organizations
and their subsidiary networks…..Every day they deliver drugs to American communities, fuel
gang violence, and engage in cybercrime. The illicit opioid epidemic, fed by drug cartels as well
as Chinese fentanyl traffickers, kills tens of thousands of Americans each year.”
DHS is committed to improving our drug detection capability and refocusing our border security
efforts to stop more of these deadly and pernicious substances from entering our country. DHS
is working closely with its federal, state, and local law enforcement partners, to interdict
shipments of fentanyl and other opioids in transit to the United States, and is targeting the these
organizations domestically and internationally, to disrupt the flow of these dangerous drugs
through illicit pathways into the United States.
Enforcing Immigration Laws
We are also prioritizing the enforcement of our immigration laws in the interior of our country.
There are nearly one million aliens with final orders of removal across the country—meaning
these removable aliens were afforded due process of law, had their day in court, and were
ultimately ordered removed by a judge—yet they remain in our nation and ICE only has 6,000
Deportation Officers to arrest and remove them. The Administration looks to strengthen law
enforcement by hiring 10,000 more ICE officers and agents, and supports the request from the
Department of Justice to hire 300 more federal prosecutors.
To further protect our communities, we must end so-called “sanctuary” jurisdictions. Hundreds
of state and local jurisdictions across the country that do not honor requests from ICE to hold
criminal aliens who are already in state and local custody. Instead, they allow them back into
their communities, where they are allowed to commit more crimes. This also poses a greater risk
of harm to ICE officers, who must locate and arrest these criminals in public places, and
increases the likelihood that the criminal aliens can resist arrest or flee. Rather than enhancing
public safety, sanctuary jurisdictions undermine it. The only “sanctuary” these jurisdictions
create is a safe haven for criminals. States and localities that refuse to cooperate with federal
authorities should be ineligible for funding from certain grants and cooperative agreements.
Authorizing and incentivizing states and localities to enforce immigration laws would further
help ICE with its mission and make all communities safer.
In FY 2017, 1,761 criminal illegal aliens were released from ICE custody because of a 2001
Supreme Court decision that generally requires ICE to release certain removable aliens with final
orders of removal—including violent criminals—within 180 days, if they have not been removed
and there is no significant likelihood of removal in the reasonably foreseeable future. Legally
insupportable judicial interpretations of the law regarding the detention and removability of
criminal aliens have eroded ICE’s authority to keep aliens in custody pending removal. I urge
9
Congress to legislatively correct these errors and expand the authority for mandatory detention
for criminal aliens. This will help end years of court-ordered “catch-and-release” and improve
community safety.
Buy American, Hire American
With the issuance of Executive Order 13788, Buy American and Hire American, the President
directed me, along with the Secretaries of State and Labor and the Attorney General, to propose
new rules and issue new guidance, and revise existing rules and guidance as soon as practicable,
“to protect the interests of United States workers in the administration of our immigration
system, including through the prevention of fraud and abuse.” I take that directive to heart. The
Department is fully committed to eradicating fraud and abuse in our immigration system in order
to serve the interests of Americans. Such a system must help create higher wages and
employment rates for U.S. workers, and protect their economic interests by seeking to ensure
that employment-based visas are awarded to the most-skilled beneficiaries. DHS is working on a
combination of rulemaking, policy memoranda, and operational changes to implement this
important initiative.
Pursuant to this Executive Order, USCIS announced it will take a more targeted approach to
combatting fraud and abuse in the employment-based visa programs, including the H-1B
program. To help end H-1B petitioner fraud and abuse, USCIS has established a Targeted Site
Visit and Verification Program (TSVVP). Targeted site visits allow USCIS to focus its
resources where fraud and abuse of certain programs are more likely to occur. TSVVP initially
focused on H-1B petitions filed by companies that are H-1B dependent (as defined by statute),
employers petitioning for H-1B workers who will be placed off-site at another company’s
location, or cases where USCIS cannot validate the H-1B petitioner’s business information
through commercially-available data.
USCIS has also taken great strides to improve transparency with the public about employment-
based immigration programs. The agency has published new data on its website to give the
public more information regarding the use of nonimmigrant workers in the H-1B, H-2B, and L
nonimmigrant programs. Information about the use and legal authority for employment
authorization documents has also been published.
In connection with protecting U.S. workers, the Department is looking at ways to expand and
enhance the E-Verify system. Currently, more than 700,000 employers use the free, web-based
system to verify the work eligibility of their workforce. By preventing employers from hiring
illegal alien labor and displacing U.S. workers, we can improve job opportunities and raise
wages for U.S. workers by making it more difficult for illegal aliens to obtain lawful
employment. We need Congress to pass legislation to strengthen the E-verify program and, at a
minimum, make it mandatory for all employers. The Department stands ready to implement
such a directive.
Going forward, DHS will release additional data about immigration programs that affect
employment, and additional policies and regulations will be revised in accordance with
Executive Order 13788.
10
As my predecessors often noted, DHS enforces the laws but has no power to make them; only
Congress can do that. The President has repeatedly made clear that our immigration system must
serve the national interest, and I ask this Committee to consider legislative reforms to implement
the Administration’s immigration principles. We need Congress to act to make our streets safer,
to give our officials the tools they need to protect American workers, and provide relief to those
who are lawfully eligible for protection under our immigration laws. DHS remains committed to
working with Congress to achieve these important objectives.
Legal Immigration Reforms
The United States has one of the most generous immigration systems in the world. Every day,
an average of nearly 2,000 people become U.S. citizens. Our Nation has a long history of
welcoming immigrants who came to this country in search of freedom and opportunity.
Providing lawful permanent resident status based primarily on merit—not solely on family
connections—would promote assimilation, financial independence, and upward mobility for
immigrants. By establishing a points-based system for merit-based migration, the predominant
system in most developed countries, we can attract the highest-caliber immigrants, and begin to
roll back decades of policies that have suppressed wages, contributed to income disparities,
fueled unemployment, and strained state and federal resources.
Therefore, our immigration system must be radically reformed to meet the economic needs of
our country. Most low-skilled immigration into the United States occurs legally through our
immigrant-visa system, which, unlike many other countries’ systems, prioritizes family-based
chain-migration. Each year, the United States grants lawful permanent resident status (green
cards) to more than one million people; two-thirds of that total is based on a person having a
sponsoring relative in the United States, regardless of the new immigrant’s skills, education,
English language proficiency, or ability to successfully assimilate. This system of chain-
migration has accounted for more than 60 percent of immigration into the United States over the
past 35 years. We must end chain-migration, and limit family-based green cards to spouses and
the minor children of U.S. citizens and lawful permanent residents.
We must also eliminate the “diversity visa” lottery. Every year, through this lottery, 50,000
green cards are awarded at random to foreign nationals. Many of these lottery beneficiaries have
absolutely no ties to the United States, no special skills, and limited education. The random
lottery program has not been adopted by other countries and does not adequately serve our
national interest.
Conclusion
Chairman Grassley, Ranking Member Feinstein, and distinguished members of the Committee, I
thank you again for the opportunity to testify today. The challenges I have laid out are great, but
the Department stands ready to execute its mission to secure the homeland. In partnership with
Congress, we will continue to adapt to meet the current threat environment and prepare for the
future. I look forward to your questions.
11
Exhibit 28
l.i.S, Dqrnrl.mi:nt <ii' lforn1,i;ind Si:r.nrity

l !.~:. Ci!i/<:il·,hip ,;11d !mmig:a:.iun ~i,r,:ke,
('(flee (:flh~~ Diref·t<.w O'v1S 200i.H
U.S. Citizenship
~nd !1n1nigration
ServICes
November 3, 2017
DECISION
MEMORANDUM FOR THE SECRETARY

...••':
FROM: L. Francis Cissna
Director
SUBJECT: Haiti's Designation for Temporary Protected Status
Purpose: Haiti's existing designation for Temporary Protected Status (TPS) will expire on
January 22, 2018. At least 60 days before the expiration of a TPS designation, the Secretary, after
consultation with appropriate U.S. Government agencies, must review the conditions in a country
designated for TPS to determine whether the conditions supporting the designation continue to be
met. ff the Secretary determines that the country no longer meets the statutory conditions for
designation, she shall terminate the designation. If the Secretary does not detennine, however,
that the conditions for designation are no longer met, the TPS designation will be extended for 6
months, or in the Secretary's discretion, 12 or 18 months. 1
U.S. Citizenship and Immigration Services (USCIS) has completed a review of the conditions in
Haiti and is presenting options and a recommendation for your consideration. In summary,
USCIS assesses that Haiti has made significant progress in recovering from the 2010 eaithquakc
and no longer continues to experience the extraordinary and temporary conditions that formed the
basis of Haiti's designation and redcsignation ofTPS. Accordingly, USCIS recommends that you
terminate Haiti's TPS designation.
As part of the review process, USCIS has consulted with the Department of State (DOS).
Secretary Tillerson has assessed the conditions in Haiti and recommends that you terminate Haiti's
TPS designation, with a delayed effective date of 18 months.
Haiti's TPS .Designation: FoUowing the devastating magnitude 7.0 earthquake that stmck Haiti
011 January 12, 2010, former Secretary Napolitano designated Haiti for TPS on January 21, 2010,
due to extraordinary and temporary conditions resulting from the eaiihquake. 2 The designation
1
See Immigration and Nationality Act (INA)§ 244(b)(3)(A-C), 8 U.S.C. § 1254a(b)(3)(A-C); see also Attachment A:
Tempornry Protected Status Legal Authority.
2
See Designation of Haiti for Temporary Protected Status, 75 Fed. Reg. 3476 (Jan. 2 l, 20 I 0).
PRE~[H;-;(]SHlNAL / HELlRER.ATIVE
AR-HAITl-00000012
PRE-HRClSlONAL / DKL]mGHATlVE
Haiti's Designation for Temporary Protected Status
Page 2
was based on extraordinary and temporary conditions 3 rather than environmental disaster4 because
the Haitian government had not requested designation for TPS-a statutory requirement for a
designation based on an environmental disaster.
The reasons provided for Haiti's designation for TPS in the Federal Register at the time of the
initial 2010 designation included the 7.0 magnitude earthquake that "destroyed most of the capital
city;" the "substantial" death toll; that "one third of Haiti's population" was affected by the
earthquake; that "concrete homes [had] collapsed and hospitals [were] overflowing with victims;''
the destrnction of many government buildings, including the Presidential Palace;. the "severely
affected;' critical infrastructure, including electricity, water, telephone, roads, the airport, hospitals,
and schools: scarcity of food, water, and fuel. At the time, the Secretary estimated that there
would be between 100,000 and 200,000 nationals of Haiti who would be eligible for TPS.
The Secretary then extended the existing designation and redesignated Haiti for TPS on May 19,
2011. 5 The reasons provided for Haiti's 2011 redesignation and extension ofTPS in the Federal
Register included that the 2010 earihquake remained responsible for more than one million
Haitians left homeless or living in 1,300 internally displaced persons (IDP) camps that were
"crov,.rded and vulnerable to flooding, crime (including gender-based violence), and disease;" and
the cholera outbreak. Additionally, the notice reiterated the high death toll and latge number of
persons affected by the 2010 earthquake, and the large number of buildings destroyed by the
earthquake. At the time, the Secretary estimated that approximately 10,000 additional individuals
would be eligible for TPS under the redesignation.
Haiti's designation has been extended four times since the 2011 redesignation. On May 24, 2017,
former Secretary Kelly extended Haiti's TPS designation for a limited period of 6 months, with
6
strong public messaging to the Haitian communit·y to prepare for their return to their homeland.
To be eligible for TPS under Haiti's designation, along with meeting the other eligibility
requirements, individuals must have continuously resided in the United States since January 12,
2011, and have been continuously physically present in the United States since July 23, 2011.
There are approximately 58,700 Haitian TPS beneficiaries. 7 Of the 46,000 re-registration
applications USCIS estimated it would receive for the recent six-month extension, USCIS has
received approximately 40,000 to date. Based on these statistics, USCIS estimates the filing of
approximately 40,000 re-registration applications if Haiti's designation for TPS is extended.
3
lNA § 244(b)(l)(C).
4
INA§ 244(b)(1)(B).
5
See Extension and Redesignation of Haiti for Te111pora1y Protected Status, 76 Fed. Reg. 29,000 (May 19, 2011).
6
See Extension of the Designation of .Haiti for Temporaiy Protected Status, 82 Fed. Reg. 23,830 (May 24, 2015).
7
Tbis total represents all individuals who have been granted TPS since Haiti's designation in 2010, and who have not
had their TPS withdrawn. Individuals may not re-register for a variety of reasons, including adjustment to another
valid immigration status, depmture from the United States, or no longer being eligible for TPS. As a result, the
number of beneficiaries that USCIS expects to file for re-registration for TPS is lower than the total number of ciment
be11eficiaries.
AR-HAITl-00000013
:PRE-OECISH)N AL/ DELJHKRA'l' rvr
Page 3
Current Countt·y Conditions: USCIS has conducted an in-depth review of conditions in Haiti,
The ftlll report, upon which USC IS' assessment and recommendation are based, can be found in
Attachment B. 1n summary, Haiti has made significant progress jn recovering from the 20 lO
earthquake, and no longer continues to meet the conditions for designation.
Haiti is the poorest country in the western hemisphere, but it had enormous problems long before,
and unrelated to, the 2010 ea1thquake. While lingering effects of the 2010 emihquake remain in
housing, infrastructure, damage to the economy, health, sanitation services, security risks, and
emergency response capacity, Haiti has made significant progress in addressing issues specific. to
the earthquake. The number of IDPs from the earthquake has continued to decline. Since July
2010, 98% of the sites for IDPs have closed, and only approximately 38,000 of the estimated 2
million Haitians who lost their homes in the earthquake are still living in camps as of June 2017.
For those \Vho do remain in these camps~ gender-based violence continues to be a serious concern;
and a lack of personal security is pervasive, but neither is a post-earthquake phenomenon.
Additionally, the withdrawal of the United Nation's peacekeeping mission (MINUSTAH) has
gone smoothly, reflecting inCl'eased confidence in Haiti's ability to conduct its own policing. It
will be replaced by a successor operation (MJNUJUSTH)~ a police-only force, that will focus on
strengthening rule of law; supporting and further developing the National Police; and engaging in
human rights monitoi-ing, reporting, and analysis.
Haiti successfully completed its presidential election in February 2017. The 2010 earthquake
destroyed key government infrastructure, including dozens of primary federal buildings. The
Supreme Court of Justice is already reconstructed and operational and President Moi:se is
marshalling plans for Haiti's continued recovery and redevelopment. In April 2017, President
Moise announced a project to Tebuild Haitl's National Palace, but reconstruction has not yet
conm1enced.
Following the eaithquake that strnck Haiti in January 2010, U.S. Immigration and Customs
Enforcement (ICE) ceased removing Haitians to Haiti. In 2011, ICE resumed the removal of
Haitians on a limited basis - specifically, those who had final orders of removal and had been
convicted of a serious crime. On September 22, 2016, former Secretary of Homeland Security,
Jeh Johnson, announced that DHS would resume removals of Haitian nationals in accordance with
ICE;s existing enforcement priorities. Secretary Johnson's announcement included the following
rationale for the resumption of removals: "[T]he situation in Haiti has improved sufficiently to
permit the U.S. government to remove Haitian nationals on a more regular basis, consistent with
the practice for nationals from other nations." In total, 1CE has removed over 1,100 Haitians from
fiscal years 2014-2016 (382 in 2014, 433 in 2015, and 310 in 2016),
Annual GDP growth following the 2010 earthquake has been erratic, but predominantly positive,
ranging from as low as -5.5% (2010) to as high as 5.5% (2011 ), and averaging 1.9% over the
period.
PR]!A)ECISHJNAL / DfXJUERATlVE
AR-HAITl-00000014
PRE~D11;C[SIONAL i rrc1JBERATlVE
Page 4
Year GDP growth (annual%)

2005 1.805
2006 2.249
2007 3.343
2008 0.844
2009 3.083
2010 -5.498
2011 5.524
2012 2.885
2013 4.234
2014 2.797
2015 1.185
In May 2017, an estimated 5.8 million people (over 50 percent of the population) suffered from
food insecurity'; as compared to 3.2 million in September 2016. The deterioration in food security
is the consequence of Hurricane Matthew's severe impact on southwest Haiti. Food insecurity is
expected to be further impacted by Hurricane hma, which struck Haiti in Septernber. :Haiti's weak
public health system has grappled with a cholera epidemic that began in 20 i O in the aftermath of
the earthquake, but cholera is currently at its lowest level since the outbreak started. Cun-ently,
Haiti's food insecurity problems seem related to tropical stom1s and a drought rather than from
lingering effects of the 201 0 earthquake.
Options
Your options include the following actions:
1) Extend Haiti's Designation for TPS
As described above, USCIS has concluded that the specific extraordinary and temporary
conditions stemming from the 2010 earthquake which caused Haiti to be initially designated for
TPS and to be redesignated in 20 I 1 have been largely ameliorated. Haitian nationals may safely
return to Haiti as evidenced by DHS's decision to resume removals to Haiti in 2016. Additionally,
it is not in the national interest to extend a TPS designation when the specific extraordinary and
temporary conditions giving rise to a TPS designation no longer exist Haiti was initially
designated for TPS in 20 IO as a result of the damage caused by a major emthquake. The review of
conditions in Haiti indicates that significant progress has been made in reconstruction and
recovery efforts and Haiti's current challenges cannot be directly tied to the 2010 earthquake.
Although USCIS assesses othenvise, under the TPS statute, if you determine that those
extraordinary and temporary conditions caused by the 2010 earthquake and the 2011 redesignation
continue to exist, you must extend the TPS designation for an additional period of 6, 12, or 18
months. Should the decision be made to extend based upon these subsequent challenges hindering
recovery, from a USCIS operational perspective, extension periods of less than 18 months are
PRii>DECISIONAL / ffELIBERATP/E
AR-HAITl-00000015
PRE>HECffHONAL / OELJHlf RA1TVE
Page 5
challenging given the significant workload and timeframes involved in receiving and adjudicating
re-registration applications and issuing new· employment authorization documents.
2) Terminate Haiti's Designation for TI'S
If you determine that Haiti no longer continues to meet the statutory requirements for its TPS
designation, you must terminate TPS for Haiti. Upon the termination of TPS, former beneficiaries
without m10ther irnniigration status or authorization to remain would no longer have permission to
work and remain in the United States. They may, however, apply for any other immigration
benefits for which they may be otherwise eligible (e.g., asyhm1, lawful permanent residence, or
nonimmigrant status). As explained above, USCIS assesses that termination is warranted because
extraordinary and temporary conditions preventing Haitians from returning in safety no longer
exist Any current issues in Haiti are unrelated to the 2010 earthquake.
If you decide to terminate Haiti's designation, you may determine the appropriate effective date of
the termination. In doing so, you have the option to provide for mi mderly transition period (e.g.,
6, 12, or 18 months) after which TPS documentation will end. Although former Secretary Kelly
put current Haitian TPS beneficiaries on notice that the status could be subsequently tem1inated
when he authorized the 6-month extension, a delay of the effective date would provide those
beneficiaries without any other immigration status a reasonable amount of time following the
announcement of termination of the designation to plan and prepare for their depa1ture from the
United States. Note that the effective date of termination may not be earlier than 60 days after the
date the Federal Register notice announcing the te1111inatio11 is published or; if later, the expiration
of the most recent previous extension.
3) Redesignate Haitifor TFS
In addifam to making a decision to terminate or extend Hait?s TPS designation, you could also
consider redesignating the country for TPS. A decision to redesignate a country for TPS, unlike
termination or extension, is entirely at your discretion; if the statutory conditions are met, you
may, but do not have to, redesignate a country for TPS. The most signiticant recent event that
could be considered in supp01t of a redesignation is the destruction caused by Hurricane :tvfatthew
in October of 2016, but USCIS is not recommending redesignating Haiti for TPS on that basis as
any extraordinary and temporary conditions that may have resulted from that event do not
currently prevent Haitian nationals from returning to their country in safety.
4) No Decfsim1/Automatic Extension
Upon review of the assessment, you could also choose not to make a determination about whether
Haiti's TPS designation should be extended or terminated at this time. If you do not make a
decision at least 60 days prior to 1ts expiration date, by statute, its period of designation will be
autornatjcally extended for 6 additional months (or, in your discretion, a period of 12 or 18
months). You could afJirmatively choose not to make a decision about whether the conditions
supporting Haiti's designation continue to be met and announce the automatic extension of 6 (or
PRE-IJECISHJNAL / hELIU[tRATIVIt
AR-HAITl-00000016
Page 6
supp01ting Haiti's designation continue to be met and announce the automatic extension of 6 (or
12 or 18) months, noting that the Secretary will then review conditions prior to the expiration of
that extension.
Timeliness: You are required to provide timely notice of whether existing TPS designations will
be extended or terminated through publication in the Federal Register. 8 Your earliest decision
will facilitate,publication of notice in the Federal Register sufficiently in advance of the January
22, 2018 expiration of Haiti's designation, providing predictability and clarity to Haitian nationals
with TPS and their employers. By statute, if you do not make a decision at least 60 days before
the expiration of the current designation (i.e., by November 23, 2017), then Haiti's designation
will automatically be extended for a minimum of 6 months. 9
Recommendation: Upon consideration of all of the factors, USCIS recommends that you
terminate Haiti's existing designation for TPS based on the extraordinary and temporary
conditions resulting from or following the 2010 earthquake. If you decide to terminate, USCIS
recommends terminating with an effective date delayed by 6, 12, or 18 months to permit an
orderly transition.
Decision:
1. Extend: Extend Haiti's existing designation for (circle one):
6 months 12 months 18 months
Approve/date_ _ _ _ _ _ _ __
2. Terminate: Terminate Haiti's designation with an orderly transition period of (circle one
or specify period):
6 months 12 months 18 months Other- - -
Approve/date_ _ _ _ _ _ _ __
3. Redesignate: Extend Haiti's existing designation and simultaneously redesignate Haiti:
Specify duration ofredesignation (6-18 months): _ _ _ _ _ _ _ __
Specify continuous residence date for eligibility under redesignation (currently January 12,
2011): - - - - - - -
Approve/date_ _ _ _ _ _ _ __
8
See INA§ 244(b)(3)(A).
9
See INA§ 244(b)(3)(A), (C).
AR-HAITl-00000017
Page 7
4. No Decision/Automatic Extension: Delay a decision on Haiti's designation, resulting in

an extension of (circle one):
6months 12 months 18 months
Approve/date_ _ _ _ _ _ _ __
Attachments:
Attachment A: Tempormy Protected Status Legal Authority
Attachment B: USCIS RAIO Research Unit Repoti on Conditions in Haiti
Attachment C: DOS Recommendations
AR-HAITl-00000018
Exhibit 29
Refugee, Asylum, International Operations

RAIO Research Unit
20 Massachusetts Avenue, NW
Washington, DC 20529-2100
TPS CONSIDERATIONS: HAITI (OCTOBER 2017)

NATURAL DISASTER
BACKGROUND & OVERVIEW
The January 12, 2010 earthquake that struck Haiti caused extensive damage to the country’s
physical infrastructure and public health, agricultural, housing, transportation, and educational
facilities. Haitian government estimates of the death toll caused by the earthquake have ranged
from 230,000 to as high as 316,000 people, though the accuracy of differing estimates is in
dispute.1 Estimates of people internally displaced range from approximately 1.5 million2 to 2.3
million3 at the peak of displacement.
Although some progress regarding reconstruction and recovery has been made in a variety of
sectors, billions of dollars in pledged foreign assistance never materialized, and the pace and
scope of Haiti’s recovery has been uneven. 4 Many of the conditions prompting the original
January 2010 TPS designation persist, and the country remains vulnerable to external shocks and
internal fragility. Haiti has also experienced various setbacks that have impeded its recovery,
including a cholera epidemic and the impact of Hurricane Matthew—the latter of which struck
Haiti in October 2016 and “severely worsened the pre-existing humanitarian situation” in the
country.5 As of August 2017, Haiti “continues to be affected by a convergence of humanitarian
needs,” 6 including food insecurity, internal displacement, an influx of returnees from the
Dominican Republic, the persistence of cholera, and the lingering impact of various natural
disasters.7 Moreover, Haiti’s recovery has also been impacted by a series of other challenges
1
O’Conner, Maura R., Two Years Later, Haitian Earthquake Death Toll in Dispute, Columbia Journalism Review,
Jan. 12, 2012.
2
Status of Post-Earthquake Recovery and Development Efforts in Haiti (December 2014), U.S. Department of State,
Dec. 2014.
3
Key Statistics, Office of the Secretary-General’s Special Adviser on Community-Based Medicine & Lessons from
Haiti, United Nations, 2012.
4
US Gives Haitian Immigrants 6-month TPS Extension, Voice of America News, May 22, 2017; Charles,
Jacqueline, Senate Democrats to Trump administration: Let Haitians stay, Miami Herald, Apr. 27, 2017.
5
Haiti: Humanitarian Snapshot (June 2017), United Nations Office of the Coordination of Humanitarian Affairs
(UNOCHA), Jul. 4. 2017.
6
Haiti - Humanitarian Situation Report - August 2017, United Nations Children’s Fund (UNICEF), p.1, Aug. 2017.
7
Haiti: Humanitarian Snapshot (June 2017), United Nations Office of the Coordination of Humanitarian Affairs
(UNOCHA), Jul. 4. 2017; Haiti Humanitarian Bulletin - Issue 64 | May 2017, United Nations Office for the
Coordination of Humanitarian Affairs (UNOCHA), p.5, Jun. 11, 2017.
DHS000038
TPS Considerations: Haiti

Page 2
related to housing, healthcare, economic growth, political instability, security, and environmental
concerns.
HOUSING SHORTAGE & INTERNAL DISPLACEMENT
Even before the 2010 earthquake, Haiti faced a substantial national housing deficit, estimated at
700,000 housing units.8 With an estimated $2.3 billion in damages—approximately 40% of the
total—housing was the sector most impacted by the earthquake.9 The Haitian government
estimated that 105,000 houses were destroyed and 188,383 houses collapsed or suffered
considerable damage.10 The International Organization for Migration (IOM) claimed that 1.5
million Haitians were internally displaced and moved into internally displaced person (IDP)
camps and other temporary sites following the disaster.11
While the number of IDP camps/sites and displaced individuals from the 2010 earthquake have
significantly declined, Haiti still faces considerable obstacles related to housing. According to
data from the International Organization for Migration (IOM), from July 2010 to June 2017,
there has been a net decrease in displacement by 97 percent, and 98 percent of sites have
closed.12 However, as IOM reported in June 2017, “Camp closures, relocation and rental subsidy
programs began decreasing substantially in March 2015, a trend which continues today.”13
According to Amnesty International, many individuals who have left the IDP camps/sites have
reportedly “moved back to unsafe houses or started building or reconstructing their houses, in
most cases with no assistance or guidance, and often in informal settlements located in hazardous
areas.”14 Amnesty International has also claimed that over 60,000 IDPs have been forcibly
evicted from camps since 2010 by private landowners, often with the assistance or implicit
support of Haitian authorities.15
As of June 2017, around 37,867 IDPs (9,347 households) were still living in 27 camps.16
According to IOM, the number of organizations providing assistance to IDPs has declined in
8
Ten facts about Haiti’s housing crisis, Amnesty International, Jan. 12, 2015,
https://www.amnesty.org/en/articles/news/2015/01/ten-facts-about-haiti-s-housing-crisis/, (last visited Aug. 16,
2017).
9
Ten facts about Haiti’s housing crisis, Amnesty International, Jan. 12, 2015,
https://www.amnesty.org/en/articles/news/2015/01/ten-facts-about-haiti-s-housing-crisis/, (last visited Aug. 16,
2017).
10
11
Five Years After 2010 Earthquake, Thousands of Haitians Remain Displaced, International Organization for
Migration, Jan. 9, 2015, https://www.iom.int/news/five-years-after-2010-earthquake-thousands-haitians-remain-
displaced, (last visited Aug. 16, 2017).
12
IOM Haiti – DTM Report – June 2017, International Organization for Migration, p.5, June 2017.
13
14
Haiti: internal displacement, forced evictions, statelessness - the catalogue to violations continue, Amnesty
International, p.6, Mar. 31, 2016.
15
“15 Minutes to Leave”: Denial of the Right to Adequate Housing in Post-Quake Haiti, Amnesty International, p.9,
21, Jan. 2015; Haiti: internal displacement, forced evictions, statelessness - the catalogue to violations continue,
Amnesty International, p.6, Mar. 31, 2016.
16
DHS000039

Page 3
recent years, and “living conditions in the camps are precarious and access to basic services
remains a major challenge for the displaced population.”17 A vast majority of the
aforementioned individuals still living in camps/sites “are currently not targeted by partners for
durable solutions.”18
In October 2016, Hurricane Matthew impacted over 236,000 homes—“of which 44% were
destroyed and 42% severely damaged” 19—and displaced approximately 175,000 people in
Haiti.20 In areas most affected by the storm, approximately 90% of homes were destroyed.21
IOM reported in June 2017 that 3,597 individuals were living in 48 displacement sites due to the
impact of Hurricane Matthew and spring flooding in Grande’ Anse and Sud departments22.23
While post-earthquake IDP camps are closing, Haiti’s housing shortage remains far from
resolved. The 2010 earthquake exacerbated the country’s pre-existing shortage of adequate and
affordable housing.24 The Government of Haiti has estimated that the country will need as many
as 500,000 additional housing units over the next 10 years to make up for its shortage prior to the
earthquake, to replace housing lost as a result of damage from the disaster, and to accommodate
projected urban growth.25
CHOLERA EPIDEMIC & HEALTHCARE
Haiti’s longstanding public health challenges were exacerbated by the January 2010 earthquake
and an ongoing cholera epidemic that started in October 2010.26 According to the U.S. Agency
for International Development (USAID), “even before the 2010 earthquake, Haiti’s healthcare
system was not able to respond to the needs for basic healthcare services.”27 The 2010
earthquake significantly impacted Haiti’s health sector, destroying 50 health centers, the
Ministry of Health, and part of the country’s primary teaching hospital.28 Damages from both
the 2010 earthquake and Hurricane Matthew in October 2016—the latter of which affected 99
17
18
19
Haiti Humanitarian Bulletin - Issue 64 | May 2017, United Nations Office for the Coordination of Humanitarian
Affairs (UNOCHA), p.4, Jun. 11, 2017.
20
Thomas, Alice, Two Steps Back: Haiti Still Reeling from Hurricane Matthew, Refugees International, p.4, April
2017.
21
2017.
22
Haiti is divided administratively into 10 departments. See The World Factbook: Haiti, CIA, Jul. 27, 2017,
https://www.cia.gov/library/publications/the-world-factbook/geos/ha.html, (last visited Aug. 17, 2017).
23
24
Haiti - Housing and Settlements Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar.
2017.
25
Haiti - Housing and Settlements Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar.
2017.
26
Haiti - Health Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar. 2017.
27
Haiti – Health Infrastructure Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar. 2017.
28
Haiti – Health Infrastructure Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar. 2017;
DHS000040

Page 4
health facilities29—“exacerbated an existing lack of adequate health infrastructure, such as health

care and storage facilities, as well as access to electricity, clean water and sanitation systems.”30
In June 2017, the United Nations Economic and Social Council reported that “Haiti has some of
the worst health indicators in the world, which continue to stymie economic development.”31
Approximately 40 percent of the population lacks access to fundamental health and nutrition
services.32 Maternal and infant mortality rates are respectively three and five times higher than
the regional averages,33 and “only 45 percent of all children between the ages of 12 months and
23 months are fully vaccinated.”34 Public spending in the health sector is low, and the country
has a limited number of health professionals and a deficit of health infrastructure.35
A cholera epidemic that began in October 2010—reportedly the largest such outbreak of cholera
in recent history—remains ongoing and continues to place additional strains on Haiti’s
beleaguered public health system.36 From October 2010 through June 2017, there have been an
estimated 813,000 cases of cholera in Haiti, and 9,676 people have been killed by the disease
(which was allegedly introduced by United Nations peacekeepers).37
While progress has been made in combatting cholera since the peak of the epidemic in 2011,38
cholera has become endemic in Haiti, “with seasonal peaks regularly triggering emergency
interventions.”39 In 2016, the number of suspected cholera cases increased, mainly due to a
spike in suspected cases in areas affected by Hurricane Matthew in the aftermath of the storm.40
29
Haiti: Hurricane Matthew Humanitarian Dashboard (as of Feb. 2017), United Nations Office for the Coordination
of Humanitarian Affairs (UNOCHA), p.1, Mar. 3, 2017.
30
31
Report of the Ad Hoc Advisory Group on Haiti, United Nations Economic and Social Council, p.4, Jun. 29, 2017.
32
33
Better Spending, Better Care: A look at Haiti’s Health Financing, The World Bank,
http://www.worldbank.org/en/country/haiti/publication/better-spending-better-care-a-look-at-haitis-health-financing
(last visited Aug. 21, 2017).
34
35
36
Haiti - Health Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar. 2017; Lefevre,
Adrienne, The Consequences of Contaminated Water, Centers for Disease Control and Prevention, Mar. 21, 2017,
https://blogs.cdc.gov/global/2017/03/21/the-consequences-of-contaminated-water/ (last visited Aug. 21, 2017).
37
Hurricane Matthew: '1.4 million need help in Haiti', Al Jazeera, Oct. 11, 2016; Partlow, Joshua, In the wake of
Matthew, Haitian towns struggle with cholera, Washington Post, Oct. 9, 2016; Zavis, Alexandra, U.N. admits a role
in deadly Haiti cholera epidemic, Los Angeles Times, Aug. 18, 2016; Yakupitiyage, Tharanga, UN “Profoundly
Sorry” for Haiti Cholera Outbreak, Inter Press Service, Dec. 2, 2016; Haiti: Cholera figures (as of 30 June 2017),
United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), Jul. 24, 2017.
38
Fact Sheet: Cholera situation in Haiti, 1 January/15 April 2017, United Nations Country Team in Haiti, Apr. 27,
2017.
39
Haiti: Fighting the Spread of Mosquito-Borne Diseases, Doctors Without Borders/Médicins Sans Frontières
(MSF), Jul. 24, 2017, http://www.doctorswithoutborders.org/article/haiti-fighting-spread-mosquito-borne-diseases
(last visited Aug. 21, 2017).
40
New approach to cholera in Haiti – Report of the Secretary General, United Nations General Assembly, p.4, May
3, 2017.
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While the number of suspected cases of cholera has declined since 2016,41 Haiti nevertheless
remains “extremely vulnerable” to the disease.42 According to the United Nations Office for the
Coordination of Humanitarian Affairs (UNOCHA), cholera continues to impact Haiti due to a
lack of funding for the country’s National Plan for the Elimination of Cholera (PNEC), weak
water and sanitation infrastructure, the lack of access to quality medical care, and high
population density and mobility to urban areas.43
ECONOMY
Haiti is the poorest country in the Western Hemisphere, with poverty, vulnerability to natural
disasters, corruption, and low levels of education serving as significant obstacles to sustained
economic development.44 Haiti’s weak infrastructure and the difficulty of doing business limit
investment, and the country remains vulnerable to damage from natural disasters and dependent
on foreign aid or direct budget support for more than 20% of its annual budget.45 The 2010
earthquake caused $7.8 billion in damages and economic losses—“equivalent to more than 120
percent of Haiti’s 2009 gross domestic product (GDP)”46—and destroyed an estimated 90
percent of buildings in Port-au-Prince, Haiti’s capital, including hospitals, schools, physical
infrastructure, and transportation facilities.47 Although Haiti’s economy started to recover from
the earthquake—with economic growth at 5.5% in 2011— GDP growth has slowed to 1.2% in
2015 and 1.4% in 2016 as a result of political uncertainty, drought, declining foreign aid, and
currency depreciation.48 According to June 2017 data from the World Bank, Haiti’s GDP growth
is forecasted to further decline to 0.5% in 2017.49
While Haiti has made slight improvements in reducing poverty levels and increasing access to
education and sanitation since 2000, a 2014 World Bank report noted that the “wealth generated
in the country is largely inadequate to meet the needs of the people.”50 According to the World
Bank, “more than 6 million out of 10.4 million (59%) Haitians live under the national poverty
line of US$ 2.42 per day and over 2.5 million (24%) live under the national extreme poverty line
41
New approach to cholera in Haiti – Report of the Secretary General, United Nations General Assembly, p.4, May
3, 2017.
42
Fact Sheet: Cholera situation in Haiti, 1 January/15 April 2017, UN Country Team in Haiti, Apr. 27, 2017.
43
Haiti: Cholera figures (as of 30 June 2017), United Nations Office for the Coordination of Humanitarian Affairs
(UNOCHA), Jul. 24, 2017.
44
The World Factbook: Haiti, CIA, Jul. 27, 2017,
45
46
47
Haiti: Infrastructure, IHS Jane's Sentinel Security Assessment - Central America and the Caribbean, Aug. 15,
2017, http://janes.ihs.com/CentralAmericaCaribbean/Display/1302231 (last visited Aug. 25, 2017).
48
https://www.cia.gov/library/publications/the-world-factbook/geos/ha.html, (last visited Aug. 17, 2017); Global
Economic Prospects: A Fragile Recovery, The World Bank Group, p.90, Jun. 2017.
49
Global Economic Prospects: A Fragile Recovery, The World Bank Group, p.90, Jun. 2017.
50
Poverty and Inclusion in Haiti: Social gains at timid pace, The World Bank Group, p.1-2, 2014.
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of US$1.23 per day.”51 An additional one million people are at risk of falling into poverty
following an external shock, such as a natural disaster.52 An estimated 40% of Haitians are
unemployed.53
According to the United Nations Economic and Social Council, Haiti “is highly dependent on
remittances from its diaspora.”54 Remittances—estimated at over $2 billion per year in 2015,
including more than $1.3 billion from Haitians living in the United States55—are Haiti’s
“primary source of foreign exchange, equivalent to more than a quarter of GDP, and nearly
double the combined value of Haitian exports and foreign direct investment.”56 Moreover,
remittances have also “helped to support education, health and the subsistence requirements” of
Haiti’s population.57
GOVERNANCE & POLITICAL INSTABILITY
Per IHS Jane’s, with its history of political instability, economic struggles, political violence, and
pervasive human rights abuses, Haiti “has long been seen as a model of poor and corrupt
governance.”58 Even before the earthquake, the Haitian government “could not or would not
deliver core functions to the majority of its people.”59 The January 2010 earthquake had an
immediate and significant impact on governance and the rule of law in Haiti, killing an estimated
18 percent of the country’s civil service and destroying key government infrastructure, including
the National Palace, the Parliament, 28 of 29 government ministry buildings, the Haitian
National Police’s headquarters, and various judicial facilities (including courts and correctional
facilities).60
On April 19, 2017, Haitian President Jovenel Moïse announced a project to rebuild the National
Palace, which was significantly damaged in the 2010 earthquake and subsequently demolished.61
51
The World Bank in Haiti: Overview, The World Bank, Jul. 27, 2017,
http://www.worldbank.org/en/country/haiti/overview#1 (last visited Aug. 18, 2017).
52
Poverty and Inclusion in Haiti: Social gains at timid pace, The World Bank Group, p.4, 2014.
53
Haiti - Economic Growth & Agricultural Development Fact Sheet, U.S. Agency for International Development
(USAID), Mar. 2017.
54
55
Remittance Flows Worldwide in 2015, Pew Research Center, Aug. 31, 2016,
http://www.pewglobal.org/interactives/remittance-map/ (last visited Aug. 17, 2017).
56
57
58
Haiti: Executive Summary, IHS Jane's Sentinel Security Assessment - Central America and the Caribbean, Aug.
15, 2017, http://janes.ihs.com/Janes/Display/haits010-cac (last visited Aug. 25, 2017).
59
Haiti - Democracy, Human Rights & Governance Fact Sheet. U.S. Agency of International Development
(USAID), p.1, Mar. 2016.
60
Haiti: Democracy, Human Rights, and Governance, U.S. Agency for International Development (USAID), Jul.24,
2017, https://www.usaid.gov/where-we-work/latin-american-and-caribbean/haiti/democracy-human-rights-and-
governance (last visited Aug. 22, 2017).
61
Haiti to rebuild National Palace toppled in 2010 quake, AFP, Apr. 20, 2017; McFadden, David, Haiti to rebuild
National Palace smashed in 2010 earthquake, Associated Press, Apr. 19, 2017.
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Moïse stated that he would like for construction to start before the end of 2017.62 President Moïse
also pledged that the Parliament and the Palace of Justice would be rebuilt during his five-year
term in office.63 In August 2017, IHS Jane’s reported that, among the public buildings destroyed
by the earthquake, only the Supreme Court of Justice had been reconstructed and was operational
in 2017.64 In October 2017, the Haitian government launched an international architecture
competition for proposals to rebuild the National Palace.65
In June 2016, the October 2015 presidential election results were annulled, and new elections
were scheduled for October 2016—yet were subsequently postponed due to the impact of
Hurricane Matthew.66 On November 20, 2016, Jovenel Moïse, a banana plantation owner, was
elected president with enough votes to avoid a run-off.67 Moïse was officially declared the
winner of Haiti’s presidential election on January 4, 2017,68 and was sworn in on February 7.69
On January 29, 2017, Haiti held elections for eight senators and one seat in the lower chamber of
congress.70 Nationwide municipal elections were also held on this date for the first time since
December 5, 2006.71
While Haiti successfully completed its electoral process in February 2017 after two years of
contested results and political crises, its new government faces various challenges to promote
recovery and reconstruction.72 According to USAID, although Haiti possesses “the formal
structures of a democracy, many of these have yet to become fully functional.”73 Haiti’s state
institutions lack sufficient resources, and “provide limited services to only a small percentage of
the population.”74 In late June 2017, the United Nations Economic and Social Council reported
that, while Haiti’s new government has expressed a desire to improve the country’s political and
socioeconomic situation, “it is also clear that the Government has limited capacity to ensure a
62
Haiti to rebuild National Palace toppled in 2010 quake, AFP, Apr. 20, 2017.
63
McFadden, David, Haiti to rebuild National Palace smashed in 2010 earthquake, Associated Press, Apr. 19, 2017.
64
Haiti: Infrastructure, IHS Jane's Sentinel Security Assessment - Central America and the Caribbean, Aug. 15,
2017, http://janes.ihs.com/CentralAmericaCaribbean/Display/1302231 (last visited Aug. 25, 2017).
65
Fulcher, Merlin, Competition: National Palace, Haiti, The Architects’ Journal, Oct. 10, 2017,
https://www.architectsjournal.co.uk/competitions/competition-national-palace-haiti/10024240.article (last visited
Oct. 12, 2017); Haiti - FLASH : Architecture Competition for the Reconstruction of the National Palace, Haiti Libre,
Oct. 4, 2017.
66
Domonoske, Camila, 14 Months After Elections Began, Haiti Finally Has A President-Elect, NPR, Jan. 4, 2017.
67
Charles, Jacqueline, Banana farmer wins Haiti presidency, according to preliminary results, Miami Herald, Nov.
28, 2016.
68
Haiti: Jovenel Moise confirmed winner of presidential election, BBC News, Jan. 4, 2017.
69
Businessman Jovenel Moise Sworn In as Haiti's President, Voice of America News, Feb. 7, 2017.
70
Low turnout in Haiti's local elections, AFP, Jan. 29, 2017.
71
McFadden, David, Haiti holds final round of election cycle started in 2015, Associated Press, Jan. 29, 2017;
Charles, Jacqueline, Haiti election cycle nears end with Sunday vote and more than 5,000 seats up for grabs, Miami
Herald, Jan. 27, 2017.
72
73
(USAID), p.1, Mar. 2017.
74
(USAID), p.1, Mar. 2017.
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public administration system that can effectively guarantee the rule of law and a functioning
justice system, promote the fight against corruption and effectively protect human rights.”75
In early October 2017, the Miami Herald reported that, “in recent weeks, Haiti has been engulfed
in protests over tax hikes, with massive and sometimes violent street demonstrations.”76 Anti-
government protests erupted in mid-September after the Haitian parliament approved the
government budget, which opponents have argued contains tax increases that would hurt
impoverished families. 77 Multiple demonstrations have occurred since mid-September, and the
protests have spread from Port-au-Prince to other areas of the country.78 Some of the protests
have become violent, with demonstrators reportedly throwing rocks, damaging property,
blocking traffic, and burning cars and tires, and the Haitian police responding to the unrest by
firing tear gas and water at protesters.79 At least two people have been killed and others have
been injured during the demonstrations.80
SECURITY
By creating new security vulnerabilities and stimulating an increase in crime, the 2010
earthquake had a deleterious impact on public security in Haiti.81 The escape of thousands of
prisoners and the diffusion of gangs throughout Port-au-Prince in the aftermath of the earthquake
overwhelmed Haiti’s historically weak justice system and police.82 An overall climate of
insecurity in IDP camps left many IDPs vulnerable to violence and crime, including gender-
based violence, theft, and domestic violence.83 Violence against women reportedly increased in
the aftermath of the earthquake.84
75
Report of the Ad Hoc Advisory Group on Haiti, United Nations Economic and Social Council, p.4-5, Jun. 29,
2017.
76
Charles, Jacqueline, Haiti requests 18-month TPS extension from Trump administration, The Miami Herald, Oct.
9, 2017.
77
Violence erupts at budget opposition protest in Haiti, Agence France-Presse (AFP), Sep. 30, 2017; HAITI: Budget
proves contentious, LatinNews, Regional Report: Caribbean & Central America, Oct. 2017; Charles, Jacqueline,
Violent protest erupt in Haiti over budget passed on the eve of Hurricane Irma, The Miami Herald, Sep. 12, 2017.
78
79
80
81
Berg, Louis-Alexandre, Crime, Politics and Violence in Post-Earthquake Haiti, United States Institute of Peace,
p.1-2, Sep. 28, 2010.
82
p.1-2, Sep. 28, 2010.
83
p.1-2, Sep. 28, 2010.
84
Haiti: Violence against women, including sexual violence; state protection and support services (2012-June 2016),
Canada: Immigration and Refugee Board of Canada, Dec. 15, 2016 .
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Crime rates in Haiti are high, and the general security situation is “unpredictable.”85 The U.S.
Department of State’s Bureau of Diplomatic Security has reported that homicide, armed
robberies, and crimes against persons (including gender-based violence) are major concerns.86
Demonstrations, roadblocks, and political rallies regularly occur, and have at times led to violent
incidents.87 Violence against women is reportedly widespread, and has been characterized as a
chronic or systemic problem.88 Impunity levels are high, and the capacity of Haiti’s police force
is “relatively low.”89 In general, Haitians “lack basic policing services,” and criminals are
reportedly able to operate without fear of the police.90
According to the U.S. Department of State, “rates of kidnapping, murder, and rape rose in
2016.”91 The Government of the United Kingdom has reported that “crime levels have
continued to increase in 2017.”92 In July 2017, the United Nations Secretary General reported
that, since his previous report in March 2017, “growing tensions linked to socioeconomic
grievances notwithstanding, key indicators, including crime and civil protests, remained within
historically established statistical parameters.”93
MINUSTAH
In 2004, the United Nations Stabilization Mission in Haiti (MINUSTAH) was established
following a rebellion that led to the removal of President Jean-Bertrand Aristide and subsequent
violence, including armed clashes, killings, and kidnappings.94 In the aftermath of the violence
and the establishment of MINUSTAH, “uniformed U.N. troops provided the only real security” in
Haiti for years.95 However, the Associated Press reported in March 2017 that, “these days, Haiti’s
police do most of the heavy lifting and the mood has changed.”96
85
Haiti – Safety and Security, Government of Canada, Jul. 21, 2017, https://travel.gc.ca/destinations/haiti (last
visited Aug. 22, 2017); Haiti – Safety and Security, GOV.UK, https://www.gov.uk/foreign-travel-
advice/haiti/safety-and-security (last visited Aug. 22, 2017).
86
Haiti 2017 Crime & Safety Report, U.S. Department of State, Apr. 26, 2017.
87
Haiti – Safety and Security, Government of Canada, Jul. 21, 2017, https://travel.gc.ca/destinations/haiti (last
visited Aug. 22, 2017)
88
Haiti: Violence against women, including sexual violence; state protection and support services (2012-June 2016),
Canada: Immigration and Refugee Board of Canada, Dec. 15, 2016.
89
Haiti: Executive Summary, IHS Jane's Sentinel Security Assessment - Central America and the Caribbean, Aug.
15, 2017, http://janes.ihs.com/Janes/Display/haits010-cac (last visited Aug. 25, 2017).
90
Haiti 2017 Crime & Safety Report, U.S. Department of State, Apr. 26, 2017.
91
Haiti Travel Warning, U.S. Department of State, May 22, 2017,
https://travel.state.gov/content/passports/en/alertswarnings/haiti-travel-warning.html (last visited Aug. 22, 2017).
92
Haiti – Safety and Security, GOV.UK, https://www.gov.uk/foreign-travel-advice/haiti/safety-and-security (last
visited Aug. 22, 2017).
93
Report of the Secretary-General on the United Nations Stabilization Mission in Haiti, United Nations Security
Council, p.5, July 12, 2017.
94
Haiti is Ready for UN Peacekeepers to Leave Soon, Associated Press, Mar. 9, 2017.
95
96
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MINUSTAH’s tenure in Haiti has been controversial.97 The Los Angeles Times has described the
U.N. military presence in Haiti as “never really welcome,”98 while some Haitians view the U.N.
peacekeeping mission as “an occupying force,” 99 or as an incursion into Haiti’s sovereignty.100
In March 2017, the Associated Press characterized the peacekeepers’ tenure as “rocky,” noting
that they:
have earned praise for boosting security, paving the way to elections and providing
crucial support after disasters, particularly the devastating 2010 earthquake. But
some troops have also been accused of excessive force, rape and abandoning babies
they fathered.101
In addition, U.N. troops from Nepal are “widely blamed” for introducing cholera to the
country,102 with the source of cholera reportedly traced by scientists to a U.N. base.103 Moreover,
some U.N. troops have reportedly been “implicated in a sexual abuse scandal, including a sex ring
that exploited Haitian children.”104
On April 13, 2017, the United Nations Security Council decided that MINUSTAH “would
gradually draw down its military component during the next six months, finally withdrawing
from Haiti by 15 October 2017.”105 MINUSTAH will be replaced by the United Nations
Mission for Justice Support in Haiti (MINUJUSTH), which will seek to “help the Haitian
Government strengthen rule-of-law institutions, further develop and support the Haitian National
Police and engage in human rights monitoring, reporting and analysis.”106 MINUJUSTH will
comprise up to seven Formed Police Units (FPU) consisting of 980 personnel, and 295
Individual Police Officers for an initial six month period from October 16, 2017 to April 15,
2018.107 In July 2017, the United Nations Secretary General reported that “the ongoing
97
Simmons, Ann M., U.N. peacekeepers are leaving after more than two decades, but where does that leave Haiti?,
Los Angeles Times, Apr. 17, 2017; Lederer, Edith, The U.N. Just Unanimously Voted to End Its Peacekeeping
Mission in Haiti, Associated Press, Apr. 13, 2017.
98
Los Angeles Times, Apr. 17, 2017.
99
100
101
102
Charles, Jacqueline, A Haiti without U.N. peacekeepers? After almost 13 years, it may happen., Miami Herald,
Feb. 14, 2017.
103
104
105
Security Council decides UN Mission in Haiti will close by October; approves smaller follow-on operation, UN
News Service, Apr. 13, 2017.
106
In visit to Haiti, Security Council delegation to reaffirm support for country's stability and development, UN
News Service, Jun. 23, 2017.
107
Security Council decides UN Mission in Haiti will close by October; approves smaller follow-on operation, UN
News Service, Apr. 13, 2017.
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withdrawal of the MINUSTAH military and police components…has not affected the overall
security situation.”108
FOOD SECURITY
Damage from the 2010 earthquake exacerbated Haiti’s historic food security challenges. The
earthquake displaced over 600,000 people from urban to rural areas and caused significant
damage to physical infrastructure; these factors contributed to a sharp decline in income and food
availability, as well as an increase in the price of food in the aftermath of the earthquake.109
While the international community provided emergency food assistance and support for the
agricultural sector to help avert a post-earthquake food crisis, food insecurity has remained a
significant challenge for Haiti.110 Haiti depends on imports to meet more than 50 percent of its
food needs,111 and is extremely vulnerable to fluctuations in global food prices.112 Chronic
malnutrition impacts approximately half of Haiti’s population.113
In recent years, food and nutritional security in Haiti have gradually deteriorated due to the
impact of Tropical Storm Isaac and Hurricane Sandy in 2012 and three consecutive years of
severe drought (exacerbated by El Niño).114 Hurricane Matthew also exacerbated food insecurity
in Haiti.115 The impact of the hurricane caused an estimated $580 million in damages to the
country’s agricultural sector, and extensive damage to “crops, livestock and fisheries as well as
to infrastructure such as irrigation – with the most affected areas having up to 100 percent crop
damage or destruction.”116 Approximately “428,000 farmers were decapitalized” and food
108
109
Special Report: FAO/WFP Crop and Food Security Assessment Mission to Haiti, Food and Agriculture
Organization of the United Nations & The World Food Programme, Sep. 21, 2010,
http://www.fao.org/docrep/012/ak353e/ak353e00.htm, (last visited Aug. 21, 2017).
110
Haiti: six months on, agriculture needs more support, Food and Agriculture Organization of the United Nations,
Jul. 15, 2010, http://www.fao.org/emergencies/fao-in-action/stories/stories-detail/en/c/147984/, (last visited Aug. 21,
2017); Haiti – Agriculture and Food Security Fact Sheet, U.S. Agency for International Development (USAID), p.1,
Mar. 2017.
111
Haiti – Agriculture and Food Security Fact Sheet, U.S. Agency for International Development (USAID), p.1,
Mar. 2017.
112
Food Assistance Fact Sheet – Haiti, U.S. Agency for International Development (USAID), Aug. 7, 2017.
113
Report of the Ad Hoc Advisory Group on Haiti, United Nations Economic and Social Council, p.3, Jun. 29,
2017.
114
ECHO Factsheet – Haiti – June 2016, European Commission's Directorate-General for European Civil
Protection and Humanitarian Aid Operations, Jun. 10, 2016; Food Assistance Fact Sheet – Haiti, U.S. Agency for
International Development (USAID), Aug. 7, 2017; ECHO Factsheet – Haiti – May 2017, European Commission's
Directorate-General for European Civil Protection and Humanitarian Aid Operations, May 2017,
http://ec.europa.eu/echo/files/aid/countries/factsheets/haiti_en.pdf (last visited Aug. 21, 2017)
115
Haiti – Agriculture and Food Security Fact Sheet, U.S. Agency for International Development (USAID), p.1,
Mar. 2017.
116
Damages to agricultural sector in storm-hit Haiti estimated at $580 million – UN agency, UN News Centre, Nov.
23, 2016.
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production infrastructure was significantly impacted by the storm.117 In August 2017, USAID
reported that, “more than six months later, the storm's impact continues to drive elevated levels
of food insecurity in the worst-affected communities.”118 As of May 2017, approximately 5.82
million people were facing food insecurity in Haiti,119 including 2.35 million people who “were
severely food-insecure and in need of immediate assistance.”120
NATURAL DISASTERS & ENVIRONMENTAL CONCERNS
Due to its geographic location, weak infrastructure, and limited government resources, Haiti is
particularly susceptible to natural disasters.121 Per the World Bank, Haiti has been impacted by
natural disasters “almost every year since 1971, losing on average two percent of GDP every
year due to hydrometeorological events.”122 An estimated 98 percent of the Haitian population is
exposed to two or more types of natural disasters.123 As a result of its exposure to natural
hazards and the vulnerabilities of its population, Haiti “consistently ranks among the most
vulnerable countries in the world to disasters and climate change.”124 According to the 2017
Global Climate Risk Index, Haiti ranked as the third most affected country in the world by
extreme weather events from 1996 to 2015; during this time, Haiti averaged $222 million in
damages per year—equivalent to 1.49% of GDP on average.125
Located along the “hurricane belt,”126 Haiti is regularly impacted by tropical storms and
floods.127 Haiti suffered severe flooding in 2002, 2003, 2006, and 2007.128 During the 2008
hurricane season, Haiti was impacted by four storms “which killed more than 800 people and
devastated nearly three-quarters of its agricultural land.”129 In the fall of 2012, Hurricane Sandy
117
118
Food Assistance Fact Sheet – Haiti, U.S.Agency for International Development (USAID), Aug. 7, 2017.
119
120
121
Five dead, 19 missing after Haiti rains, flooding – officials, Reuters, May 19, 2017.
122
World Bank Supports Haiti’s Post-Matthew Reconstruction, The World Bank, Jun. 8, 2017.
123
2017.
124
Thomas, Alice, Two Steps Back: Haiti Still Reeling from Hurricane Matthew, Refugees International, p.4-5,
April 2017.
125
Kreft, Sönke, Eckstein, David and Melchior, Inga, Global Climate Risk Index 2017, Germanwatch, p. 23, Nov.
2016.
126
2017.
127
Jones, Sam, Why is Haiti vulnerable to natural hazards and disasters?, The Guardian, Oct. 4, 2016.
128
129
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affected 1.8 million Haitians; flooded, damaged, or destroyed 18,000 homes; damaged key
infrastructure, including roads, hospitals, and schools; and killed 60 people.130
More recently, Haiti has been “grappling with a heavy rainy season” in 2017.131 The rainy
season, which began in April, has resulted in:
floods and landslides, damage to homes and destruction of harvests, especially in

the departments of South, Grand’Anse and Nippes, which were the most affected
departments by Hurricane Matthew. Erosion of roads have impacted access to
several communes, especially in the South department.132
By late May, at least seven people had been killed and 15,000 households were in need of
immediate humanitarian assistance.133 The rainy season coincides with hurricane season in
Haiti, which typically lasts from June 1 to November 30.134 In June 2017, the United Nations
Economic and Social Council reported that the Haitian government “has indicated that it does
not have the capacity in terms of equipment and personnel to mitigate any disaster that may
result” from the current hurricane season.135
On September 7, 2017, Hurricane Irma—a Category 5 hurricane—impacted northern Haiti (one

of the poorest regions of the country),136 with heavy rains, wind, and flooding causing
“significant damages in the Nord-Est, Nord-Ouest, Nord, Artibonite and Centre departments.”137
The impact of Hurricane Irma led to the evacuation of over 12,500 people, left one person dead
and another missing, and injured more than a dozen others.138 In addition, 4,903 homes were
flooded, 2,646 were damaged, and 466 were destroyed.139 Hurricane Irma also caused extensive
130
UN relief agency estimates 1.8 million Haitians have been affected by Hurricane Sandy, United Nations Office
for the Coordination of Humanitarian Affairs, Nov. 2, 2012.
131
Five dead, 19 missing after Haiti rains, flooding – officials, Reuters, May 19, 2017.
132
Haiti - Humanitarian Situation Report - August 2017, United Nations Children’s Fund (UNICEF), p.2, Aug.
2017.
133
Haiti Humanitarian Bulletin - Issue 65 | June-July 2017, United Nations Office for the Coordination of
Humanitarian Affairs (UNOCHA), p.1, Aug. 17, 2017; Five dead, 19 missing after Haiti rains, flooding – officials,
Reuters, May 19, 2017.
134
Haiti - Humanitarian Situation Report - August 2017, United Nations Children’s Fund (UNICEF), p.2, Aug.
2017.
135
Report of the Ad Hoc Advisory Group on Haiti, United Nations Economic and Social Council, p.6, Jun. 29,
2017.
136
Charles, Jacqueline, Irma mostly spared Haiti. But for struggling farmers, the damages are devastating, The
Miami Herald, Sep. 9, 2017.
137
ACT Alliance Rapid Response Fund No. 13/2017: Hurricane Irma in Haiti, ACT Alliance, Sep. 26, 2017.
138
139
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damage to crops and livestock in affected areas,140 with an estimated 18,000 families in northern
Haiti losing their food crops due to the impact of the storm.141
Located along several major fault lines, Haiti has also been impacted by powerful earthquakes.142
In 2016, Haiti suffered from its third consecutive year of drought, which was exacerbated by El
Niño.143 Extensive deforestation exposes Haiti to and exacerbates flooding, mudslides, and soil
erosion.144
HURRICANE MATTHEW
The strongest hurricane to strike the country in more than 50 years and the third strongest ever
recorded in Haiti, Hurricane Matthew made landfall in southwestern Haiti as a Category 4
hurricane on October 4, 2016.145 With 145-mile-an-hour winds and torrential rains,146 Hurricane
Matthew “violently struck south-western Haiti…causing widespread damage, flooding and
displacement.”147 Heavy flooding occurred in the most affected departments, including
Grand’Anse, South, Nippes and South East departments.148 Per UNOCHA, the impact of the
hurricane occurred at a time when Haiti was “already facing an increase in the number of cholera
cases and severe food insecurity and malnutrition.”149
According to UNOCHA, Hurricane Matthew caused the greatest humanitarian crisis in Haiti
since the 2010 earthquake.150 Hurricane Matthew affected 2.1 million people in Haiti; of this
amount, 1.4 million were estimated to be in need of humanitarian assistance in the aftermath of
140
After the Hurricane – an overview of the damage Irma and Maria left behind, International Federation of Red
Cross And Red Crescent Societies, Sep. 22, 2017.
141
Moloney, Anastasia, Floods leave Haitian farmers struggling in Irma's wake: U.N., Thomson Reuters
Foundation, Sep. 13, 2017.
142
Jones, Sam, Why is Haiti vulnerable to natural hazards and disasters?, The Guardian, Oct. 4, 2016; Thomas,
Alice, Two Steps Back: Haiti Still Reeling from Hurricane Matthew, Refugees International, p.4, April 2017.
143
2017; WFP Haiti - Country Brief, World Food Programme, p.2, May 2017.
144
2017; Jones, Sam, Why is Haiti vulnerable to natural hazards and disasters?, The Guardian, Oct. 4, 2016.
145
Hurricane Matthew: '1.4 million need help in Haiti', Al Jazeera, Oct. 11, 2016; Haiti: Hurricane Matthew
Emergency Appeal n° MDRHT012, International Federation of Red Cross and Red Crescent Societies, p.1, Oct. 6,
2016; Thomas, Alice, Two Steps Back: Haiti Still Reeling from Hurricane Matthew, Refugees International, p.4,
April 2017;
146
Beaubien, Jason, How Many Houses Did Hurricane Leave Standing In Port Salut, Haiti?, NPR Morning Edition,
Oct. 11, 2016; Guyler Delva, Joseph, Hurricane Matthew toll in Haiti rises to 1,000, dead buried in mass graves,
Reuters, Oct. 10, 2016.
147
Haiti: Hurricane Matthew – Situation Report No.6, United Nations Office for the Coordination of Humanitarian
Affairs (UNOCHA), p.1-4, Oct. 10, 2016.
148
Affairs (UNOCHA), p.1-4, Oct. 10, 2016.
149
Affairs (UNOCHA), p.4, Oct. 10, 2016.
150
DHS000051

Page 15
the storm.151 An estimated 175,000 people were displaced,152 and 546 people were killed.153
Hurricane Matthew also caused “widespread damage to homes, roads, public infrastructure,
hospitals, and schools.”154 Damages from Hurricane Matthew were estimated at nearly $2.8
billion—equivalent to 1/3 of Haiti’s gross domestic product155—and were particularly severe in
Haiti’s housing and food security sectors.156
In the aftermath of Hurricane Matthew, the international humanitarian community coordinated

with the Government of Haiti to provide emergency humanitarian assistance to those affected by
the storm.157 Humanitarian assistance was provided in a variety of fields, including emergency
shelter, health, food security, protection, etc.158 In early March 2017, UNOCHA reported that
over 1 million people had been reached with humanitarian assistance in the most affected regions
of Grand’Anse, Sud and Nippes departments.159 UNOCHA also noted that the emergency
response was ending at this time, with the focus shifting to early recovery.160
According to a United Nations official, as of mid-April 2017, shelter and food remained scarce
in Haiti’s southern peninsula.161 In March 2017, an international non-governmental organization
reported that at least 13 people in Grand’Anse department had died due to hurricane related food
shortages in the region, and some Haitians were reportedly living in caves and eating poisonous
plants to survive.162 UNOCHA reported in May 2017 that “affected people continue to live in
precarious conditions, particularly in hard-to-reach areas.”163
151
152
2017.
153
154
2017.
155
Charles, Jacqueline, Senate Democrats to Trump administration: Let Haitians stay, Miami Herald, Apr. 27, 2017;
Charles, Jacqueline, Six months after Hurricane Matthew, food, shelter still scarce in Haiti, Miami Herald, Apr. 12,
2017.
156
157
158
159
Haiti: Hurricane Matthew Situation Report No.35 (04 March 2017), United Nations Office for the Coordination
160
Haiti: Hurricane Matthew Situation Report No.35 (04 March 2017), United Nations Office for the Coordination
161
Charles, Jacqueline, Six months after Hurricane Matthew, food, shelter still scarce in Haiti, Miami Herald, Apr.
12, 2017.
162
Charles, Jacqueline, Desperate Haitians living in caves, eating toxic plants in post-hurricane Haiti, Miami Herald,
Mar. 24, 2017.
163
DHS000052

Page 16
The Haitian government and the international community continued to support Haiti’s efforts to
recover from Hurricane Matthew during the summer of 2017. On June 30, 2017, President
Jovenel Moïse declared a state of emergency in areas hit by the storm.164 The World Bank
announced grants of $100 million in June 2017 and an additional $100 million in July 2017 to
support Haiti’s recovery from the impact of Hurricane Matthew.165 In addition, the Miami
Herald reported in July 2017 that the Inter-American Development Bank would reroute $85
million in funding to support reconstruction efforts in southern Haiti.166
Nevertheless, in June 2017, the World Bank reported that reconstruction needs from Hurricane
Matthew “were assessed at US$2.2 billion or 25 percent of GDP.”167 In July 2017, the Miami
Herald reported that residents of the areas most impacted by Hurricane Matthew in southern
Haiti felt abandoned by international donors and the Haitian government.168 The Inter-
American Development Bank’s representative for Haiti told the Miami Herald in July 2017 that,
even with the additional funding from its organization for areas impacted by Hurricane Matthew:
“The situation is so dire that even if we fully disbursed the $85 million that we have
committed to the South after the hurricane, there are still a lot of people in need, a
lot of villages that were badly affected by the hurricane and need further
investment,” he said. “We will need lots more resources.”169
In October 2017, Agence France-Presse reported that—one year after Hurricane Matthew—Haiti
was still suffering from the consequences of the storm, and had yet to change “the way the
country prepares for natural disasters.”170
HAITIAN RETURNEES FROM THE DOMINICAN REPUBLIC
A crackdown on undocumented migrants in the Dominican Republic has contributed to an influx

of returnees to Haiti in recent years.171 From July 2015 through July 2017, IOM recorded that
164
Charles, Jacqueline, After Hurricane Matthew, many victims in Haiti feel abandoned, Miami Herald, Jul. 14,
2017.
165
2017; World Bank Approves Additional US$80 Million for Haiti’s Hurricane Recovery, The World Bank, Jun. 14,
2017; Haiti - Post-Matthew : Additional $80M grants from the World Bank, Haiti Libre, Jun. 15, 2017.
166
2017.
167
World Bank Supports Haiti’s Post-Matthew Reconstruction, The World Bank, Jun. 8, 2017.
168
2017.
169
2017.
170
A year after Hurricane Matthew, Haiti more vulnerable than ever, Agence France-Presse (AFP), Oct. 4, 2017.
171
Azam, Ahmed, Forced to Flee Dominican Republic for Haiti, Migrants Land in Limbo, The New York Times,
Dec. 12, 2015; Partlow, Joshua, A Haitian border town struggles with new rules in the Dominican Republic, The
Washington Post, Jun. 24, 2015; McFadden, David, An aid agency is relocating several thousand people who had
DHS000053

Page 17
215,121 Haitian migrants spontaneously returned or were deported to Haiti.172 In June 2017,
IOM reported that the “total number of returnees has averaged between 6000 and 8000
individuals on a monthly basis” since August 2016.173 However, the total number of returnees
may actually be higher, as IOM stated that it had only been able to monitor half of border
crossings between the two countries since September 2016 due to budget constraints.174
Deportations from the Dominican Republic have drastically increased since April 2017; July
2017 had the highest number of official deportations since October 2015.175
In July 2017, the United Nations Secretary-General reported that returnees from the Dominican
Republic:
continue to find themselves in a situation of vulnerability owing to the

insufficient reception capacity of the Haitian authorities and a lack of
reintegration opportunities. This group will likely continue to need assistance in
the foreseeable future, including with regard to the determination of their legal
status.176
Similarly, in August 2017, the Miami Herald commented on the Haitian government’s “inability
to absorb the influx” of returnees from the Dominican Republic, also noting that “their arrival,
mostly ignored by Haitian authorities, has burdened humanitarian organizations that have
struggled to help amid deep budget cuts and indifference.”177 Many migrants reportedly “arrive
in precarious conditions,”178 while some returnees reportedly live in “makeshift camps” along
the border similar to those inhabited by IDPs from the 2010 earthquake.179
fled to Haiti from the Dominican Republic and set up informal settlements along the Haitian side of the border,
Associated Press, Mar. 30, 2016; Maloney, Anastasia, U.N. urges Dominican Republic to prevent deportations of
Haitians, Thomson Reuters Foundation, Jul. 29, 2015.
172
UN Migration Agency Opens Haiti's First Border Resource Centre to Help Returning Haitians, International
Organization for Migration, Jun. 27, 2017; IOM Haiti border monitoring sitrep: Tracking returnees from the
Dominican Republic, International Organization for Migration, International Organization for Migration, Aug. 3,
2017.
173
174
IOM Haiti border monitoring sitrep: Tracking returnees from the Dominican Republic, International Organization
for Migration, International Organization for Migration, Jun. 29, 2017.
175
IOM Haiti border monitoring sitrep: Tracking returnees from the Dominican Republic, International Organization
for Migration, International Organization for Migration, Aug. 3, 2017; Haiti Humanitarian Bulletin - Issue 65 | June-
July 2017, United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), p.1-2, Aug. 17, 2017.
176
177
Charles, Jacqueline, The countdown for Haitians with TPS has started. And that has many in Haiti worried.,
Miami Herald, Aug. 4, 2017.
178
UN Migration Agency Opens Haiti's First Border Resource Centre to Help Returning Haitians, International
Organization for Migration, Jun. 27, 2017.
179
Following political crisis Haiti must urgently advance human rights agenda, Amnesty International, Mar. 17,
2017.
DHS000054

Page 18
SUMMARY
Haiti’s recovery has been hindered by subsequent natural disasters and various political, social,
health, security, and economic conditions which have negatively impacted the country in recent
years. Haiti remains vulnerable to external shocks, and its internal fragility has left it unable to
adequately respond to a wide range of persistent humanitarian needs. As UNOCHA and the
United Nations Country Team in Haiti reported in January 2017:
With more than 98% of Haitians exposed to two or more types of disasters, the
impact of recurring natural disasters is particularly severe, especially considering
the already pre-existing protection, socio-economic and environmental
vulnerabilities and disparities. Most Haitians remain vulnerable to natural hazards
and disasters, such as floods, landslides, droughts, earthquakes and hurricanes.
With more than a half of its total population living in extreme poverty, Hurricane
Matthew has once more demonstrated Haiti's weakened ability to cope, recover and
adapt to shocks from natural disasters. Meanwhile, as a result of electoral-related
tensions, politically motivated demonstrations and insecurity have affected the
humanitarian operating environment since mid- 2015 against the backdrop of a
decreasing humanitarian presence in the field due to the lack of humanitarian
funding.180
Due to the conditions outlined in this report, Haiti’s recovery from the 2010 earthquake could be
characterized as falling into what one non-governmental organization recently described as “the
country’s tragic pattern of ‘one step forward, two steps back.’”181
180
Haiti: Humanitarian Response Plan January 2017 - December 2018, United Nations Office for the Coordination
of Humanitarian Affairs (UNOCHA)/United Nations Country Team in Haiti, p.6, Jan. 2017.
181
2017.
DHS000055
Exhibit 30


3

EMBASSY OF THE REPUBLIC OF HAITI

W ASHINGTON , DC
October 4, 2017
The Honorable Elaine C. Duke

Acting Secretary of the Department of Homeland Security
Washington, D.C. 20528
Dear Secretary Duke,
Please accept this correspondence in response to the letter from your Department dated
September 8, 2017. I want to thank you for your Department’s continued collaboration with the
Haitian Government in addressing Haiti’s Temporary Protected Status (TPS) designation. The
Haitian Government is committed to working with the United States to reach a mutually beneficial
resolution on this very important issue. Towards that end, the Haitian Government is of the sincere
opinion that an extension for an additional eighteen (18) months or a TPS re-designation will serve
the shared national interests of both Haiti and the United States.
As the two oldest republics in the Western Hemisphere, we have a long history of
collaborating to further our shared values and national interests. The request of the Haitian
Government for an extension of the TPS designation for an additional eighteen (18) months is
meant to ensure that Haiti is able to adequately move forward with its recovery and redevelopment
plan and will not have to rely, over the long term, on the United States for temporary residence for
its citizens.
We believe that the best way for us to convey our reasoning behind our request for an
additional eighteen (18)-month extension of the TPS designation is to show you the facts on the
ground. Therefore, my Government is extending an invitation to host you in Haiti so that you can
personally see the efforts underway to address the issues that warranted TPS designation for Haiti
in the first place. Moreover, a visit to Haiti would offer you insight on the challenges that we
continue to face. We sincerely believe that once you see the conditions on the ground, it will become
clear that an additional eighteen (18) months extension or re-designation is in the shared national
interests of both Haiti and the United States. We respectfully suggest that the visit occurs no later
than the first week of November so that you have sufficient time to assess the situation on the
ground before making a decision on TPS for Haitians.
Haiti has undergone a catastrophic and unprecedented series of natural disasters during the
last seven years. As you know, the TPS designation for Haiti originated in the aftermath of the
January 2010 earthquake that devastated the country, leaving at least 300,000 people dead and more
than one million of our citizens internally-displaced. Subsequently, United Nations soldiers
2311 Massachusetts Ave, NW Washington, DC 20008 | t: (201) 742 – 1960 | f: (202) 745 – 7215


2
introduced a cholera epidemic that killed thousands of people, sickened over 800,000 and that
continues to pose a healthcare risk to our citizenry. Valuable resources initially earmarked for
addressing critical earthquake recovery issues had to be re-appropriated to eradicate this epidemic,
with limited support from the United Nations, the entity that brought the disease to Haiti in the
first place. To add to the devastation, on October 4, 2016, Hurricane Matthew, a Category 4 storm
with 145 mph winds and the worst to strike our nation in 52 years, raged through Haiti, destroying
over 200,000 homes, wiping out towns, entire villages, and destroying valuable crops. This caused a
severe food crisis of unparalleled magnitude in Haiti’s history. The economic loss from Hurricane
Matthew alone was estimated at 2.8 billion dollars. As a result of these three extraordinary recent
catastrophes, in May 2017, we requested an extension of the TPS designation for an additional
eighteen (18) months to allow the Haitian Government more time to implement its ongoing
recovery and redevelopment plan.
When former Secretary John Kelly announced a six-month extension of Haiti’s TPS
designation through January 22, 2018, he stated that, “if Haiti is able to continue its pace of recovery
from the 2010 earthquake, then a TPS extension past January 2018 may not be warranted.”
However, despite best efforts and tangible progress, unforeseen natural disasters, including
Hurricanes Irma and Maria, have significantly delayed the Government’s ability to adequately
maintain the pace of recovery from the 2010 earthquake. Therefore, the Haitian Government
contends an 18-month extension or a TPS re-designation is necessary for Haiti to continue on the
path of progress.
Since our last request, our ongoing efforts to continue to recover from the earthquake and
from the ravages of the cholera epidemic and Hurricane Matthew have been hampered by
significant setbacks, as Haiti continued to face unforeseeable and daunting challenges. In the past
month, both Hurricanes Irma and Maria have caused serious damage in Haiti. A substantial
amount of agricultural crops have been destroyed and communities have been flooded, which has
resulted in the further displacement of local communities. Additionally, the impact of the most
recent hurricanes on neighboring island countries, such as Turks and Caicos, has caused significant
harm to the Haitian economy. As you may know, Haiti’s economy relies heavily on the contribution
of its Diaspora. A substantial proportion of the labor force in many neighboring islands that were
affected by Hurricanes Irma and Maria is of Haitian descent. As many of these countries struggle to
rebound from these hurricanes, Haitian expatriates working there have found themselves unable to
support their families back home, further complicating Haiti’s recovery process and delaying the
ability of the country to place itself back in the position that it was in prior to the 2010 earthquake.
As noted in your Department’s letter, a statutory basis required to designate a country for
TPS is that “there has been an environmental disaster resulting in a substantial, but temporary,
disruption of the living conditions in the area affected, the country is temporarily unable to handle
adequately the return of its nationals, and the country has officially requested TPS designation.”
Unfortunately, Haiti has had three such major blows since 2010. The detrimental impacts of the
recent hurricanes have complicated our ability to recover from the 2010 earthquake, cholera, and
Hurricane Matthew within the projected timeline and have exacerbated the situation on the
ground, resulting in major disruptions of living conditions in the short-term. Given the current


3

circumstances on the ground and based on the statutory guidelines, an extension or re-designation
of TPS for Haitians is fully warranted and would serve the mutual national interests of both
countries.
Back in May, your Department’s TPS determination stated that “permitting Haitian
nationals to continue residing temporarily in the U.S. is not contrary to the national interest of the
United States”. Since then, we have not received any subsequent communication from the USG
that these conditions changed. Our research, as well as our conversations with U.S. law
enforcement and elected officials representing districts and states where Haitian TPS recipients
reside, have shown that our nationals have been exemplary law-abiding residents and pose no threat
to the security of the United States or its people. Moreover, Haitian TPS recipients have not
constituted a financial burden on U.S. taxpayers. Rather, Haitian TPS recipients have made
significant economic contributions to their communities here in the United States as acknowledged
publicly by Congressional leaders, from the Democratic and Republican side, as well as Mayors,
Governors, and business leaders.
At this precarious juncture, an 18-month extension or a TPS re-designation beyond January

2018 is a necessity. Not extending TPS beyond January 2018 would force the Government of Haiti
not only to halt its ongoing, short-term redevelopment efforts, but also to focus its limited resources
on receiving an influx of citizens. Under these circumstances, we fear that a non-renewal may cause
TPS beneficiaries to find alternative, and ill-advised, ways to remain in the United States, and
would also embolden trans-national human traffickers and cartels to prey upon this group of
vulnerable individuals; such an outcome would not be in the best interests of either of our
governments.
In the interim, the Haitian Government is diligently working to put the country back on a
trajectory towards a swift recovery. The current leadership in Haiti is in the process of
implementing a robust and expansive recovery and redevelopment plan. The plan includes
enhancing our infrastructure, increasing private investment and incentivizing economic growth.
The redevelopment plan is meant not only to significantly improve the lives of Haitians at home, but
also to encourage the return of those living overseas to contribute in the long-term sustainability and
economic prosperity of our country.
In the spirit of the long shared-history of our two nations, I thank your Department for the
continued dialogue with the Government of Haiti on this important matter. I look forward to
hearing back from you regarding a suitable date to host you in Haiti.
Sincerely,
Paul G. Altidor
Ambassador
2311 Massachusetts Ave, NW Washington, DC 20008 | t: (201) 742 – 1960 | f: (202) 745 – 7215

Exhibit 31
From:
Sent: Friday, October 13, 2017 8:59 AM
; Levine, Laurence D
Cc: Policy-Clearance
Subject: RE: URGENT REVISION NEEDED: AS1BB - 10.10.17 - TPS Meeting - (Due Today
@ 1600)
We can comb through the country conditions to try to see what else there might be, but the basic problem is that
it IS bad there wrt all of the standard metrics. Our strongest argument for termination, we thought, is just that it
is not bad in a way clearly linked to the initial disasters prompting the designations. We can work with RU to
try to get more, and/or comb through the country conditions we have again looking for positive gems, but the
conditions are what they are.
Anyway, we are on our way and have cleared out our mornings to assist. Will do what we can!

Sent: Friday, October 13, 2017 8:51:36 AM
To: B; Levine, Laurence D
Subject: RE: URGENT REVISION NEEDED: AS1BB - 10.10.17 - TPS Meeting - (Due Today @ 1600)
I am going to send you a revision of all three memo by 10 am. We don't need them finalized, but in good shape for Dir
Cissna before he meets with Sec. Duke at 4:30. The problem is that it reads as though we'd recommend an extension
b/c we talk so much about how bad it is, but there's not enough in there about positive steps that have been taken since
its designation.
From:
Sent: Friday, October 13, 2017 8:43 AM
To: Nuebel Kovarik, Kathy; ; Levine, Laurence D
We'll check in with you as soon as we get in. Looks like RAIO's Research Unit also got a heads up that country
conditions are needed, so we can work with them to get whatever updates you need.

To: ; Levine, Laurence D
I have been tasked with updating the country conditions. I will need to chat with you this AM.
From:
To: Levine, Laurence D; Nuebel Kovarik, Kathy
DPP_00003139
Cc: ; Policy-Clearance
Seemed to us the three memos were the right does to include to provide the country conditions and analysis on
the available options. KA and I don't have those yet, though.
I suppose in the alternative, we could send the RU country conditions reports for all three countries...

Cc: ; Policy-Clearance
Subject: FW: URGENT REVISION NEEDED: AS1BB - 10.10.17 - TPS Meeting - (Due Today @ 1600)
K - do you have the memos they are talking about here?
Larry Levine
Senior Advisor
Office of Policy and Strategy
From: Policy-Clearance
To:
Cc: Levine, Laurence D; Porto, Victoria; Rather, Michael B; Parascandola, Ciro A
Subject: FW: URGENT REVISION NEEDED: AS1BB - 10.10.17 - TPS Meeting - (Due Today @ 1600)
Greetings,
This follow-up tasker was received. Please review the material and comment as you deem necessary.
Please note the URGENT deadline (9am, 10/13/17). Your time and consideration are appreciated.
Thanks.
This email, along with any attachments, is intended solely for the use of the addressee(s) and may contain information that is sensitive or protected by applicable law.
Unauthorized use or dissemination of this email and any attachments is strictly prohibited. If you are not the intended recipient, please notify the sender and delete or destroy
all copies.
From: Bacon, William H

Sent: Thursday, October 12, 2017 5:26 PM
To: Policy-Clearance; RAIO Clearance
Cc: USCIS Exec Sec; Button, Maria G (Gemma); Carter, Constance L; Bacon, William H
Subject: URGENT REVISION NEEDED: AS1BB - 10.10.17 - TPS Meeting - (Due Today @ 1600)
Good evening,
The Secretary's Office has returned these materials, requesting information on specific country conditions to
DPP_00003140
support the Acting Secretary's deliberations on TPS decisions on these countries. Please provide additional
information as soon as possible but no later than 9:00 AM tomorrow morning.
Thank you,
Bill
From: Drake, Johnetta on behalf of USCIS Exec Sec

Sent: Thursday, October 12, 2017 12:20:29 PM
To: Culwell, Kelbi; Blackwell, Juliana
Cc: Bacon, William H; Button, Maria G (Gemma); ESEC-BBIC; USCIS Exec Sec
Subject: RE: [Confirmed] AS1BB - 10.10.17 - TPS Meeting - (Due Today @ 1600)
Hi Kelbi,
Please see the updated materials cleared by USCIS COS. Please let me know if you have any questions.
Johnetta Drake
USCIS Office of the Executive Secretariat
(Cell)
(Desk)
(Office)
EXSO Connect Page
EXSO ECN Page
Please upload all actions for which Forms G-1056 are used to CATS.
Please send all official actions to
From: Culwell, Kelbi

Sent: Thursday, October 12, 2017 10:03 AM
To: Blackwell, Juliana; USCIS Exec Sec
Cc: Bacon, William H; Button, Maria G (Gemma); ESEC-BBIC
Good morning,
Just checking on the status of these materials?
Kind regards,
Kelbi
From: Blackwell, Juliana

Sent: Tuesday, October 10, 2017 11:46 AM
To: USCIS Exec Sec
Cc: Bacon, William H Button, Maria G (Gemma)
ESEC-BBIC
Attached are the materials. The meeting just moved to Friday. Your updates are due Wednesday COB.
From: Drake, Johnetta On Behalf Of USCIS Exec Sec

To: Blackwell, Juliana
DPP_00003141
Cc: USCIS Exec Sec Bacon, William H- • Button, Maria
G (Gemma)
Hi ii,
Can you provide a copy of PLCY's draft materials?
Johnetta Drake
USCIS Office of the Executive Secretariat
(Cell)
(Desk)
(Office)
EXSO Connect Page
EXSO ECN Page
Please upload all actions for which Forms G-1056 are used to CATS.
Please send all official actions to

To: Bacon, William H; Button, Maria G (Gemma); Carter, Constance L; Drake, Johnetta; Prater, Jocelyn S; Swanson, Toni;
USCIS Exec Sec; Young, Todd P
Cc: ESEC-BBIC; Swain, Donald; Krause, Scott
USCIS,
This meeting is in less than 2 hours. Can you let us know how you are coming on the below requested material?

To: Bacon, William H Button, Maria G (Gemma) 1111111111111111111111111111111111111111111111111111111111111111111.
Carter, Constance L ; Drake, Johnetta Prater
Jocelyn S ; Swanson, Toni ; USCIS Exec Sec MI
Young, Todd P
Cc: ESEC-BBIC • MI
USCIS - Can you provide an update on the information requested below?
From: Petyo, Briana

To: Culwell, Kelbi Blackwell, Juliana ; Tarpley, Kyle
Plcy Exec Sec
Cc: ESEC-BBIC • USCIS Exec Sec Button, Maria G (Gemma)
Bacon, William H
PLCY cannot provide any additional materials. Any materials on country conditions and country specific decisions would
come from CIS.
From: Culwell, Kelbi
DPP_00003142
To: Blackwell, Juliana; Petyo, Briana; Tarpley, Kyle; Plcy Exec Sec
Cc: ESEC-BBIC; USCIS Exec Sec; Button, Maria G (Gemma); Bacon, William H
PLCY,
Are these materials ready? The meeting is today at 1:00pm.
Thank you!
Kelbi

To: Petyo, Briana Tarpley, Kyle Plcy Exec Sec
Cc: ESEC-BBIC . ; USCIS Exec Sec Button, Maria G (Gemma)

; Bacon, William H
Any update? This meeting is today

Sent: Monday, October 9, 2017 2:04 PM
To: Petyo, Briana ; Tarpley, Kyle Plcy Exec Sec
Cc: ESEC-BBIC USCIS Exec Sec Button, Maria G (Gemma)

Bacon, William H
How is this request coming along, do you think we can get something today?

Sent: Sunday, October 8, 2017 12:33 PM
To: Petyo, Briana Tarpley, Kyle Plcy Exec Sec
Cc: ESEC-BBIC USCIS Exec Sec ; Button, Maria G (Gemma)

; Bacon, William H
Looping in USCIS.
Additional guidance from the COS.
The discussion needs to be on each individual country under consideration. Specifically, need a deep dive into
the conditions of that respective country to determine if they continue to meet the statutory categories for TPS
Juliana Blackwell
Office of the Executive Secretary
DPP_00003143

Sent: Saturday, October 07, 2017 9:08:38 PM
To: Petyo, Briana; Tarpley, Kyle; Plcy Exec Sec
Cc: ESEC-BBIC
It's important to have the two attachments, and the briefing memo is okay in terms of serving as an
introduction. But she has decisions to make in the next three weeks about Honduras and Nicaragua. This
briefing session needs to focus on those decisions, and it's my understanding that USCIS would like for El
Salvador to be considered also (even though that decision doesn't need to be made for a couple of
months).Policy and USCIS should work together to prepare briefing materials so that she can start thinking
about those particular decisions—and also, Haiti.
Please resubmit by 4pm tomorrow.
Juliana Blackwell
From: Petyo, Briana

Sent: Friday, October 06, 2017 9:50:47 PM
To: Tarpley, Kyle; Plcy Exec Sec
Cc: ESEC-BBIC
From: Tarpley, Kyle

Sent: Friday, October 06, 2017 5:16:16 PM
To: Plcy Exec Sec
Cc: ESEC-BBIC; Petyo, Briana
Hi, checking in on the status of these materials. When can we expect them?
From: Gillus, Allison

Sent: Friday, October 6, 2017 12:30 PM
To: Petyo, Briana ; Plcy Exec Sec
Cc: ESEC-BBIC OGC Exec Sec
Subject: [Confirmed] AS1BB - 10.10.17 - TPS Meeting - (Due Today @ 1600)
This meeting has been confirmed for 1:00pm on Tuesday 10/10
Allison
From: Gillus, Allison

Sent: Friday, October 06, 2017 12:03 PM
To: Petyo, Briana; Plcy Exec Sec
Cc: ESEC-BBIC; OGC Exec Sec
DPP_00003144
Subject: [Tentative] AS1BB - 10.10.17 - TPS Meeting - (Due Today @ 1600)
All materials must be formatted to comply with the attached templates.
Event Date Tuesday, October 10, 2017

Event Name TPS Meeting
Lead Component PLCY
Required Coordination OGC
Product Briefing Memo
Notes Details:
Meeting to discuss upcoming decisions related to "IPS
Attendees
Acting Secretary
Location: TBD
Talking Points: Please coordinate with OPA on all Talking

Points (1st person narrative).
Meeting Classification: Please include bullet in background

section of briefing memorandum if the meeting or any of the
briefing materials are classified. (i.e., "This meeting [or any of
the briefing materials] are classified").
Please note that all materials being shown to the Secretary

must be passed through ESEC first. Please do not bring
anything to the meeting ESEC has not seen (classified or
unclassified) without prior approval. If a presentation is to be
made, Lead Component is responsible for providing an
appropriate number of handouts at the meeting. (15 if the
meeting takes place in Rm. 5110D; 25 if in Rm. 5107.)
Due Today (1600)
DHS Briefing Book and Interagency Coordination Standards and Procedures (including links to templates) are located on
the DHS Intranet at:
Allison M. Gillus
Department of Homeland Security
Desk:
BB:
ÈSEC: Excellent Service Endless Commitment"
DPP_00003145
Exhibit 32
From: Law, Robert T
Subject: RE: Haiti draft TPS memo
Attach: D1-S1 Decision Memo Haiti 10-12-17 (OPS).doc
Edits attached. I made the document fully support termination and provided comment boxes where additional data
should be provided to back up this decision.

To: Law, Robert T
Edit away!
From: Law, Robert T

Sent: Sunday, October 22, 2017 6:28:08 PM
The draft is overwhelming weighted for extension which I do not think is the conclusion we are looking for. The memo
seems to dismiss or downplay the positive developments that should suggest reauthorization is inappropriate. The
memo also makes no mention of the substantial amount of foreign aid the U.S. and charities have invested in Haiti since
the earthquake—another relevant factor to indicate that Haiti no longer meets the definition of TPS.
I can track change edits tonight or we can discuss in the morning, whatever your preferred timing is.

To: Law, Robert T
Subject: FW: Haiti draft TPS memo
Can you take a look at this draft? I need to circulate to some folks but want another set of eyes on it. Thanks.

Direct:
Cell:
From:
Sent: Thursday, October 12, 2017 10:11 PM
Cc: Levine, Laurence D
Subject: Haiti draft TPS memo
Kathy (and Larry, who has been pestering — I mean, reminding — us),
Kathryn and I have completed a draft Haiti TPS decision memo (attached). In short, based on our review of country
conditions, we've written it so that it could support either extension or termination, but left the recommendation blank,
DPP_00003349
pending further discussion.
We're taking off now and have a morning meeting that has us out of the office till around noon, but can discuss
thereafter. We'll leave a printed copy on your chair.
Chief, International and Humanitarian Affairs Division

Department of Homeland Security/U.S. Citizenship and Immigration Services
Office of Policy and Strategy
DPP_00003350
Exhibit 33
9/14/2018
Case U.S. embassy cables warned
1:18-cv-01599-WFK-ST against expelling
Document 300,000 Filed
62-33 immigrants. Trump officials
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The Washington Post
National Security
U.S. embassy cables warned against expelling 300,000

immigrants. Trump officials did it anyway.
By Nick Miroff ,
Nick Miroff
Reporter covering immigration enforcement, drug trafficking and the Department of Homeland Security
Seung Min Kim and
Seung Min Kim

White House reporter
Joshua Partlow
May 8
In the past six months, the Trump administration has moved to expel 300,000 Central Americans and
Haitians living and working legally in the United States, disregarding senior U.S. diplomats who
warned that mass deportations could destabilize the region and trigger a new surge of illegal
immigration.
The warnings were transmitted to top State Department officials last year in embassy cables now at the
center of an investigation by Senate Democrats, whose findings were recently referred to the
Government Accountability Office. The Washington Post obtained a copy of their report.
The cables’ contents, which have not been previously disclosed, reveal career diplomats’ strong
opposition to terminating the immigrants’ provisional residency, known as temporary protected status
(TPS), and the possible deportation of hundreds of thousands of people to some of the poorest and
most violent places in the Americas.
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Then-Secretary of State Rex Tillerson dismissed the advice and joined other administration officials in
pressuring leaders at the Department of Homeland Security to strip the immigrants of their
protections, according to current and former administration officials whose accounts were consistent
with Senate Democrats’ findings.
On Friday, DHS canceled the provisional residency of 57,000 Hondurans whose numbers add to the
195,000 Salvadorans and 46,000 Haitians previously given 18 months to leave the country or face
deportation. TPS recipients from those three countries are the mothers and fathers of an estimated
273,000 U.S.-born children who will have to leave or separate from their parents.
The phased expulsions are a central part of the Trump administration’s effort to raise physical and legal
walls around the U.S. immigration system. Together with President Trump’s move to end protections
for 690,000 “dreamers” brought to the United States illegally as children, his administration has
stamped an expiration date on the residency of 1 million immigrants.
In Congress, several proposed bills that would legalize dreamers also have included provisions for
allowing TPS recipients to remain in the United States, but those negotiations have stalled.
Democratic staff members on the Senate Foreign Relations Committee had, for several months, sought
from the State Department information about its decision-making process. They were allowed to
review the diplomatic cables in January. Their report, staffers say, shows the extent to which Tillerson
and other Trump officials undermined the State Department’s regional experts to advance the White
House’s immigration objectives.
Sen. Robert Menendez (N.J.), the committee’s ranking Democrat, wants Tillerson’s successor, Mike
Pompeo, to review whether the administration’s decisions can be reversed. “It would be woefully
irresponsible for Congress to turn a blind eye to these discoveries,” he told The Post in a statement.
In a letter to the GAO seeking a separate independent investigation, Menendez expressed suspicion
that Tillerson’s recommendation to terminate the TPS programs was made in “deliberate disregard” of
the advice provided by State Department officials. The senator said investigators also have evidence the
White House’s domestic policy office “sought to repeatedly influence” the TPS process and ensure a
predetermined outcome.
“I am concerned that the Department of State, under then-Secretary of State Tillerson’s leadership,
acted in a way that jeopardized U.S. national security and put at risk the physical safety of current
beneficiaries of the Temporary Protected Status program,” Menendez wrote to Gene Dodaro, the
comptroller general.
Representatives for Tillerson, whom Trump fired in March, did not respond to interview requests. A
representative from the State Department said the agency would not comment on “internal or
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interagency deliberations.”
According to current and former State Department officials, the embassy cables were received by
Tillerson’s aides but generated no reply from the secretary or his staff. In the ensuing weeks, Trump
senior adviser and immigration hard-liner Stephen Miller placed phone calls to DHS Chief of Staff
Chad Wolf and top Tillerson advisers telling them to end TPS anyway, according to current and former
administration officials who, like others, spoke on the condition of anonymity to offer their candid
assessment of sensitive internal discussions.
A White House official said that Miller regularly speaks to the State Department and DHS but that the
TPS policy decisions followed the process established by law. “Career State Department officials make
the recommendation, which was eventually followed through by the secretary of homeland security,
who is the sole individual with the authority to end the TPS programs,” the official said.
In a letter dated Oct. 31, Tillerson told Homeland Security’s acting secretary, Elaine Duke, that
conditions in Central America and Haiti had improved and the TPS protections were no longer
warranted. When the two spoke by phone, Tillerson told Duke that ending TPS “was just something she
had to do,” according to a person with direct knowledge of the conversation. The implication of
Tillerson’s message was clear: This wasn’t worth a showdown with the White House.
Duke was unpersuaded. She sought the counsel of James Nealon, a top aide who served as U.S.
ambassador to Honduras until 2017, when he became Homeland Security’s international adviser for
strategy and planning. As ambassador, Nealon had sent similar cables warning that Honduras was in
no position to take back tens of thousands of U.S. deportees and their American-born children, who
could be targeted for attacks or recruitment by the country’s powerful gangs.
Duke, a longtime DHS official who served under President George W. Bush, decided she could not in
clear conscience end the TPS protections, according to former colleagues. And the decision was hers to
make. Instead, she gave the Hondurans a six-month extension, saying she did not have the information
she needed to reach a decision.
White House Chief of Staff John F. Kelly, who had run DHS from January until July, called Duke from
Asia, where he was traveling with the president, to convey his frustration.
Duke had approached the decision “like a real human being,” according to a former colleague. But it
was the beginning of the end of her career at DHS, and she began telling friends and close advisers that
she planned to resign. She announced her departure in February, after less than a year at the agency.
Nealon quit DHS the same month. Both declined to be interviewed.
According to seven current and former administration officials, Tillerson’s handling of the TPS decision
deepened morale problems at the State Department, directly contributing to several high-level
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resignations. One senior State Department official called it “heartbreaking” and a low point in the
official’s career.
The TPS debate
TPS was established by Congress in the 1990 Immigration Act to avoid sending deportees back to
countries hobbled by natural disaster or in the grips of armed conflict. Since then, nearly a half-million
people have benefited from the designation, earning permission to live and work in the United States
legally.
The largest groups are Salvadorans, who were allowed to stay after a pair of powerful earthquakes in
2001, and Hondurans, who won the designation after Hurricane Mitch tore a path through their
country in 1998, triggering floods and mudslides that left 10,000 dead. Many recipients are now in
their 40s and 50s, having spent much of their adult lives in the United States.
Heeding the advice of U.S. diplomats assigned to those nations, previous U.S. administrations
repeatedly renewed the TPS designations for the Central American nations on an 18-month basis, and
for the Haitians who were allowed to stay after the country’s catastrophic earthquake in 2010.
Immigration-restriction advocates seeking to reduce the number of foreigners living in the United
States say that the law’s “temporary” intent has been violated. The designation was never meant to
grant long-term U.S. residency to hundreds of thousands of people, they say.
Under Homeland Security Secretary Kirstjen Nielsen and L. Francis Cissna, who heads U.S. Citizenship
and Immigration Services, DHS has hewed to a narrower interpretation of the TPS statutes, insisting
the law obligates the administration to end the protections if the conditions that prompted them no
longer exist.
But the law also states the U.S. government must take into account the concerns of those nations and
their ability to take back large number of deportees.
Money sent home by Central Americans and Haitians living in the United States is an engine for job
creation that reduces the pressure to go abroad, U.S. diplomats note. These remittances account for
nearly 20 percent of the gross domestic product in El Salvador and Honduras and nearly 30 percent in
Haiti, according to 2016 World Bank estimates.
And because TPS recipients living in the United States may fear taking their children back, they are
more likely to remain in the country unlawfully or seek to return illegally if deported — a bonanza for
smuggling networks and gangs, the diplomatic cables said.
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Those forced to return will find countries wracked by extreme violence and widespread poverty. In
recent years, Honduras and El Salvador have endured some of the highest homicide rates in the world
as street gangs battle over territory and drive thousands from their homes. Haiti, where about 200,000
died in the 2010 earthquake, was battered again by Hurricane Matthew in 2016.
The caravan of Central America migrants that recently arrived at the U.S.-Mexico border — and whose
journey piqued the anger of Trump — included many families from Honduras. “The caravan alone tells
you that obviously there are still very significant problems in Honduras,” said Lisa Kubiske, who was
the U.S. ambassador there from 2011 to 2014.
At the same time, Kubiske acknowledged that it has been a long time since Hurricane Mitch, which
prompted the TPS designation for Honduras. “I don’t think it was the right thing to do to end TPS now,
but I do understand the dilemma because 20 years should be enough time to deal with the aftermath of
the hurricane,” said Kubiske, a career Foreign Service officer who left the State Department last year. “I
just don’t think they have the capacity to absorb that many” people, she added, calling the decision
“bad foreign policy.”
John Feeley, a career U.S. diplomat and Latin America expert who resigned as U.S. ambassador to
Panama in March, said the TPS decision “was precisely the kind of disregard for professional
nonpolitical advice that we saw under Tillerson.”
“This is not a partisan issue; it’s a practical one,” he said. “Does deporting people who have been here
legally, following the rules for years, help us achieve our goals of having safe, orderly migration and
alleviating the conditions that drive illegal immigration in the first place?”
On Tuesday, a dozen Democratic senators sent a letter to Nielsen and Cissna questioning the
administration’s decisions to strip Haitians of the protections, given internal USCIS assessments that
conditions in Haiti remain grim. The senators urged Trump officials “to immediately commit to a
reconsideration of the termination of Haiti’s TPS designation based on the facts and the law.”
Negotiations break down
Current and former diplomats and DHS officials say they think the White House initially viewed the
TPS decisions as a way to gain bargaining leverage in immigration negotiations with Democrats, not
unlike the move ending protections for dreamers. But those negotiations are stalled, leaving the
immigrants with fading hopes.
Democrats who worked on the committee’s investigation hope their findings will spur some
momentum behind efforts to extend a legislative lifeline to TPS recipients. But the best chance to do so
probably was earlier this year, when a bipartisan group of senators proposed terminating the diversity
visa lottery — a program Trump has derided — and rerouting those permits to TPS holders. That effort
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had been combined with provisions to provide a pathway to citizenship for dreamers and ramp up
resources for border security.
The White House never got on board with the Senate proposal, which had prompted Trump to ask why
the United States was admitting immigrants from “shithole countries” as he was briefed on it during a
January meeting in the Oval Office.
Trump’s inflammatory remarks upended sensitive immigration talks on Capitol Hill, and the Senate
plan was ultimately filibustered during a series of votes in February. There is scant expectation that
immigration could return to the forefront in Congress, particularly during a contentious election year.
The administration appears to have given up on pushing for a TPS bill from lawmakers, too. When
Nielsen ended TPS for El Salvador in January, her statement urged Congress to seek a long-term
solution that would spare the immigrants from deportation.
But on Friday, when Nielsen canceled TPS for Hondurans — the move Duke refused to make — her
announcement made no mention of a possible fix that might allow them to stay.
Partlow reported from Mexico City.
Nick Miroff
Nick Miroff covers immigration enforcement, drug trafficking and the Department of Homeland Security
on The Washington Post’s National Security desk. He was a Post foreign correspondent in Latin America
from 2010 to 2017, and has been a staff writer since 2006. Follow 
Seung Min Kim

Seung Min Kim is a White House reporter for The Washington Post, covering the Trump administration
through the lens of Capitol Hill. Before joining The Washington Post in 2018, she spent more than eight
years at Politico, primarily covering the Senate and immigration policy. Follow 
Joshua Partlow
Joshua Partlow is The Washington Post’s bureau chief in Mexico. He has served previously as the bureau
chief in Kabul and as a correspondent in Brazil and Iraq. Follow 
The story must be told.

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Exhibit 34
..........•.•.•.•.•.•.•••••••••••N••·~•·--~=~--
THE BE.CRETARY OF STATE

Vi ASHINGTON
Oct,;J:x.':'X 31 1 2017
····•":,❖.=·
Th~ lfr:rnorabl0
Fbhw C. l)n.ke
Acting Sr,:rctary of the Depanment of Horndand Security
Wa:i.:;hlngton, DC 20528
The St.ate 1)t,partrn~nt has ;:1ssessed. that Ei SaJvudor, Ha.ih, Hondurns, and Nicuragua no
longer rne1,,~t fr1c ixm.ditk,ris i:\~zp.i.red for eontfrrnd dt'sig-r1a-tion for Temporary Protected Status
(TPS), The disn:ip6on i.n living eonditkms ;r; F1 S,~fvador, Ifo-rn:b.u•;:is, m1d Nkw:1-:;.gua attdbuLtbk
ti.) the t:nvin)imwnt;d J.is:1sters frrnt Si:.rvtd as the basis for thi:.ir TPS Je,"i.gnati-ons has dtx:reastd in
st:\';.;:'rtty to a degre~ that it may no !ongt::r be conside.red '"subsnu1t.ial" w.hhin the meaning of the
TPS sUJme. The exi:raordirw.ry and knA1<Yr::,.ry· (:onJ.h1ons that s~trved as the b?-isis frx Ha.id's rn.ost
n:.cent designation have snffidently impr<>ved such that they no longer prevent nationals of Haltl.
... AHadied are countrv timditiom H'.?DO-li.f;
fro,-n .retixmhu,~...... in safds. ... tha.t provide the Department's
.-'
Hssess.ment ot coi;-·J'mom;
- , eaco.
m 1 ~ ,
country as t,iey ,
permn-1 to the1r
, respecti.ve
, ·rps:.·, - , ·
k , :) demgnations,
,., , 1,, ' ,, , . i. .r• , , ~ . . , , , l' ,

CH ven tae nunwer fh imp;,icted i:>ern:i.1(:.H.rrn.::;;:, an(A to mmu-mze any negatrve 1mp 1cau.o-r.b
that ttn11ina1ion would have on our bilateral relations 'Nith these cou.ntties, I recomm.encl that
·,' ''-l<jj• t'dt;~ 1),,,,.,-
:-;n~,-., lT< ,.,~1·
., .. q . aI,,.,k,l Ot"U,·, • -l, Ac\; ·, -'h, T)S.:{<;;\ .-3. ,_.' .'l:,t <'<-' TJ)C f ,.;.j1, • ':">
i s,.1l'llti,lfo., ... eCUTh_Y (.,..-, . ._1,, ~ic,.H.t: 0 ,,:HDltM.,e 1. ,:, .,Oft ,ese C,.. Ufhl.;.e'S,
> ' v .•;- , .•; ·•
that you do so with ddayi:d dlh..:ti ve dates of l. 8 nv..mths, An 18-rnonth wind do,..,.n. period would
provide ru::b::ma.1e time for ]ont.Htrwi.
.,_ ~ ..... b<:ndicia.ries to an:am:re ,,__., fr,r thdr derJrdtu·e
... and for their
hon-w cm.mtries to prepare fr,r their reception a.nd rdnt.J.;.,gratI01L
l do not n-mke these rec-onnnenda.tio.ns HghHy. As you consider your dedsk,n, l am sure
you are v-1dl aware of the signifo::ant huma11itar.b.n, fnrdgn policy, and politka.1 interests at phiy.
First and f,rJn:::rnosL tennlnation ofTPS would !lkdy leave hundreds of thousands of TPS
redpk::nts - rnany of \:vhom bwt, lived and ;vorked in the United State:1 for m.Gre thm.1 15 yearn
and have tIS. dtlzen children . . . out oflegai status, For thosr that depart, thry wm return to
.c;:z-,J.ntd·t;<s v1hh frm.)ted ecorinmie opportm1itki, for thdr 1-eintegnttinn, rn the catK of El Salvador
and flunduras, hoth countdes continue to have sonw of the world's high.est homicide rates, and
v-,,ed; b.'<v enfr:,n:e.rnem capabHitie:~ and lnadequ:i.te govenunenr service:~ will ma.ke it difficult for
their respectivi.:: govcmments t{} em,ure tht~ p.rokctio:n of R~tuming citiz.ens ~ no l.e% tfo~ l.LS,
dtL•.:en children ;vb:., may acr:o.n1pa.ny theh parent:=::,
Tenninat.krn nf TPS -Nm dso likely gene.rat-e a backbsh from the go'vernrnents
themsdves, particularly the Honduran and. Salv;Jdo:nm gowrnments, who hav~~ i:tg.reed to engage
with the United States In ?suppnri o.fthe U5L :~trategy 111 Centntl /\.medca, Ce.ntml. .i\merican
ka<lcrn [-'tte Hkdy to assert thm the n.:stmrces required for a large-scak re-integration of TPS
t,,.:ne:1cwx1cs am, the1r
'!.,. .,,~ • , (H}pen,;~-ents
<
' . 'l 1
• .a ' .' ~•. , . l \ ' .,
wi.; mH.iei:-rni.ne Hie Lentra / menca '.:'>trategy an
tl (''.entral
A.merica' s co-rriplementary A.J!icmce fo1· Prosperity, b)th of \Vhfoh seek to generah: prosperity for
the re2.ion's ch.iz.ens m1d reduce irret:ula.r rn.lt:wtion to the United. States, Thev mav
c;. •.; • ...., « take
...... ""
retaEatorv actions cou.nter w oux lonz-'.;mncling national se<:uritv and economic. interests liki:
d ~✓ ~ ~
\vhhdrn-.vbg their uJumemmt,otk:s and <1Jl.ti-ga-ng i;;ooperatkm whh the United States, reducing
AR-HAITl-00000031
their 1;vill.ingness to accept the return of their deported citizens, or refraining from effr.nts to
comml illegal migration.
However, the Hid. rein.aim; tfoH the conditions in these ccrtmtfie~; do not~ in the State
Department's jud§l;11ent - med the 1cg;~l requirements nccc3sary for extensioi:L Should DHS
decide to terminate the programs, I hope om Departments can \vork together in a thoughtful,
coonJlrn1ted m,inner to devdop a plan to work 'vVith the frmr govern.merits, TPS benefidaries
thernsf:,lves, Congress, NGOs, and ollK:r stakehokkrs to mitigate any iwgative irnpact on U.S.
national security and foreign policy priorities, As indicated, an 18-month 'Nind do,;.11 period \Nill
be critk,1! to our efforts,
I thank you in advance for including the Department of State's Bureaus of Western
Hemispht;re Affairs (WllA) and Populafam, Refugee,.,;, a.nd Migration, at{ weH as our public
affairs tearn, in your D1;.ipartmenl's plmming fi)r 1he pub!ic anrn:nmccment of any TPS decisions,
including to frlreign audiences. AdditlonaHy, I request that you provide WHA with no less than
48-hours !cad time prior to the pobhc announccrnent so that it can notit)'' co1.mti',.Tfl8Xt
governrnenls, on an embargoed basis, of the dt'.Cislon, I alsn recornmend DBS delay a public
a,.7nounrerrwnt frir Honduras until November 27, 10 prevetH TPS issues from unduly influencing
the November 26 presidential election,
Sirn.:erd y,
1c' pr,\),TZlz,v···· . .
Rex \V, TiHerson
Enclosures:
As stated.
AR-HAITl-00000032
Exhibit 35
9/11/2018
Case 1:18-cv-01599-WFK-STTheDocument
Battle Inside the62-35
Trump Administration Over T.P.S. | Page
Filed 10/09/18 The New2Yorker
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Daily Comment
The Battle Inside the Trump

Administration Over T.P.S.
By Jonathan Blitzer May 11, 2018
Temporary Protected Status has allowed refugees displaced by social unrest, in countries like Honduras, to live
in the U.S. legally. The Trump White House has ended the status for Hondurans.
Photograph by Orlando Sierra / AFP / Getty
ast November, the acting director of the Department of Homeland Security, a

L career civil servant named Elaine Duke, received a phone call from John Kelly, the
said at the time.
White House chief of staff. He was “irritated,” a White House official said
Duke had just decided to extend the deadline for a special designation, known as
Temporary Protected Status, or T.P.S., that allowed some sixty thousand Hondurans
who had been living legally in the United States for nearly two decades to continue
renewing their papers. Duke’s decision not to cancel their status, Kelly told her,
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“prevents our wider strategic goal” on immigration. The White House was looking for
ways to reduce legal immigration and to deport anyone without legal status.
Duke retired from D.H.S. earlier this year, and last week the new Secretary, Kirstjen
Nielsen, aa protégée
protégée of
protégée of Kelly’s
Kelly’s, cancelled T.P.S. for the Hondurans. On Tuesday, the
of Kelly’s
Post
Washington PostPost reported that the Trump Administration had made the T.P.S.
cancellation over the sustained and forceful objections of career diplomats at the State
Department. Last year, according to the Post, officials from U.S. embassies as well as
regional experts sent cables to Washington outlining reasons to extend T.P.S. not just
for Hondurans but for other groups, including Salvadorans and Haitians. Rex
Tillerson, who was then the Secretary of State, disregarded the advice, and Stephen
Miller, a senior adviser to the President, pressured D.H.S. officials to cancel the
program. Tillerson spoke with Duke by phone last fall, and told her that ending T.P.S.
“was just something she had to do.” She wasn’t persuaded, and she pushed off the
decision for six months, by which time Nielsen was in charge of the department.
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The Hondurans are not the only group to lose the protection. Last fall, the
Administration ended T.P.S. for forty-six thousand Haitians and for twenty- ve
two hundred
hundred Nicaraguans; in January, it cancelled the status of two hundred thousand
thousand
Salvadorans . Part of a 1990 immigration law, T.P.S. was created to temporarily allow
refugees eeing natural disasters and social unrest to live and work legally in the U.S.
The law never speci ed, however, how long the protections were supposed to last. The
government granted T.P.S. to Hondurans after Hurricane Mitch devastated the nation,
in 1998, but, in the years that followed, poverty, government corruption, and gang
activity turned the country into one of the most dangerous in the world. Sending tens
of thousands of people back to the nation now would only add to the instability, and
cause more Hondurans to head north in search of safety and work. To avoid a
humanitarian crisis, Republican and Democratic Administrations granted extensions to
T.P.S. year after year, though, in so doing, they introduced another signi cant
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complication: the immigrants established deep roots in this country. They joined the
workforce, bought homes, paid taxes, and started families. There are now two hundred
and seventy thousand U.S. citizens with Haitian, Salvadoran, or Honduran parents who
are losing their T.P.S.
Last week, D.H.S. justi ed the cancellation on the narrowest possible grounds. “The
disruption of living conditions in Honduras from Hurricane Mitch,” the official
statement read, “has decreased to a degree that it should no longer be regarded as
substantial.” Technically, this was accurate, but it was also deceiving. Diplomats,
foreign-policy experts, former ambassadors, and government officials had all warned
the department that cancelling T.P.S. for the Hondurans would undercut U.S. interests
in the region, and that such a move would amount to ignoring the international factors
that shape immigration patterns. One former D.H.S. official called the position “stupid
and mean-spirited”; another told me that it was “pointless.” Everyone agrees that T.P.S.
is a awed policy, but the cancellation struck the officials I spoke with as typical of the
Trump agenda: it made the White House look tough, and it satis ed anti-immigrant
hard-liners, but it was shortsighted and counterproductive. “The decision on T.P.S.
con rms that, when it comes to migrants, the White House is driven by domestic
politics,” Senator Patrick Leahy, of Vermont, told me.
In 2015, in the midst of a humanitarian crisis in which tens of thousands of

unaccompanied minors from Central America showed up at the American border,
seeking asylum, the Obama Administration included Honduras in an initiative called
the Alliance for Prosperity. The initiative was a seven-hundred-and- fty-million-dollar
aid package to the governments of Guatemala, El Salvador, and Honduras, designed to
address the corruption and the crime that are viewed as the root causes of migration.
Leahy, who championed the initiative, told me that D.H.S.’s decision on T.P.S. directly
contradicted years of U.S. thinking about the complex dynamic of governance, crime,
and migration in Central America. He said, “The whole premise has been that our
engagement with these countries, our support for the Alliance for Prosperity, our
signi cant investment are about promoting stability and security and economic
opportunities, in the belief that, over time, it will reduce the incentives for people to
leave.” James Nealon, the Ambassador to Honduras under President Obama and, until
he retired recently, a D.H.S. official under President Trump, told me, “We nally had a
bipartisan consensus in Congress that we needed to invest in Central America and to
9/11/2018
of 7 PageID #: 2938
get at the push factors, the root causes, of immigration. We’re going to set back our
efforts.” Many of the Hondurans won’t have places to live when they return, Leahy told
me, and there is virtually no chance that they’ll nd gainful employment. Sending
them back will also hurt Honduras’s already struggling economy; twenty per cent of the
G.D.P. there comes from remittances sent by immigrants working in this country.
On Wednesday, I spoke with a former Trump Administration official who was involved
in the decision-making on T.P.S. last fall. The official told me, “You had career people
arguing in favor of extending T.P.S. When they sent along their recommendations,
their memos would stop dead in their tracks or get rewritten.” The official blamed one
particular office at the State Department—the policy-planning shop—which Tillerson
had revamped as part of an initiative to streamline the bureaucracy. In the past, the
office functioned as an in-house think tank, offering policy advice to the Secretary;
under Tillerson, it became a centralized decision-making body that further
concentrated in uence at the top of the department hierarchy. Though the idea was to
make the State Department more agile, the effect was often the opposite. “It’s the place
where memos go to languish until they’re O.B.E.—overtaken by events,” a former
State Department official told me. According to a former D.H.S. official, “The gridlock
was a real problem for us when it came to T.P.S. Sometimes we would get reports from
State on country conditions after the Secretary had made her decision.”
Several bureaus at the State Department made recommendations on the T.P.S. issue.
One—called Population, Refugees, and Migration (P.R.M.)—recommended extending
T.P.S.; another—Western Hemisphere Affairs (W.H.A.)—advised against it.
(W.H.A.’s position was a surprise to many, given its support for extending T.P.S. in
previous years.) There were also questions about how many months it should take to
wind down T.P.S. The policy-planning office sided with Western Hemisphere Affairs,
and offered additional context to Tillerson on why it made sense to end the status. One
document that circulated among the various parties made reference to the 2018
midterm elections in the U.S., suggesting that there was a political bene t to cancelling
T.P.S., according to an official who read it. “This was highly irregular, and it was
inappropriate for us to put in a paper,” the official told me. (The State Department
denies that there was any discussion of the 2018 midterms in relation to T.P.S.)
9/11/2018
of 7 PageID #: 2939
The nal decision on T.P.S. ultimately falls to the Secretary of Homeland Security.
Given Nielsen’s closeness to Kelly, there was little surprise when she decided to end the
protections. Under the Trump Administration, D.H.S.—which has a sprawling
portfolio that includes the Coast Guard, , and a cybersecurity division—has
mostly made news for its positions on immigration. In the weeks before Nielsen
cancelled T.P.S. for Hondurans, she had spoken out about a “crisis” at the border,
involving a caravan of fteen hundred Central American migrants travelling north,
through Mexico, to seek asylum in the U.S. A FoxFox News
News broadcast
broadcast brought the
migrants—almost all of whom were Honduran—to the attention of the President, who
immediately began fulminating against U.S. immigration laws. (They were “pathetic”
and riddled with “loopholes,” he said.) Within days, he called for more National Guard
troops to be stationed at the border, and within weeks D.H.S. and the Justice
Department announced a new “zero-tolerance policy” that would criminalize border
crossers and separate families.
VIDEO FROM THE N YORKER
The Immigrants Deported to Death and Violence
9/11/2018
of 7 PageID #: 2940
The President, however, apparently didn’t think that his Administration was doing
enough. On Thursday, the Times reported that Nielsen had considered resigning this
week after Trump berated her in a Cabinet meeting. “Why don’t you have solutions?”
he asked her, according to a subsequent article in the Post . He demanded to know why
migrants were still streaming north, to the border, adding, “We need to shut it down.
We’re closed.”
Jonathan Blitzer is a staff writer at The New Yorker. Read more »
Video
Fleeing Kilauea’s Volcanic Destruction in Hawaii

Local resident Laura Dawn talks about being forced from her home by the volcano’s lava ows and toxic gases.
Exhibit 36
KATHY NUEBEL KOVARIK - 08/03/2018 ·
·1· · · · · · · ·UNITED STATES DISTRICT COURT

·2· · · · · · ·NORTHERN DISTRICT OF CALIFORNIA
·3· · · · · · · · · · · SAN FRANCISCO
·4· ·- - - - - - - - - - - - - - - - -x
·5· · CRISTA RAMOS, et al.,· · · · · :
·6· · · · · · · · · · · Plaintiffs,· :· Case No.
·7· · · · · v.· · · · · · · · · · · ·:· 3:18-cv-1554-
·8· · KIRSTJEN NIELSEN, et al.,· · · :· EMC
·9· · · · · · · · · · · Defendants. :
10· ·- - - - - - - - - - - - - - - - -x
11
12
13· · · · · · · · ·VIDEOTAPED DEPOSITION OF
14· · · · · ·U.S. DEPARTMENT OF HOMELAND SECURITY
15· · · · · By and Through Its Corporate Designee
16· · · · · · · · · ·KATHY NUEBEL KOVARIK
17· · · · · · · · · · ·Washington, D.C.
18· · · · · · · · · Friday, August 3, 2018
19· · · · · · · · · · · · 9:35 a.m.
20
21
22
23· ·Job No.:· LA-185448
24· ·Pages 1 - 289
25· ·Reported By:· Joan V. Cain

1-800-826-0277 www.deposition.com
KATHY NUEBEL KOVARIK - 08/03/2018 Page 69
·1· · · A· · It's myself -- U.S. Citizenship and 11:04:43

·2· ·Immigration Services could be represented by myself, 11:04:48
·3· ·Craig Symons, or Robert Law. 11:04:51
·4· · · Q· · And who else attends? 11:05:03
·5· · · A· · There are officials from the Domestic 11:05:04
·6· ·Policy Council as well as Department of Justice. 11:05:06
·7· · · Q· · Who from the Domestic Policy Council 11:05:08
·8· ·attends? 11:05:11
·9· · · A· · Well, it has varied over time because staff 11:05:11
10· ·come and go, but John Zadrozny, Theo Wold -- 11:05:14
11· · · Q· · Sorry.· Theo Wold? 11:05:20
12· · · A· · Wold, W-O-L-D.· Morgan Hunter.· There's 11:05:22
13· ·been a variety.· I mean, a number of staff. 11:05:32
14· · · Q· · And who from the Department of Justice is 11:05:41
15· ·usually there? 11:05:45
16· · · A· · Dave Whetstone, Chad Mizelle. 11:05:46
17· · · Q· · Mizelle or Yizelle? 11:05:55
18· · · A· · Mizelle.· There are other Department of 11:05:59
19· ·Homeland Security directorates.· I should note that 11:06:13
20· ·the Immigration Customs Enforcement as well as 11:06:15
21· ·Office of Policy within the Department of Homeland 11:06:16
22· ·Security also attends at times.· And potentially the 11:06:18
23· ·Department of State may have a represent- -- 11:06:23
24· ·representative. 11:06:25
25· · · Q· · Mm-hmm.· Does anyone come from the White 11:06:25

KATHY NUEBEL KOVARIK - 08/03/2018 Page 70
·1· ·House besides the Domestic Policy Council? 11:06:28

·2· · · A· · Aside from -- well, Stephen Miller will 11:06:37
·3· ·attend. 11:06:39
·4· · · Q· · Regularly? 11:06:40
·5· · · A· · Pretty regularly. 11:06:44
·6· · · Q· · Anyone else? 11:06:50
·7· · · A· · Not that I can think of.· I think they all 11:06:51
·8· ·work for the Domestic Policy Council. 11:06:54
·9· · · Q· · Okay.· Has TPS ever come up in that White 11:06:56
10· ·House immigration meeting? 11:07:00
11· · · A· · If anything, it's mentioned in passing that 11:07:01
12· ·decisions are coming up, but we don't discuss TPS 11:07:03
13· ·normally.· These are -- 11:07:06
14· · · Q· · Are -- 11:07:11
15· · · A· · These are issues that we discuss with the 11:07:12
16· ·Department of Justice. 11:07:14
17· · · Q· · Sorry.· The issues at the White House -- 11:07:15
18· ·immi- -- at the White House immigration meeting are 11:07:19
19· ·issues that you discuss with Department of Justice 11:07:21
20· ·or you discuss TPS with Department of Justice? 11:07:24
21· · · A· · No.· It's issues normally that involve both 11:07:27
22· ·homeland and the Department of Justice. 11:07:31
23· · · Q· · Okay.· Which of your standing meetings 11:07:33
24· ·would be -- if -- if any of your standing meetings 11:07:44
25· ·would be meetings where TPS was discussed, which 11:07:50

Exhibit 37
MEMORANDUM FOR
MS V :LJS,<\ D < KENNA MS, SARAH H, $ANDS}'?,S

Executive Seeretary Assistant to the President
Department of State and Press Secretary
MS, TASHINA GAUHAR MR, AN DFSW BREMf.H:'.RG
Associate Deputy Attorney Assistant to the Pr~sidetrt
Gent:l'f~ I B.nd DLn:cct:c<r. of the DnmesU.t:
Deptt.ttmtJ,Tt of Ju:stice Fol.icy Coun.c:U.
MR, $C(>'I'T KRAUSE'. MR .. MARC SHOnt

txecutive Secretary A8aistant to the President
De;p;,Htn1l;;nt of i·lomeland Sf.~c~,,r:ity ffind f>Jr.ecto:r of Le9itilative
;t,.ffa .i.r8
GEN <HJHN F', KELLY, U ;'$NC {RET}
Assistant to the President MR, SOHN E1Sf:NB8RG
and Chief of Staff DE":puty Assistant to the
President and Deputy
Mf;, KIHSTJtN NIELSEN Counsel to the President
Assistant to the President
and Principal Deputy Chief of
St,~ff
Pt inc:i pa Ls Sma.l 1 Gu:mp Mi:1r,,t in;; on Ten1p,.>ra ry

Protected Status
There will b~ -r) P:r.i.nc;.t.p1:d.s [,rm~Ll G.rmip me~ting or:, TempotJn:y

Prcte<:oted St.ate!'!: on f.i:J.tia'/; November 3 1 2017, from 9~1~ 10:00
a.m. in the White House Situation Room. An agenda is attached
;':lt Tab A, A dJt,ccrnsion pape1' i~~ {~ttached ;H T;,~b B, Pl-<11iii£U:!H1!1> p~~~
t.h~ ,~J:;:.ta~h$d t~ ~l:"inoi.p>itl~, Lf: ycru. b:1v1~ .any que6,t iorw; plea~,e
corrtact Scott Oudkirk at {202) 456~1056.
L\.""t~.... \ le,. f.~:t:::- ~~,.~

o/,
'
'
LTG {Het) ,J, Ki,dth Kl~llo-gq
Executi VG: Sec:n,1tary t1W.i Chief of Staff
National Security Council
OPP _00003566
OPP _00003567
1\.i.b .A Agend,;,.
T~b H Disc1..1s:s:l.on Paper on Teittpo:t~lry P.n)teeted s tt1tus {HBC)
OPP _00003568
OPP _00003569
OPP _00003570
OPP _00003571
004034
1\ESTRrC1'2:D PRINCIPALS COMMIT'I'EE: MEE'I'ING

ON TEMPORARY l?ROT8CTED S'l'ATUS
DATE:~ Nov,:rrnber 3, 2017

LOCATION; Whitr:t Hotw:i-3 Situation Room
TIME; 9:15-JG:GO A.M
OPP _00003572
OPP _00003573
OPP _00003574
OPP _00003575
(l04034
Tt~ wotdhtt'lle the condit.km~ and prnce~s for termirmrlng ten:<!J}!1tary prDwci:i;;<l stl'it\l'3 {TPS) for
alhn:w ft(Hs:1 E1 Salvador, 1-fotuittn:rn, Nkar.ii:gu~; and H~it~, The /\(;tfo.g s~ctet~ry of HDmthrncl
s~'.tu:dty mum x:m1,ti a :dedgh.1n by l'vfo11day, Novernber 6, 201 't
TI)S, legislated hy (\}ngreI~$ its 1990 as Sticti.on 244 of the h1nrrigtatit1n ar1tl Natkmality Act
ONA), wai; designed RS ti l:u:m:u.1.nhatim:1 R~sponJJ<e too1 to ihdt(::r aHen:s pre~ent ln the Unht:tl SHttes
ivho~ c0untri0ll ~uffor fmm. elthet t'ln ongcfog armoo t'0:t1flk:t or tr.amnii JL~a:.">it'.'.L Although tlw
JNA :stipufate:s that TPS be kmpzmrry, in Us{~ t~ases of thel.<lt four conntties:, iurx~(::Sl:;ive
admi11fatratkms have ft)till:ndy <1:xt~:ndRid k TPS, ahh•ugh not providing a durablt\ kga:1 ;3mtn!i in
the Unit~d Sta:t~s, :uHows lts htt~efk:iarits m @liiin w:otk rmthool'~t.ion ~nd oth•tn,.'ise Jive folly
intt:gtated livts t~re< Ovt'T tht .tOl..H"$f: of tiK~ bent"fk:iarhi:,s' many yearn 1-ef!idiri.g in the
Unht"d StaHit., nwny have had tLS, ddzen childr.tm und •ts~hlished extes:wi-vt tfos to their loc~l.
i:::twtrmunit.ies.
Nh1e t,mi11trie~ are designated for TPS :md i.lPPto'JdmaR~iy 415,000 in,frvkhm.b ben~fiL Tht: tot.111
ni.tnJber ofhendfoiaikt .fbr the tbur wtmtrfos undtr immedi~tt con~ldeti'lti0n is approxim.atdy
4! 3,50D people m· 95 percent of iJI TPS ~~tfida:d 11,n~ h-1 th1;; Vnited Stai'~i« (Tab i\). Ho11d~1r&il
:md ]Vkanl@~ re<:e1v~d JPS dtsigmi.tlon h1 l.999 lll:,9 .fa result t)fHiJrr:k~w Mitch. mSt1tvad(lf u,nd
Haid received tht-fr ,ki~Jgt~atio11 ln 2001 ~mi :m1D, r~sr~ctlvdy uftf:T eruthqtltik~. Although iii.
{ktd$km, on mSal.v~di..1r l~ not requirrd tmtH Jar1u~ry, the Acting Setretruy of :Homd~d St'.'.t'}Urity
imi:ind::. iii 'haudle ~n three Ce:ntmI ltrnt'!dc,1r, coimtrfo,:::. 1i<irrn1Jtan.e1JL.1SJy in light of thdr shated
geo:gi~phy and tht simHw pru.:fo:::rtk$. The de~dii:nt for;~ dt::tem1fm1tk:ii1 on H.~1ti\, T?S fa on
N•V(~mbet 23, 2017, 1!1Upportlng ,1 t,a&e for :%etting a unHkd. ()(SLttli.e oflildinn for all four ct:nJnti103
s1rtm.H:fil'H:<;•utly,
!NA s~~tkm 244(h}(3J{A) requires the Arfrng tk:cNt~y of HomdM:d S.:~~unty w.i dettrrd.ne 60
rusys befow tht ~xpimdon nf a country's n~s ptn-incl of dt'.sigriatkm '\.\ fattl'K'.r to exwnd ot
1
ttirm.h1at~ the sMitus ba,,wd on an r,,mJmrtkm of the conditions that inltiiUy wantu:ite:d gnurdng
TPS, Tlw Depru1n1ent t1f ffomehmd Security (DHS) tt)ndrn;t."> ft.,. <iwn lilS~e&s:ment flf c-t)t:mtty
t.ondltfo~s:, but th~ law tho .rtxit:r.it<ts txm~mt~tkm with trpproptfate tl,g~t:acie;~, vihich for TPS hHs
t;Hii.tomari1y tNmltetl in the Set:retll.r;? t.lf Statt prnvidlng ru1 i?AS£0ts11u?nt £Uttl rett)t:titr1t:'.rH'1~tion.
Th<tl Acting S<.,~retmy nf Ht,tt1eland Scci.:1tity .fa not obHgeJ to ,:nnt:ur wlth thi:: Bct."t:retaty of Sti<!lte ~:s
rt':Ctm:m:1t:ndetion£< but ~)ften dt"1>ec1L Fxte11sfous may be. tbr a ptrdnd nt)! less frm,n six mnmhs and
.not rnom than 1g 1rwntn§.,
OPP _00003576
OPP _00003577
2
Irt additfrm h) the optk,n tJfti;;rn-i.lnatlng or ~xte.ncling TPS, them are two oth(:t po~si.bUlti~s,
Tht INA ~!10<.v:3 a t1f;<;c.,d~~ignatkm w.hkh CM. rcdefin~ thf.: rafo::inal,r,;'. fi..,r the dtsigru~tlm1 hm,ed on
1
ch.l~:ngw hut ;3tff! extratrrdnary' and temptH"fttf ttmdh.fons i~ the ft}tctgn sui,tr. or red~fin~~ whl.ch
aliN1$ pre~ent iu the Unlttd State~ are eligi.hfo h-> benefit INA Srction 244(b)(})(C) aho ~nnit~
th~ Set:n~tID)' r:rf}itz)mt<:l~nd S~cudty not 1n rn~t a deterrnh:wtfo'i\ s.vhkh W{)ti1d t:i.uwrnaticaHy
txtend TPS .for ~h:~nH.mths or, Jt her dlscttl:ksti, t\P b 18 mt)rtths,
In the castes of Et Salv~cior, Hom:fo.rM; Ni4:.;WJ.:igu.'l,, aoo Haiti, the k'.mporacy conditlons that fil"•S:t
out ofn.aturm dil8m.ter.s tmd suppm'Wd 'f:PS i:ksignru:ir:ms lU1ve kJ!rtg i:;ea~ed to exbt Th~i S,1;;:Ct$.itary
of St~te -<'15:l,t~St!d that c,~r1ditkms in all four ci)H.utrits no !m:iget snpport T.PS de~igt1atk.ms and
ncx£rmrneuded tem1iti.£'it:l•trn with an i;:ff~dlvt dfltc i 8 rnt)nth:iii htter to aHi:.)•,N aff<l~i::ttil p.anles: to
~rm,g~ for :ar1 orderly ~xlt and rt:htttL lN A S~ifori 244(d) (:f} perrrait:$ tht Acting Si%>rntary of
lfr:it11eb:nd Security to dday the ~ffe<:tlve dme t\ftertti.h)mkin to ptQv1dt ftJt ru:i {)tdedy tram~ition
f:¢dcd for l:~~1i;1fi.;imt:::;. Tht~ t\{;':ting Secr~t.ary of'Hctndru1d Secudty mok that appto.$(;il when
5ht:: tt<:r:f11ina:kd T'.PS for Sudi~:n in Sq1ttmlwr 2tJl 7 wW1 an t11~frv~ diHe in Novemh,ey 10t {L
Ti::rtri.i.nat{'.: wlt:h ~ trntt;tiv:e <li!tr of Ja.nlifil'y 5, 2019 arid tngage Co.nw-es§ to pass £1.
t.:t1mpreh~.nsive h11tu1gratfon refbrn:1 ti.1 h'rdude -~- mtdt h~ed ~ntty system. A l? trin.nth dday in
the t.::ffti;tlvt,,, t~nri.inatktn dat~ W{JUkl alhJs.v for an ord~rly tra:.nshfort period for hen~f!darit:s.
Mo:l'\~W'>'t~r, U would alhsw Cl)rtg,ntft~ frrm;, tt) ilt't iill:d to f~ctot the fot~ of TP:S bert-efk:i&des irttt1
kighltitkm, Whifo trtl?k.7}' TPS hier~d'ida:ries r.rmy u-0t quafrfy for legal ~tl":!ltrn m1d~t ~ n'it:rh h~ed
1iY~t~m, Ctmgrt-sfll r.ou:ld ttae11 akerm.ative$ to wkJW m~ruheIB of frtfa g,rou_p to t\;~rru:ain. 17he:
Arlminhttatb~ couk1 tdgrml its supP41rt fot ~uch II rt:!.,nhitir.lta provid~d Ct1ngm!is e11att needed
lramign~Hnn refunns,
:Exwndfog TPS fi)t ~:ny tJr aB of th~ four cotm:tderii \o,inuld prol-0ng the dfotor1fon betwl;1en lhe
temr¼trtrry pmw{;'.Hn<M that TPS w;11s: t.k:~lgn{~d to provide. $nd ui:rrent dtcumstanMs, rt ,v'tn.11d
ruso fongtli~'n the period during which benrfida:rl~s wnu.ld dt:e:pen their ,;~nru1ecdon5J to fhe
United States, m&kinJl, any fature n,~olutioi1 of thdJ· gt:atus it.a dw Uni.to0cl States trn..1:ti;": compHcated,
an
Rtde;,;:ignt;1tfoJ1 ls i1ot ij vlabl~ optkl-cu b0l.:'.m1se the chi1kmJwfi fnu.r countde$ far.,~ ~i.re k)flg4i"'ttt"I
politk.f.ai, ,~em.rrity, tlnd t:e•rkomk: dd'idt:tr1dtt .:,md *ste ~ititdatro tn ongohi_g u:nn~d nmHkt or
nauirn) dfaa.~ten:.
A ITACHwrnNT
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OPP _00003580
OPP _00003581
Exhibit 38
Exhibit 39
Exhibit 40
•Mor 29 18. 08 13a Owke!Hanson Ll 1
Pursuant to the relevant provis.ons of the Immigration and Nationarty Act pertaining to
Temporary Protected Status determination, l have reviewed information regarding the country
conditions in El Salvador, Honduras, and Nicaragua. I have reviewed this information for
determining whether the statutory criteria for the designation of Guatemala under 8 U.5.C.
§l25'4a(b) continue to be met. At tilts time, despite recei\/)ng a reporting from a broad
spectrum of sources, I do not have all the necessary information to make this determination in
an aJ)propriat ely deliberative manner prior to the time specified in a U.S.C. §1254a(b)i3)(A). I
have concluded that additional time is necessary for me to gather further information and
further e1taluate it to make the determinatioo whether the countrv conditions continue or ha11e
been restored ta the extent they ability of the countries to adequately handie the retum of
their nationals. Based oo this conclusion, and under operation of & U.SC. §1254aibH3hC), the
period of designation for EJ Sal'Jador and Honduras !and maybe Nicoragua, or end Nir::aro!J4)a
since ;wputation ,sonly 5,349, and the OoS memo srores ther can take their cittzens back) will
be exterded for an additionaf period of 6 months.
I will review the country conditions of these countries during the extension period and, if
country conditions no longer warrant a continued designation, 1INi:H terminate the designation.
I will approach this review and .,ccompanying decision witr, the understanding that any
terminations of country designations are to be accomplished in a marnerdesigned to provid.e
for {l) the best interests of the United States, considering TPS in the full array of, mmigration,
transnational criminal organization, gar>g, and dr1;g reduction {2) an ordediy transition {3) the
equities of the indh,1idua!s and their home countr,e, in preparing to return the TPS participants
after such !ong p-eriodtyf tire·:
The TPS program

Il Iror
mus, f"d
timing for the term in a tn
I a
\'! :
:;eti countries so
jWra1 the Li mted
,l(,m unclear what the appropriatE
fhould do to help the countries and
the TPS individuals pre pre
r ~ trmiration. W dto ensure the proper analysis arid
plan is in place with th 1e c n
.' '
~~hefore term in ~ provide the best situation for our
overall immigration, T
terminate in 18 mont
completion of analysis
I
d a
'g ,nforcement a
jnfnded by Depa
~ for that decisi
lf iThis conclusion aitO'Ns me to
~f State, but also alo"" fo, , he
11 ~
i•fUlt tf ~ te
.I ;
s ;
This conclusion is the 111e i erica first TPS decision. r received multiple
inputs from various so ~es13nd[iam 4 if unable to co ending T?S at this time is
appropriate. as the ab 'iv ojth~Mountries to conti i partner
. ~
with USA on key initiatives,
and their abiiity to ass1Hi!atf th~teturning TPS ind I~, could actually hirderourcurrent
rn ,. .
'
~ ~,~
immigration and drug fftorfem~pt agenda.

'.~ ~: I ;;i : ~!
I received a report frort,lthe beJhi;nent of State t -~ ;conditions a.f the cauntr,. That
report stated that the ~~igi~! naiuraf disaster can However, each
~c ~ ~
cmi F DENTIAL/Nom RNt-~w r, FqRCEM Hff~ srnsmvl:;;:
OPP _00003582
country I-as discret1or-.arv factors that ('.>ntribute to a term nat :)r decisio1. Mcst notably, :"le
Depar1ment of State reccmniendat1on slates that r-,~it1er El S;:ih,ador er Hor.duras have the
rnrrent caoacity to accept and assimilate tie TPS individuab bJ::.k into t•,e co-1n-'.. ry without
major disruption. \Expand this f•o,i DoS memo. and t"lis is. ~:ey to vvhether we also extend
Ni::aragua ::ieca:J<.t> it is (Hfrrer:t fro!7 the mter :... c - it can accept).
! also recehted a recommendation from the N,Eionai Securitv Cm.ncif en Novtcm ber 3, 2017 to
te·mwate with an effecti·,1e date of JMLar·,- s. 2019 ,me engage Congress to p2~s a
compre'ler.sive ,rrmigration ~efcrm tc nclude r:-ien: baseo entry svstem. v'Jith the time of this
memo and the requirement for a decision l:y NovPmber 6. I have not hac tht! cpportun,ty to
oiscJs~ 1,e ~it based immigratior entry ·.vit 1 the Congress, and eet :his kev stake':O rter , input
on thE +e2sibil1ty oft'l1s propnsal znd the timeh,me in wh\cr1 it wet.Id take to implernen,.
Add1t1,1rE1Hy, I received a reoort -'rom the :)US GHic~ of ;)o'.icy which raises irnpor.2r.t ;ore1gr
pcl.cy consice.-stions. It raises .;al,d qu;astiors on :he overa:t ,"'l!""i gration and c,ug
enforcenent picture, and '.r.-hethe~ 1m ,edia:e icticn or TPS n these countries fu:ners the
United $:ates agenda or. thG!se key Amenc.2 first issues. or will impose further ~ha!iengt:,- in our
irrm,wat,on, transr:ationa organized crime. and dr..1g recuct;ori rit zt,ve;
:-iov,Ner, there are urique drcJrrstarn::e5 •e atej to the!>E TPS. des1gnatiof)~ Honcuras and
Mcar agua ~eceived TPS design:,tion in J 9<; 9 as a re suit of Hurricane Mite, and fl ",atvadcr
received its designation in 2001 and 2010, respectively after earthavakes. Additlonaliv, Et
Salvado• i:;reviousl)' recei'l.'E-d TPS s.tatus in 1990 d,rn to 1ts c,vd war. whtil !ed into the ;ernnc
Tf>S ::fes;gnation The United State~ go-..ernment ,as allowed these TPS persors to stay u'"lder
temporary st.atu.i for 19 y,ears in the case of Hc,n:bras .. nd Nicaragt;.a, 16 vear•; for £! Salvador
The extreme fength that these oersoris have ia,vfut 1y $t.:Jyed rn t'1,s co1..rtrl de:m;;~c a ~"1el .•
plann~c ::iath for tf-e-ir removal from TPS s:atuso Thi! ~,le o' pcp1.;laticn u:1:Jer T::is - 263,282 for
El Salva:::or, B6,:o3 for Hcrdu•i.'ls, and S,329 fer l'J,caragua make the repatriation proce~~
plann ng essent1a!. One op:ion hi for Canf,1ess to pass leghlation :o provide a path :or eli;iblt>
persons, c,thcr thln return to, their count"✓ after establ shing .'ttai h:es in the J"it~d State<,, .
.t..iternatiwl;, the United States should work witn these courtries to plan for tt-eir citizen:,,'
~etu~n. lfthat i:·a"n1ng is not c.or,e, there cculd be a su~ge in iHega! irrm'grdticr ta::k to tre
...:rded States.
This week l rece:ved l"'lutiple procucts prl"pared OJ' experts tha: stated valid ccncerns related to
tr:e te-rmina,ion cf rrs. l received lriteiligerce and Anc:1ly5is repor~:11g that t"ie inplications ro~
fPS el<pirin15 for benefi:iar, fr::Jrn (I Sai-.13dor. HondJras; i-iati .ind Nicaragua ll'lOu:C ,ave i;igh
rates cf re~ur,; i!lega.: rr:igraticn if TPS is erided.
cmr1S:PffA:./NOfORN/LA\\I El\::CRCEM~Nl Sf.NSlTlVE:
OPP _00003583
.!\ddrt1anaily, a C3P
ln~clligence Note ~tated that ti"le termination of r:is for rla'ti, Hc:odt.ras, or El Sah,adcr v.,,I1 l:~etv
cause a!l increase in ri,grants c--ossing ;!fegac\y from the Ur'ted Seate,; to C;i,;ada and crzirnir.g
refugee stntus Another r<a!port from the Department of State stated t:~.at Ceritr.:il Amer.cans
Sti:1 want to Set"'.d ther chi!dreri nor:h. and tre tne ea~ly 2017 drop in ili;ct fT'i grat1o'l •1✓as Hi<ely
temporary. A second Department ::,f S:ate repor::s iafs that e,onomic factors in these
ccunt,.ies drive illeg.JI ,mmrgration anc! t"'at conr,ections with He:ga! immtgrant~ a1reJdy ir t~e
Unitec S:ates pro·Jde .idd,tia~,aJ incentive. T?S t;'.),'ilever prn,vic'c$ -io 2dct,ticna! mcenti.tr for
people to migrate to th(! United States. ~ince W'S persoos are f!.l!ly assfm :lated 2nd have few
n:,rrH? col.ntq, ties. These prcducts indicate that ;;n end to 7:,5 at thi:,, time rray inue2se dlega
·rrrrigration. \.V th Congress w:i-rking en a soluti:;r- tc dose the nany loopholes ir. our
mmigration system,. il may be most .aclilsabfe to end TPS. in ron11.mction with :hose kgisbttve
fo.e~ to avoid a surge m immigration with ~he c,1rr!t'nt inccii"plete ~~ito: of irnrrugra:ion
enforcement tools to addrs'.!ss it.
OPP _00003584
Exhibit 41
Exhibit 42
Exhibit 43
Exhibit 44
Exhibit 45
9/14/2018
Case Acting Secretary Elaine
1:18-cv-01599-WFK-ST Duke Announcement
Document 62-45On Filed
10/09/18 Page For Haiti
2 of| Homeland
3 PageID Security
#: 2995
Official website of the Department of Homeland Security
U.S. Department of Enter Search Term
Homeland Security On DHS.gov
Acting Secretary Elaine Duke

Announcement On Temporary
Protected Status For Haiti
Release Date: November 20, 2017
For Immediate Release

Office of the Press Secretary
Contact: 202-282-8010
WASHINGTON— Today, Acting Secretary of Homeland Security Elaine Duke announced her
decision to terminate the Temporary Protected Status (TPS) designation for Haiti with a
delayed effective date of 18 months to allow for an orderly transition before the designation
terminates on July 22, 2019. This decision follows then-Secretary Kelly’s announcement in
May 2017 that Haiti had made considerable progress, and that the country’s designation will
likely not be extended past six months.
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, including recommendations received as part of
an inter-agency consultation process, Acting 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.
Acting Secretary Duke met with Haitian Foreign Minister Antonio Rodrigue and Haitian
Ambassador to the United States Paul Altidor recently in Washington to discuss the issue.
In 2017 alone, U.S. Citizenship and Immigration Services conducted extensive outreach to the
Haitian communities throughout the country. These include but are not limited to community
forums on TPS, panel discussions with Haitian community organizers, stakeholder
teleconferences, regular meetings with TPS beneficiaries, news releases to the Haitian
https://www.dhs.gov/news/2017/11/20/acting-secretary-elaine-duke-announcement-temporary-protected-status-haiti 1/2
9/14/2018
Case Acting Secretary Elaine
1:18-cv-01599-WFK-ST Duke Announcement
Document 62-45On Filed
10/09/18 Page For Haiti
3 of| Homeland
3 PageID Security
#: 2996
community, meetings with Haitian government officials, meetings at local churches, and
listening sessions.
Since the 2010 earthquake, the number of displaced people in Haiti has decreased by 97
percent. Significant steps have been taken to improve the stability and quality of life for
Haitian citizens, and Haiti is able to safely receive traditional levels of returned citizens. Haiti
has also demonstrated a commitment to adequately prepare for when the country’s TPS
designation is terminated.
In May 2017, then-Secretary Kelly announced a limited extension for Haiti’s TPS designation,
stating that he believed there were indications that Haiti – if its recovery from the 2010
earthquake continued at pace – may not warrant further TPS extension past January 2018. At
the time, then-Secretary Kelly stated that his six-month extension should give Haitian TPS
recipients living in the United States time to attain travel documents and make other
necessary arrangements for their ultimate departure from the United States, and should also
provide the Haitian government with the time it needs to prepare for the future repatriation of
all current TPS recipients.
To allow for an orderly transition, the effective date of the termination of TPS for Haiti will be
delayed 18 months. This will provide time for individuals with TPS to arrange for their
departure or to seek an alternative lawful immigration status in the United States, if eligible. It
will also provide time for Haiti to prepare for the return and reintegration of their citizens.
During this timeframe, USCIS will work with the State Department, other DHS components
and the Government of Haiti to help educate relevant stakeholders and facilitate an orderly
transition.
Haitians with TPS will be required to reapply for Employment Authorization Documents in
order to legally work in the United States until the end of the respective termination or
extension periods. Further details about this termination for TPS will appear in a Federal
Register notice.
###
Topics: Citizenship and Immigration Services (/topics/immigration-and-citizenship-services) , Citizenship and Immigration

Services Ombudsman (/topics/citizenship-and-immigration-services-ombudsman)
Keywords: Haiti (/keywords/haiti) , USCIS (/keywords/uscis)
Last Published Date: July 17, 2018
https://www.dhs.gov/news/2017/11/20/acting-secretary-elaine-duke-announcement-temporary-protected-status-haiti 2/2
Exhibit 46
Exhibit 47
Exhibit 48
EXPLICIT BIAS
NORTHWESTERN UNIVERSITY LAW REVIEW
(forthcoming, Volume 113)
Jessica A. Clarke*
In recent decades, legal scholars have advanced sophisticated mod-
els for understanding prejudice and discrimination, drawing on disci-
plines such as psychology, sociology, and economics. These models ex-
plain how inequality is implicit in cognition and seamlessly woven into
social structures. And yet, obvious, explicit, and overt forms of bias have
not gone away. The law does not need empirical methods to identify bias
when it is marching down the street in Nazi regalia, hurling misogynist
invective, or trading in anti-Muslim stereotypes. Official acceptance of
such prejudices may be uniquely harmful in normalizing discrimination.
But surprisingly, many discrimination cases ignore explicit bias. Courts
have refused to consider evidence of biased statements by government
officials in cases alleging, for example, that facially neutral laws were
enacted for the express purpose of singling out Muslims. Courts outright
ignore explicit bias when they consider intentional discrimination to be
justified by goals such as law enforcement. And courts have developed a
“stray remarks doctrine” in employment discrimination cases to prevent
juries from hearing evidence of explicit bias. This Article identifies and
criticizes legal arguments against consideration of explicit bias, includ-
ing concern about the feasibility of inquiries into intent, worry about un-
dermining otherwise legitimate policies, the desire to avoid chilling ef-
fects on free speech, and fear that confronting explicit bias will result in
backlash. It argues that discrimination law should dispense with doc-
trines that shield explicit bias from consideration.
*
Professor of Law, Vanderbilt University Law School. Thanks to Mary Anne Case, Katie Eyer,
Jill Hasday, Aziz Huq, Neha Jain, Daniel Morales, Rebecca Morrow, Bethany Davis Noll, David Noll,
Hari Osofsky, Naomi Schoenbaum, Margo Schlanger, David Super, Alan Rozenshtein, Andrew Ver-
stein, the faculty at Vanderbilt Law School, and attendees at the Harvard-Yale-Stanford Junior Faculty
Forum for their advice on this project. I am grateful to Claire Williams for superb research assistance
and editorial advice.
DRAFT DATE JULY 14, 2018

(jessica.clarke@vanderbilt.edu)
If you would like to cite this article, please contact me for the latest version.
Electronic copy available at: https://ssrn.com/abstract=3213998

INTRODUCTION ...................................................................................... 2
I. HARMS OF EXPLICIT BIAS .............................................................. 9
A. Definitions and Scope ............................................................... 9
B. Expressive and Material Harms .............................................. 12
C. Undermining Antidiscrimination Norms .................................. 14
II. HOW COURTS OVERLOOK EXPLICIT BIAS ..................................... 19
A. Constitutional Law .................................................................. 20
1. Facial Neutrality .............................................................. 20
2. Rationalized Bias............................................................. 26
B. Title VII Doctrine .................................................................... 34
III. LEGAL ARGUMENTS FOR DISREGARDING EXPLICIT BIAS .............. 41
A. Interpretive Difficulties ........................................................... 42
1. Mindreading .................................................................... 42
2. Cheap Talk and Pandering ............................................... 45
3. Groups and Mixed Motives.............................................. 50
B. Remedial Problems ................................................................. 54
1. Taint and Lock-In ............................................................ 54
2. Whitewashing.................................................................. 59
3. Institutional Competence ................................................. 63
C. Conflicting First Amendment Rights ........................................ 64
D. Prudential Concerns ............................................................... 71
IV. RECOGNIZING EXPLICIT BIAS ....................................................... 76
CONCLUSION ....................................................................................... 78
INTRODUCTION
White supremacy1 and misogyny2 have once again revealed them-

selves as potent forces in American social life. Political scientists discuss
1
See, e.g., S.J. Res. 49, 115th Cong. (2017) (joint resolution of Congress acknowledging the
“growing prevalence” of “hate groups that espouse racism, extremism, xenophobia, anti-Semitism,
and White supremacy”).
2
See, e.g., KATE MANNE, DOWN GIRL: THE LOGIC OF MISOGYNY 204 (2017) (recounting nu-
merous recent examples of explicit misogyny and explaining how it is excused as “locker room talk,”
among other things); Corinne A. Moss-Racusin et al., Can Evidence Impact Attitudes? Public Reac-
tions to Evidence of Gender Bias in STEM Fields, 39 PSYCHOL. WOMEN Q. 194, 198 (2015) (analyz-
ing 831 internet comments in response to an article on gender bias and finding 433 negative comments,
including many expressing overt sexism); Justin Wolfers, Evidence of a Toxic Environment for Women
in Economics, N.Y. TIMES (Aug. 18, 2017), https://www.nytimes.com/2017/08/18/upshot/evidence-
of-a-toxic-environment-for-women-in-economics.html (discussing Harvard doctoral candidate Alice
Wu’s award-winning senior thesis documenting overt misogyny in anonymous online comments about
DRAFT DATE JULY 14, 2018

(jessica.clarke@vanderbilt.edu)
If you would like to cite this article, please contact me for the latest version.

7/14/2018] Explicit Bias 3
the return of “old-fashioned racism.”3 Social psychologists document the

persistence of blatant racism and dehumanization of Muslims.4 Econo-
mists describe the increasing social acceptability of racist xenophobia.5
Sociologists demonstrate how overt racism and sexism continue to drive
workplace inequality.6 During his campaign, President Donald Trump
made no secret about his plan to enact a “Muslim ban” in immigration,
explaining, “I think Islam hates us.”7 For those committed to antidiscrim-
ination, explicit evidence of bias was supposed to have an upside: it would
render discrimination easy to identify and address.8 But this is not always
so. This Article identifies and criticizes cases in which courts overlook
women seeking academic jobs in economics); #metoo, TWITTER.COM, https://twitter.com/hashtag/me-

too (collecting individual revelations of sexual assault and harassment).
3
See, e.g., Michael Tesler, The Return of Old-Fashioned Racism to White Americans’ Partisan
Preferences in the Early Obama Era, 75 J. POL. 110, 111 (2013) (describing theory and empirical
evidence that “indicate that Barack Obama’s association with the Democratic Party has . . . made [old-
fashioned racism] a significant factor in white Americans’ partisan preferences after decades of qui-
escence”); Nicholas A. Valentino et al., The Changing Norms of Racial Political Rhetoric and the End
of Racial Priming, 80 J. POL. (forthcoming 2018) (manuscript at 2) (discussing evidence from nation-
ally representative surveys demonstrating that, “[w]hereas explicit racial rhetoric once seemed aver-
sive to large swaths of American society, such messages are no longer as widely rejected”).
4
See, e.g., Jordan R. Axt, The Best Way to Measure Explicit Attitudes Is to Ask About Them,
SOC. PSYCHOL. & PERSONALITY SCI. (forthcoming 2017) (manuscript at 8) (in a non-representative
online sample of 800,000 people, 28% reported explicit racial preferences in favor of white people);
Patrick S. Forscher et al., The Motivation to Express Prejudice, 109 J. PERSONALITY & SOC. PSYCHOL.
791 (2015), data at https://osf.io/fb597/, item impb3 (reporting that 21.5% of a sample of undergrad-
uates either agreed or was neutral with respect to the statement “Avoiding interactions with Blacks is
important to my self-concept”); Nour Kteily et al., The Ascent of Man: Theoretical and Empirical
Evidence for Blatant Dehumanization, 65 J. PERSONALITY & SOC. PSYCHOL. 910, tbl. 1 (2015) (re-
porting that U.S. online survey participants considered Arabs and Muslims less “evolved” than Amer-
icans, by an average of 10 to 14 points, on a scale of 1 to 100).
5
See Leonardo Bursztyn et al., From Extreme to Mainstream: How Social Norms Unravel 14
(Nat’l Bureau of Econ. Research, Working Paper No. 23415, 2017), http://www.nber.org/pa-
pers/w23415 (discussing experimental evidence that the election of President Donald Trump made
online survey participants more willing to openly donate to an organization whose founder advocated
“a European-American majority”).
6
See, e.g., ELLEN BERREY ET AL., RIGHTS ON TRIAL: HOW WORKPLACE DISCRIMINATION LAW
PERPETUATES INEQUALITY xiii (2017) (prefacing their empirical study of employment discrimination
cases with the exhortation that “[m]uch of this book is an argument that—in addition to the less visible
mechanisms that produce workplace discrimination and inequality—overt racism, sexism, ableism,
and ageism must remain part of the scholarly and activist agenda”); Devah Pager & Bruce Western,
Identifying Discrimination at Work: The Use of Field Experiments, 68 J. SOC . ISSUES 221, 229 (2012)
(discussing follow-up interviews of employers after an audit study revealed they were less willing to
hire black testers, in which “the plurality of employers we spoke with, when considering Black men
independent of their own workplace, characterized this group according to three common tropes: as
lazy or having a poor work ethic; threatening or criminal; or possessing an inappropriate style or de-
meanor”). Even the author of the book Racism Without Racists acknowledges the resurgence of “overt
racism.” EDUARDO BONILLA-SILVA, RACISM WITHOUT RACISTS: COLOR-BLIND RACISM AND THE
PERSISTENCE OF RACIAL INEQUALITY IN AMERICA 223 (5th ed. 2017).
7
Anderson Cooper 360 Degrees: Exclusive Interview with Donald Trump (CNN television
broadcast Mar. 9, 2016, 8:00 PM ET) (transcript available at https://goo.gl/y7s2kQ).
8
See, e.g., Valentino et al., supra note 3, at 4 (describing and disputing the “standard model” of
racial priming, which predicts that when racial arguments are made explicitly, people will reject them
and their impact will be diminished).

4 CLARKE [7/14/2018
explicit bias. It argues that explicit bias poses a unique threat to antidis-
crimination norms. Doctrines that would shield evidence of explicit bias
from consideration in discrimination cases should be rejected.
Over the past few decades, legal scholarship on discrimination has
turned its attention away from explicit bias, focusing instead on the subtle
and complicated ways that bias is expressed. Legal scholars have docu-
mented how implicit attitudes, which operate outside of conscious control,
predict discrimination based on race, gender, and other group statuses.9
Arguing that “smoking gun” evidence of discrimination is largely a thing
of the past, scholars have described how inequality is baked into structures
of interaction in workplaces, schools, housing markets, and other domains
of social life.10 They have offered new economic models for understanding
the persistence of inequality.11 They have proposed new legal rules, such
as negligence and recklessness, to replace the law’s fixation with discrim-
inatory intent.12 Scholarly debates over the validity of these “second gen-
eration” models for understanding discrimination and their utility for com-
bating inequality could fill libraries.13
9
See, e.g., Anthony G. Greenwald & Linda Hamilton Krieger, Implicit Bias: Scientific Founda-
tions, 94 CAL. L. REV. 945, 946 (2006) (discussing evidence that “suggests that actors do not always
have conscious, intentional control over the processes of social perception, impression formation, and
judgment that motivate their actions” and its implications for discrimination law).
10
See, e.g., Susan Sturm, Second Generation Employment Discrimination: A Structural Ap-
proach, 101 COLUM. L. REV. 458, 458 (2001) (“Cognitive bias, structures of decisionmaking, and
patterns of interaction have replaced deliberate racism and sexism as the frontier of much continued
inequality.”).
11
See, e.g., Richard R.W. Brooks, The Banality of Racial Inequality, 124 YALE L.J. 2626, 2629
(2015) (reviewing DARIA ROITHMAYR, REPRODUCING RACISM: HOW EVERYDAY CHOICES LOCK IN
WHITE ADVANTAGE (2014)) (discussing the claim that even if racist attitudes were eliminated, black
Americans would remain locked in a cycle of disadvantage because white families and social networks
perpetuate racial privilege “through a set of seemingly innocuous, if not laudable, choices people take
pride in making, such as referring a friend to a job or helping a child pay for college or a down payment
on a home”).
12
For recent examples, see, e.g., Stephanie Bornstein, Reckless Discrimination, 105 CALIF. L.
REV. 1055 (2017) (proposing a recklessness standard); Leora F. Eisenstadt & Jeffrey R. Boles, Intent
and Liability in Employment Discrimination, 53 AM. BUS. L.J. 607 (2016) (proposing a liability
scheme modeled on the criminal law’s approach to differing standards of culpability).
13
For example, a Westlaw search of the “Law Reviews & Journals” library for the term “implicit
bias” yields 2,330 results as of the date of this writing. The overwhelming majority of legal scholarship
embraces implicit bias research, but there are a few critics. See, e.g., JONATHAN KAHN, RACE ON THE
BRAIN: WHAT IMPLICIT BIAS GETS WRONG ABOUT THE STRUGGLE FOR RACIAL JUSTICE 18 (2017)
(arguing that scientific innovations are limited in their ability to advance racial justice); Samuel R.
Bagenstos, Implicit Bias’s Failure, BERKELEY J. EMP. & LAB. L. (forthcoming 2018) (manuscript at
1), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3015031 (arguing that implicit bias has failed
in its political aims of depersonalizing and depoliticizing discrimination); Ralph Richard Banks &
Richard Thompson Ford, (How) Does Unconscious Bias Matter?: Law, Politics, and Racial Inequal-
ity, 58 EMORY L.J. 1053, 1095 (2009) (arguing that “unconscious bias discourse reinforces a mis-
guided preoccupation with mental state” and distracts from the project of redressing material inequal-
ity); Michael Selmi, The Paradox of Implicit Bias and a Plea for a New Narrative (Aug. 24, 2017)
(unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3026381 (arguing for
a shift in focus to stereotyping).

By contrast, recent legal scholarship has paid little attention to overt,

explicit, and blatant forms of bias.14 Courts are now surprised when ex-
plicit bias appears.15 When President Trump’s executive order targeting
Muslims for immigration restrictions was first challenged as discrimina-
tory, courts described the extensive evidence of anti-Muslim animus as
atypical and unique.16 While the scholarship on unintentional forms of dis-
crimination has been useful in developing a fuller picture of the causes and
consequences of inequality, labels like “implicit” are misfits for the evi-
dence of intentional discrimination cropping up in many cases.17 Such
terms may suggest, contrary to recent events, that old-fashioned prejudice
has been eradicated.18 More generally, legal scholarship has neglected the
14
Recent work to address legal approaches to intentional discrimination has argued that the Su-
preme Court should adopt a more capacious understanding of discriminatory intent. See, e.g., Ian
Haney-López, Intentional Blindness, 87 N.Y.U. L. REV. 1779, 1795 (2012) (arguing for a contextual
approach to discriminatory intent); Aziz Huq, Judging Discriminatory Intent, 103 CORNELL L. REV.
(forthcoming 2018), (manuscript at 60) (arguing for a “return to the appropriately capacious and flex-
ible way in which the Court initially proposed to discover unconstitutional, discriminatory intent”),
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3033169; Russell K. Robinson, Unequal Protec-
tion, 68 STAN. L. REV. 151, 155 (2016) (arguing that the “capacious concept of animus” employed by
the Supreme Court in LGBT rights cases should be applied to race and gender); Reva B. Siegel, Fore-
word: Equality Divided, 127 HARV. L. REV. 1, 93 (2013) (arguing the Supreme Court should consider
the “law’s meaning and impact with attention to the perspectives of the historically excluded”). These
scholars have not focused on explicit bias. Compare Haney-López, supra, at 1795 (“The Court tradi-
tionally has eschewed direct evidence of what specific government actors thought, and for good rea-
sons.”) with Huq, supra at 43–46 (arguing briefly in favor of consideration of official statements in
constitutional cases). This Article’s main argument is that the law should consider statements of ex-
plicit bias in intentional discrimination cases. It broadens the focus beyond constitutional law and the
Supreme Court to examine the full range of case law insulating explicit bias from scrutiny.
15
See, e.g., Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 871 (2017) (remarking that evidence of
“blatant racial prejudice” among jurors is “rare” in a criminal case in which a juror stated, “I think [the
defendant] did it because he’s Mexican and Mexican men take whatever they want”); N.C. State Conf.
of NAACP v. McCrory, 831 F.3d 204, 226 (4th Cir. 2016) (finding “what comes as close to a smoking
gun as we are likely to see in modern times” in that “the State’s very justification for a challenged
statute hinges explicitly on race—specifically its concern that African Americans, who had over-
whelmingly voted for Democrats, had too much access to the franchise.” (emphasis in original)).
16
See, e.g., Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 591 (4th Cir. 2017) (en
banc) (noting that “[i]n the typical case, it will be difficult for a plaintiff to make an affirmative show-
ing of bad faith with plausibility and particularity,” but in this case, “Plaintiffs point to ample evidence
that national security is not the true reason for [the travel ban], including, among other things, then-
candidate Trump’s numerous campaign statements expressing animus towards the Islamic
faith . . . .”), vacated and remanded, 138 S. Ct. 353 (2017), dismissed as moot, 876 F.3d 116 (4th Cir.
2017); Hawai’i v. Trump, 241 F. Supp. 3d 1119, 1136 (D. Haw. 2017) (“The record before this Court
is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation
of the Executive Order . . .”), aff’d on other grounds, 859 F.3d 741 (9th Cir. 2017), vacated and re-
manded, 138 S.Ct. 377 (2017).
17
See supra notes 15–16.
18
Cf. Bagenstos, supra note 13, at 9 (“Indeed, at a moment in history when overt racism seen in
the reaction among some to the election of a black president, and in a significant part of the movement
that elected Donald Trump—once again seems a major factor in our public life, the suggestion that
implicit bias is the central problem may be particularly misleading.”); Banks & Ford, supra note 13,
at 1058–59, 1072–89, 1113–21 (arguing that the “explanation for the prominence of the unconscious
bias discourse relates to the comforting narrative it offers about our nation’s progress in overcoming
its racist history”).

6 CLARKE [7/14/2018
threat that the legitimation of explicit bias poses to antidiscrimination

norms.19 In their focus on fighting “new” forms of bias, progressives may
be leaving the homeland of equality law—norms against overt discrimina-
tion—undefended.
This Article draws attention to ways courts distort discrimination doc-
trines to overlook explicit bias. For example, the Trump administration
successfully defended its executive order on immigration by arguing it “is
not a so-called ‘Muslim ban,’ and campaign comments cannot change that
basic fact.”20 This argument echoes a discarded line of reasoning from
equal protection doctrine that insulated facially-neutral rules from scrutiny
despite explicit evidence that those rules were motivated by bias.21 In up-
holding the executive order, the Supreme Court characterized the plain-
tiffs’ argument as asking it “to probe the sincerity of the stated justifica-
tions for the policy by reference to [the President’s] extrinsic statements—
many of which were made before [he] took the oath of office.”22
This phenomenon goes beyond the Trump administration. In other
equal protection cases, courts turn a blind eye to the obvious use of racial
and religious stereotypes if those stereotypes serve other interests, such as
national security or law enforcement.23 And in the employment discrimi-
nation context, federal courts have devised a doctrine—called “stray re-
marks”—to prevent juries from hearing evidence that employers made ex-
plicitly discriminatory comments.24 For example, one court dismissed a
case brought by a female investment banker whose supervisor routinely
called her “such epithets as ‘bitch,’ ‘cunt,’ ‘whore,’ ‘slut’ and ‘tart,’” rea-
soning that these remarks were irrelevant to the question of whether she
was paid less money in bonuses than her male subordinates because of sex
discrimination.25 These cases deserve attention not only because they deny
justice to individual victims of discrimination, but also because the failure
to confront explicit forms of discrimination may normalize prejudice.26
19
See infra Part I.C.
20
Petition for a Writ of Certiorari at 26, Trump v. Int’l Refugee Assistance Project, 138 S. Ct.
353 (2017) (No. 16-1436), 2017 WL 2391562 [hereinafter “Trump Cert. Pet.”]. The Supreme Court
highlighted this argument as relevant in an opinion allowing the Trump administration to partially
enforce its travel ban. Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080, 2086 (2017) (per
curiam).
21
See infra Part II.A.1 (discussing Palmer v. Thompson, 403 U.S. 217 (1971)).
22
Trump v. Hawaii, No. 17-965, slip op. at 14 (U.S. June 26, 2018).
23
See infra Part II.A.2 (discussing the extension of the doctrine of Pers. Adm’r of Mass. v.
Feeney, 442 U.S. 256 (1979) to cases involving explicit evidence of intentional discrimination).
24
See infra Part II.B.
25
Ferrand v. Credit Lyonnais, No. 02 CIV.5191(VM), 2003 WL 22251313, at *10 (S.D.N.Y.
Sept. 30, 2003) (granting summary judgment for the employer, and disregarding “these ‘stray remarks
in the workplace’” because they were “not alleged to have been made as part of any adverse discrim-
inatory employment action taken against” the plaintiff), aff’d, 110 F. App’x 160 (2d Cir. 2004).
26
See infra Part I.C.

Courts, advocates, and scholars have advanced a number of legal ar-

guments against considering evidence of explicit bias in discrimination
cases. This Article demonstrates these arguments are without merit. One
argument maintains that unofficial remarks are not reliable evidence of
official intentions.27 While this concern goes to the weight a court might
give an explicit remark, it is not a reason to conclude that all unofficial
remarks are irrelevant. Unofficial remarks may be more reliable evidence
of intent than official statements crafted for purposes of evading legal lia-
bility. Another concern is fear of judicial overreach in invalidating what
might otherwise be sound decisions due to the taint of bias. But under ex-
isting law, the remedy for explicit discrimination will not necessarily be
overturning legislation, reinstating the employment discrimination plain-
tiff, or letting the criminal defendant go free.28 Discrimination doctrines
account for the possibility that an action may be justified on nondiscrimi-
natory grounds, preserving government and employer discretion.29 None-
theless, it is important for courts to straightforwardly recognize bias, rather
than turning a blind eye to it or accepting excuses.
Yet another concern is that using explicit bias as evidence of discrim-
ination will result in repressive forms of censorship by employers and
counterproductive forms of self-censorship by politicians.30 These argu-
ments rest on dubious empirical premises. But ultimately, the threat to free
expression must be weighed against the countervailing interests in enforc-
ing equality law. And a final concern is that directly confronting bias will
result in backlash against the antidiscrimination project and undermine the
27
See, e.g., Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 373–74 (4th Cir. 2018) (en
banc) (Niemeyer, J., dissenting) (arguing that courts should not consider a government official’s “cam-
paign statements and similar evidence,” such as “musings or tweets,” when assessing whether a fa-
cially nondiscriminatory policy was motivated by invidious intent).
28
See, e.g., 42 U.S.C. § 2000e–5(g)(2)(B) (where an employee shows discrimination was a mo-
tivating factor for her termination, but her employer demonstrates it would have made the same deci-
sion even absent discrimination, reinstatement is not allowed as a remedy); Foster v. Chatman, 136 S.
Ct. 1737, 1744 (2016) (reversing the Georgia Supreme Court for failing to consider explicit racial bias
on the part of prosecutors in striking potential jurors, and remanding for a new trial); N.C. State Conf.
of NAACP v. McCrory, 831 F.3d 204, 233 (4th Cir. 2016) (holding that, if discrimination was a mo-
tivating factor for legislation, the burden shifts to the government, and “[o]nce the burden shifts, a
court must carefully scrutinize a state’s non-racial motivations to determine whether they alone can
explain enactment of the challenged law”). But see Masterpiece Cakeshop, Ltd. v. Colorado Civil
Rights Comm’n, No. 16-111, slip op. at 18 (U.S. June 4, 2018) (reversing, but not remanding, a case
in which a member of an adjudicatory body made comments suggesting hostility toward a party’s
sincere religious beliefs).
29
See infra Part III.B.1.
30
See, e.g., Int’l Refugee Assistance Project, 883 F.3d at 374 (Niemeyer, J., dissenting) (“It is
hard to imagine a greater or more direct chill on campaign speech than the knowledge that any state-
ment made may be used later to support the inference of some nefarious intent when official actions
are inevitably subjected to legal challenges.”).

8 CLARKE [7/14/2018
legitimacy of judicial processes.31 However, it may be impossible to pur-

sue any antidiscrimination policy without backlash. The risk of backlash
should also be assessed against the harms of condoning explicit bias.
This Article focuses on Title VII and constitutional cases32 on discrim-
ination based on race, sex, and religion. It examines when explicit bias is
ignored as evidence of discriminatory mistreatment.33 Comparison of stat-
utory and constitutional contexts is useful, because these fields cross-pol-
linate.34 While there are important differences—the Constitution applies
to public actors, while Title VII applies to many public and private em-
ployers—the problem of how to identify intentional discrimination is com-
mon to both.35 Although Title VII scholars have criticized the stray re-
marks doctrine, they have not given full consideration to the underlying
arguments in its favor,36 perhaps because those arguments are rarely
fleshed out in Title VII doctrine. In defending President Trump’s travel
ban against constitutional challenge, the government has fully articulated
those arguments, so they might be challenged, with lessons for both con-
texts.37 And although constitutional law scholars are beginning to criticize
the Trump administration’s arguments in the travel-ban cases, they have
not considered the path of Title VII law as a cautionary tale.38 Courts and
advocates should take care not to make arguments that might lead to the
adoption of the Title VII “stray remarks doctrine” in the constitutional
context. Moreover, the fact that arguments against consideration of ex-
plicit bias arise in the mundane area of Title VII litigation suggests the
problem may be judicial resistance to claims of discrimination, not abstract
questions of constitutional theory.
31
See infra Part III.D.
32
While most discrimination claims are brought under the Equal Protection Clause, the First
Amendment’s religion clauses also prohibit discrimination against particular religious groups. Estab-
lishment Clause cases challenging religious symbols and displays are beyond the scope of this Article,
although they are relevant insofar as courts cite them in cases involving discrimination against reli-
gious groups.
33
Harassment qualifies as discriminatory mistreatment because courts conceptualize it as creat-
ing unequal workplace conditions. See infra note 46. Debates over hate speech regulation entail issues
that are beyond the scope of this Article.
34
See, e.g., William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U. PA. L.
REV. 1007, 1013 (1989) (describing how constitutional principles have a “gravitational pull” on stat-
utory interpretation); Stephen M. Rich, One Law of Race?, 100 IOWA L. REV. 201, 204–05 (2014)
(discussing convergence and divergence in Supreme Court interpretations of race discrimination in
constitutional and statutory contexts).
35
See, e.g., Abbott v. Perez, No. 17-586, slip op. at 26 (U.S. June 25, 2018) (equal protection
case citing Title VII precedent for its holding on discriminatory intent); Price Waterhouse v. Hopkins,
490 U.S. 228, 248–49 (1989) (plurality opinion) (foundational Title VII case citing equal protection
and First Amendment precedents for its holding on how to manage problems of mixed motive).
36
See, e.g., Kerri Lynn Stone, Taking in Strays: A Critique of the Stray Comment Doctrine in
Employment Discrimination Law, 77 MO. L. REV. 149, 180 (2012).
37
See infra Part III.
38
See, e.g., Shawn E. Fields, Is It Bad Law to Believe A Politician? Campaign Speech and Dis-
criminatory Intent, 52 U. RICH. L. REV. 273, 277 (2018); Huq, supra note 14, at 43–46.

Part I of this Article describes the particular harms of explicit discrim-

ination in undermining antidiscrimination norms. Part II exposes how
courts insulate explicit biases from scrutiny and redress. Part III collects
and criticizes the legal arguments for altogether ignoring explicit bias. And
Part IV argues courts should consider the relevance of biased remarks on
a case-by-case basis, alongside other evidence of discriminatory intent.
I. HARMS OF EXPLICIT BIAS
There are unique dangers when employers or government entities of-

fer explicitly discriminatory rationales for harmful decisions. The failure
to recognize this type of overt discrimination may legitimize further dis-
crimination. This may be stating the obvious. And yet, this obvious point
bears fleshing out in light of the continued persistence of explicit bias and
the curious lack of legal attention to the phenomenon.
A. Definitions and Scope
Before proceeding, some definitions and caveats are necessary. This

Article is focused on discrimination based on race, sex, and religion; other
categories are beyond its scope.39 For purposes of this Article, I define
“explicit bias” broadly. By “explicit,” I simply mean expressed, whether
spoken aloud, written, or otherwise conveyed to some audience by words
or symbols. By “bias,” I mean what a reasonable listener could consider
to be views about the attributes of a particular group, or the attributes of
particular individuals due to group membership.
By “explicit,” I do not mean obvious; bias is often expressed through
“coded” language or can be deduced through inference.40 Close cases
might be debated, but a more precise definition is not required for my pur-
poses. This Article criticizes cases in which courts foreclosed inquiry into
whether statements were indicative of bias at all, through the imposition
of quasi-evidentiary rules or procedural maneuvers such as summary judg-
ment.
By “bias,” I do not mean just animus. Animus is “simple dislike for a
particular group.”41 Discrimination law is not limited to animus or any
39
Sexual orientation has received unique legal treatment, and cannot be covered in adequate
detail here. See, e.g., Robinson, supra note 14, at 151. Age too is treated as an exceptional category in
discrimination law. See, e.g., Taylor v. Virginia Union Univ., 193 F.3d 219, 234 (4th Cir. 1999) (Motz,
J., dissenting) (asserting that age discrimination is not the same sort of problem as discrimination based
on race and sex).
40
See BONILLA-SILVA, supra note 6, at 80 (“Because post-civil rights racial norms disallow open
expression of racial views, whites have developed a concealed way of voicing them”).
41
WILLIAM D. ARAIZA, ANIMUS: A SHORT INTRODUCTION TO BIAS IN THE LAW 1 (2017).

10 CLARKE [7/14/2018
other particular emotion; it asks simply whether a person was mistreated

due to race, sex, or religion.42 Thus, my definition does not turn on the
speaker’s reasons for expressing bias, which may include simple dislike,
in-group preferences, disgust, discomfort, fear, ignorance, false stereo-
types, statistically-accurate generalizations, paternalism, views about
proper behavior or relationships for group members, a desire to achieve
status or fit in with an in-group, or any number of other motives.43 The
question is, did the remark reflect views about race, sex, or religion? The
question is not, did the remark reflect some particular set of views or feel-
ings about those group-based characteristics?
I do not argue there is anything inherently immoral about biased atti-
tudes or expressions. Whether explicit bias is of moral concern depends
on context. For example, there is nothing wrong with the statement: “Af-
rican Americans have long received inferior educations in the U.S. school
system.” What is wrong is to refuse to hire a particular African American
on the basis of that generalization.44 This Article is only concerned with
cases in which explicit bias may be evidence of discriminatory mistreat-
ment.
While some of the arguments discussed below may also apply to un-
targeted hate speech, this Article’s topic is not discrimination “in the air.”45
Rather, it is focused on “discrimination brought to ground and visited
upon” a person or people who allege they suffered harm, or lost a material
benefit or opportunity on account of that discrimination.46 My conclusions
42
A few equal protection cases have treated animus according to special doctrinal rules. Id. But
these are only a subset of equal protection cases; they are exceptions to the normal approach of ana-
lyzing discrimination based on tiers of scrutiny. Id. Title VII and other federal civil rights statutes do
not limit prohibited motives to animus.
43
For discussion of some of these motives and how they drive discrimination, see, e.g., Anthony
G. Greenwald & Thomas F. Pettigrew, With Malice Towards None and Charity for Some—Ingroup
Favoritism Enables Discrimination, 69 AM. PSYCHOLOGIST 669, 670 (2014) (in-group favoritism);
Jill Elaine Hasday, Protecting Them from Themselves: The Persistence of Mutual Benefits Arguments
for Sex and Race Inequality, 84 N.Y.U. L. REV. 1464 (2009) (paternalism); MARTHA C. NUSSBAUM,
HIDING FROM HUMANITY: DISGUST, SHAME, AND THE LAW 287–96 (2004) (disgust); FREDERICK
SCHAUER, PROFILES, PROBABILITIES, AND STEREOTYPES 150 (2003) (rational and irrational stereo-
types).
44
Cf. SCHAUER, supra note 43, at kindle loc. 1957–62 (discussing why it may be morally imper-
missible to use race as a consideration even when race is a “nonspurious indicator” of some relevant
factor).
45
Cf. Palsgraf v. Long Island R.R. Co., 162 N.E. 99, 99 (N.Y. 1928) (Cardozo, J.) (“Negligence
is not actionable unless it involves the invasion of a legally protected interest, the violation of a right.
‘Proof of negligence in the air, so to speak, will not do.’”).
46
Price Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989) (plurality opinion) (“This is not, as
Price Waterhouse suggests, ‘discrimination in the air’; rather, it is, as Hopkins puts it, ‘discrimination
brought to ground and visited upon’ an employee”). This includes discriminatory workplace harass-
ment that is so “severe or pervasive” that it subjects victims to disadvantageous terms and conditions
of employment. Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993) (explaining how discrimina-
tory harassment is a violation of Title VII because it “detracts from employees’ job performance, dis-
courages employees from remaining on the job, or keeps them from advancing in their careers”).

about explicit bias are limited to contexts in which it may be evidence of

intentional discrimination.
Moreover, it is not my argument that discrimination is never morally
or legally justified. There may be persuasive reasons to discriminate. But
this is a separate question. One question is whether discrimination oc-
curred, and another is whether it is justified by, for example, some com-
pelling governmental interest or business imperative. This Article criti-
cizes cases that muddle the two questions, rendering inconsequential the
fact of discrimination and its harms.
Whether discrimination law should carve out exceptions for certain
official policies of discrimination with remedial motives, such as affirma-
tive action, is beyond the scope of this Article.47 There are special doctrinal
frameworks for evaluating whether discrimination is justified in such in-
stances.48 But I note that courts are quick to see explicit remarks as evi-
dence of “reverse” discrimination in Title VII cases.49 And the Supreme
Court’s equal protection doctrine does not give a free pass to facially-neu-
tral policies where there is evidence that a legislature sought to advantage
minorities.50 The Court has recently given decisive weight to explicit state-
ments of bias denigrating a member of the Christian majority.51 This Arti-
cle’s topic is when explicit bias against disadvantaged groups is not even
recognized as such.
47
So too are discussions of minority group solidarity. See, e.g., TOMMIE SHELBY, WE WHO ARE
DARK: THE PHILOSOPHICAL FOUNDATIONS OF BLACK SOLIDARITY 23 (2005).
48
See, e.g., Fisher v. Univ. of Texas at Austin, 136 S. Ct. 2198, 2207 (2016) (discussing stand-
ards for permissible race-conscious affirmative action programs by public universities under the Equal
Protection Clause); Ricci v. DeStefano, 557 U.S. 557, 579 (2009) (establishing a framework for ana-
lyzing when intentional discrimination is justified to avoid a disparate impact under Title VII); John-
son v. Trans. Agency, Santa Clara Cty. Cal., 480 U.S. 616, 626 (1987) (expounding on the standards
for permissible affirmative action plans under Title VII).
49
See, e.g., Ricci, 557 U.S. at 579 (concluding, based, inter alia, on statements by city officials,
that a city discarded a promotional exam out of concern that it disadvantaged minority candidates in
violation of Title VII); Lenart v. Coach Inc., 131 F. Supp. 3d 61, 70 (S.D.N.Y. 2015) (denying an
employer’s motion for summary judgment in an employment discrimination case brought by a male
tax lawyer whose sole evidence of discrimination was (a) the fact that, after his position was terminated
in a departmental restructuring, his job duties were taken over by a woman, and (b) a supervisor who
was not alleged to have been involved in decision to fire him had “commented on ‘numerous occa-
sions’ that she would ‘like to have a staff of all women’” and stated after the termination “that she had
created a ‘girl power’ team in New York”).
50
Consider Fisher, an Equal Protection case that upheld the explicit consideration of race as a
factor in admissions to the University of Texas. Fisher, 136 S. Ct. at 2207. In that case, opponents of
the law argued that the University had a race-neutral alternative: expanding its “Top Ten Percent Law,”
which “guarantees college admission to students who graduate from a Texas high school in the top 10
percent of their class.” Id. at 2206. But the Court did not agree that the Top Ten Percent Law was race
neutral, holding, “petitioner overlooks the fact that the Top Ten Percent Plan, though facially neutral,
cannot be understood apart from its basic purpose, which is to boost minority enrollment.” Id. at 2213.
51
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16-111, slip op. at 13 (U.S.
June 4, 2018) (upholding a free exercise challenge where an adjudicator disparaged a party’s Christian
religious beliefs by stating, among other things, that “one of the most despicable pieces of rhetoric that
people can use is to—to use their religion to hurt others”). Arguably, this plaintiff’s particular religious

12 CLARKE [7/14/2018
B. Expressive and Material Harms
When discrimination is explicit, it has material and expressive harms

that are intertwined.
The basic injury of discrimination is to suffer disadvantage on account
of a forbidden ground such as race, sex, or religion.52 There are many rea-
sons for forbidding discrimination in public policy and employment,
grounded in our national commitments to liberty and equality.53 These rea-
sons include, but are not limited to, the principle that a person be judged
by her own merit, an abhorrence for caste systems and subordination, the
right to equal opportunity, freedom from the constraints of repressive
group-based stereotypes, a universal commitment to human flourishing,
an insistence that every person be treated with equal respect and concern,
and fears about the instability and illegitimacy of inequitable governments
and institutions. Discrimination on certain grounds, such as race, sex, and
religion, requires legal intervention because inequality on those bases is,
or has been, a systemic and pervasive problem.54 Harms to minorities are
compounded when discriminatory mistreatment follows them across mul-
tiple social domains, as with systems of racial, religious, and gender sub-
ordination that span employment and housing markets, educational and
criminal justice systems, and public and private interactions.55
From the victim’s perspective, the reasons for prohibiting discrimina-
tion apply whether the form that discrimination takes is overt or covert,
simple or complex, intentional or mistaken. Legal scholars have long crit-
icized the “perpetrator perspective” of discrimination law that only exam-
ines the mental state of the discriminator.56 And they are right. But they
belief—that marriage is between a man and a woman—place him in the minority. Whether the adju-
dicator’s remarks disparaged him because he is a majority-group member, a minority-group member,
or a person with his own idiosyncratic faith is immaterial to my argument: courts should give the same
attention to explicitly biased remarks when they are directed at women, Muslims, and people of color.
52
See, e.g., Noah D. Zatz, Disparate Impact and the Unity of Equality Law, 97 B.U. L. REV.
1357, 1358 (2017) (explaining how the injury of discrimination occurs when race, sex, or another such
trait causes disadvantage, apart from the question of blame or institutional liability).
53
See, e.g., Jessica A. Clarke, Protected Class Gatekeeping, 92 N.Y.U. L. REV. 101, 141–61
(2017) (discussing various theories of the harm of discrimination).
54
See, e.g., Jessica A. Clarke, Against Immutability, 125 YALE L.J. 2, 93 (2015). The law may
also forbid discrimination on certain grounds because it values particular social groups or regards
certain traits as irrelevant to one’s social standing and employment prospects. Id.
55
See, e.g., BRUCE ACKERMAN, WE THE PEOPLE: THE CIVIL RIGHTS REVOLUTION 139 (2014).
56
See, e.g., Alan David Freeman, Legitimizing Racial Discrimination Through Antidiscrimina-
tion Law: A Critical Review of Supreme Court Doctrine, 62 MINN. L. REV. 1049, 1053 (1978) (“The
perpetrator perspective sees racial discrimination not as conditions, but as actions . . . . The focus is
more on what particular perpetrators have done or are doing to some victims than it is on the overall
life situation of the victim class.”).

are wrong to suggest the perpetrator’s stated intentions are irrelevant.57

Evidence of a perpetrator’s discriminatory intent is one way to prove that
a victim was denied equal opportunity and suffered material harm because
of her race, sex, or religion.
Moreover, explicit forms of discrimination can create unique harms.
Some of these harms might be categorized as expressive: sending the mes-
sage that certain people are less worthy of “equal concern and respect.”58
A large body of medical research has linked self-reported discrimination
to numerous adverse mental and physical health outcomes.59 But putting
someone in a second-class position “is wrong in itself, regardless of the
psychological or economic consequences.”60 This Article does not take a
position on whether the core problem of discrimination is in what it ex-
presses or its material consequences.61 The two types of harm are entan-
gled when discriminatory actions that materially disadvantage a plaintiff
are justified by explicit bias.62
57
See, e.g., Haney-López, supra note 14, at 1795 (“The Court traditionally has eschewed direct
evidence of what specific government actors thought, and for good reasons.”).
58
See RONALD DWORKIN, TAKING RIGHTS SERIOUSLY 180 (1977). For expressive theories of
the harm of discrimination, see DEBORAH HELLMAN, WHEN IS DISCRIMINATION WRONG? 7 (2008)
(asking when discrimination demeans, in other words, “when does drawing distinctions among people
fail to treat those affected as persons of equal moral worth?”); Elizabeth S. Anderson & Richard H.
Pildes, Expressive Theories of Law: A General Restatement, 148 U. PA. L. REV. 1503, 1531–45 (2000)
(discussing equal protection doctrine).
59
See, e.g., Yin Paradies et al., Racism as a Determinant of Health: A Protocol for Conducting
a Systematic Review and Meta-Analysis, 2 SYS. REVS. 85, 85 (2013) (discussing the “growing body
of epidemiological evidence . . . documenting the health impacts of racism” and reviewing 293 stud-
ies); Elizabeth A. Pascoe & Laura S. Richman, Perceived Discrimination and Health: A Meta-Analytic
Review, 135 PSYCHOL. BULLETIN 531, 531 (2009) (meta-analysis of 134 studies discussing how per-
ceived discrimination creates adverse health outcomes by triggering the body’s stress responses, in-
creasing vulnerability to problems such as cardiovascular disease, and diminishing a person’s self-
control resources, leading to unhealthy behaviors). This is not to discount the harms of covert forms
of bias, which may be damaging because victims blame themselves for their misfortunes. See K.T.
Schneider, An Examination of the Nature and Correlates of Ethnic Harassment Experiences in Multi-
ple Contexts, 85 J. APPLIED PSYCHOL. 3, 10–11 (2000) (study of 575 Hispanic workers finding nega-
tive psychological outcomes from verbal harassment, but also that those who reported high levels of
exclusion, but low levels of verbal harassment experienced even more detrimental effects, perhaps
because of the stress of the “ambiguity”).
60
ACKERMAN, supra note 55, at 139. Even if a group targeted for indignities was resilient and
able to succeed despite its second-class status, that would not justify the treatment of the group as
second class. Anderson & Pildes, supra note 58, at 1542 (“The State is not justified in heaping indig-
nities on people just because they can ‘take it.’”).
61
Nor does it take a position on whether intentional discrimination is wrong even when it is not
expressed and when it fails to accomplish the material harm that was intended. Compare HELLMAN,
supra note 58, at 138–68 (arguing discriminatory motives are not what make an action wrong), with
Micah Schwartzman, Official Intentions and Political Legitimacy: The Case of the Travel Ban, NO-
MOS (forthcoming) (draft date April 2018), available at https://papers.ssrn.com/sol3/papers.cfm?ab-
stract_id=3159393 (arguing that a person “may act impermissibly on the basis of prejudicial intentions
without expressing those intentions publicly,” even when the action has no effect).
62
When an explicitly biased action did not cause material harm to a plaintiff, because it was
independently justified on some nondiscriminatory ground, there may still be expressive harms. But
in such cases, discrimination law eliminates or severely curtails legal liability. See infra Part III.A.3
& III.B.1.

14 CLARKE [7/14/2018
C. Undermining Antidiscrimination Norms
The failure to confront explicit bias may legitimize discrimination in

a number of ways. Most obviously, if the law fails to even acknowledge
the most explicit forms of discrimination, it cannot hope to deter discrim-
ination. To the extent that a discriminator can get away with explicitly bi-
ased decisionmaking in one instance, that person is more likely to discrim-
inate in the future.63 Another way that explicit bias is uniquely harmful is
in its effects on bystanders. In some contexts, explicitly biased remarks
may persuade an audience that the targets of discrimination are inferior or
deserving of mistreatment.64 A more likely effect is that explicit bias will
disable potential allies, by causing them to fear that if they assist the targets
of discrimination, they too will be subjected to abuse.65 But explicit bias
may also operate in more complex ways to legitimize prejudice, by under-
mining antidiscrimination norms.
To understand how discrimination can become normalized, it is help-
ful to consider research from social psychology. While most recent social
psychology has focused on implicit bias, some researchers have attempted
to explain overt prejudice.66 Based on decades of empirical studies, Chris-
tian Crandall and Amy Eshleman developed a model to explain overt prej-
udice called “justification-suppression.”67 On this model, everyone expe-
riences “genuine prejudices,” in other words, feelings about particular so-
cial groups, in some form or another.68 Rather than openly expressing
these prejudices, people usually suppress them. They do this to maintain
63
See, e.g., Martin J. Katz, The Fundamental Incoherence of Title VII: Making Sense of Causa-
tion in Disparate Treatment Law, 94 Geo. L.J. 489, 551 n.116 (2006) (“It is a fundamental principle
of psychology that each time a person engages in an act and suffers no negative consequences, he
becomes more likely to engage in that act in the future.”).
64
Ishani Maitra, Subordinating Speech, in SPEECH AND HARM: CONTROVERSIES OVER FREE
SPEECH 94, 97 (Ishani Maitra & Mary Kate McGowan eds., 2012) (explaining how hate speech may
persuade its audience “that members of a particular racial group are inferior and so deserving of per-
secution”).
65
Id. at 97 (“Even those who object to hate speech may feel relieved that they belong to the
dominant group (relative to the targets), and thus don’t have to be subjected to similar abuse.”).
66
Forscher, supra note 4, at 792 (discussing “the contemporary focus on unintentional bias”
despite the persistence of “overt discrimination”).
67
Christian S. Crandall & Amy Eshleman, A Justification-Suppression Model of the Expression
and Experience of Prejudice, 129 PSYCHOL. BULL. 414, 425 (2003) (developing a model to explain
“the best known and empirically supported theories” of prejudice, “incorporating many of their com-
mon elements”).
68
Id. at 416–17. See also Cara A. Talaska et al., Legitimating Racial Discrimination: Emotions,
Not Beliefs, Best Predict Discrimination in a Meta-Analysis, 21 SOC. JUSTICE RES. 263, 263 (2008)
(meta-analysis of 57 studies finding “[e]motional prejudices are twice as closely related to racial dis-
crimination as stereotypes and beliefs are” and concluding “[t]he central role of emotions and the
diminished role of beliefs suggest that people may recruit beliefs as a post-hoc justification for their
own emotion-driven behavior”).

their own self-conceptions as egalitarian and to avoid violating social

norms.69 But sometimes, the desire to suppress one’s prejudices is over-
come by justifications: beliefs that “allow otherwise inhibited prejudices
to be expressed, free of guilt and social punishment.”70
There are any number of justifications for prejudice.71 Common justi-
fications include arguments that minorities have failed to make progress
because they hold different values than the majority,72 that male domi-
nance in political and economic life is explained by women’s lack of in-
terest in and aptitude for leadership,73 that victims are to blame for their
own misfortunes,74 and that outsiders are threats.75 Some people justify
prejudice with ideologies like Social Darwinism.76
Other justifications work by appealing to cherished American val-
ues—such as meritocracy and free speech—to provide cover for racism
and sexism. People may argue their prejudices are inconsequential because
American systems of advancement and punishment are fundamentally
fair.77 Research suggests the 2008 election of President Barack Obama
may have increased popular beliefs that American society is colorblind.78
White Americans may justify prejudice with the argument that they are
now losing ground relative to minority groups.79 Others may invoke free
speech principles.80 For example, under threat of boycott, one Minneapolis
69
Crandall & Eshleman, supra note 67, at 420.
70
Mark H. White II & Christian S. Crandall, Freedom of Racist Speech: Ego and Expressive
Threats, 113 J. PERSONALITY & SOC. PSYCHOL. 413, 414 (2017). These dynamics are not sequential
or independent of one another; justifications may increase feelings of genuine prejudice in a “feedback
loop.” Crandall & Eshleman, supra note 67, at 433. Crandall and Eshleman acknowledge “there is
little empirical evidence that can be used to sort out whether the justification is a releaser or a cause
of genuine prejudice.” Id. at 425.
71
Crandall & Eshleman, supra note 67, at 422–23.
72
Id. at 430 (discussing Monica Biernat et al., Violating American Values: A “Value Congru-
ence” Approach to Understanding Outgroup Attitudes, 32 J. EXPERIMENTAL SOC. PSYCHOL. 387
(1996)). See also David O. Sears & P.J. Henry, The Origins of Symbolic Racism, 85 J. OF PERSONAL-
ITY & SOC. PSYCHOL. 259, 260 (2003) (discussing “symbolic racism” entailing the view that “Blacks’
failure to progress results from their unwillingness to work hard enough”).
73
See Crandall & Eshleman, supra note 67, at 430 (discussing stereotypes as justifications).
74
Id. at 428 (“[A] perception of responsibility for a negative fate leads to a negative evaluation
of a person or group,” and, the explanation goes, “bad people deserve bad treatment”).
75
Id. at 431.
76
Id. at 430.
77
See Katie R. Eyer, That’s Not Discrimination: American Beliefs and the Limits of Anti-Dis-
crimination Law, 96 MINN. L. REV. 1275, 1278–79 (2012).
78
See, e.g., Cheryl R. Kaiser et al., The Ironic Consequences of Obama’s Election: Decreased
Support for Social Justice, 45 J. EXPERIMENTAL SOC. PSYCHOL. 556, 556 (2009).
79
See Robb Willer et al., Threats to Racial Status Promote Tea Party Support Among White
Americans 2 (May 4, 2016) (unpublished manuscript), https://papers.ssrn.com/sol3/papers.cfm?ab-
stract_id=2770186.
80
White & Crandall, supra note 70, at 414. This is not to say there are no valid free speech
concerns. See infra Part III.C (assessing free speech arguments).

16 CLARKE [7/14/2018
bar owner explained his donation to the Senate campaign of white suprem-
acist David Duke as “just basically free speech.”81 Free speech justifica-
tions characterize anti-racist norms as illegitimate political correctness.82
One set of studies found that measures of “anti-Black prejudice predicted
how likely people were to claim that punishing someone for anti-Black
prejudice violated their rights to freedom of speech.”83 Survey participants
high in prejudice were less likely to voice First Amendment objections
when the threatened speech was race-neutral, suggesting their free speech
concerns were more about the freedom to express racist prejudice than free
speech in general.84 This may partly explain the appeal of President Don-
ald Trump’s rhetorical strategy of assailing “political correctness.”85
Unlike theories of implicit bias, which assume people are unaware of
their prejudices and would prefer to suppress them, the justification-sup-
pression model suggests many people are aware of their biases and would
prefer to express them.86 Self-censorship drains mental energy, and the re-
lease of prejudice can be a relief.87 Justifications allow an individual to
reconcile her prejudices with social norms.88 People who express justifi-
cations may be attempting to legitimize their prejudices to an audience—
justifying discrimination against black people by their supposed lack of
work ethic,89 against women by the fact that “women get pregnant” and
81
Nicole Darrah, Minneapolis Bar Closes After Employees Learn Owner Donated to White Su-
premacist David Duke, FOX NEWS (Sept. 4, 2017), http://www.foxnews.com/us/2017/09/04/minneap-
olis-bar-closes-after-employees-learn-owner-donated-to-white-supremacist-david-duke.html.
82
White & Crandall, supra note 70, at 414.
83
Id. at 424 (discussing seven internet surveys with 1,078 participants).
84
Id. One study assessed responses to speech that was anti-black versus speech that was anti-
police. Id. at 417.
85
See, e.g., The Economist/YouGov Poll, YOUGOV at 107 (Mar. 10–12, 2016),
https://d25d2506sfb94s.cloudfront.net/cumulus_uploads/document/055qdf83nv/econTabReport.pdf
(reporting that 39% of 201 survey respondents who were likely to vote for Trump in the 2016 primary
election thought the main reason people supported Trump’s campaign was that he was “not politically
correct”).
86
Id. at 425 (“Some models of prejudice imply that if people could simply figure out that they
were prejudiced, they would quickly take steps to suppress it. Instead, we suggest that people are often
highly motivated to seek out justifications that allow the unsanctioned expression of their preju-
dices.”). There is evidence that people are aware of, but underreport their explicit biases. Studies
known as “bogus pipeline” experiments, in which people are told that researchers have a sort of poly-
graph machine that will identify their true feelings, result in more self-reports of explicit bias than
those studies in which people are simply asked their attitudes. See, e.g., Jason A. Nier, How Dissoci-
ated Are Implicit and Explicit Racial Attitudes? A Bogus Pipeline Approach, 8 GROUP PROCESSES &
INTERGROUP REL. 39, 39 (2005); E. Ashby Plant et al., The Bogus Pipeline and Motivations to Re-
spond Without Prejudice: Revisiting the Fading and Faking of Racial Prejudice, 6 GROUP PROCESSES
& INTERGROUP REL. 187, 188 (2003).
87
Crandall & Eshleman, supra note 67, at 422–23 (discussing research demonstrating that sup-
pression of negative emotions causes fatigue and anxiety, and impairs performance on tasks).
88
Id. at 420.
89
See, e.g., Pager & Western, supra note 6, at 229 (discussing employers’ characterizations of
Black men “as lazy or having a poor work ethic”).

leave the workplace,90 or against Muslims by the threat of terrorism.91 Peo-

ple may use justifications to legitimize their prejudices to themselves,92 or
they may use them to justify the prejudices of others they sympathize
with.93 When justifications become acceptable writ large, particular forms
of discrimination are not seen as morally problematic.94
Social norms can constrain people from acting on their prejudices.95
In experimental research, people prove more likely to act on prejudice
when they believe it is socially acceptable, and more likely to condemn
bias when they believe it is not.96 For example, in one study, white students
were given statistics about whether other students at their university either
had, or did not have, racist beliefs.97 Then they were asked to sit out in the
hallway with black students. Those who already had racist beliefs and had
received information indicating their beliefs were typical sat farther away
from the black students.98 In another study, people who already held hos-
tile sexist beliefs were more likely to express tolerance for sexism after
hearing sexist jokes.99 And in yet another study, after the election of Pres-
90
See, e.g., Moss-Racusin et al., supra note 2, at 198 (quoting one online comment: “Women get
pregnant. . . . So given the same qualifications, I would rationally go for the man.”).
91
See, e.g., Anderson Cooper 360 Degrees: Exclusive Interview With Donald Trump, supra note
7 (“I think Islam hates us. . . . We have to be very careful. And we can’t allow people coming into this
country who have this hatred of the United States.”).
92
Crandall & Eshleman, supra note 67, at 420.
93
White & Crandall, supra note 70, at 414 (“This can be motivated by self-justification, sympa-
thy and concern, or consistency and balance, among many reasons.” (citations omitted)).
94
Crandall & Eshleman, supra note 67, at 417 (“[A]dequately justified prejudices are not even
labeled as prejudices (e.g., prejudice toward rapists, child abusers, enemy soldiers).”).
The question addressed by social psychology is not whether prejudices are morally justified but
how they are socially justified. It takes a moral theory to explain the harms of discrimination and to
identify the traits that should be protected. See supra Part I.B.
95
See, e.g., Chris S. Crandall et al., Social Norms and the Expression and Suppression of Preju-
dice: The Struggle for Internalization, 82 J. PERSONALITY & SOC. PSYCHOL. 359, 359 (2002).
96
See, e.g., id. at 359 (conducting seven studies of 1,504 participants, and finding that “[t]he
public expression of prejudice toward 105 social groups was very highly correlated with social ap-
proval of that expression. Participants closely adhere to social norms when expressing prejudice, eval-
uating scenarios of discrimination, and reacting to hostile jokes”); Fletcher A. Blanchard et al., Con-
demning and Condoning Racism: A Social Context Approach to Interracial Settings, 79 J. APPLIED
PSYCHOL. 993, 993 (1994) (study demonstrating that cues from other people that racial discrimination
is permissible or impermissible affect whether a person will condemn a racist remark); Katie M. Duch-
scherer & John F. Dovidio, When Memes are Mean: Appraisals of and Objections to Stereotypic
Memes, 2 TRANSLATIONAL ISSUES PSYCHOL. SCI. 335, 335 (2016) (online experiment involving
memes about Asian stereotypes in which “seeing another person object to the meme increased the
likelihood that White participants would object . . . but only when the race of the person was unstated,
and not when the person was Asian”).
97
Gretchen B. Sechrist & Charles Stangor, Perceived Consensus Influences Intergroup Behavior
and Stereotype Accessibility, 80 J. PERSONALITY & SOC. PSYCHOL. 645, 647 (2001).
98
Id.
99
See Thomas E. Ford et al., More Than ‘Just a Joke’: The Prejudice-Releasing Function of
Sexist Humor, 34 PERSONALITY & SOC. PSYCHOL. BULL. 159, 159 (2008) (experiment showing that
“for sexist men, exposure to sexist humor can promote the behavioral release of prejudice against

18 CLARKE [7/14/2018
ident Trump, online survey participants were more willing to openly do-
nate to an anti-immigration group whose founder had advocated “a Euro-
pean-American majority, and a clear one at that.”100 To the extent that the
law,101 elected leaders,102 and social groups103 endorse justifications for
prejudice, discriminators may be less likely to suppress their prejudices.
The legitimation of explicitly biased attitudes may therefore increase the
prevalence of discrimination and further entrench inequality.
Stereotypes and victim-blaming narratives are an especially perni-
cious set of ideas to legitimize, especially those that are “true” in the sense
that they have some basis in fact.104 Not only do these narratives justify
discrimination to perpetrators, they may also justify it to targets. Discrim-
inatory beliefs then become self-fulfilling prophecies. As targets of dis-
crimination come to understand their opportunities to be constrained, they
lower their sights and do not make investments in their own human capi-
tal.105 Thus, a girl who sees the technology field as hostile to women is
unlikely to pursue studies in computer science. As a result, fewer women
end up qualified for jobs in technology, and the industry points to the lack
of qualified women as the justification for the dominance of men in the
industry.106 Certainly, implicit signals and structures can have this result.
But blatant forms of discrimination make the message of unwelcomeness
women”); Thomas E. Ford, Effects of Sexist Humor on Tolerance of Sexist Events, 26 PERSONALITY
& SOC. PSYCHOL. BULL. 1094 (2000) (similar).
100
Bursztyn, supra note 5, at 14 (reporting that prior to the election, 34% of people would donate
when their anonymity was not assured, versus 54% when anonymity was assured, while that gap vir-
tually disappeared after the election).
101
See, e.g., Cass Sunstein, Unleashed, 85 SOCIAL RES. 73, 74 (2018) (discussing how law can
change social norms through a “signaling effect” in “offering people information about what other
people think, or about what it is appropriate to think”). For a historical example, see MANNING MARA-
BLE, HOW CAPITALISM UNDERDEVELOPED BLACK AMERICA: PROBLEMS IN RACE, POLITICAL ECON-
OMY, AND SOCIETY 217–20 (1983) (discussing how events of the 1970s and 1980s, such the high-
profile exoneration of KKK members in a murder trial, gave “green lights” to racial violence and
discrimination during the Reagan era).
102
See Bursztyn, supra note 5, at 2.
103
See Crandall et al., supra note 95, at 374 (reporting on studies showing “[t]he acceptability of
discriminatory acts and expressions of hostility . . . closely follow social norms,” a conclusion that
follows the “common sense” that “[p]eople reflect the social milieu in which they live”).
104
See, e.g., SCHAUER, supra note 43, at 139–41.
105
See, e.g., David Charny & G. Mitu Gulati, Efficiency-Wages, Tournaments, and Discrimina-
tion: A Theory of Employment Discrimination Law for “High-Level” Jobs, 33 HARV. C.R.-C.L. L.
REV. 57, 64–66, 78–85 (1998.
106
See, e.g., id. at 64–65 (“[S]tatistical stereotypes may act as self-fulfilling prophecies. Because
the individual is judged on the basis of her membership in a group rather than her individual merit,
discrimination reduces incentives for its victims to acquire human capital.”).

all the more clear to minority group members.107 These dynamics are likely
to increase social divisions and foster intergroup hostility.108
II. HOW COURTS OVERLOOK EXPLICIT BIAS
Despite the harms of discrimination motivated by explicit bias, many

courts have categorically excused, erased, or ignored evidence of biased
remarks, rather than considering their relevance on a case-by-case basis.
This Part will describe constitutional discrimination cases that disregard
evidence that laws were enacted for explicitly discriminatory purposes be-
cause those laws are facially neutral, or because government officials in-
tended to achieve some nondiscriminatory end, such as law enforcement
or national security. It then discusses the Title VII “stray remarks doctrine”
that allows courts to cast aside explicitly biased remarks in considering
whether an employee was a victim of discrimination. In both these con-
texts, while explicitly biased remarks may constitute relevant evidence of
intentional discrimination, courts have summarily refused to consider
them.
The purpose of this Part is to identify dysfunctional patterns rather
than to describe authoritative rules. This Article is focused on contexts in
which established doctrine requires rather than forecloses consideration of
explicit bias.109 One of its main arguments is that these cases run contrary
to the best interpretations of binding Supreme Court precedent. But the
Trump administration is aggressively advancing legal arguments for ig-
noring explicit bias.110 It is urgent that these arguments be critically ana-
lyzed, before they become binding doctrine. Moreover, law is not made
107
Cf. David A. Strauss, The Law and Economics of Racial Discrimination in Employment: The
Case for Numerical Standards, 79 GEO. L.J. 1619, 1643 (1991) (“In the usual case of discrimination,
the assumption is that a minority employee will perceive that there is discrimination in society and
will respond by underinvesting in human capital. There is a chance, however, that the minority em-
ployee may not be well attuned to the level of discrimination in society as a whole and therefore may
not respond in this way.”).
108
See, e.g., Valentino, supra note 3, at 13 (“As the public discourse around issues of social
welfare, immigration, national security, and a whole host of other issues becomes highly racialized
and explicitly hostile, the potential for open racial conflict may rise.”).
109
This Article does not analyze contexts in which courts ignore evidence of explicit bias because
they are required to do so by brightline rules, such as in Fourth Amendment cases. See Whren v. United
States, 517 U.S. 806, 813 (1996) (holding that “[s]ubjective intentions,” including racially discrimi-
natory animus, “play no role in ordinary, probable-cause Fourth Amendment analysis”). Also excluded
from this Article’s analysis are doctrines that limit an entity’s liability for the acts of its constituents,
such as the limitation of municipal liability for civil rights violations committed by policymakers under
Monell v. Department of Social Services, 436 U.S. 658, 694 (1978), or the limitations on employer
liability for sexual harassment by supervisors under Burlington Industries, Inc. v. Ellerth, 524 U.S.
742, 761 (1998). While such doctrines deserve scholarly criticism, they raise issues beyond the scope
of this Article.
110
See infra Part III.

20 CLARKE [7/14/2018
only by the Supreme Court.111 Appellate courts cannot and do not correct
every erroneous lower court decision.
The purpose of this Part is not necessarily to take issue with the out-
comes of any of the cases it describes. Just because a decision was partly
motivated by bias does not mean a court should overturn that decision. As
will be discussed in Part III, sometimes a law or employment decision can
be justified independently on nondiscriminatory grounds.112 This Part
highlights discrimination cases in which explicit bias was wrongly ex-
cluded from consideration altogether.
A. Constitutional Law
In constitutional cases, courts may disregard evidence that laws were

enacted for explicitly discriminatory purposes based on two false prem-
ises: (1) that all that matters is that the law is facially neutral, and (2) that
all that matters is that government officials intended to achieve another
end, such as law enforcement or national security.
1. Facial Neutrality
There is a strain of argument in constitutional discrimination cases that

posits that courts should not strike down policies motivated by explicit
bias if those policies are facially neutral. While this strain has lain dormant
for some time, it is now at risk of revival by the Trump administration.
An infamous example of this argument is the civil-rights era case
Palmer v. Thompson.113 In 1962, a district court ordered that the City of
Jackson, Mississippi desegregate its parks and recreational facilities, in-
cluding its swimming pools.114 Rather than comply with that order, the
City opted to close all the pools.115 The mayor had told the local newspaper
that “neither agitators nor President Kennedy will change the determina-
tion of Jackson to retain segregation.”116 He had received commendation
from Mississippi’s governor “for his pledge to maintain Jackson’s present
111
See, e.g., Neil S. Siegel, Reciprocal Legitimation in the Federal Courts System, 70 VAND. L.
REV. 1183, 1185 (2017) (providing evidence of dialectical processes in Supreme Court and lower
federal court decisionmaking in constitutional cases); Adam Winkler, Fatal in Theory and Strict in
Fact: An Empirical Analysis of Strict Scrutiny in the Federal Courts, 59 VAND. L. REV. 793, 796
(2006) (because the Supreme Court decides relatively few cases, “constitutional law cannot be fully
understood by looking only at the Supreme Court and its decisions”).
112
See infra Part III.B.
113
403 U.S. 217 (1971).
114
Id. at 219.
115
Id.
116
Id.

separation of the races.”117 The City’s official justification for closing the
pools was its concern that integrated swimming pools could not be oper-
ated safely or economically—based on the unstated premise that white
people would not be willing to swim with black people.118
In 1971, the Supreme Court ruled that the pool closure did not violate
the Equal Protection Clause. The policy was race-neutral because “the city
has closed the public pools to black and white alike.”119 The Court noted
that it had never held a law “violate[d] equal protection solely because of
the motivations of the men who voted for it.”120 This argument drew on a
long history of judicial skepticism of intent-based inquiries.121 In dissent,
Justice White argued the pool closure was not race-neutral. Considered in
context, the pool closure was “an expression of official policy that Negroes
are unfit to associate with whites.”122 The dissent explained:
Whites feel nothing but disappointment and perhaps anger at the loss of
the facilities. Negroes feel that and more. They are stigmatized by offi-
cial implementation of a policy that the Fourteenth Amendment con-
demns as illegal. And the closed pools stand as mute reminders to the
community of the official view of Negro inferiority.123
Palmer was never expressly overruled. But in later equal protection

cases, the Supreme Court walked back on its doctrine, clarifying that just
because a law is neutral on its face does not mean it survives equal protec-
tion scrutiny.124 Scholars regard the 1970s as a turning point for equal pro-
tection jurisprudence in which the Court rejected effects-based analysis in
favor of a nearly-exclusive focus on intent.125 The turn away from Palmer
has been so complete that it is now “generally taken for granted” that fa-
cially neutral actions are invalid if motivated by discriminatory intent.126
117
Id.
118
Id. at 260 (White, J., dissenting).
119
Id. at 225–26 (majority opinion). Yet racial discrimination often harms both black and white
people. See, e.g., Loving v. Virginia, 388 U.S. 1, 10-11 (1967) (striking down a ban on interracial
marriage, even though it applied equally to white and black people).
120
Palmer, 403 U.S. at 224.
121
See, e.g., Katie R. Eyer, Ideological Drift and the Forgotten History of Intent, 51 HARV. C.R.-
C.L. L. REV. 1, 8-10 (2016) (discussing skepticism of intent-based arguments in constitutional law
cases during the era of Plessy v. Ferguson from 1876 through 1954).
122
Palmer, 403 U.S. at 240–41 (White, J., dissenting).
123
Id. at 268.
124
See, e.g., Hunter v. Underwood, 471 U.S. 222, 229 (1985) (striking down a racially-neutral
felon disenfranchisement law enacted by the Alabama constitutional convention in 1901 because the
law had been motivated by a “zeal for white supremacy”); Washington v. Davis, 426 U.S. 229, 243
(1976) (interpreting Palmer as turning on the City’s legitimate purposes of preserving the peace and
the fisc, and rejecting “the proposition that the operative effect of the law rather than its purpose is the
paramount factor”).
125
Eyer, supra note 121, at 34.
126
Id. at 4.

22 CLARKE [7/14/2018
Nor does the facial neutrality of a law enacted to discriminate against a

religious minority save it from an Establishment Clause challenge.127
Nonetheless, President Trump’s defense of his 2017 executive orders
barring travel from certain predominantly Muslim countries128 echoed the
reasoning of Palmer v. Thompson.129 During the 2016 presidential cam-
paign, Trump made a number of statements of his anti-Muslim views and
his plan to ban Muslim immigration once elected.130 In March 2016,
Trump gave a televised interview in which he stated “I think Islam hates
us,” and “we can’t allow people coming into this country who have this
hatred of the United States.”131 In later interviews, he candidly acknowl-
edged that he planned a “Muslim ban” on immigration, although he could
not call it that because “[p]eople were so upset when I used the word Mus-
lim. Oh, you can’t use the word Muslim. Remember this. And I’m okay
with that, because I’m talking territory instead of Muslim.”132 In January
2017, Rudolph Giuliani stated on television that President Trump had
asked for his advice on how to implement a “Muslim ban,” saying, “Put a
commission together. Show me the right way to do it legally.”133 In grant-
ing a temporary restraining order to stop enforcement of the travel ban,
one district court held, “[t]hese statements, which include explicit, direct
statements of President Trump’s animus towards Muslims and intention to
impose a ban on Muslims entering the United States, present a convincing
case that the First Executive Order was issued to accomplish, as nearly as
possible, President Trump’s promised Muslim ban.”134
127
See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 532 (1993)
(“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination.”).
128
See Exec. Order No. 13769 82 Fed. Reg. 8977 (Jan. 27, 2017), revoked by Exec. Order No.
13780, 82 Fed. Reg. 13209 (Mar. 6, 2017). The third iteration of the travel ban bars or limits immi-
gration of citizens from six nations that are predominantly Muslim (Iran, Libya, Syria, Yemen, Soma-
lia, and Chad) and two that are not (North Korea and Venezuela). Presidential Proclamation 9645,
82 Fed. Reg. 45161 (Sept. 27, 2017).
129
Reply Brief for the Petitioners at 9, Trump v. Int’l Refugee Assistance Project, 138 S. Ct. 353
(2017) (No. 16-1436), 2017 WL 4457184 [hereinafter “Trump Reply”] (“Respondents do not point to
any case that supports impugning an Executive Order that is neutral on its face and in operation based
on a candidate’s campaign-trail comments.”).
130
See, e.g., Faiza Patel & Rachel Levinson-Waldman, The Islamophobic Administration, BREN-
NAN CENTER FOR JUSTICE ANALYSIS 2 (Apr. 19, 2017), https://www.brennancenter.org/sites/de-
fault/files/publications/BCJ_Islamophobic_Administration.pdf (listing remarks).
131
Anderson Cooper 360 Degrees: Exclusive Interview With Donald Trump, supra note 7.
132
Meet the Press (NBC television broadcast July 24, 2016) (transcript available at
https://goo.gl/jHc6aU).
133
Amy B. Wang, Trump Asked for a ‘Muslim Ban,’ Giuliani Says — and Ordered a Commission
to Do it ‘Legally’, WASH. POST (Jan. 29, 2017), https://www.washingtonpost.com/news/the-
fix/wp/2017/01/29/trump-asked-for-a-muslim-ban-giuliani-says-and-ordered-a-commission-to-do-it-
legally/.
134
Int’l Refugee Assistance Project v. Trump, 241 F. Supp. 3d 539, 558–59 (D. Md. 2017), aff’d
in part, vacated in part, 857 F.3d 554 (4th Cir. 2017) (en banc), vacated and remanded, 138 S. Ct.
353 (2017), dismissed as moot, 876 F.3d 116 (4th Cir. 2017).

But not all federal judges agreed. In analyzing an Establishment

Clause challenge to the first version of the travel ban, one district court
accepted the Trump administration’s argument, asking only whether the
face of the order itself was “neutral with respect to religion.”135 The plain-
tiffs had argued religious discrimination was apparent from a provision of
the order directing “that the Secretary of State prioritize applicants on the
basis of religious-based persecution ‘provided that the religion of the in-
dividual is a minority religion in the individual’s country of national-
ity.’”136 President Trump had explained in a televised interview that this
provision was intended to benefit Christians.137 But the court held the pro-
vision was not discriminatory because it “could be invoked to give pre-
ferred refugee status to a Muslim individual in a country that is predomi-
nately Christian.”138
The second iteration of the travel ban omitted the provision with re-
spect to minority religions, but retained the bar on travel by nationals of
six majority-Muslim nations.139 The Fourth Circuit concluded that it was
still likely that the new version violated the Establishment Clause.140 But
three judges dissented, arguing that the President’s explicitly-biased re-
marks were categorically irrelevant, a position that had previously been
advanced in a dissent by five Ninth Circuit judges.141
In September 2017, the Trump administration issued a third iteration
of its travel ban, this time limiting travel from five majority-Muslim na-
tions.142 The Supreme Court upheld that ban against an Establishment
Clause challenge.143 In the opinion, the Court declined to adopt a rule in-
sulating all facially neutral policies regarding the entry of non-citizens
135
Louhghalam v. Trump, 230 F. Supp. 3d 26, 35 (D. Mass. 2017) (denying a motion for a tem-
porary restraining order, and concluding the plaintiffs were not likely to succeed on their Establish-
ment Clause claim).
136
Id.
137
David Brody, Brody File Exclusive: President Trump Says Persecuted Christians Will be
Given Priority as Refugees, CBN NEWS (Jan. 27, 2017), https://www1.cbn.com/thebrodyfile/ar-
chive/2017/01/27/brody-file-exclusive-president-trump-says-persecuted-christians-will-be-given-pri-
ority-as-refugees (“If you were a Muslim you could come in [from Syria], but if you were a Christian,
it was almost impossible and the reason that was so unfair, everybody was persecuted in all fairness,
but they were chopping off the heads of everybody but more so the Christians. And I thought it was
very, very unfair. So we are going to help them.”).
138
Louhghalam, 230 F. Supp. 3d at 35. The court did consider the President’s statements with
respect to the plaintiffs’ Equal Protection Clause claim, but concluded that it had to defer to the Pres-
ident’s “delicate policy judgment” in the immigration domain. Id.
139
See supra note 128.
140
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554 (4th Cir. 2017) (en banc), vacated
and remanded, 138 S. Ct. 353 (2017), dismissed as moot, 876 F.3d 116 (4th Cir. 2017).
141
Id. at 650–54 (Niemeyer, J., dissenting) (discussing Washington v. Trump, 858 F.3d 1168,
1174 (9th Cir. 2017) (Kozinski, J., dissenting from denial of rehearing en banc)).
142
Trump v. Hawaii, No. 17-965, slip op. at 3–4 (U.S. June 26, 2018).
143
Id. at 38 (concluding the plaintiffs were not likely to succeed on the merits of their Establish-
ment Clause claim and reversing the grant of a preliminary injunction).

24 CLARKE [7/14/2018
from judicial scrutiny.144 Rather, it assumed without deciding “that we

may look behind the face of the Proclamation to the extent of applying
rational basis review.”145 The Court also refused to hold that the Presi-
dent’s statements were categorically irrelevant.146
But the Court’s analysis gave short shrift to the President’s statements,
which it characterized as “extrinsic evidence,” and heavy weight to the
policy’s facial neutrality.147 Four times the Court repeated that the travel
ban was facially neutral.148 As for the President’s statements, “many . . .
were made before the President took the oath of office.”149 In any event,
the Court held, “the issue before us is not whether to denounce the state-
ments.”150 It saw the statements as extrinsic to the question in the case:
whether the travel ban’s stated justification—preventing foreigners who
had not been adequately vetted from entering the United States—had a
rational basis. In answering that question, the Court made no reference to
the President’s statements.151 It was as though the Court was analyzing a
hypothetical situation in which the biased statements had never been
made.152 It noted “[t]he entry suspension is an act that is well within exec-
utive authority and could have been taken by any other President.”153 In
dissent, Justice Sotomayor agreed that the issue was not “whether to de-
nounce” the President’s statements, but rather, whether those statements,
along with the other available evidence, suggested “the primary purpose
144
Id. at 32 (declining to “define the precise contours” of its “highly constrained” “inquiry into
matters of entry and national security”).
145
Id. at 31. The Court’s “starting point” was the test set forth by Kleindienst v. Mandel, 408
U.S. 753, 770 (1972), which asks “only whether the policy is facially legitimate and bona fide,” a
standard the travel ban would meet. Id. at 32. But the Court did not stop there, due to the Solicitor
General’s concession at oral argument that Mandel would not end the analysis of a hypothetical situ-
ation in which an avowedly anti-Semitic President asked his cabinet to formulate a neutral policy in
accord with his anti-Semitic views, and the policy that emerged was a ban on travel from Israel. Oral
Argument at 16, Trump v. Hawaii, No. 17-965 (U.S. June 26, 2018). The Solicitor General argued that
the travel ban was distinguishable from this hypothetical situation because the travel ban was sup-
ported by a “cabinet-level recommendation” of national security risk. Id. at 17.
146
Trump, No. 17-965, slip op. at 32 (“[W]e may consider plaintiffs’ extrinsic evidence, but will
uphold the policy so long as it can reasonably be understood to result from a justification independent
of unconstitutional grounds.”).
147
Id.
148
Id. at 29 (“[T]he issue before us is . . . the significance of [the President’s] statements in
reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive
responsibility.”); id. at 29 (“The Proclamation, moreover, is facially neutral toward religion.”); id. at
34 (“The text says nothing about religion.”); id. at 38 (distinguishing the Japanese internment case,
Korematsu v. United States, 323 U.S. 214 (1944), on grounds including the fact that the travel ban is
“a facially neutral policy”).
149
Id. at 29.
150
Id.
151
Id. at 34–37.
152
See id. at 33–34 (“[B]ecause there is persuasive evidence that the entry suspension has a
legitimate grounding in national security concerns, quite apart from any religious hostility, we must
accept that independent justification.”).
153
Id. at 38.

of the Proclamation is to disfavor Islam and its adherents by excluding

them from the country.”154 She concluded, “[t]he answer is unquestionably
yes.”155
Whatever the lessons of Trump v. Hawaii might be, they are limited
to challenges to immigration policies involving the entry of non-citizens,
and likely only those policies implicating national security.156 Just one
term prior to Trump v. Hawaii, the Supreme Court examined the public
statements of legislators as evidence of a racial gerrymander.157 Nonethe-
less, the Trump administration has attempted to advance the facial neutral-
ity argument in other contexts. It raised the argument in an equal protection
case challenging the rescission of the Deferred Action for Childhood Ar-
rivals (DACA) program on the ground the President’s remarks about Mex-
icans demonstrate he was motivated by racial animus.158
Thus, the Trump Administration may be attempting to give new life
to Palmer’s argument that courts should ignore evidence that explicit bias
inspired a facially-neutral rule. Moves in this direction will further evis-
cerate the potential for equal protection doctrine to protect minorities.
Contemporary equal protection doctrine is fixated on intent, eschewing
any test based on effects.159 If a plaintiff cannot argue that discriminatory
intent violate the Equal Protection Clause, and she cannot argue that dis-
criminatory effects violate the equal protection clause, then she is only
able to challenge official policies of explicit segregation, which are all but
gone. This would render the Equal Protection Clause’s guarantee of racial
nondiscrimination useful only to invalidate affirmative action programs.160
154
Id. at 10 (Sotomayor, J., dissenting).
155
Id.
156
Id. at 31-32 (explaining that a more deferential standard of review applies with respect to
immigration policy, and that “our inquiry into matters of entry and national security is particularly
constrained”); id. at 32 n.5 (“a circumscribed inquiry applies to any constitutional claim concerning
the entry of foreign nationals”); id. at 38 (distinguishing Korematsu on grounds including the fact that
the case involved “forcible relocation of U.S. citizens”).
157
Cooper v. Harris, 137 S. Ct. 1455, 1475-76 (2017). And in the same term as Trump v. Hawaii,
the Supreme Court affirmed the relevance of explicit statements of anti-religious bias in a Free Exer-
cise challenge to an adjudication by a Colorado Commission. See supra note 51 (discussing Master-
piece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16-111, slip op. at 13 (U.S. June 4,
2018)).
158
Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279 (E.D.N.Y. 2018) (“Defendants do not
defend the President’s comments but argue instead that the court should simply ignore them.”). In that
case, the district judge held that the plaintiffs’ allegations of racial animus were sufficient to survive a
Rule 12(b)(6) motion to dismiss. Id.
159
See, e.g., Washington v. Davis, 426 U.S. 229, 240 (1976) (“[T]he invidious quality of a law
claimed to be racially discriminatory must ultimately be traced to a racially discriminatory pur-
pose . . . . This is not to say that the necessary discriminatory racial purpose must be express or appear
on the face of the statute.”).
160
Cf. Haney-López, supra note 14, at 871–74.

26 CLARKE [7/14/2018
2. Rationalized Bias
In other constitutional cases in which courts refuse to consider explicit

bias, the underlying assumption may be that discrimination is permissible
if it is intended to achieve some nondiscriminatory end, such as protecting
national security, controlling crime, or winning trials or elections.
This is a distortion of the logic of a 1979 equal protection precedent,
Personnel Administrator of Massachusetts v. Feeney.161 Feeney was a sex
discrimination lawsuit challenging a Massachusetts statute giving absolute
employment preferences to veterans. 162 At the time, women were re-
stricted from pursuing most aspects of military service.163 As a result, the
veterans’ preference “operate[d] overwhelmingly to the advantage of
males.”164 The plaintiff argued that the severe impact on women’s oppor-
tunities was “too inevitable to have been unintended.”165 But the Supreme
Court saw no discrimination. It understood the veterans’ preference law
not as expressing women’s inferiority, but, rather, as expressing the honor
and value of military sacrifice.166 Feeney set forth a rule: that discrimina-
tory purpose means “the decisionmaker . . . selected or reaffirmed a par-
ticular course of action at least in part ‘because of,’ not merely ‘in spite
of,’ its adverse effects upon an identifiable group.”167 Courts have invoked
this rule to justify a wide array of practices with dramatic and devastating
discriminatory impacts.168
In a sleight of hand, courts also invoke Feeney to foreclose inquiry
into discriminatory intent. Ashcroft v. Iqbal took Feeney’s “in spite of”
logic a step further, eliminating the very possibility of discovering evi-
dence of explicit bias due to the exigencies of the war on terror.169 Shortly
161
442 U.S. 256 (1979).
162
Id. at 260–65. Feeney’s claim rested on an equal protection theory because Title VII includes
an exception for veterans’ preferences. See 42 U.S.C. § 2000e–11 (2018).
163
Id. at 283–84 n.1 (Marshall, J., dissenting).
164
Id. at 270 (majority opinion) (“When this litigation was commenced, then, over 98% of the
veterans in Massachusetts were male; only 1.8% were female.”).
165
Id. at 276.
166
Id. at 265 (“The veterans’ hiring preference in Massachusetts, as in other jurisdictions, has
traditionally been justified as a measure designed to reward veterans for the sacrifice of military ser-
vice . . . .”). The majority refused to inquire into the obvious and explicit history of sex discrimination
in the military or the gendered premises of the state’s valorization of military service. Id. at 278 (“[T]he
history of discrimination against women in the military is not on trial in this case.”).
167
Id. at 279. This rule has a philosophical pedigree: the doctrine of “double effect,” under which
“it may be permissible to perform an act with both a good effect and a bad effect, provided that the
bad effect is a mere side effect; if it is either your goal or a means to your goal, the act is forbidden.”
Siegel, supra note 14, at 47 n.230 (quoting SHELLY KAGAN, NORMATIVE ETHICS 103 (1998)); id. at
47 (critiquing the doctrine of double effect in Feeney for forestalling any interrogation of the “propor-
tionality of the government’s ends and means”).
168
Siegel, supra note 14, at 50 (listing examples).
169
556 U.S. 662, 676–77 (2009).

after the World Trade Center attacks on September 11, 2001, plaintiff Ja-
vaid Iqbal and approximately 700 other non-citizens, most all from South
Asia, the Middle East, or North Africa, were rounded up and detained on
immigration violations and related infractions.170 Many of them were ar-
rested after members of the public, suspicious of their Muslim, Middle
Eastern, and South Asian neighbors, called in anonymous tips to the
FBI.171 While investigators may initially have had reasons to suspect some
of the detainees had been involved with the September 11 attacks,172 most
would never have aroused any suspicion were it not for their race and re-
ligion.173
Iqbal and the other detainees all ended up on an FBI list of people
connected to the September 11 investigation.174 However, the government
never came forward with any evidence linking Iqbal to September 11.175
Indeed, none of the over 700 detainees were ever convicted of any terror-
ism-related offenses.176 A report by the Department of Justice’s Office of
the Inspector General concluded that labels related to the September 11
investigation “were applied to many aliens with no connection to terror-
ism.”177 While waiting to be cleared, detainees classified as of interest to
the September 11 investigation were imprisoned, some for up to eight
months, in a special unit of New York’s Metropolitan Detention Center,178
where they were confined to cells except for one hour a day, suffered phys-
ical and verbal abuse, and were denied contact with the outside world.179
170
Shirin Sinnar, The Lost Story of Iqbal, 105 GEO. L.J. 379, 414 (2017); OFFICE OF THE INSPEC-
TOR GEN., U.S. DEP’T OF JUSTICE, SUPPLEMENTAL REPORT ON SEPTEMBER 11 DETAINEES’ ALLEGA-
TIONS OF ABUSE AT THE METROPOLITAN DETENTION CENTER IN BROOKLYN, NEW YORK 2, 21, 41–
42 (2003), https://oig.justice.gov/special/0306/full.pdf [hereinafter, OIG REPORT].
171
OIG REPORT, supra note 170, at 15–16. For example, one tipster expressed concern that there
were “numerous Middle Eastern men” working at all hours at a nearby grocery store. Id. at 17.
172
Sinnar, supra note 170, at 420 (“Although none of the detainees were ultimately implicated
in the attacks, the initial information in [some] cases included facts that would likely have created an
investigative interest independent of racial or religious affiliation. In many other cases, however, no
such individualized factual basis for suspicion appears to have existed.” (footnote omitted)).
173
This is not to say law enforcement can never consider a particular suspect’s appearance or
background in deciding who to investigate. This practice may be narrowly tailored to meet law en-
forcement needs. But in Iqbal, the defendants imprisoned the plaintiffs for months because of race and
religion, without any apparent law-enforcement justification.
174
OIG REPORT, supra note 170, at 2.
175
Sinnar, supra note 170, at 412 (“[D]uring the five years in which [Iqbal] pursued the case, the
government never publicly indicated that it had had a credible basis for suspecting him of terrorism,
although it presumably had every incentive to share such information.”).
176
Id. at 423–24. Three detainees were charged but acquitted, and the government “repudiated
its case against them and investigated the prosecutors who brought the case for ethical violations.” Id.
at 423. Zacarias Moussaoui, who pleaded guilty to involvement in the September 11 attacks, was not
one of these detainees; he was arrested before September 11. Id. at 424 n.348.
177
OIG REPORT, supra note 170, at 70.
178
Id.
179
Id. at 152 (discussing the “recreation policy” allowing “one hour of recreation a day, five days
a week”); id. at 142 (stating “the evidence indicates a pattern of physical and verbal abuse against
some September 11 detainees”); id. at 113 (describing the “communications blackout”).

28 CLARKE [7/14/2018
After they were eventually released, the detainees brought suit against
government officials, including Attorney General John Ashcroft, alleging
intentional discrimination based on race, religion, and national origin.180
The defendants moved to dismiss, arguing that the claims of discrimina-
tory intent were not plausible, and the Supreme Court agreed.181 In apply-
ing the substantive law, the only equal protection precedent the Court dis-
cussed was Feeney.182 Analyzing the case under Feeney, the Court asked
whether government officials had acted “because of” and “not merely ‘in
spite of’” a discriminatory impact.183 The Court concluded it was implau-
sible that high-level law enforcement officers would act with discrimina-
tory intent.184 Because “[t]he September 11 attacks were perpetrated by 19
Arab Muslim hijackers,” the Court reasoned “[i]t should come as no sur-
prise that a legitimate policy directing law enforcement to arrest and detain
individuals because of their suspected link to the attacks would produce a
disparate, incidental impact on Arab Muslims, even though the purpose of
the policy was to target neither Arabs nor Muslims.”185 The Court con-
cluded that all the complaint “plausibly suggests is that the Nation’s top
law enforcement officers, in the aftermath of a devastating terrorist attack,
sought to keep suspected terrorists in the most secure conditions available
until the suspects could be cleared of terrorist activity.”186 This “obvious
alternative explanation”—protecting homeland security—ruled out dis-
criminatory intent.187
Because the complaint was dismissed at the pleading stage, Iqbal
never had a chance to engage in discovery to uncover evidence of discrim-
inatory intent on the part of government officials.188 Other detainees in a
related lawsuit189 alleged that Ashcroft had expressed anti-Muslim animus,
reportedly saying “Islam is a religion in which God requires you to send
180
Ashcroft v. Iqbal, 556 U.S. 662, 666 (2009).
181
Id.
182
Id. at 676-77.
183
Id. at 676 (quoting Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 279 (1979)).
184
Iqbal, 556 U.S. at 682.
185
Id. Iqbal was Pakistani, not Arab. Out of the 762 detainees, 254 were from Pakistan. Sinnar,
supra note 170, at 417. Sinnar explains that the groups “Arab” and “Muslim” became conflated in “the
post-9/11 period, when race and religion merged in social constructions of the enemy.” Id. at 418.
186
Iqbal, 556 U.S. at 683.
187
Id. at 682.
188
This is a general criticism of Iqbal’s holding. See, e.g., Sinnar, supra note 170, at 428 (“Legal
scholars noted that the information needed to plead discriminatory intent, such as facts regarding the
defendant’s state of mind or the internal development of government policies, would frequently be
within the defendant’s sole possession.”).
189
This lawsuit suffered its own defeat in the Supreme Court in 2017. Ziglar v. Abbasi, 137 S.
Ct. 1843, 1869 (2017) (holding that the plaintiffs had no implied right of action to bring suit for most
of the alleged constitutional violations, and that federal officers had a qualified immunity defense
against the plaintiffs’ statutory claims). In the interests of full disclosure, I was a part of the team that
represented the plaintiffs in the Ziglar litigation, then-captioned Turkmen v. Ashcroft, from 2007 to
2008.

your son to die for him. Christianity is a faith in which God sends his son
to die for you.”190 This statement “identif[ies] Christianity by its central
theological tenet, but Islam, in contrast, by the views of a small group of
extremists.”191 After September 11, Ashcroft had also announced: “Let the
terrorists among us be warned. If you overstay your visa even by one day,
we will arrest you. If you violate a local law we will . . . work to make sure
that you are put in jail and . . . kept in custody as long as possible.”192 This
sounds suspiciously like what happened, not to terrorists, but to South
Asian and Middle Eastern immigrants with no involvement in terrorism.193
If the plaintiffs had been permitted to depose government officials,
they may have uncovered additional evidence. Journalist Steven Brill re-
ported, based on a composite of sources, that
Ashcroft told [FBI Director] Mueller that any male from eighteen to forty
years old from Middle Eastern or North African countries whom the FBI
simply learned about was to be questioned and questioned hard. And an-
yone from these countries whose immigration papers were out of order—
anyone—was to be turned over to the INS.194
According to Brill’s sources, when Mueller expressed qualms about a

“dragnet” that would entangle suspects “simply because they were Muslim
men,” Ashcroft insisted the only way to prevent terrorism “was to round
up anyone who fit the profile.”195
But perhaps such facts, even if proven, would not have mattered to the
result in Iqbal. As Shirin Sinnar suggests, one explanation of the case’s
holding is the unstated premise “that even if law enforcement officials did
take into account ethnicity and religion in their investigation, such consid-
erations were legitimate because of the ethnic and religious composition
190
Turkmen Complaint, supra note 173, ¶ 60(d). Ashcroft’s office issued a repudiation of the
statement, saying the remarks “do not accurately reflect the attorney general’s views.” Dan Eggen,
Ashcroft Disputes Report on Islam Views, WASH. POST (Feb. 12, 2002), https://www.washing-
tonpost.com/archive/politics/2002/02/12/ashcroft-disputes-report-on-islam-views/2656a726-3a34-
46ce-8e1b-8db36cc15982/.
191
Turkmen Complaint, supra note 173, ¶ 60(d).
192
Id. ¶ 60(e).
193
Id. In the Turkmen litigation, the Second Circuit found the allegations of discriminatory intent
sufficient even without considering these remarks. Turkmen v. Hasty, 789 F.3d 218, 254 (2d Cir.
2015), rev’d in part, vacated in part sub nom. Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (“[I]t is rea-
sonable to infer that Ashcroft, Mueller, and Ziglar possessed the requisite discriminatory intent be-
cause they knew that the New York List was formed in a discriminatory manner, and nevertheless
condoned that discrimination by ordering and complying with the merger of the lists, which ensured
that the MDC Plaintiffs and other 9/11 detainees would be held in the challenged conditions of con-
finement.”).
194
STEVEN BRILL, AFTER: HOW AMERICA CONFRONTED THE SEPTEMBER 12 ERA 38 (2003).
195
Id. at 149.

30 CLARKE [7/14/2018
of the hijackers and al Qaeda.”196 This would explain why the Court de-
scribed the mass detentions as “unsurprising.”197 The Court ought to have
been surprised to see “mass detentions of any kind in the United States.”198
But the Court “treated the mass detentions as banal—as if it were entirely
natural that horrific violence committed by nineteen men should generate
suspicion of thousands of others who shared (or appeared to share) their
broadly defined racial or religious identity.”199
Iqbal, however, sets no precedent on the substantive law of discrimi-
nation. Iqbal’s rule is procedural—it affirms that specificity is required in
factual pleading before a plaintiff is allowed discovery.200 Apart from the
allegations of discriminatory purpose, Iqbal had also alleged a facially dis-
criminatory policy—that the government had explicitly classified the de-
tainees based on race and religion.201 When a plaintiff challenges a facial
classification, the Court does not ask whether the classification was made
“because of” or “in spite of” a desire to discriminate.202 But the Court dis-
missed Iqbal’s allegation of a facially discriminatory policy as “conclu-
sory,” in other words, as a “bare assertion” not supported by factual alle-
gations.203 Iqbal thus foreclosed discovery into discriminatory intent and
classifications under certain conditions; it did not hold that discriminatory
intent or classifications are irrelevant.
And yet, Iqbal’s normative undercurrents are troubling. As Sinnar
demonstrates, Iqbal’s reasoning has been used to justify racial profiling in
a number of contested decisions.204 In one controversial case, a district
court called out government officials for explicit bias in racial profiling.
Floyd v. City of New York was a class action alleging that the NYPD’s
196
Sinnar, supra note 170, at 389–90.
197
See supra text accompanying note 185.
198
Sinnar, supra note 170, at 429 (“The sheer scope of the alleged detentions in this case—
thousands of individuals in a matter of months—might be expected to raise questions, even in the
wake of a devastating terrorist attack.”).
199
Id.
200
Id. at 678-79 (discussing the principle that the Federal Rules of Civil Procedure on pleading
do “not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions”).
201
Iqbal, 556 U.S. at 680.
202
See, e.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227 (1995) (striking down an
affirmative action program on the ground that “all racial classifications, imposed by whatever federal,
state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny”).
203
Iqbal, 556 U.S. at 681 (“It is the conclusory nature of respondent’s allegations [of a discrim-
inatory policy], rather than their extravagantly fanciful nature, that disentitles them to the presumption
of truth.”).
204
See Monroe v. City of Charlottesville, 579 F.3d 380, 389 (4th Cir. 2009) (citing Iqbal in
support of dismissal of an equal protection challenge to a police department’s DNA testing of 190
young black men over the course of several years of investigating a serial rapist who had been de-
scribed as a young black man); Hassan v. City of New York, No. 12–cv–3401, 2014 WL 654604, at
*7 (D.N.J. Feb. 20, 2014), rev’d, 804 F.3d 277 (3d Cir. 2015) (dismissing an equal protection chal-
lenge to an NYPD surveillance program of mosques, Muslim student organizations, and Muslim-
owned businesses, on the ground that “[t]he more likely explanation for the surveillance was a desire
to locate budding terrorist conspiracies”).

stop-and-frisk policy of temporarily detaining, questioning, and searching

people on the street targeted black and Hispanic people.205 That case rec-
ognized explicit evidence of discriminatory intent on the part of law en-
forcement officials.206 For example, “the highest ranking uniformed mem-
ber of the NYPD . . . was especially frank about the NYPD’s policy of
targeting racially defined groups for stops, provided that reasonable sus-
picion is also present.”207 The New York police commissioner stated “that
he focused on young blacks and Hispanics ‘because he wanted to instill
fear in them, every time they leave their home, they could be stopped by
the police.’”208 The judge concluded, “[t]he Equal Protection Clause does
not permit the police to target a racially defined group as a whole because
of the misdeeds of some of its members.”209 The case generated intense
political attention and unusually, a panel of the Second Circuit expressed
doubt about the merits of the ruling while adjudicating a preliminary mo-
tion.210 New York City ultimately decided to settle the case, to adopt most
of the district court’s recommendations, and to drop its appeal of the dis-
trict court’s decision.211
The extension of Feeney’s “in spite of” logic helps to explain other
instances in which evidence of explicit bias is surprisingly controversial.
For example, the Supreme Court has held repeatedly that legislatures can-
not use race as a proxy for partisan affiliation in redrawing the boundaries
of voting districts.212 But lower federal courts do not always follow this
205
959 F. Supp. 2d 540, 556 (S.D.N.Y. 2013) (bench trial).
206
Id. at 665.
207
Id. at 603 (characterizing a colloquy at trial and quoting the witness as admitting that many
street stops are not based on specific complaints from the public, but rather, are “based on the totality
of, okay, who is committing the—who is getting shot in a certain area? . . . Well who is doing those
shootings? Well, it’s young men of color in their late teens, early 20s”).
208
Id. at 606 (quoting the Senator who reported the comment as testifying “that he was ‘amazed’
that Commissioner Kelly was ‘comfortable enough to say that in the setting” of a meeting at the Gov-
ernor’s office in July 2010); id. at 606 n.297 (noting that “Defendants did not object to this out of court
statement”).
209
Id. at 563. See also Aziz Z. Huq, The Consequences of Disparate Policing: Evaluating Stop
and Frisk As A Modality of Urban Policing, 101 MINN. L. REV. 2397, 2456 (2017) (arguing that stop
and frisk policies are “indeed explicitly defended on the basis of a generalization—a stereotype about
racial minorities that is not merely derogatory, but that has historically been a keystone of discrimina-
tory legal architectures. And its advocates make no bones that the price of public safety will be borne
disproportionately by only some, and only because of the color of their skin”).
210
See Anil Kalhan, Stop and Frisk, Judicial Independence, and the Ironies of Improper Appear-
ances, 27 GEO. J. LEGAL ETHICS 1043, 1044 (2014) (describing how a Second Circuit panel recused
district court Judge Shira Scheindlin from the case, and “after expressing deep skepticism over the
merits of Judge Scheindlin’s decisions during oral argument, the three judges, who had been assigned
the case only to adjudicate preliminary motions, grabbed jurisdiction for themselves to decide the
merits of the appeal, rather than leaving the merits to be randomly assigned to another Second Circuit
panel”).
211
Id. at 1045.
212
See, e.g., Cooper v. Harris, 137 S. Ct. 1455, 1464 (2017) (“A plaintiff succeeds . . . even if . . .
a legislature elevated race to the predominant criterion in order to advance other goals, including po-
litical ones.”).

32 CLARKE [7/14/2018
reasoning.213 Perhaps this is because legislators who use race as a proxy

for partisan affiliation could be said to be acting “in spite of” the racially
disproportionate effects of new election laws.214 Their ultimate goal is to
stay in office; reducing the influence of African American voters is just a
side effect. Three Supreme Court Justices may be sympathetic to this side-
effect argument.215
Or consider the widespread lack of compliance with Batson v. Ken-
tucky.216 Batson is a 1986 Supreme Court case holding that it is unconsti-
tutional for prosecutors to strike prospective jurors based on race. 217 Bat-
son doctrine is often criticized for ignoring all forms of bias except the
most explicit, but it comes close to ignoring explicit bias as well. In an
infamous 1987 training video on Batson compliance, a Philadelphia Dis-
trict Attorney instructed:
[L]et’s face it, . . . , there’s the blacks from the low-income areas are less
likely to convict. . . . There is a resentment for law enforcement, there’s
a resentment for authority and, as a result, you don’t want those people
on your jury. And it may appear as if you’re being racist or whatnot, but,
again, you are just being realistic. You’re just trying to win the
case. . . .218
It took thirteen years for the Supreme Court of Pennsylvania to hold this
video was evidence of race discrimination.219 A lower court had excluded
the tape as irrelevant.220 The district attorney’s logic—that acting on racial
stereotypes is not wrongful discrimination if the real objective is winning
trials—may have been persuasive to the lower court. In another Batson
case, the prosecutor’s files included a document with the names of all the
black jurors highlighted in green to “represent[] blacks,” and notes such
213
N.C. State Conf. of NAACP v. McCrory, 831 F.3d 204, 226 (4th Cir. 2016) (reversing a
district court for overlooking evidence that reforms to North Carolina election law were explicitly
motived by race, and concluding that, “When a legislature dominated by one party has dismantled
barriers to African American access to the franchise, even if done to gain votes, ‘politics as usual’
does not allow a legislature dominated by the other party to re-erect those barriers.”).
214
See N.C. State Conf. of the NAACP v. McCrory, 182 F. Supp. 3d 320, 502–03 (M.D.N.C.
2016), rev’d and remanded, 831 F.3d 204 (4th Cir. 2016) (citing Feeney to conclude the election bill
was enacted in spite of its obvious disparate impact on African American voters).
215
See Cooper, 137 S. Ct. at 1490 (Alito, J., dissenting).
216
See, e.g., Jeffrey Bellin & Junichi P. Semitsu, Widening Batson’s Net to Ensnare More Than
the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 CORNELL L. REV. 1075, 1077
(2011) (“[V]irtually every commentator (and numerous judges) who have studied the issue have con-
cluded that race-based juror strikes continue to plague American trials”).
217
Batson v. Kentucky, 476 U.S. 79, 100 (1986).
218
Com. v. Basemore, 744 A.2d 717, 730 (Pa. 2000). The tape goes on like that. Id. (“[I]n my
experience, black women, young black women, are very bad . . . I guess maybe because they’re down-
trodden on two respects . . . .”).
219
Id.
220
Id. at 732.

as, “If it comes down to having to pick one of the black jurors, [this one]
might be okay.”221 Nonetheless, a Georgia state court denied habeas re-
view, and the Georgia Supreme Court summarily denied the petitioner’s
application for appeal.222 The U.S. Supreme Court ultimately reversed,223
but the state courts’ refusal to consider even the most explicit evidence of
racial discrimination is remarkable.
Thus, some courts may rely on the idea that there is a safe harbor for
actions taken with some ostensibly nondiscriminatory purpose to overlook
explicit discrimination. The implicit reasoning may be that the Constitu-
tion should only prohibit animus, in other words, the “bare . . . desire to
harm a politically unpopular group.”224 On this view, discrimination law
does not prohibit the intent to harm a politically unpopular group as a
means to accomplishing some other end. But discriminatory emotions are
not limited to animus.225 Moreover, this logic conflates the question of
whether intentional discrimination occurred with the question of whether
it was justified. And it assumes discrimination was justified without giving
the government’s justification any degree of scrutiny, and without giving
any weight to the harms to the victims.
Another reason judges refuse to acknowledge explicit bias unless it is
naked animus is out of concern for those accused of discrimination. Accu-
sations of bias are understood as referenda on the goodness or evil of those
charged with discrimination.226 Courts regard these inquiries as “un-
seemly.”227 Judges are wary of accusing discriminators of bigotry.228 Per-
haps because accusations of prejudice are such grave indictments, courts
have erected barriers to recognizing explicit bias.229 By contrast, courts
221
Foster v. Chatman, 136 S. Ct. 1737, 1744 (2016).
222
Foster v. Humphrey, No. 1989-V-2275 (Ga. Nov. 3, 2014), in 1 Joint App. at 246, Foster v.
Chatman, 136 S. Ct. 1737 (2016) (No. 14-8349), available at http://www.scotusblog.com/wp-con-
tent/uploads/2015/08/Foster-v-Chatman-Joint-Appendix.pdf.
223
Foster, 136 S. Ct. at 1737.
224
This quotation comes from Department of Agriculture v. Moreno, 413 U.S. 528, 534 (1973),
a case often described as expounding a special rule for the treatment of animus in equal protection
law. See ARAIZA, supra note 41, at 29-36.
225
See supra notes 41-44 and accompanying text.
226
Cf. Bagenstos, supra note 13, at 7 (“To be accused of racism, in the United States after the
Civil Rights Era, is to be accused of a heinous act or disposition.”).
227
Karst, supra note 508, at 1164.
228
See, e.g., Cooper v. Harris, 137 S. Ct. 1455, 1490 (2017) (Alito, J., dissenting in part, concur-
ring in part) (“When a federal court says that race was a legislature’s predominant purpose in drawing
a district, it accuses the legislature of ‘offensive and demeaning’ conduct . . . . That is a grave accusa-
tion . . . .”); Obergefell v. Hodges, 135 S. Ct. 2584, 2602 (2015) (recognizing a right to same-sex mar-
riage while acknowledging that “[m]any who deem same-sex marriage to be wrong reach that conclu-
sion based on decent and honorable religious or philosophical premises, and neither they nor their
beliefs are disparaged here”).
229
Consider the argument by one judge in the travel-ban litigation that the problem with the
district court’s preliminary findings of discrimination was the failure to clarify “when, if ever, the
President could free himself from the stigma of bias.” Int’l Refugee Assistance Project v. Trump,
857 F.3d 554, 591 (4th Cir. 2017) (en banc) (Shedd, J., dissenting), vacated and remanded 138 S. Ct.

34 CLARKE [7/14/2018
have little trouble understanding explicit statements as evidence of “re-

verse discrimination.”230 This may reflect judicial empathy for insiders ac-
cused of discrimination,231 and lack of empathy for outsiders who are vic-
tims of discrimination.232 But the question in a discrimination case is not
whether any particular person should face moral condemnation as a
bigot.233 The doctrinal architecture does not and should not account for
this harm.234 The question is whether discrimination caused harm to the
plaintiff, and whether the government is liable for it.235
B. Title VII Doctrine
Another example of judicial disregard for explicit bias is the so-called

“stray remarks doctrine” from Title VII. The basic idea behind this doc-
trine is that “alleged discriminatory remarks that happen in a casual setting
outside discussions regarding the dismissal decision do not support an in-
ference of discrimination.”236 As in other discrimination cases, the central
issue in most Title VII cases is causation—whether an employer took ac-
tion against an employee because of race, sex, or some other forbidden
ground. It is true, of course, that biased comments alone may not be suffi-
cient to show causation. But the stray remarks doctrine is not applied in a
nuanced manner. Rather, it is often used to altogether exclude evidence of
353 (2017), dismissed as moot 876 F.3d 116 (4th Cir. 2017) (emphasis added). Judge Shedd’s “‘ironic
repurposing’ of the term ‘stigma’” might be read as a deliberate effort to “sideline[]” the stigmatizing
harms of anti-Muslim discrimination. Aziz Huq, The Lingering “Stigma” of the Fourth Circuit’s
Travel Ban Ruling, JUST SECURITY (May 27, 2017), https://www.justsecurity.org/41462/lingering-
stigma-fourth-circuits-travel-ban-ruling/.
230
See supra notes 49–51 and accompanying text.
231
See, e.g., Karst, supra note 508, at 1164–65 (arguing that, in cases involving discriminatory
motive, “the ultimate issue will be posed in terms of the goodness or the evil of the officials’ hearts,”
and “that a judge’s reluctance to challenge the purity of other officials’ motives may cause her to fail
to recognize valid claims of racial discrimination even when the motives for governmental action are
highly suspect”).
232
See, e.g., Sinnar, supra note 170, at 430 (arguing that the Iqbal decision’s “dismissive atti-
tude . . . toward the communities affected by law enforcement policies” signals a lack of empathy).
On the role of empathy in discrimination cases generally, see Jill D. Weinberg & Laura Beth Nielsen,
Examining Empathy: Discrimination, Experience, and Judicial Decisionmaking, 85 S. CAL. L. REV.
313, 324–27 (2012).
233
See supra notes 52–56 and accompanying text. Entities like governments and employers, not
individuals, are generally liable for discrimination.
234
Cf. Mary Anne Franks, Injury Inequality, in INJURY AND INJUSTICE: THE CULTURAL POLITICS
OF HARM AND REDRESS 231, 232 (Anne Bloom et al., eds. 2018) (explaining how “outsized solicitude
for elite injuries” can “create[] indifference to marginalized inequality” and even “promote[] margin-
alized injury as a sacrifice necessary to preserve the interests of the powerful”).
235
236
Bagwe v. Sedgwick Claims Mgmt. Servs., Inc., No. 11 CV 2450, 2014 WL 4413768, at *13
(N.D. Ill. Sept. 5, 2014).

explicit bias from consideration.237 The doctrine is now invoked, as a mat-

ter of course, by district courts whenever a plaintiff alleges evidence of
explicitly biased comments.238 This development cannot be explained
away as a mere product of busy district judges’ efforts to clear their dock-
ets and avoid time-consuming trials because it is regularly endorsed by
circuit courts as well.239
The stray remarks doctrine finds no support in any employment dis-
crimination statute.240 Nor is it consistent with Supreme Court precedent.
The doctrine was inspired by Justice O’Connor’s concurring opinion in a
1989 case, Price Waterhouse v. Hopkins.241 That case dealt with how a
plaintiff can prove discrimination where an employer may have had both
discriminatory and nondiscriminatory reasons for denying a promotion.
Justice O’Connor proposed that a plaintiff be required to come forward
with “direct evidence” that discriminatory motive “was a substantial fac-
tor” in an employer’s decision, at which point the burden of proof would
shift to the employer to prove “that the decision would have been the same
absent consideration of the illegitimate factor.”242 She added: “stray re-
marks in the workplace,” such as the mere reference to a worker as “a lady
candidate,” could not justify this shift in burden.243 “Nor can statements
by non-decisionmakers, or statements by decisionmakers unrelated to the
decisional process itself, suffice to satisfy the plaintiff’s burden in this re-
gard.”244
Justice O’Connor did not say that a reference to “a lady candidate”
could never be evidence that could contribute to a finding that gender
played a role in a decision. Such a rule would defy common sense and
empirical research. 245 In Price Waterhouse, the partners who wanted to
237
See SANDRA F. SPERINO & SUJA A. THOMAS, UNEQUAL: HOW AMERICA’S COURTS UNDER-
MINE DISCRIMINATION LAW 59–66, 88–89 (2017); Stone, supra note 36, at 180.
238
A search of the Westlaw federal cases database on July 13, 2018 for “‘stray remarks’ and
‘Title VII’” yielded 2,943 results.
239
The discussion that follows describes dismissals affirmed by circuit courts. It focuses on race
and sex discrimination to demonstrate that the stray remarks doctrine is not motivated solely by skep-
ticism of age discrimination claims.
240
SPERINO & THOMAS, supra note 237, at 61 (“The stray remarks doctrine is not required by
the text of any discrimination statutes. Instead, courts have created it.”).
241
Stone, supra note 36, at 151 (discussing Price Waterhouse v. Hopkins, 490 U.S. 228, 277
(1989) (O’Connor, J., concurring) and noting that lower court cases began using the “stray remarks”
terminology following that opinion).
242
Price Waterhouse, 490 U.S. at 277 (O’Connor, J., concurring).
243
Id.
244
Id.
245
It ought to depend on context. Compare Elizabeth L. Cralley & Janet B. Ruscher, Lady, Girl,
Female, or Woman: Sexism and Cognitive Busyness Predict Use of Gender-Biased Nouns, 25 J. LAN-
GUAGE & SOC. PSYCHOL. 300, 300 (2005) (study finding sexism correlates with the use of gender-
based terms like “lady” and “girl” in inappropriate contexts, and hypothesizing that, “[w]hether indi-
viduals follow the norm to avoid less inclusive or potentially gender-biased terms probably depends
on the extent to which they hold egalitarian attitudes toward women”) with Ann Friedman, Hey “La-

36 CLARKE [7/14/2018
deny Hopkins’ promotion had stated that she “overcompensated for being
a woman,” that her swearing was objectionable “because it’s a lady using
foul language,” and that if she wanted to make partner, she should “walk
more femininely, talk more femininely, dress more femininely, wear
make-up, have her hair styled, and wear jewelry.”246 A majority of justices
agreed the remarks about plaintiff Ann Hopkins were consequential.247
Just two years later, Congress amended Title VII to reject Justice
O’Connor’s proposed legal standard and her heightened evidentiary re-
quirements for proof of discriminatory motive.248 Under the Civil Rights
Act of 1991, a plaintiff need only persuade a jury “by a preponderance of
the evidence, that ‘race, color, religion, sex, or national origin was a moti-
vating factor for any employment practice.’”249 “Direct evidence” is not
required; normal rules of evidence apply.250 At that point, the burden shifts
to the defendant to show it would have made the same decision even absent
discrimination.251 Nonetheless, Justice O’Connor’s aside about “stray re-
marks” has been formalized into legal doctrine and spread from cases in-
voking the “motivating factor” framework to cases using the McDonnell
Douglas method of circumstantial proof of discrimination.252 The Su-
preme Court has twice corrected lower courts for categorically refusing to
consider evidence of explicit bias.253
Yet the stray remarks doctrine continues to spread like a cancer
through lower court opinions in a number of procedural contexts.254 Judges
use the doctrine not only to reject the sufficiency of evidence of discrimi-
nation at the summary judgment stage or to reverse jury verdicts, but also
to rule remarks inadmissible, as a matter of evidence, excluding them from
dies”: The Unlikely Revival of a Fusty Old Label, THE NEW REPUBLIC (Jan. 26, 2013), https://newre-
public.com/article/112188/how-word-lady-has-evolved (discussing ironic millennial reappropriation
of the term “ladies”).
246
Price Waterhouse, 490 U.S. at 235 (plurality opinion).
247
Id. at 251; id. at 272-73 (O’Connor, J., concurring).
248
42 U.S.C. §§ 2000e-2(m), 2000e-5(b)(2)(B) (2018).
249
Desert Palace, Inc. v. Costa, 539 U.S. 90, 101 (2003).
250
Id. Under the Federal Rules of Evidence, a statement is inadmissible if “its probative value is
substantially outweighed by [the] danger of . . . prejudice. ” FED. R. EVID. 403. With respect to the
hearsay rule, biased remarks may be admissible because they are not offered for the truth of the matter
asserted, see id. at 801(c)(2), as statements against interest, see id. 804(b)(3), as party admissions, see
id. 801(d)(2), or as “statement[s] of the declarant’s then-existing state of mind (such as motive, intent,
or plan),” id. 803(3), among other potential arguments and exceptions.
251
This is a defense to most forms of damages, but even if an employer can make out this defense,
it is still liable for attorney’s fees and costs, as well as certain forms of declaratory and injunctive
relief. 42 U.S.C. § 2000e-5(b)(2)(B) (2018).
252
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
253
See Ash v. Tyson Foods, Inc., 546 U.S. 454, 455 (2006) (overturning a decision where the
court had refused to consider evidence that a supervisor had referred to an adult African American
male as “boy”); Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 151 (2000) (overturning a
decision disregarding a supervisor’s remarks that the plaintiff “was so old [he] must have come over
on the Mayflower” and “was too damn old to do [his] job”).
254
SPERINO & THOMAS, supra note 237, at 62–63.

jury consideration altogether.255 The “stray remarks doctrine” screens out

remarks based on context (how close in time or related was the remark to
the employment decision?), speaker (was it the decisionmaker?), and con-
tent (how biased was the remark?).256 Any one of these factors can result
in a court writing off a remark.257
Sometimes courts screen out statements of explicit bias because those
statements were not made in the context of the particular employment de-
cision258 or about the particular plaintiff.259 In one such case, a court dis-
regarded a litany of sexist comments, including: a reference to women in
the pharmaceuticals industry as “Barbie dolls,” a request to a plaintiff dur-
ing a group activity to “let the pretty girls go first,” the suggestion that a
plaintiff “discuss her career and commitment to her current position with
her husband,” and an instruction to another plaintiff “that she could not
attend a meeting with an important doctor because it was a ‘guys [sic]
meeting.’”260 In another case, a court granted summary judgment for an
investment bank, despite the fact that the female plaintiff’s supervisor “fre-
quently used such epithets as ‘bitch,’ ‘cunt,’ ‘whore,’ ‘slut’ and ‘tart’ when
referring to her.”261 The plaintiff had alleged this supervisor was behind
the decision to cut her bonus from $750,000 to $50,000, while paying
255
See, e.g., Taylor v. Virginia Union Univ., 193 F.3d 219, 234 (4th Cir. 1999) (Motz, J., dis-
senting) (arguing that the district court erred in excluding evidence that a police chief had “commented
that he ‘bet’ a woman ‘ha[d] good pussy,’” and criticizing the defendant’s argument that “‘this is [a]
kind of man talk situation. When men get together and talk they say certain things’”).
256
See, e.g., Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010). These are the most
typical questions, although federal courts differ in their formulations of the doctrine. Reid v. Google,
Inc., 235 P.3d 988, 1008–11 (Cal. 2010) (describing inconsistent holdings and “widely divergent
views” on the scope of the stray remarks doctrine among federal courts).
257
But see Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007) (“We did not
mean to suggest that remarks should first be categorized either as stray or not stray and then disre-
garded if they fall into the stray category.”).
258
See, e.g., Wilson v. Chipotle Mexican Grill, Inc., 580 F. App’x 395, 399 (6th Cir. 2014) (su-
pervisor called plaintiff a “black dyke bitch” but “[b]y the time of the comment, the predicates for
firing [plaintiff] had already taken place”); Perez v. St. John Med. Ctr., No. 08-CV-0533-CVE-FHM,
2009 WL 3254926, at *3 (N.D. Okla. Oct. 6, 2009), aff’d, 409 F. App’x 213 (10th Cir. 2010) (super-
visor repeatedly called plaintiff a “wetback”); Harris v. Cobra Constr., 273 F. App’x 193, 194–95 (3d
Cir. 2008) (evidence that company owner had pointed a gun at the plaintiffs and yelled, “What are you
two black mf---ers looking at? Now get back to work”); Ptasznik v. St. Joseph Hosp., 464 F.3d 691,
693, 695 (7th Cir. 2006) (supervisor told plaintiff “you’re old, you’re Polish, and you’re stupid” and
“that she would be better suited as a cleaning lady”); Trotter v. BPB Am., Inc., 106 F. App’x 272, 275
(5th Cir. 2004) (“straw man” and “nigger”); Schreiner v. Caterpillar, Inc., 250 F.3d 1096, 1098 (7th
Cir. 2001) (where a supervisor said the area where the female worked was “not a woman’s area,”
explaining, “Women can play in the NFL but do you see them on the field?”); Rubinstein v. Admins.
of Tulane Educ. Fund, 218 F.3d 392, 400 (5th Cir. 2000) (“Russian Yankee,” “thrifty Jew,” and the
comment, “if ‘the Russian Jew’ could obtain tenure, then anyone could”).
259
See, e.g., Perry v. City of Avon Park, Fl., 662 F. App’x 831, 837 (11th Cir. 2016) (“[A]
woman’s place is in the home taking care of children and not being in the work place.”).
260
Tourtellotte v. Eli Lilly & Co., 636 F. App’x 831, 836–38 (3d Cir. 2016).
261
Ferrand v. Credit Lyonnais, No. 02 CIV.5191(VM), 2003 WL 22251313, at *10 (S.D.N.Y.
Sept. 30, 2003), aff’d, 110 F. App’x 160 (2d Cir. 2004).

38 CLARKE [7/14/2018
larger bonuses to her male subordinates.262 The district judge reasoned that
the supervisor’s “crude” “epithets” “do not necessarily indicate that [the
supervisor] had a misogynist attitude which can be deflected to illuminate
an intent behind any adverse employment action taken by Credit Lyonnais
against a particular woman.”263
In other cases, courts screen out explicit bias because the remarks were
not made by the immediate decision maker.264 For example, in one case, a
plaintiff alleged his supervisor called him a “black motherfucker” and “an
ugly black man,” and said that black people “can be a lot of trouble.”265
The court concluded that the remarks were stray because it was not just
that supervisor, but also two other employees who had been involved in
the decision to deny a promotion to the plaintiff.266 In another case, a fe-
male doctor of Indian origin—the only woman in her surgical residency
program—alleged she had been unfairly terminated.267 One of the doctors
evaluating her had repeatedly described her deficiencies as “cultural.”268
He testified that his “impression of women in the Indian culture [was] that
they, in general, are in an environment in which they are not as assertive
as their American counterparts.”269 Another doctor “testified that he had
concerns about why women would put themselves through a surgical res-
idency, especially if they are planning on having children.”270 The doctor
explained: “they’re constantly tired, and they don’t have time to put on
their makeup and put on clothes and do a lot of the things girls need to
do.”271 The court concluded these remarks were irrelevant to the question
of whether discrimination motivated the plaintiff’s termination because
262
Id. at *2, *5.
263
Id. at *11. The supervisor had also said, “Credit Lyonnais shouldn’t be giving that bitch any
fucking options,” but the court reasoned this remark was about stock options, not bonus compensation
or any other adverse action taken against the plaintiff. Id. The argument that such insults are meaning-
less or indiscriminate, is address infra Part III.A.2.
264
See, e.g., Hampton v. City of S. Miami, 186 F. App’x 967, 970 n.3 (11th Cir. 2006) (disre-
garding a supervisor’s use of a slur because that supervisor was not the decisionmaker and the deci-
sionmaker did not “solely rely” on the supervisor’s “biased recommendations”); Mayes v. WinCo
Holdings, Inc., 846 F.3d 1274, 1277 (9th Cir. 2017) (where two employees who had input in a deci-
sion, but were not the final decisionmakers, had complained “They bring a woman to do a man’s
job?”); Nelson v. United Parcel Serv., Inc., 337 F. App’x 561, 563 (7th Cir. 2009) (holding that a
comment by plaintiff’s manager that she was going to “fire that nigger,” could not be considered direct
evidence because the decision to terminate plaintiff was made by someone else).
265
Brief for Appellant Arthur B. McNeal, McNeal v. Montgomery Cty., Md. at 4, 307 F. App’x
766 (4th Cir. 2009) (No. 07–1323), 2007 WL 2195566.
266
McNeal v. Montgomery Cty., Md., 307 F. App’x 766, 774 (4th Cir. 2009).
267
Sreeram v. Louisiana State Univ. Med. Ctr.-Shreveport, 188 F.3d 314, 319 n.1 (5th Cir. 1999).
268
Id.
269
Id.
270
Id.
271
Id.

there were no specific allegations of bias against “most” of the doctors

who gave her poor reviews.272
In other cases, courts screen out explicit bias because they regard re-
marks as too ambiguous to be interpreted as evidence of bias. For example,
in one case, a court concluded that calling the plaintiff “mom” was not
evidence of age discrimination, since “motherhood and advanced age—
plainly are not synonymous.”273 In context, a reasonable jury could under-
stand that the insult “mom” works by implying the plaintiff was old
enough to be her coworker’s mother.274 In another case, the court disre-
garded as ambiguous two remarks by a company owner: (1) that the only
African American woman she employed “was not black, but a woman who
happen[s] to be black,” and (2) “that if a federal contract required [her
company] to hire a certain number of minorities, she would close her
shop.”275 The comment distinguishing between “black people” and
“women who happen to be black” is reasonably interpreted as the em-
ployer’s insistence that workers downplay their racial identities, particu-
larly in the context of the case, in which the plaintiff, who was then one of
two African American women at the company, was fired for no apparent
reason other than her “attitude.”276
In another case, supervisors fired an African American plaintiff after
instructing her to behave like an “Uncle Tom.”277 The supervisors had
said: “‘intelligence and outspokenness in black employees is not wel-
comed’ and that ‘qualities that would make a Caucasian a golden child,
being aggressive and intelligent and outspoken and a go-getter, would do
exactly the reverse to a person of color.’”278 Accordingly, they “advised
272
Id. at 308. Title VII does not require that a doctor remain in a residency program if she was
terminated on account of her lack of qualifications. But where discrimination was also a motivating
factor, as it plainly was here, she is entitled to her attorney’s fees and injunctive and declaratory relief.
273
Gonzalez v. El Dia, Inc., 304 F.3d 63, 69 (1st Cir. 2002). That the insult also had gendered
dimensions should not be exculpatory, considering sex is also a prohibited basis for discrimination. It
seems unlikely that this comment’s message was that the plaintiff was parental in some gender-neutral
way, but the question is best left for a jury.
274
Id. The plaintiff alleged that this same person, the director of human resources, had told the
plaintiff that she had “manias de vieja” (an old woman’s ways), compared her haircut to octogenarian
Phyllis Diller’s, and told her “she should have retired and gone to live with her grandchildren in Florida
long ago,” among other age-related comments. Id.
275
Diamond v. Bea Maurer, Inc., 128 F. App’x 968, 972 (4th Cir. 2005).
276
The plaintiff was reprimanded for attempting to get a flu shot, while a white coworker was
not, and after that incident, the company’s president became outraged about the plaintiff’s “attitude,”
eventually firing her for “chewing gum” and “singing,” behaviors that white employees engaged in
without comment. Id.
277
Twymon v. Wells Fargo & Co., 462 F.3d 925, 931 (8th Cir. 2006).
278
Id.

40 CLARKE [7/14/2018
her to develop a deferential persona, as ‘a good black’ that ‘would be ac-

cepted by the Caucasians at Wells Fargo.’”279 The court reasoned that
these supervisors were trying to help the plaintiff, not hurt her.280
The stray remarks doctrine is inconsistent with procedural rules281 that
require that inferences be drawn in favor of the non-movant and that courts
refrain from weighing the evidence.282 The dysfunctions of the stray re-
marks doctrine are compounded by the general problem of overly formal-
istic analysis in Title VII cases.283 Courts “slice and dice” discrimination
claims into various theories, which they call: (1) direct evidence of dis-
crimination, (2) circumstantial evidence considered via the McDonnell
Douglas framework, and (3) harassment.284 The motivating-factor frame-
work set out by Congress in the Civil Rights Act of 1991 is largely ig-
nored.285 This slicing and dicing allows courts to avoid contextual analysis
of explicitly biased remarks. Courts count biased remarks as falling into
the direct evidence category, where they consider whether, standing alone,
those remarks are sufficient to prove discrimination caused an employ-
ment decision.286 After dismissing the remarks as direct evidence, courts
refuse to consider those remarks alongside circumstantial evidence, such
as evidence that male or white workers received preferential treatment.287
279
Id. at 934.
280
Id. (the “alleged ‘Uncle Tom’ statements, while racially offensive and misguided, were ap-
parently made in the context of attempting to preserve and promote Twymon’s career at Wells Fargo,
not in relation to deciding to terminate Twymon”).
281
The Supreme Court has instructed that at summary judgment “[c]redibility determinations,
the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury func-
tions, not those of a judge, whether he is ruling on a motion for summary judgment or for a directed
verdict. The evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn
in his favor.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (citing Adickes v. S.H. Kress
& Co., 398 U.S. 144, 158–59 (1970)).
282
Russell v. McKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000) (expressing the con-
cern that the stray remarks doctrine “is itself inconsistent with the deference appellate courts tradition-
ally allow juries regarding their view of the evidence presented and so should be narrowly cabined”);
Diaz v. Jiten Hotel Mgmt., Inc., 762 F. Supp. 2d 319, 335 (D. Mass. 2011) (“[W]hether a ‘given re-
mark is ‘ambiguous’—whether it connotes discriminatory animus or it does not—is precisely what a
jury should resolve, considering all of the facts in context. What may be ambiguous to me, the judge,
may not be to the plaintiff or to her peers.”).
283
See generally SPERINO & THOMAS, supra note 237.
284
Michael J. Zimmer, Leading by Example: An Holistic Approach to Individual Disparate
Treatment Law, 11 KAN. J.L. & PUB. POL’Y 177, 177 (2001).
285
See, e.g., Ponce v. Billington, 679 F.3d 840, 845 (D.C. Cir. 2012) (discussing how plaintiffs’
lawyers fear that if they raise the motivating factor theory, the jury will “split the baby” and find that
the defendant has proven its defense).
286
See, e.g., Curry v. Menard, Inc., 270 F.3d 473, 477 (7th Cir. 2001) (concluding that evidence
that the black plaintiff’s supervisor “had a practice of calling the store’s department managers and
security personnel to warn them when black or Hispanic customers came into the store” and said,
“‘blacks don’t like to work as much as Mexicans’ and that ‘Mexicans will work for little or nothing’”
was insufficient as direct evidence of discriminatory motive).
287
Id. at 781 (Rovner, J., concurring) (“[A]lthough I agree with the majority that Curry’s testi-
mony regarding Horvath’s racial remarks was not direct proof of discrimination, that should not pre-
vent Curry from introducing the same evidence to prove pretext should Menard renew its motion for

This is notwithstanding the fact that the combined weight of the evidence
might support a finding of discrimination.288 Harassment claims are con-
sidered on an entirely separate track, in which courts often find discrimi-
natory remarks insufficiently “severe or pervasive” to amount to a
claim.289
Thus, the stray remarks doctrine enables courts to altogether exclude
explicit bias from consideration in employment discrimination cases. In
both the Title VII and constitutional law contexts, courts distort discrimi-
nation law to ignore explicit bias. This phenomenon may be underwritten
by a set of legal arguments common to both contexts. The next Part will
address those arguments.
III. LEGAL ARGUMENTS FOR DISREGARDING EXPLICIT BIAS
Court decisions and legal briefs offer arguments in favor of categori-

cally refusing to account for explicit bias. This Part attempts to construct
the best versions of these legal arguments and then to criticize them. One
set of arguments relates to the evidentiary value of explicit bias: that a
person’s statements are not a reliable guide to her true intentions, assuming
intentions could even be determined by the law. A second set of concerns
is about remedies: for example, the concern that if certain courses of action
are forever tainted by the illicit motives that first inspired them, then insti-
tutions will be precluded from ever enacting those policies, even if later
motives are honorable. A third concern is about competing First Amend-
ment rights: that introducing evidence of explicit bias will chill free
speech, thought, and expression. And a final concern has to do with polit-
ical consequences: the fear that recognition of explicit bias will spur back-
lash, undermining antidiscrimination projects and judicial legitimacy.
None of these concerns holds up to scrutiny.
summary judgment.”); Traylor v. Brown, 295 F.3d 783, 788 n.3 (7th Cir. 2002) (refusing to consider
whether comments by co-workers and supervisors that plaintiff was a “black girl” and a “token” were
circumstantial evidence of discrimination, based on the formalistic logic that such comments could
only be direct evidence of discrimination or evidence of harassment).
288
This is one reason the California Supreme Court refused to adopt a stray remarks doctrine.
Reid v. Google, Inc., 235 P.3d 988, 1008 (Cal. 2010) (noting that “[a]lthough stray remarks may not
have strong probative value when viewed in isolation, they may corroborate direct evidence of dis-
crimination or gain significance in conjunction with other circumstantial evidence”).
289
See, e.g., Stone, supra note 36, at 170 (discussing the extension of the stray remarks doctrine
to harassment cases).

42 CLARKE [7/14/2018
A. Interpretive Difficulties
One set of reasons legal actors give for ignoring explicit bias is related
to the difficulty of ascertaining intentions. These concerns may take a
number of forms. One is the “mindreading” objection: that an actor’s sub-
jective intent is always unknowable, and therefore, the law should rest only
on evidence of official purposes. Or the argument might be that certain
types of statements—such as campaign rhetoric, commentary on social
media, or casual conversations—are not reliable indicators of a person’s
true attitudes. Another variation on this argument is that multi-member
bodies, like legislatures and corporations, do not have discernable pur-
poses or intentions apart from their official enactments. These concerns
amount to the claim that explicit bias does not aid courts in their truth-
seeking function, and should therefore be excluded, like other misleading
forms of evidence.
1. Mindreading
One version of this argument is that because determining a defendant’s

true intentions would require “mindreading,” courts should defer to offi-
cial statements of purpose.290 Although courts use the language of subjec-
tive intentions in conducting inquiries into purpose, strictly speaking, it
not just “the thought that counts.”291 Courts have proven themselves capa-
ble of interpreting statements of explicit bias, among other objective facts,
as indicia of discriminatory purpose. Because an important part of the
harm of discrimination is the message of inferiority it expresses, this in-
quiry is appropriate.292
The mindreading objection is an old one.293 In Palmer v. Thompson,
the Court deferred to the City’s ostensibly race-neutral cost and safety rea-
sons for closing the pools and refused to consider the mayor’s public state-
ments about his intent to maintain segregation because it was too difficult
to determine subjective motives.294 In the travel-ban cases, the govern-
ment’s briefs quoted McCreary County v. ACLU, an Establishment Clause
290
I use the terms motive, purpose, and intent synonymously here, following the common prac-
tice of courts. But see Andrew Verstein, The Jurisprudence of Mixed Motives, 127 YALE L.J. 1106,
1122 (2018) (discussing distinctions among these concepts in the scholarship). This Article is inter-
ested in intent in the sense of whether someone meant to discriminate, not their motives or reasons for
discriminating. See supra notes 41–43 and accompanying text.
291
Cf. HELLMAN, supra note 58, at 138.
292
See supra Part I.B (discussing the interrelationships of material and expressive dynamics of
discrimination).
293
See, e.g., Soon Hing v. Crowley, 113 U.S. 703, 710–11 (1885) (“The diverse character of
such motives, and the impossibility of penetrating into the hearts of men and ascertaining the truth,
precludes all such inquiries as impracticable and futile.”).
294
Palmer v. Thompson, 403 U.S. 217, 224 (1971).

case that directed courts to come to “an understanding of official objec-

tive . . . from readily discoverable fact, without any judicial psychoanaly-
sis of a drafter’s heart of hearts.”295 The government argued that President
Trump’s public statements about Muslims were not “readily discoverable
fact[s].”296 While the government admitted “it is readily discoverable that
the statements occurred,” the question is “what candidate Trump and his
aides meant by them.”297 On this theory, meaning is elusive because cam-
paign statements contradict official rationales, and judges are left with no
way to determine which are the true reasons.298 Variations on this reason-
ing can be heard in cases invoking the stray remarks doctrine, in which
courts express perplexity at the meaning of comments about race and gen-
der, and opt to defer instead to the employer’s proffered reasons.299
The argument that courts can never assess the weight of conflicting
statements amounts to a sort of interpretive nihilism. In McCreary, the
Court rejected this precise argument.300 It considered the assertion that
judges cannot discern purpose “as seismic as [it is] unconvincing.”301 It
was “seismic” because inquiries into purpose are mundane modalities of
statutory interpretation.302 In fact, judicial determinations of motive are
commonplace, required not just by discrimination law, but by an array of
constitutional, criminal, tort, and other doctrines.303 Courts consider state-
ments of intent “evidence that is competent to convict a defendant of mur-
295
McCreary County, Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 862 (2005) (inval-
idating a county’s decision to post the Ten Commandments in a courthouse).
296
Trump Cert. Pet., supra note 20, at 27.
297
Id.
298
Compare Washington v. Trump, 858 F.3d 1168, 1173 (9th Cir. 2017) (Kozinski, J., dissenting
from denial of rehearing en banc) (“If a court were to find that campaign skeletons prevented an offi-
cial from pursuing otherwise constitutional policies, what could he do to cure the defect? Could he
stand up and recant it all (‘just kidding!’) and try again? Or would we also need a court to police the
sincerity of that mea culpa—piercing into the public official’s ‘heart of hearts’ to divine whether he
really changed his mind . . . .”); with Int’l Refugee Assistance Project v. Trump, 265 F. Supp. 3d 570,
627 (D. Md. 2017) (“Particularly where, in August 2017, President Trump tweeted a statement that a
method hostile to Islam—shooting Muslims with bullets dipped in pig’s blood—should be used to
deter future terrorism, there is no record of public statements showing any change in the President’s
intentions relating to a Muslim ban.”).
299
300
McCreary, 545 U.S. at 863 (“declin[ing] the invitation to abandon concern with purpose
wholesale”); id. at 861 (explicitly rejecting the argument that “true ‘purpose’ is unknowable, and its
search merely an excuse for courts to act selectively and unpredictably in picking out evidence of
subjective intent”).
301
Id.
302
Id. (“Examination of purpose is a staple of statutory interpretation that makes up the daily
fare of every appellate court in the country.”).
303
See, e.g., Verstein, supra note 290, at 1111 & 1170 App. B (cataloguing legal doctrines that
turn on motives in areas including “legal ethics, constitutional law (voter districting, school desegre-
gation, jury selection, free-speech and censorship, takings), labor law, landlord-tenant law, intentional
torts, vicarious liability, evidence, property, health law, contract law, corporate law, employment dis-
crimination, securities enforcement, taxation, bankruptcy, and more”).

44 CLARKE [7/14/2018
der—and thereby render the defendant eligible for our society’s most se-
rious punishment.”304 It would be anomalous in the extreme if such state-
ments could not be evidence of discrimination.
Courts can and do determine intent by assessing objective evidence
such as explicit statements.305 Rather than prying into the minds of offi-
cials, courts searching for discriminatory intent often ask about the mean-
ing a reasonable observer would attribute to a particular policy.306 This
inquiry “unfolds in two steps: first, an ascription to a statute of an expres-
sive meaning and, second, an imputation of an ‘objective’ legislative intent
to communicate that meaning.”307 Explicit statements are relevant to this
inquiry. As Richard Fallon explains, “[i]n imputing intentions to people
whom we know, we often rely on a mix of contextual factors, biographical
information, and explicit statements. We can do the same with legisla-
tors.”308 The Supreme Court expressed no qualms about undertaking this
interpretive task in Masterpiece Cakeshop, where it held the remarks of a
Colorado commissioner reflected anti-religious animus.309
A similar inquiry takes place in employment discrimination cases in
which courts examine evidence of explicit bias, rather than excluding it
based on the stray remarks doctrine. By necessity, judgments about intent
require inferential reasoning. Judges cannot go back in time and demand
candor from decisionmakers.310 But just as they can discern intent in crim-
inal, tort, and other cases, judges can do so in employment discrimination
cases.311 In Title VII cases, the Court has repeatedly affirmed the relevance
of remarks that might be interpreted as evincing bias.312 For example, in
304
Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 344 (4th Cir. 2018) (en banc)
(Wynn, J., concurring).
305
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 600-01 (4th Cir. 2017) (en banc),
vacated and remanded, 138 S. Ct. 353 (2017), dismissed as moot, 876 F.3d 116 (4th Cir. 2017)
(“We . . . see nothing ‘intractable’ about evaluating a statement’s probative value based on the identity
of the speaker and how specifically the statement relates to the challenged government action, for this
is surely a routine part of constitutional analysis.”).
306
Richard H. Fallon, Jr., Constitutionally Forbidden Legislative Intent, 130 HARV. L. REV. 523,
549 (2016) (discussing cases in which “courts invoke a conception of legislative intent derived from
statutes’ expressive meanings. That conception involves, as a first approximation, the communicative
significance that a competent, informed participant in a society would attach to a statute as an indicator
of prevailing societal values.”).
307
Id.
308
Id. at 580.
309
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16-111, slip op. at 13-14
(U.S. June 4, 2018) (carefully parsing statements suggesting explicit bias, and interpreting ambiguous
statements that became more clear in light of later statements and a pattern of decisions).
310
Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 190–91 (2009) (Stevens, J., dissenting) (“Some-
times we speak of determining or discovering motives, but more often we ascribe motives, after an
event, to an individual in light of the individual’s thoughts and other circumstances present at the time
of decision.”).
311
312
See supra note 253. In Price Waterhouse v. Hopkins, Justice O’Connor characterized the
proof presented as demonstrating the following: “It is as if Ann Hopkins were sitting in the hall outside

Ash v. Tyson Foods, two African-American men alleged they were denied
promotions that went to white men instead.313 The plant manager, who had
made the decision, had referred to each of the adult male plaintiffs as
“boy,” which the plaintiffs claimed was evidence of racial animus.314 The
Court of Appeals had reasoned: “[w]hile the use of ‘boy’ when modified
by a racial classification like ‘black’ or ‘white’ is evidence of discrimina-
tory intent, the use of ‘boy’ alone is not evidence of discrimination.”315
The Supreme Court disagreed, holding, “[a]lthough it is true the disputed
word will not always be evidence of racial animus, it does not follow that
the term, standing alone, is always benign.”316 The Court required an in-
quiry that was sensitive to “various factors including context, inflection,
tone of voice, local custom, and historical usage.”317
Thus, courts can ascribe discriminatory intent by examining context,
including explicitly biased remarks. This interpretive inquiry directly
identifies when a policy expresses discriminatory meaning, and is the clos-
est possible proxy for identifying when discriminatory motives caused
harm.
2. Cheap Talk and Pandering
Another variation on this argument is that all remarks apart from for-
mal declarations of purpose are throw-away comments, not serious state-
ments of intent.318 While the context in which a comment was made is
relevant to the weight a court affords a particular piece of evidence, there
is no basis for automatically excluding all such evidence.
In the travel-ban litigation, the government argued that campaign
“statements are irrelevant because only an ‘official objective’ regarding
religion can violate the Establishment Clause.”319 This point must have
been persuasive to the Supreme Court, because the Court made reference
to the fact that some of the President’s statements were made on the cam-
paign trail in its characterization of those statements as “extrinsic.”320 The
the room where partnership decisions were being made. As the partners filed in to consider her candi-
dacy, she heard several of them make sexist remarks in discussing her suitability for partnership.”
490 U.S. 228, 272–73 (1989) (O’Connor, J., concurring).
313
Ash v. Tyson Foods, Inc., 546 U.S. 454, 455 (2006).
314
Id. at 456.
315
Id. (quoting Ash v. Tyson Foods, Inc., 129 F. App’x 529, 533 (11th Cir. 2005)).
316
Id.
317
Id.
318
See Washington v. Trump, 858 F.3d 1168, 1173 (9th Cir. 2017) (Kozinski, J., dissenting from
denial of rehearing en banc) (cautioning against reliance on “unguarded declarations” by a politician
during a campaign, which “are often contradictory or inflammatory”).
319
Trump Reply, supra note 129, at 9.
320
See supra note Error! Bookmark not defined. and accompanying text.

46 CLARKE [7/14/2018
government made three arguments against reliance on campaign state-

ments. First, they are made before a candidate has taken the oath of office
and agreed to uphold the Constitution.321 Second, “[t]hey are often made
without the benefit of advice from an as-yet-unformed Administration.”322
And third, campaign statements are like rough drafts, which “cannot bind
elected officials who later conclude that a different course is warranted.”323
These arguments resonate with the reasons for requiring formality in
contracting.324 If the law makes clear precisely how and when promises
will be legally effective, people will have fair warning about when their
statements will be taken seriously, and courts will have ready evidence of
what commitments were made.325 Such considerations make sense when a
person will later be bound to some course of action by their promises, and
others will rely on those guarantees to structure their affairs.326 As Kathe-
rine Shaw has argued, in saying what the law is, courts may have good
reasons not to consider “presidential statements offered in the spirit of ad-
vocacy, persuasion, or pure politics, where those statements do not reflect
considered legal positions.”327 Accordingly, the argument that no one
should rely on unofficial statements has force in situations in which courts
are called upon to determine the scope of a law or policy, or to interpret
how it applies to a particular situation. For example, if the President an-
321
Trump Cert. Pet., supra note 20, at 28 (“Taking that oath marks a profound transition from
private life to the Nation’s highest public office, and manifests the singular responsibility and inde-
pendent authority to protect the welfare of the Nation that the Constitution reposes in the President.”).
But see Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 630 (4th Cir. 2017) (en banc)
(Thacker, J., concurring) (accepting the government’s argument that campaign statements are irrele-
vant but still finding evidence of an Establishment Clause violation “based solely on remarks made or
sentiments expressed” after the President’s inauguration), vacated and remanded, 138 S. Ct. 353
(2017), dismissed as moot, 876 F.3d 116 (4th Cir. 2017).
322
323
Id. The government’s brief quoted a Fourth Circuit dissent that argued: “Because of their
nature, campaign statements are unbounded resources by which to find intend of various kinds . . .
they are often short-hand for larger ideas” and “are explained, modified, retracted, and amplified as
they are repeated and as new circumstances and arguments arise.” Id. (quoting Int’l Refugee Assistance
Project, 857 F.3d at 650 (Niemeyer, J., dissenting)).
324
See Lon Fuller, Consideration and Form, 41 COLUM. L. REV. 799, 801 (1941). The Supreme
Court’s use of the term “extrinsic evidence” calls to mind contract-law doctrines that limit considera-
tion of evidence outside the text of an agreement. See, e.g., Charles J. Goetz & Robert E. Scott, The
Limits of Expanded Choice: An Analysis of the Interactions Between Express and Implied Contract
Terms, 73 CAL. L. REV. 261, 273 (1985) (“If the writing appeared to be a complete (integrated) ex-
pression of the parties’ intent, the common law parol evidence rule barred introduction of extrinsic
evidence to contradict or supplement the written terms.”).
325
See Fuller, supra note 324, at 3 (describing these as the “evidentiary,” “cautionary,” and
“channeling” functions of legal formalities).
326
Id.
327
Katherine Shaw, Beyond the Bully Pulpit: Presidential Speech in the Courts, 96 TEX. L. REV.
71, 129 (2017).

nounces a new policy barring transgender servicemembers via social me-

dia, military officials will wait for an official directive before carrying out
that policy.328
But this argument is misplaced when the law is asking a different ques-
tion, for which reliance interests are not at stake: was this law a result of
discrimination? When the question is whether discriminatory purpose mo-
tivated executive action, “statements by executive branch officials supply
the most relevant evidence of intent.”329 While not every statement will be
probative, courts can evaluate statements on a “case-by-case basis.”330
Statements such as those in the travel-ban case provide easy evidence
“probative of purpose because they are closely related in time, attributable
to the primary decisionmaker, and specific and easily connected to the
challenged action.”331 To the extent that the law is concerned about
whether an official action expresses a discriminatory meaning to the pub-
lic, an official’s statements are all the more important. The public is more
likely to be familiar with the President’s pronouncements than with state-
ments of purpose in an executive order or briefs filed in litigation.332
Precisely because they are crafted with the benefit of advice and cau-
tion, formal statements of purpose may be pretextual. A politician’s own
statements will often be the more reliable guide to meaning.333 This in-
cludes campaign statements. Perhaps the ceremony of the oath of office
could persuade a politician of the gravitas of his duties, transforming his
purposes from unconstitutional to constitutional.334 But to assume this oc-
curs automatically is magical thinking. At the very least, a politician’s
statements should not be categorically excluded from judicial considera-
tion.
328
Cf. Note, In Tweets, President Purports to Ban Transgender Military Servicemembers,
131 HARV. L. REV. 934, 934 (2018) (discussing the argument that social media announcements of a
new policy to exclude transgender servicemembers “upset the reasonable expectations” of those who
would have been excluded by that policy).
329
Shaw, supra note 327, at 138.
330
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 500 (4th Cir. 2017) (en banc), va-
cated and remanded, 138 S. Ct. 353 (2017), dismissed as moot, 876 F.3d 116 (4th Cir. 2017).
331
Id. While this might be true of the President’s comments regarding the travel-ban, appellate
courts should be wary of including such language in constitutional discrimination cases. The lesson
from the “stray remarks” cases is that lower courts may formalize these descriptions into tests used to
arbitrarily screen out evidence of explicit bias. See supra Part II.B.
332
Shaw, supra note 327, at 139.
333
Id. (“When it comes to the President’s purpose, other executive branch submissions could not
possibly overcome the President’s own words. Accordingly, presidential statements should clearly
control in such cases.”).
334
See, e.g., Oral Argument at 28-29, Trump v. Hawaii, No. 17-965, slip op. (U.S. June 26, 2018)
(response of the Solicitor General to the hypothetical question, “Suppose you have a local mayor and,
as a candidate, he makes vituperative . . . hateful statements, he’s elected, and on day two, he takes
acts that are consistent with those hateful statements. . . . whatever he said in the campaign is irrele-
vant?” that “yes, because we do think that oath marks a fundamental transformation”).

48 CLARKE [7/14/2018
A different variation on this argument—one not made expressly—

might be that politicians make explicitly biased remarks to pander to the
base emotions of voters, and so these remarks cannot be taken as genuine
indications of discriminatory intent. But the question is not whether the
official is a bigot. If an official takes action to harm minority groups not
because he is a bigot, but because his supporters are, it is no less discrim-
inatory.335 The cause of the harm to the plaintiffs was the discriminatory
views of a group of constituents, passed through the politician as a con-
duit.336 Moreover, this objection fails to account for how the harms of dis-
crimination are both material and expressive.337 If a politician campaigns
on a promise of discrimination and, once elected, takes an action that
harms minority-group members, that action may very well express that
minorities are not full members of the community. This is so regardless of
the official’s true feelings.
Courts may imagine that slurs and insults are just jokes that do not
reflect a speaker’s true attitudes and have no bearing on serious deci-
sions.338 Judge Kozinski put the point vividly: “We’ll quest aimlessly for
true intentions across a sea of insults and hyperbole.”339 This argument
resonates with a certain understanding of rhetoric in the Internet age.
Online commentary does not always mean what it says. Some comments
are just “trolling”: attempting to elicit offense for the sake of offense, or
pushing the bounds of transgression for the sake of transgression.340 Or
they are just “locker room talk”: insignificant male banter.341 Similar
335
See Heidi Kitrosser, Is Speech from the Campaign Trail Relevant to Religious Discrimination
Claims?, ACS BLOG (Mar. 20, 2017), https://www.acslaw.org/acsblog/should-elected-officials-be-
held-accountable-in-court-for-campaign-speech (“A presidential action that is taken to appeal to a
constituency’s perceived bigotry is no less discriminatory in purpose than is an action that manifests
the president’s personal biases.”).
336
In the Title VII context, courts have long rejected the “customer preference” defense to dis-
crimination for this reason. See, e.g., Fernandez v. Wynn Oil Co., 653 F.2d 1273, 1276 (9th Cir. 1981).
337
See supra Part I.B.
338
Cf. Joan P. Emerson, Negotiating the Serious Import of Humor, 32 SOCIOMETRY 169, 169
(1969) (discussing how “humor officially does not ‘count’” and “[n]ormally a person is not held re-
sponsible for what he does in jest to the same degree that he would be for a serious gesture.”); A.
Michael Johnson, The “Only Joking” Defense: Attribution Bias or Impression Management?, 67 PSY-
CHOL. REP. 1051, 1054 (1990) (presenting survey research that “suggests that people believe that their
own jokes do not usually reflect their attitudes even when other people are offended”).
339
Washington v. Trump, 858 F.3d 1168, 1174 (9th Cir. 2017) (Kozinski, J., dissenting from
denial of rehearing en banc).
340
See, e.g., WHITNEY PHILLIPS, THIS IS WHY WE CAN’T HAVE NICE THINGS: MAPPING THE
RELATIONSHIP BETWEEN ONLINE TROLLING AND MAINSTREAM CULTURE 1 (2015) (discussing
“trolling” that attempts “to disrupt and upset as many people as possible”).
341
See, e.g., MANNE, supra note 2, at 206 (discussing the difficulty “of giving a close reading of
some of the least literate remarks in human history,” such as the phrase “I moved on her like a bitch”).

views may explain the stray remarks doctrine.342 Yet social science evi-
dence is to the contrary.343 Some empirical research even supports the
common sense idea that sexist language is correlated with sexist beliefs,
or lack of concern about sexism.344
Another variation on this argument may be some people are indiscrim-
inately vulgar. For example, courts may imagine that, in Title VII cases in
which supervisors insulted women in gendered terms, had the plaintiffs
been men, their supervisors would have been equally vulgar, using the set
of crude epithets generally reserved for men.345 If this were true, surely
there would be evidence that men were also subjected to gender-based in-
sults, but such evidence is absent in the stray remarks cases.346
In employment discrimination cases, courts should consider discrimi-
natory remarks in context, rather than excluding them based on the for-
malistic application of special rules. While “a slur, in and of itself, does
not prove actionable discrimination,” combined with other evidence, an
otherwise stray remark may create an “ensemble [that] is sufficient to de-
feat summary judgment.”347 The fact that the statement was not made in
the context of a particular employment decision goes to the weight a jury
should give that statement; it is not a reason to rule it out categorically.
Refusing to consider such evidence is inconsistent with the everyday prac-
tice of determining a person’s purpose from their statements.348 As one
court put it, “management’s consideration of an impermissible factor in
one context may support the inference that the impermissible factor en-
tered into the decisionmaking process in another context.”349 And there are
342
See supra notes 338-346.
343
Research suggests the unsurprising finding that prejudice correlates with favorable reactions
to humor that disparages outgroups. See Gordon Hodson et al., A Joke Is Just a Joke (Except When It
Isn’t): Cavalier Humor Beliefs Facilitate the Expression of Group Dominance Motives, 99 J. PERSON-
ALITY & SOC. PSYCHOL. 660, 662 (2010) (citing studies demonstrating that “[m]en who are hostile
toward women . . . appreciate sexist humor”); id. at 672 (reporting the results of studies demonstrating
“that those higher in personal biases . . . consider [jokes disparaging Mexicans] favorably”).
344
This is even for “subtle” sexist language. See Janet K. Swim et al., Understanding Subtle
Sexism: Detection and Use of Sexist Language, 51 SEX ROLES 117, 117 (2004).
345
While this argument is not made explicitly in stray remarks cases, it is the stated assumption
behind the “equal opportunity harasser” response to a sexual harassment claim. See Jessica A. Clarke,
Inferring Desire, 63 DUKE L.J. 525, 540 (2013) (discussing the argument).
346
In harassment cases, some courts do ask whether harassers who abuse both men and women
treated men or women in a way that was qualitatively or quantitatively different. Id. at 540 n.61. In
any event, discrimination law does not include a loophole for employers who penalize both men and
women for failing to conform with sex stereotypes. See, e.g., Hively v. Ivy Tech Cmty. Coll. of Indi-
ana, 853 F.3d 339, 348 (7th Cir. 2017) (en banc) (discussing the analogy to discriminatory anti-mis-
cegenation laws that penalize both black and white people).
347
Reid v. Google, Inc., 235 P.3d 988, 1008 (Cal. 2010) (rejecting the stray remarks doctrine).
348
Taylor v. Virginia Union Univ., 193 F.3d 219, 234 (4th Cir. 1999) (Motz, J., dissenting) (“If
a supervisor’s own words reflect the illegal bias he is accused of harboring, those words generally
constitute strong, direct evidence of that animus, admissible in an employment discrimination action
brought against him.”).
349
Ercegovich v. Goodyear Tire & Rubber Co., 154 F.3d 344, 356 (6th Cir. 1998).

50 CLARKE [7/14/2018
reasons casual remarks may be more probative than an employer’s official

statements. On the advice of management lawyers, corporations are not
likely to include any statements regarding prohibited grounds for discrim-
ination in official documentation, and they may even “sanitize” records to
eliminate evidence of explicit bias.350
Thus, informal statements, rather than being disregarded, should often
be considered telling evidence of purpose.
3. Groups and Mixed Motives
A final variation on this argument is that, while the intentions of indi-

viduals may be discernable, group intentions are not.351 The motives of
groups are mixed.352 This argument carries over from debates over statu-
tory interpretation, and notably, Justice Scalia’s general skepticism of the
probative value of legislative history.353 Concerns about discerning collec-
tive intent have also cropped up in employment discrimination cases,354
and may underscore the judicial preoccupation with identifying “deci-
sionmakers” in cases applying the stray remarks doctrine.355 But in consti-
tutional and Title VII cases, the Supreme Court has established workable
standards for determining collective intent.356 It regards the explicit state-
ments of decisionmakers as relevant to those standards.357
350
See, e.g., LAUREN B. EDELMAN, WORKING LAW: COURTS, CORPORATIONS, AND SYMBOLIC
CIVIL RIGHTS 163 (2016) (reviewing “management lawyers’ webinar and other materials” and con-
cluding they “show[] that management attorneys continue to advise employers to sanitize their per-
sonnel files and to proactively create a record that will obscure discrimination”); Susan Bisom-Rapp,
Bulletproofing the Workplace: Symbol and Substance in Employment Discrimination Law Practice,
26 FLA. ST. U. L. REV. 959, 993 (1999) (discussing advice from a management lawyer to “[m]aintain
well-kept ‘clean’ personnel files; [and] eliminate unnecessary references to sex, age, etc” (quoting
Douglas L. Williams, Handling the EEOC Investigation, in ALI-ABA RESOURCE MATERIALS: EM-
PLOYMENT & LABOR LAW 1123, 1145 (7th ed. 1995))).
351
This was a prominent objection in equal protection litigation up until Washington v. Davis.
Haney-López, supra note 14, at 1793–96 (tracing this argument through the civil rights era).
352
Palmer v. Thompson, 403 U.S. 217, 224 (1971) (“[I]t is extremely difficult for a court to
ascertain the motivation, or collection of different motivations, that lie behind a legislative enact-
ment.”).
353
See Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 558 (1993) (Scalia,
J., concurring); Edwards v. Aguillard, 482 U.S. 578, 636–639 (1987) (Scalia, J., dissenting); Fallon,
supra note 306, at 527 (“In statutory interpretation cases, a growing panoply of commentators—with
apparently increasing influence on the Justices—has disparaged and indeed ridiculed inquiries into
subjective legislative intent as a gauge of statutory meaning.”).
354
Price Waterhouse v. Hopkins, 490 U.S. 228, 272 (1989) (O’Connor, J., concurring) (reflecting
on the dilemma of determining intent “in the context of the professional world, where decisions are
often made by collegial bodies on the basis of largely subjective criteria”).
355
See supra notes 244, 256, 264–272 and accompanying text.
356
See Verstein, supra note 290, at 9 (“Mixed motive analysis is much easier than commonly
thought. Courts should be less reluctant to allow mixed motive analysis because when they do it, they
can cabin its scope to the pertinent issues”).
357
See, e.g., Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16-111, slip op.
at 13 (U.S. June 4, 2018) (holding that an adjudication violated the Free Exercise clause based on the
remarks of one of the adjudicators disparaging a party’s religious beliefs); Cooper v. Harris, 137 S.

In Establishment Clause cases outside of the immigration context, the

Court has imposed a standard that is difficult for plaintiffs to meet, not one
that is impossible to apply.358 The Court asks whether the “predominant
purpose” of the law was religious.359 In conducting this inquiry, courts
give deference to the legislature’s stated secular purposes.360 They ask
whether the secular rationales are so “implausible or inadequate” as to be
“sham[s]” or “merely secondary to a religious objective.”361 In practice,
this inquiry does not require that all members of a legislative body be de-
posed about their intentions. Rather, courts ask whether the legislature’s
secular aims are so specious, post-hoc, or irrational as to be pretexts for
more obvious religious purposes.362 This “predominant purpose” inquiry
is qualitative, keyed more to the expressive than the material harms of dis-
crimination.
In equal protection and Title VII cases, courts have adopted a more
plaintiff-friendly rule. In a 1977 equal protection case, Village of Arlington
Heights v. Metropolitan Housing Development Corp., the Supreme Court
adopted a burden-shifting framework to address concerns about the mixed
motives of legislators.363 It rejected an inquiry that would have required a
showing of sole purpose or primary purpose.364 Instead, the Court held that
the question was whether “invidious discriminatory purpose was a moti-
vating factor.”365 This required that a plaintiff show, at the threshold,
Ct. 1455, 1475-76 (2017) (examining, among other evidence of a racial gerrymander, the public state-
ments of legislators that race was an explicit consideration).
358
McCreary Cty., Ky. v. Am. Civil Liberties Union of Ky., 545 U.S. 844, 860 (2005) (noting
the Court has seldom invalidated legislation under the Establishment Clause because it lacked a gen-
uine secular purpose). McCreary was a case about a Ten Commandments display, not about discrim-
ination against a particular religion. In a Free Exercise challenge to a law that targeted a particular
religious group, the Court applied strict scrutiny. See Lukumi, 508 U.S. at 533. But in a Free Exercise
challenge to a decision of an adjudicatory body that was tainted by anti-religious bias, the Court over-
turned the decision without applying strict scrutiny. Masterpiece Cakeshop, Ltd. v. Colorado Civil
Rights Comm’n, No. 16-111, slip op. at 13 (U.S. June 4, 2018).
359
McCreary, 545 U.S. at 860. The predominant purpose test is also used in cases involving
racial gerrymanders. Cooper, 137 S. Ct. at 1464 (holding that the design of a voting district must sur-
vive strict scrutiny if racial considerations were predominant). See Verstein, supra note 290, at 9 (ex-
plaining that the “primary purpose” analysis is one of four tests courts commonly use in analyzing
mixed motives).
360
McCreary, 545 U.S. at 860.
361
Id.
362
Id. at 871–73 (noting, among other things, that the legislature had created “new statements of
[secular] purpose . . . only as a litigating position,” that it omitted matters one would have expected if
its purposes were secular, and that it had not disclaimed its obvious religious objectives).
363
429 U.S. 252, 265 (1977).
364
Id.
365
Id. at 266.

52 CLARKE [7/14/2018
“[p]roof that the decision . . . was motivated in part by a racially discrim-

inatory purpose.”366 This “demands a sensitive inquiry into such circum-
stantial and direct evidence of intent as may be available.”367 Courts should
consider the historical background of the decision, particularly if it reveals
a pattern of official actions taken for discriminatory reasons, or a suspi-
cious sequence of events.368 Once a plaintiff has shown that discrimination
had some part in motivating a policy, the burden shifts to the defendant to
establish “that the same decision would have resulted even had the imper-
missible purpose not been considered.”369 In Title VII cases, the Supreme
Court borrowed this burden-shifting approach,370 and a similar standard
was later codified by the Civil Rights Act of 1991.371 This approach is
keyed to the material harms of discrimination: it asks, was race, sex, or
another forbidden ground a “but for” or necessary cause of the plaintiff’s
material misfortune?
The Supreme Court has held that statements of explicit bias are
“highly relevant” to its contextual inquiry into whether discrimination was
a motivating factor.372 The Court has even analyzed the statements of leg-
islators long dead. Hunter v. Underwood was a 1985 decision about
whether the voter disenfranchisement provisions of the Alabama Consti-
tution of 1901 were enacted with discriminatory intent.373 The Court noted
the historical record was replete with statements about the “zeal for white
supremacy” that had motivated the constitutional changes.374
This contextual approach to discriminatory intent has also proven
workable in equal protection cases challenging recent laws. It was used by
the Fourth Circuit to find discriminatory intent in NAACP v. McCrory, a
case striking down North Carolina’s omnibus elections bill because that
bill was passed with intent to discriminate against African American vot-
ers.375 In McCrory, the court examined North Carolina’s history of racial
discrimination and voter suppression, stretching back to slavery, through
the Jim Crow era, and continuing even after the passage of the Voting
366
Id. at 270 n.21.
367
Id. at 266.
368
Id.
369
Id. at 270 n.21.
370
Price Waterhouse v. Hopkins, 490 U.S. 228, 268 (1989) (O’Connor, J., concurring) (noting,
about the Court’s burden-shifting approach, that “[w]e adhered to similar principles in Arlington
Heights . . . , a case which, like this one, presented the problems of motivation and causation in the
context of a multimember decisionmaking body authorized to consider a wide range of factors in ar-
riving at its decisions”).
371
372
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 268 (1977) (“The leg-
islative or administrative history may be highly relevant, especially where there are contemporary
statements by members of the decisionmaking body, minutes of its meetings, or reports.”).
373
471 U.S. 222, 223 (1985).
374
Id. at 229.
375
831 F.3d 204, 226 (4th Cir. 2016).

Rights Act in 1965, which North Carolina attempted to violate on several

occasions.376 North Carolina’s 2016 election bill was rushed through the
legislature within days of the Supreme Court’s decision in Shelby County
v. Holder, a case that released North Carolina from the obligation to seek
federal approval of proposed changes to voting laws to ensure they were
not discriminatory.377 The challenged law had no persuasive justification
for restricting voting practices used disproportionately by African Ameri-
cans, like Sunday voting, but not voting practices used disproportionately
by whites, like absentee voting.378
For the McCrory court, evidence of explicit bias was relevant. The
state had argued before the district court that its reason for eliminating
Sunday voting was that “[c]ounties with Sunday voting in 2014 were dis-
proportionately black” and “disproportionately Democratic.”379 While the
district court saw nothing discriminatory about this statement, the Fourth
Circuit thought it came close to a “smoking gun.”380 The Fourth Circuit
reasoned: “the State’s very justification for a challenged statute hinges ex-
plicitly on race—specifically its concern that African Americans, who had
overwhelmingly voted for Democrats, had too much access to the fran-
chise.”381
Once a plaintiff has presented evidence that discrimination was a mo-
tivating factor, the burden shifts to the government or employer to demon-
strate it would have made the same decision even absent discrimination.382
Such a showing might be made with evidence that a majority of deci-
sionmakers voted for the proposal for nondiscriminatory reasons.383 But
rather than this sort of head-counting, courts generally scrutinize the plau-
sibility of non-discriminatory motives as explanations for legislative or
employer action, asking whether, as an objective matter, they are credible
explanations.384 Although the aim of this inquiry is to assess what moti-
vated the legislature as a descriptive matter, not to balance competing in-
terests, in practice, this inquiry resembles the balancing of strict scrutiny.
As the McCrory court explained: “[o]nce the burden shifts, a court must
carefully scrutinize a state’s non-racial motivations to determine whether
376
Id. at 223.
377
Id. (discussing Shelby Cty., Ala. v. Holder, 570 U.S. 529 (2013)).
378
Id. at 230.
379
Id. at 226.
380
Id.
381
Id. (emphasis in original).
382
See supra notes 248–251 and accompanying text. In cases involving corruption of the criminal
justice process by explicit bias on the part of prosecutors or jurors, a new trial may result. See supra
note 28.
383
See Fallon, supra note 306, at 581 (arguing that such inquiries are not impractical).
384
See, e.g., Hunter v. Underwood, 471 U.S. 222, 231 (1985); Verstein, supra note 290, at 1161–
64 (making a similar point).

54 CLARKE [7/14/2018
they alone can explain enactment of the challenged law.”385 This inquiry
will often entail assessment of the weight of the state’s purported inter-
ests.386
Thus, courts are able to assess mixed motives and the motives of col-
lective entities, with inquiries that examine the totality of the circum-
stances, including explicitly biased statements.
B. Remedial Problems
Courts may refuse to consider explicit bias because they are worried
about the remedy. One concern is that evidence of explicit bias might
“taint” otherwise valid policies and decisions.387 This could lead to good
policies and decisions being undermined by a few biased statements, caus-
ing public policy and employment markets to suffer. A second type of ar-
gument is that official decisionmaking processes eliminate explicitly bi-
ased inputs. Underlying this argument is the worry that institutions with
sound procedures will be unfairly penalized for the biased statements of
some of their constituents. And a third argument relates to institutional
competence: judges may be concerned that if the threshold for finding dis-
crimination is low, they will too often be called upon to second-guess the
merits of political and employment decisions, matters outside their ken.
1. Taint and Lock-In
If a challenged policy is forever tainted by the discriminatory motives

that first inspired it, then the government can never implement that policy,
no matter how circumstances might change, or how noble its new reasons
may be. Thus, it is forever “locked in” to the status quo.388 A legislature
that passed a law forbidding murder for racially discriminatory reasons
could never repass the law for nondiscriminatory ones.389 In the same vein,
385
N.C. State Conference of NAACP v. McCrory, 831 F.3d 204, 233 (4th Cir. 2016).
386
Id. at 233–34 (“A court assesses whether a law would have been enacted without a racially
discriminatory motive by considering the substantiality of the state’s proffered non-racial interest and
how well the law furthers that interest.”).
387
Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by the
Problems of Hate Crime and Animal Sacrifice, 1993 SUP. CT. REV. 1, 25 (“Just as the Supreme Court
has held that convictions tainted by the introduction of illegally obtained evidence should be reversed,
so one might imagine a court holding that laws or regulations tainted by ‘admission’ into the law-
making process of some forbidden consideration should be set aside.”).
388
Palmer v. Thompson, 403 U.S. 217, 222 (1971).
389
Cf. Fallon, supra note 306, at 531 (offering a more plausible example from the Establishment
Clause context: “few would judge it tolerable for courts to strike down a law prohibiting murder if
historical examination revealed that most members of the legislature voted for it solely for the consti-
tutionally forbidden purpose of enforcing one of God’s commandments”).

employers fear being “locked in” to retaining poorly performing employ-

ees because a supervisor has made discriminatory remarks. These con-
cerns apply not just to explicit bias, but to all inquiries into illicit intent.
They implicate larger debates about judicial involvement in policymak-
ing390 and intrusion into business prerogatives.391 Yet in constitutional and
employment discrimination contexts, courts balance the interests of poli-
cymakers and employers through causation inquiries that resemble strict-
scrutiny review. Additionally, courts have proven able to respond to
changing circumstances that show a policy or decision is no longer moti-
vated by discrimination.
Fear of lock-in was central to the result in Palmer v. Thompson.392 The
concern there was that even if, at some point in the future, integrated swim-
ming pools became a drain on the city’s finances, the city would be for-
bidden from closing them because its decision had once been tainted with
racial animus.393 Lock-in arguments have also featured prominently in the
travel-ban litigation.394 Dissenting judges criticized the Fourth Circuit’s
decision to invalidate the travel ban on the ground that the court gave “the
President no guidelines for ‘cleansing’ himself of the ‘taint’” of religious
animus.395 The underlying concern was that the President would be forever
constrained in his ability to make policy with respect to majority-Muslim
nations.396 Related concerns undergirded the Court’s deference to law en-
forcement arguments in Iqbal as well.397
In characterizing the racial animus motivating a law or policy as
“taint,” these arguments minimize the harm of discrimination. This lan-
guage may carry an implicit premise: that discriminatory intent, on its
own, is not harmful.398 In the introductory paragraphs of one recent opin-
ion, the Court put the word “taint” in quotation marks, as if to distance
390
See Tribe, supra note 387, at 25 (arguing that, while allowing one guilty person to go free
may be a fair price to pay to deter police misconduct, “[r]espect for the Congress as a coordinate
branch, and for the sovereign state legislatures, is difficult to reconcile with such a strong prophylactic
use of judicial review”).
391
See SPERINO & THOMAS, supra note 237, at 78–83 (discussing judicial reluctance to act as a
“super-personnel department” in evaluating the business reasons for employment decisions).
392
403 U.S. at 222 n.8.
393
Id.
394
See Washington v. Trump, 858 F.3d 1168, 1173 (9th Cir. 2017) (Kozinski, J., dissenting from
denial of rehearing en banc) (“Even if a politician’s past statements were utterly clear and consistent,
using them to yield a specific constitutional violation would suggest an absurd result—namely, that
the policies of an elected official can be forever held hostage by the unguarded declarations of a can-
didate.”).
395
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 651 (4th Cir. 2017) (en banc) (Nie-
meyer, J., dissenting), vacated and remanded, 138 S. Ct. 353 (2017), dismissed as moot, 876 F.3d 116
(4th Cir. 2017)).
396
Id.
397
398
Philosophers might argue that sometimes people do the right thing for the wrong reason. See,
e.g., HELLMAN, supra note 58, at 138–68.

56 CLARKE [7/14/2018
itself from the very concept.399 It is as though inquiries into explicit bias
are no more than referenda on the characters of policymakers, and discrim-
ination could be alleviated if those policymakers would simply repent, do
penance, and seek absolution. But this “sticks and stones” objection does
not apply here. In none of the cases discussed in this Article is a plaintiff
complaining simply of symbolic harm.400 Rather, plaintiffs are complain-
ing that on account of race, sex, or religion, they have lost opportunities to
work, vote, or use public services, they or their associates have been de-
nied admission to the United States, or they have suffered abuse in the
criminal justice system. The Court’s standing doctrines require that a
plaintiff demonstrate this type of concrete injury.401 In addition to these
material consequences, policies enacted on explicitly biased rationales
may express that some people, by virtue of their race, sex, or religion, are
not worthy of equal concern. Such policies stigmatize and burden minority
groups, compounding the material harms.402
Moreover, the law avoids “lock-in” problems from the start by asking
whether a policy or decision was supported by compelling non-discrimi-
natory reasons.403 When courts find discriminatory motives, they do not
generally invalidate policies automatically. Rather, in some cases, courts
apply strict scrutiny, asking whether the policy was narrowly tailored to
meet a compelling state interest.404 In cases following Arlington Heights,
once the plaintiff makes a showing that a decision was motivated, even
partially, by discrimination, the burden shifts to the government to demon-
strate that it would have taken the challenged action even absent discrim-
inatory motive.405 And in Establishment Clause cases outside the immi-
gration context, courts ask whether secular or religious concerns were the
399
Abbott v. Perez, No. 17-586, slip op. at 2 (U.S. June 25, 2018).
400
By contrast, the “taint” argument may have more traction in Establishment Clause cases in
which plaintiffs allege the harm is government endorsement of religion, for example, in cases about
displays of religious symbols or slogans. Those cases are beyond the scope of this Article.
401
See, e.g., Bank of Am. Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1302 (2017) (discussing
requirements for standing to challenge discrimination, including Article III’s requirements of “an ‘in-
jury in fact’ that is ‘fairly traceable’ to the defendant’s conduct and ‘that is likely to be redressed by a
favorable judicial decision’”). While Establishment Clause cases about government use of religious
symbols, rather than religious discrimination, have received unusual treatment, again, that topic is
outside the scope of this Article. See Richard H. Fallon, Jr., Tiers for the Establishment Clause, 166 U.
PA. L. REV. 59, 119 (2017).
402
See supra Part I.B.
403
Fallon, supra note 306, at 569 (“Despite assertions in some cases that statutes with constitu-
tionally forbidden predominant motivations are categorically invalid, I know of no case in which the
Supreme Court has ever struck down a law that it plausibly could have adjudged necessary to promote
a compelling governmental interest.”).
404
See Miller v. Johnson, 515 U.S. 900, 920 (1995) (equal protection redistricting case); Church
of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993) (free exercise challenge
to a statute targeted at a religious minority).
405
Fallon, supra note 306 at 555–56. Courts might apply both Arlington Heights and strict scru-
tiny. See Lukumi, 508 U.S. at 540 (plurality opinion) (finding Arlington Heights instructive on the
intent question prior to applying strict scrutiny).

primary reasons for the law.406 In conducting all of these inquiries, courts
ask questions that go to whether the policy is a good one, as an objective
matter.407 Thus, even if statements of explicit bias in the record demon-
strate a legislature passed a law prohibiting murder due to racial animus, a
Court would be likely to find that the law was justified for nondiscrimina-
tory reasons.408
Theoretically, inquiries into actual motives could still result in the
lock-in problem. Under Arlington Heights, for example, if the legislature
would not have passed its murder law but for racial animus, then the mur-
der prohibition would be invalid. Then, the question is whether a later leg-
islature could repass the same law for good-faith, nondiscriminatory rea-
sons. No one argues it could not.409 In Establishment Clause cases, courts
ask whether a reasonable observer would understand the lawmaker’s rea-
sons to have changed.410 There is no bright-line rule for determining
changes in meaning. The Supreme Court has assessed whether the taint of
discriminatory motive has faded by analyzing context and circum-
stances.411 It asks whether policymakers have “disavowed” their biased
remarks.412 While the Supreme Court did not engage in any such analysis
in the travel-ban litigation,413 lower courts grappled with the changing
meaning of the ban as the Trump administration repeatedly revised its ex-
ecutive order to address judicial concerns.414 In conducting this interpre-
tive task, they considered factors such as the President’s continued public
406
407
See, e.g., supra notes 362, 385–386 and accompanying text.
408
See supra note 403.
409
In Palmer, for example, the dissenting justices argued that good-faith, non-racial reasons
could justify a later change in policy. Palmer v. Thompson, 403 U.S. 217, 260 (1971) (White, J., dis-
senting); id. at 273 (Marshall, J., dissenting).
410
McCreary Cty., Ky. v. ACLU of Ky., 545 U.S. 844, 866, 874 (2005) (concluding that district
courts can “take account of genuine changes in constitutionally significant conditions” although the
history behind a policy matters, because “the world is not made brand new every morning” and “rea-
sonable observers have reasonable memories”). McCreary involved three attempts by a County to
install a Ten Commandments display in its courthouse, in violation of the Establishment Clause. Id. at
866. The same analysis applies to cases where the government has discriminated against a religious
group.
411
See, e.g., Abbott v. Perez, No. 17-586, slip op. at 25 (U.S. June 25, 2018) (assessing all rele-
vant “direct and circumstantial evidence” to find no discriminatory intent in a Texas redistricting plan
enacted two years after a court had found discriminatory intent in a prior plan); McCreary, 545 U.S.
at 861 (discussing McGowan v. Maryland, 366 U.S. 420 (1961), which upheld laws requiring busi-
nesses to close on Sundays, on the ground that, although they were once religiously motivated, “when
the government maintains Sunday closing laws, it advances religion only minimally because many
working people would take the day as one of rest regardless,” and noting the result would have been
different “if the government justified its decision with a stated desire for all Americans to honor
Christ”).
412
Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, No. 16-111, slip op. at 18
(U.S. June 4, 2018).
413
See supra notes Error! Bookmark not defined.–156 and accompanying text.
414
Compare, e.g., Int’l Refugee Assistance Project v. Trump, 265 F. Supp. 3d 570, 624 (D. Md.
2017) (concluding that the third iteration of the travel ban was still likely to have been motivated by

58 CLARKE [7/14/2018
statements and changes made to the terms of the executive order in re-
sponse to prior judicial decisions.415 They scrutinized whether the govern-
ment’s new national security justifications were plausible or pretextual.416
Price Waterhouse recognized an analogous “lock-in” problem under
Title VII.417 If an initial decision to fire an employee was tainted by dis-
criminatory motives, an employer would be locked in to retaining that em-
ployee, no matter how poor that employee’s performance was.418 Such a
result would go too far in abridging an employer’s “freedom of choice,”
which Title VII sought to preserve.419 Title VII is not “for cause” legisla-
tion that requires that employers justify every employment decision; it
only removes sex, race, religion, and national origin as permissible con-
siderations.420 For this reason, when a plaintiff has evidence that discrim-
ination was a motivating factor in her termination, an employer can raise
the defense that it would have still terminated her absent discrimination.421
This inquiry requires that the employer show that it actually “would have”
fired the employee, not that it could have fired her for some nondiscrimi-
natory reason.422 But, as in the equal protection context, in terms of proof,
these two questions blur.423 For example, an employer who discovers, in
the course of defending against an employment discrimination claim, that
an employee has committed a firable offense, is not required to reinstate
that plaintiff.424
anti-Muslim purpose, and observing that, rather than repudiating his anti-Muslim statements, the Pres-
ident had only made more of them since taking office) with Sarsour v. Trump, 245 F. Supp. 3d 719,
737–38 (E.D. Va. 2017) (“[T]he substantive revisions reflected in [the second version of the travel
ban] have reduced the probative value of the President’s statements to the point that it is no longer
likely that Plaintiffs can succeed on their claim that the predominate purpose of [the order] is to dis-
criminate against Muslims based on their religion and that [the order] is a pretext or a sham for that
purpose.”).
415
See supra note 414.
416
See, e.g., Int’l Refugee Assistance Project, 265 F. Supp. 3d at 625 (concluding the govern-
ment’s new national security rationale—that the travel ban was a result of a Department of Homeland
Security (DHS) review of the information-sharing practices of the targeted states—was deficient be-
cause of evidence that the results of the DHS review were “preordained” rather than objective).
417
Price Waterhouse v. Hopkins, 490 U.S. 228, 242 (1989) (plurality opinion).
418
See id. at 249 (discussing a similar issue raised in Mt. Healthy City Bd. of Ed. v. Doyle,
429 U.S. 274, 285–86 (1977), where the Court held that a public employee “ought not to be able, by
engaging in [conduct protected under the First Amendment], to prevent his employer from assessing
his performance record and reaching a decision not to rehire on the basis of that record”).
419
Id. at 242.
420
Id. at 239.
421
See supra notes 248–251 and accompanying text. See also Trump v. Hawaii, No. 17-965, slip
op. at 11-13 (U.S. June 26, 2018) (Sotomayor, J., dissenting).
422
42 U.S.C. § 2000e-5(b)(2)(B) (2018) (emphasis added).
423
Price Waterhouse, 490 U.S. at 261 (White, J., concurring) (“[W]here the legitimate motive
found would have been ample grounds for the action taken, and the employer credibly testifies that
the action would have been taken for the legitimate reasons alone, this should be ample proof.”).
424
McKennon v. Nashville Banner Publ’g Co., 513 U.S. 352, 362 (1995) (“It would be both
inequitable and pointless to order the reinstatement of someone the employer would have terminated,
and will terminate, in any event and upon lawful grounds.”). Under this rule, a plaintiff’s damages are
limited to losses incurred up until the time the evidence was discovered. Id. at 362.

In Title VII cases alleging race, sex, or religious discrimination, unlike

in equal protection cases, defendants do not emerge unscathed if they es-
tablish they would have taken the same action absent discrimination. They
must pay the plaintiff’s attorneys fees and costs, and they may be required
to change their policies to comply with the law.425 These limited remedies
address the expressive harms of discrimination.426 They provide some
measure of deterrence against future discrimination and ensure that plain-
tiffs’ lawyers are compensated for bringing cases.427 While prophylactic
rationales may offend principles of separation-of-powers in the equal pro-
tection context, no such concerns exist when Congress is regulating pri-
vate actors.428
Thus, in both constitutional and statutory cases, courts can consider
evidence of explicit bias while balancing concerns about impairing poli-
cymaking, law enforcement, and employment markets.
2. Whitewashing
Another argument is that institutional decisionmaking processes

cleanse any taint from explicit bias. This argument sounds in procedural
justice: that the law should do no more than ensure that institutions use
certain formal processes for decisionmaking. So long as the processes are
adequate, their outputs cannot be questioned. Whether they have received
explicitly biased inputs is irrelevant. Thus, in the stray remarks cases,
courts consider only the employer’s formal decisionmaking processes, ex-
cluding evidence of explicit bias outside the context of that process.429 In
the travel-ban cases, the government asked the courts to look only to offi-
cial rationales vetted by legal advisors, not to campaign statements, social
A plaintiff who is fired after complaining of discrimination can bring a claim of illegal retaliation
under Title VII. See 42 U.S.C. § 2000e–3(a) (2018). To prevent plaintiffs from making opportunistic
complaints of discrimination, putting their employers in a position where termination might result in
a retaliation suit, courts hold plaintiffs to the entire burden of proving retaliatory motives were the
cause of the termination. Univ. of Texas Sw. Med. Ctr. v. Nassar, 133 S.Ct. 2517, 2531–32 (2013).
The burden never shifts to the employer. Id.
425
42 U.S.C. § 2000e–5(g)(2)(B) (2018) (providing that the court may not grant damages or any
“order requiring any admission, reinstatement, hiring, promotion, or payment,” but it may grant other
declaratory relief, injunctive relief, and attorney’s fees and costs).
426
See Part I.A. In such cases, discrimination was not the necessary cause of the material harm
to the plaintiff.
427
Cf. Martin J. Katz, The Fundamental Incoherence of Title VII: Making Sense of Causation in
Disparate Treatment Law, 94 GEO. L.J. 489, 534 (2006) (arguing this provision is inadequate in its
ability to deter employers from discrimination and incentivize plaintiffs’ lawyers to bring suits, and
proposing more meaningful punitive damages and attorneys’ fees awards).
428
See supra note 390. Deterrence also makes sense in contexts in which the law seeks to restrain
the behavior of individual, low-level government officials. Fallon, supra note 306, at 531 (giving the
example of discriminatory use of peremptory challenges by a prosecutor, which may require a new
trial).
429
See supra notes 244, 256, 258–263 and accompanying text.

60 CLARKE [7/14/2018
media commentary, or interviews by the President or his surrogates.430

While the Supreme Court did not go so far as to hold that the President’s
remarks were irrelevant, its analysis gave no weight to those statements.431
Rather, it characterized the ban as “the result[] of a worldwide review pro-
cess undertaken by multiple Cabinet officials and their agencies.”432 In a
case challenging the DACA rescission, the government asked the court to
consider only statements of purpose from an acting secretary, rather than
the President.433
Institutions should not avoid liability for explicit bias by adopting for-
mal procedures and practices that create no more than the appearance of
fairness. A rule that focuses solely on formal processes eliminates poten-
tially relevant evidence of whether discrimination caused harm to a plain-
tiff. It is a fiction that only remarks made within the bounds of a formal
decisionmaking process can motivate a decision. It is also a fiction that
official decisionmakers are never influenced by others.434 The fiction is
particularly implausible when the person influencing the decision is in
leadership (or, needless to say, is the President of the United States).
Even when explicit bias is expressed by those without immediate au-
thority, it may be reasonable to infer an institution’s discriminatory intent
from the fact that it allowed explicit bias to go unchecked.435 What is more,
in employment discrimination cases, explicitly biased remarks may also
show that a plaintiff never had a chance in the first place because her
coworkers presumed she was incompetent from the start due to sexist or
430
431
432
Trump v. Hawaii, No. 17-965, slip op. at 34 (U.S. June 26, 2018).
433
Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279 (E.D.N.Y. 2018) (rejecting the “remarka-
ble” argument that only the motives of an acting secretary, rather than the President, were relevant to
an equal protection challenge to DACA’s rescission, and noting “If, as Plaintiffs allege, President
Trump himself directed the end of the DACA program, it would be surprising if his ‘discriminatory
intent [could] effectively be laundered by being implemented by an agency under his control’” (cita-
tion omitted)).
434
Remarks by coworkers who were not decisionmakers may evince a “corporate culture” of
discrimination. See, e.g., Merritt v. Old Dominion Freight Line, Inc., 601 F.3d 289, 300–01 (4th Cir.
2010) (“It is not unfair to observe that the corporate culture evinced a very specific yet pervasive
aversion to the idea of female Pickup and Delivery drivers. Old Dominion employees, of all ranks,
seemed to share a view that women were unfit for that position.”). Moreover, remarks by people who
are not direct decisionmakers may influence direct decisionmakers. See, e.g., Staub v. Proctor Hosp.,
562 U.S. 411, 417 (2011) (discussing cases in which the official making the employment discrimina-
tion decision “has no discriminatory animus but is influenced by previous company action that is the
product of a like animus in someone else”).
435
See Tristin K. Green, Insular Individualism: Employment Discrimination Law After Ledbetter
v. Goodyear, 43 HARV. C.R.-C.L. L. REV. 353, 368 (2008) (“If the decisionmaker acted in a work
environment in which discriminatory remarks and behavior were common and went unchecked by the
employer, then it is more likely that the decisionmaker acted with discriminatory bias.”); Sandra F.
Sperino, A Modern Theory of Direct Corporate Liability for Title VII, 61 A LA. L. REV. 773, 791–92
(2010) (“[W]ork environments in which discriminatory remarks and behavior are common and un-
checked may show not only that a decisionmaker acted with discriminatory bias, but also that the
employer intended such a result.”).

racist stereotypes.436 When such predictions of failure are explicit, they

fulfill themselves by undermining the confidence and expectations of their
targets.437
In the Title VII context, the better explanation for deference to process
is not that courts regard “stray remarks” as irrelevant, but rather, they have
concluded that employers should not be held accountable for policing the
remarks of employees made outside of formal decisionmaking pro-
cesses.438 But this judgment errs too far on the side of preserving employer
discretion. In explaining why the law has stalled in eliminating racial and
gender disparities in the workplace, sociologist Lauren Edelman describes
how courts defer to “symbolic” gestures by employers.439 Rather than
looking at results, courts ask only whether an employer uses what man-
agement lawyers regard as best practices, such as having an independent
committee decide on promotions and terminations.440 As employers win
more cases due to judicial deference to “symbolic” processes, those pro-
cesses become more popular with employers.441 In turn, plaintiffs’ lawyers
become unlikely to take cases if an employer has formal processes in
place, leaving victims with no recourse when those processes fail.442 Edel-
man writes, “when courts . . . rely on myth and ceremony, inferring non-
discrimination from the mere presence of symbolic structures, rights them-
selves become merely symbolic.”443
In the constitutional law context, the conclusion that the judiciary
should never take seriously the public statements of an elected official is
even more untenable. When the question is whether discriminatory pur-
pose animated a policy, an official’s statements to the public are particu-
larly probative.444 To be sure, there may be circumstances in which courts
should give weight to the fact that a decision was later vetted through un-
biased processes.445 But the idea that courts should invariably defer to a
436
See supra notes 267–272 and accompanying text (discussing the Sreeram case).
437
438
See Richard Thompson Ford, Bias in the Air: Rethinking Employment Discrimination Law,
66 STAN. L. REV. 1381, 1411 (2014) (“For Justice O’Connor, Title VII does not require employers to
police their employees’ thoughts and expression generally, but it does require employers to keep sex-
ism out of [the] figurative boardroom [where decisions are made.]”).
439
EDELMAN, supra note 350, at 168–97 (offering examples from case law and discussing em-
pirical research demonstrating that courts increasingly defer to organizational processes to infer a lack
of discriminatory intent, and when they do, plaintiffs are more likely to lose their cases).
440
Id.
441
Id. at 196.
442
Id.
443
Id. at 217.
444
445
Aziz Huq, The Lingering “Stigma” of the Fourth Circuit’s Travel Ban Ruling, JUST SECURITY
(May 27, 2017), https://www.justsecurity.org/41462/lingering-stigma-fourth-circuits-travel-ban-rul-
ing/ (arguing that, in the travel ban context, courts would have given more deference to the Trump
administration “if the White House had required publicly requested relevant departmental heads to
consider and to propose a new immigration-related regime in respect to terrorism-related risk” and

62 CLARKE [7/14/2018
whitewashed version of the Executive Branch’s purpose offends the prin-

ciple that government should be transparent and accessible.446 When a pol-
itician’s own public statements conflict with his administration’s official
position, judicial disregard for those public statements “blur[s] the lines of
political accountability” and is likely to confuse voters.447
Deference to procedure may reflect the unstated assumption that prej-
udice is atypical and inconsequential.448 Judges may imagine that fair,
meritocratic decisionmakers, whether they be supervisors or cabinet offi-
cials, always override prejudiced ones.449 This view might be explained by
deeply-held “meritocracy beliefs:” convictions that American systems of
advancement and punishment are colorblind and gender neutral.450 There
are reasons for skepticism of meritocracy beliefs.451 In any event, this is
an explanation, not a legal argument. The question in an individual dis-
crimination case is not whether we live in a just world or one marred by
systemic inequality.452 It is whether the cause of a particular plaintiff’s
misfortune was discrimination based on race, sex, or religion.
“such bodies had convened internal experts and expeditiously proposed a new measure, supplying
some relevant evidence of why it was needed, and presented it to the president”).
446
Cf. Huq, supra note 14, at 46 (“Those who urge the disregard of campaign statements implic-
itly treat the democratic process as little more than a cheap vaudeville—bright lights, thickly caked
make-up, and nought of enduring substance.”); Shaw, supra note 327, at 132 (arguing the values of
“accessibility, transparency, and accountability” counsel for judicial consideration of a President’s
public statements as evidence of purpose).
447
See Int’l Refugee Assistance Project v. Trump, 883 F.3d 233, 345 (4th Cir. 2018) (en banc)
(Wynn, J., concurring) (“Voters would be confused as to whether the Proclamation advances the Pres-
ident’s promise to ban entry of Muslims, as the President has proclaimed, or is intended to prevent
entry of aliens from countries that fail to maintain or share adequate information regarding their na-
tionals, as the Government and the Proclamation claims. Voters, therefore, would not know which
policy to hold the President accountable for at the polls.”).
448
Haney-López, supra note 14, at 1859 (arguing that the “intentional blindness” of equal pro-
tection doctrine “represents not a genuine application of equal protection law, but a successful effort
by conservative Justices to protect themselves from discomfiting evidence that racial mistreatment
persists”); Russell K. Robinson, Perceptual Segregation, 108 COLUM. L. REV. 1093, 1140 (2008) (ar-
guing that the stray remarks doctrine “may actually be [a] vehicle[] for judicial skepticism about the
prevalence of discrimination”).
449
Cf. Wal-Mart Stores, Inc. v. Dukes, 564 U.S. 338, 355 (2011) (“[L]eft to their own devices
most managers in any corporation—and surely most managers in a corporation that forbids sex dis-
crimination—would select sex-neutral, performance-based criteria for hiring and promotion”).
450
Eyer, supra note 77, at 1278–79 (arguing that the “resistance to ‘seeing’ discrimination ap-
pears to derive, moreover, not . . . from the specifics of discrimination doctrine, but instead from
widely shared and deeply intractable background beliefs regarding discrimination and meritocracy in
America”).
451
See, e.g., supra notes 1–6.
452
Meritocracy beliefs are an American take on the “just world” outlook: “most individuals feel
a strong need to believe that they live in a world that is just, in the sense that people generally get what
they deserve and deserve what they get.” Dhammika Dharmapala et al., Belief in a Just World, Blam-
ing the Victim, and Hate Crime Statutes, 5 REV. L. & ECON. 311, 312 (2009) (describing the psycho-
logical literature on just world beliefs).

Automatic deference to bureaucratic procedures renders the guarantee

of equal rights hollow, and is not a reason for blanket exclusion of evi-
dence of explicit bias.
3. Institutional Competence
Another remedial concern is related to the judiciary’s competence.

Judges may disregard evidence of explicit bias because, if the trigger for
finding discriminatory intent is too sensitive, they will constantly be called
upon to interrogate the merits of political and employment decisions.
These concerns are heightened in areas such as immigration453 and na-
tional security,454 where courts are traditionally loath to invalidate execu-
tive action. And a recurring mantra in Title VII cases is that “[f]ederal
courts do not sit as a super-personnel department that reexamines an en-
tity’s business decisions.”455
And yet, courts cannot neatly extract themselves from analysis of busi-
ness and policy decisions if they are to decide discrimination cases. In
nearly every discrimination case, courts are asked to sift through evidence
of discriminatory and nondiscriminatory motives. Both procedural and
substantive irregularities in a defendant’s decisionmaking are relevant,
even at the outset of the inquiry.456 At this stage, courts do not abandon
their deference to business or policy objectives, but they must still inquire
into whether the defendant’s non-discriminatory explanation holds up on
its own terms.457 If not, it is more likely that discrimination occurred. To
be sure, some explicit statements, considered in the context of all the evi-
dence, may not be sufficiently indicative of discrimination for a case to
proceed past summary judgment. But it is illogical to categorically exclude
this particular genre of evidence.
453
Under the “plenary power” doctrine, courts regarded immigration decisions as impervious to
constitutional challenge. Chae Chan Ping v. United States, 130 U.S. 581, 604 (1889) (upholding the
government’s ability to exclude immigrants based on race and nationality). The strong version of the
plenary power argument was not invoked by the government in the travel ban cases. See supra note
145; Margo Schlanger, Symposium: Could This Be the End of Plenary Power?, SCOTUSBLOG (July
14, 2017), http://www.scotusblog.com/2017/07/symposium-end-plenary-power/.
454
While full consideration of the topic is beyond the scope of this Article, there are persuasive
arguments in favor of judicial review of factual determinations made by the executive branch with
respect to national security. See Ganesh Sitaraman & Ingrid Wuerth, The Normalization of Foreign
Relations Law, 128 HARV. L. REV. 1897, 1965–68 (2015).
455
See, e.g., Elrod v. Sears, Roebuck and Co., 939 F.2d 1466, 1470 (11th Cir. 1991); SPERINO
& THOMAS, supra note 237, at 78 (discussing the “super personnel department” concern as a trope in
Title VII litigation).
456
See, e.g., Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267 (1977)
(explaining the various types of evidence that must be examined, including whether a pattern is “un-
explainable on grounds other than race” and “[d]epartures from the normal procedural sequence”).
457
Id. (“Substantive departures too may be relevant, particularly if the factors usually considered
important by the decisionmaker strongly favor a decision contrary to the one reached.”).

64 CLARKE [7/14/2018
Evidence that a decision was motivated, even partially, by discrimina-

tion, requires that courts abandon their traditional deference. In Arlington
Heights, the Court explained:
[I]t is because legislators and administrators are properly concerned with

balancing numerous competing considerations that courts refrain from
reviewing the merits of their decisions, . . . . But racial discrimination is
not just another competing consideration. When there is a proof that a
discriminatory purpose has been a motivating factor in the decision, this
judicial deference is no longer justified.458
That some lawmakers acted for biased reasons calls into question whether
a legislative body took seriously its constitutional duty of equal protection,
requiring more careful judicial scrutiny into whether a law is in the public
interest.459 Similarly, in Title VII cases, even partial reliance on a discrim-
inatory factor calls into question the credibility of an employer’s deci-
sions.460
C. Conflicting First Amendment Rights
Judicial refusal to recognize explicit bias may also be rooted in con-

cerns about free speech values. First Amendment doctrine draws a line
between (a) the impermissible suppression of speech due to its particular
message,461 and (b) the permissible consideration of speech as evidence of
illicit motives.462 The Supreme Court has suggested that antidiscrimination
458
Id. at 265–66.
459
Cf. Fallon, supra note 306, at 577 (arguing that “when the legislature demonstrably breaches
its deliberative responsibilities by acting for forbidden purposes, courts should respond by applying
elevated scrutiny as a compensatory hedge against the risk that a challenged statute violates constitu-
tional rights”).
460
461
R.A.V. v. City of St. Paul, Minn., 505 U.S. 377, 392 (1992) (striking down a hate speech
ordinance on the ground that “[w]hat we have here, it must be emphasized, is not a prohibition of
fighting words that are directed at certain persons or groups . . . ; but rather, a prohibition of fighting
words that contain . . . messages of ‘bias-motivated’ hatred and in particular, as applied to this case,
messages ‘based on virulent notions of racial supremacy’”).
462
Wisconsin v. Mitchell, 508 U.S. 476, 489 (1993) (upholding a hate crimes law that established
enhanced penalties for racially-motivated crimes on the reasoning that “[t]he First Amendment . . .
does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive
or intent”); Laurence H. Tribe, The Mystery of Motive, Private and Public: Some Notes Inspired by
the Problems of Hate Crime and Animal Sacrifice, 1993 SUP. CT. REV. 1, 13, 13 n.30 (explaining the
distinction in First Amendment law between inquiries that ask whether particular facts—like a per-
son’s race—triggered a behavior, and inquiries that ask about whether internally-held beliefs or val-
ues—such as particular opinions or specific stereotypes about racial groups—triggered the behavior).

law,463 including prohibitions on discriminatory harassment,464 falls on the

permissible side of the line. Nonetheless, doctrines shielding biased ex-
pression from legal consideration may stem from concerns about the
chilling effects of discrimination law on free speech. This argument can
be refuted on empirical and normative grounds.
The genesis of the stray remarks doctrine was in concerns about free
expression.465 In Price Waterhouse, Justice O’Connor noted that Title
VII’s critics in Congress in 1964 argued the statute was a “thought control
bill” aimed at eradicating prejudicial beliefs and worldviews.466 To avoid
such a construction, the bill was crafted to “eradicate[] discriminatory ac-
tions in the employment setting, not mere discriminatory thoughts.”467
Thus, O’Connor concluded liability should only attach if impermissible
discrimination caused a plaintiff to be denied some opportunity or ad-
vantage, not on account of “stray remarks in the workplace.”468
Stray remarks doctrine may reflect a desire to avoid giving employers
incentives to censor employee expression.469 If judges have discretion to
decide whether to admit evidence of discriminatory remarks, a litigation-
averse employer might simply forbid all employee speech with respect to
protected classifications, not just such speech with respect to formal deci-
sions on hiring, firing, pay, and promotions, and not just speech that might
be demeaning, stereotyping, or otherwise threatening to equal opportunity.
Speech suggesting biased motivations often expresses political view-
points, such as opposition to discrimination law or affirmative action.470
463
See, e.g., Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 62 (2006)
(“Congress, for example, can prohibit employers from discriminating in hiring on the basis of race.
The fact that this will require an employer to take down a sign reading ‘White Applicants Only’ hardly
means that the law should be analyzed as one regulating the employer’s speech rather than conduct.”).
464
See R.A.V., 505 U.S. at 392 (“Thus, for example, sexually derogatory ‘fighting words,’ among
other words, may produce a violation of Title VII's general prohibition against sexual discrimination
in employment practices, . . . Where the government does not target conduct on the basis of its expres-
sive content, acts are not shielded from regulation merely because they express a discriminatory idea
or philosophy.”); Richard H. Fallon, Jr., Sexual Harassment, Content Neutrality, and the First Amend-
ment Dog That Didn’t Bark, 1994 SUP. CT. REV. 1, 1 (“Somewhat surprisingly, in light of increased
publicity about collisions between speech and equality interests and despite briefing of free speech
issues by both sides, the Court’s opinion in [Harris v. Forklift Sys., 510 U.S. 17 (1993) on speech that
constituted sexual harassment] made no reference to the First Amendment.”).
465
See supra note 241.
466
Price Waterhouse v. Hopkins, 490 U.S. 228, 262 (1989) (O’Connor, J., concurring) (quoting
100 CONG. REC. 7254 (1964) (remarks of Sen. Ervin)).
467
Id.
468
Id. at 277. Congress ultimately rejected Justice O’Connor’s proposed rule that discriminatory
motive be shown with “substantial” and “direct” evidence. See supra notes 248–251 and accompany-
ing text.
469
Ford, supra note 438, at 1413 (“Justice O’Connor’s concern with ‘thought control’ suggests
that imposing Title VII liability for sexism ‘in the air’ might lead to an excess of caution on the part
of employers, leading them to police legitimate, if controversial, expressions of opinion.”).
470
See, e.g., supra note 275 (discussing a case in which an employer commented “that if a federal
contract required [her company] to hire a certain number of minorities, she would close her shop”).

66 CLARKE [7/14/2018
Some theorists have argued that the workplace is an essential site for civil
society, in which freedom of expression makes an important contribution
to democracy.471 If speech outside the workplace is fair game for discov-
ery, employers have incentives to fire workers who express bigoted atti-
tudes on their own time as well.
In the travel-ban litigation, the government argued that considering a
candidate’s campaign statements as proof of discriminatory intent would
have a chilling effect on political speech.472 A dissenting Fourth Circuit
opinion agreed, arguing that examination of a politician’s past statements
would have no stopping point.473 Courts might consider “statements from
a previous campaign, or from a previous business conference, or from col-
lege.”474 A Ninth Circuit dissent made this point as well, arguing that
“[p]ersonal histories, public and private, can become a scavenger hunt for
statements that a clever lawyer can characterize as proof of a -phobia or
an -ism, with the prefix depending on the constitutional challenge of the
day.”475 The result would be to “chill campaign speech, despite the fact
that our most basic free speech principles have their ‘fullest and most ur-
gent application precisely to the conduct of campaigns for political of-
fice.’”476 While these dissenting opinions emphasized the impact on cam-
paign speech, the worry about whether a court might one day consider a
candidate’s “college essay” harkens to controversies over free speech on
campuses. The reference to “proof of a -phobia or an -ism, with the prefix
depending on the constitutional challenge of the day” likens constitutional
litigation to broader debates over political correctness. It suggests equal
protection litigation is about chasing trends rather than preserving endur-
ing national values.
Chilling effects arguments are ostensibly empirical ones, which might
be disputed with arguments about the likely behavior of employers, em-
ployees, and politicians.477 But chilling effects arguments are more funda-
mentally about a normative question: whether the law should favor the risk
471
See, e.g., Cynthia L. Estlund, Freedom of Expression in the Workplace and the Problem of
Discriminatory Harassment, 75 TEX. L. REV. 687, 695 (1997).
472
473
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 650 (4th Cir. 2017) (en banc) (Nie-
meyer, J., dissenting), vacated and remanded, 138 S. Ct. 353 (2017), dismissed as moot, 876 F.3d 116
(4th Cir. 2017).
474
Id.
475
Washington v. Trump, 858 F.3d 1168, 1173 (9th Cir. 2017) (Kozinski, J., dissenting from
denial of rehearing en banc).
476
Id. (quoting McCutcheon v. Fed. Election Comm’n, 134 S. Ct. 1434, 1441 (2014)); Int’l Ref-
ugee Assistance Project, 857 F.3d at 650 (Niemeyer, J., dissenting) (“It is hard to imagine a greater or
more direct chill on campaign speech than the knowledge that any statement made may be used later
to support the inference of some nefarious intent when official actions are inevitably subjected to legal
challenges.”).
477
See, e.g., Wisconsin v. Mitchell, 508 U.S. 476, 488 (1993) (rejecting a “chilling effects” ar-
gument against a hate crimes law as speculative because “[w]e must conjure up a vision of a Wisconsin

averse who will over-comply with legal restrictions and err on the side of
protecting free speech, or whether “a substantial governmental interest can
be safeguarded only by restricting free speech to some extent.” 478 The an-
swer to this question depends on the relative weight afforded the values of
free expression and equal opportunity in a particular context.479
As an empirical matter, in the employment context, there are reasons
to be skeptical of predictions that abandoning the stray remarks doctrine
would lead to further restrictions on employee speech. This is because,
entirely apart from discrimination law, few employees have rights to free
expression vis-à-vis their employers, and norms that might protect em-
ployee speech are weak. Most employees can be fired at will, for any sort
of speech the employer objects to, for almost any reason.480 Employers
already fire and reprimand employees for discriminatory speech, both on
and off the job, for reasons independent of legal compliance.481 For exam-
ple, in one case, a Texaco gas station fired a supervisor after learning from
newspaper reports that he was “operating a ‘mail order neo-Nazi skinhead
music company’” on his own time.482 The court regarded as justified the
employer’s concern that if it continued to employ this supervisor, the pub-
lic might “learn of the views expressed on his website and believe that [the
employer] condoned such ideas.”483 In another example, James Damore, a
Google employee, was fired for posting an internal memo pointing to “bi-
ological” reasons for women’s underrepresentation in technology, in vio-
lation of Google’s internal Code of Conduct.484 Google’s decision was
citizen suppressing his unpopular bigoted opinions for fear that if he later commits an offense covered
by the statute, these opinions will be offered at trial to establish that he selected his victim on account
of the victim’s protected status.”).
478
See Frederick Schauer, Fear, Risk, and the First Amendment: Unraveling the “Chilling Ef-
fect,” 58 B.U. L. REV. 685, 730 (1978) (arguing that chilling effects arguments do not and cannot turn
on “specific, and most likely unprovable, predictions of human behavior”).
479
See Ford, supra note 438, at 1418.
480
See Eugene Volokh, Private Employees’ Speech and Political Activity: Statutory Protection
Against Employer Retaliation, 16 TEX. REV. L. & POL. 295 (2012) (cataloguing state laws that provide
varying levels of protection against employer reprisals for employee speech and political activity);
David C. Yamada, Voices From the Cubicle: Protecting and Encouraging Private Employee Speech
in the Post-Industrial Workplace, 19 BERKELEY J. EMP. & LAB. L. 1, 45–46 (1998) (discussing poten-
tial sources of free speech protection for employees).
481
See Jessica Clarke, Should Employers Fire Employees Who Attend White Supremacist Ral-
lies? HARV. BUS. REV. (Sept. 19, 2017), https://hbr.org/2017/09/should-employers-fire-employees-
who-attend-white-supremacist-rallies (discussing cases in which employees were fired after being ex-
posed as participants in a white supremacist rally); White & Crandall, supra note 70, at 414 (offering
other examples).
482
Wiegand v. Motiva Enterprises, LLC, 295 F. Supp. 2d 465, 466 (D.N.J. 2003). The court
assumed, without deciding, that a tort cause of action for termination in violation of public policy was
available under New Jersey law. Id. It concluded the termination was not contrary to public policy. Id.
483
Id. at 477.
484
You’re Fired: A Google Employee Inflames a Debate About Sexism and Free Speech, THE
ECONOMIST (Aug. 10, 2017), https://www.economist.com/news/business/21726078-sacked-james-da-
more-has-become-hero-alt-right-google-employee-inflames-debate-about.

68 CLARKE [7/14/2018
prompted by concern about the productivity and retention of female em-

ployees, who would worry that Damore might not treat them as equals.485
Employers have business reasons for terminating these employees that do
not depend on formal legal doctrine.
A rule forbidding evidence of stray remarks in typical discrimination
cases is a poorly designed instrument for avoiding employer suppression
of speech. Employment discrimination law will inevitably create incen-
tives for employers to limit employee speech so long as there is liability
for harassment. Harassment law gives employers incentives to censure
employees who express sexism, racism, or other such biases. The incen-
tive exists notwithstanding the fact that an employer is only liable for har-
assment that is “severe or pervasive.”486 Because discriminatory speech
creates a risk of harassment litigation and rarely serves the employer’s in-
terests, employers have every incentive to ban it.487 Harassment doctrine
cannot be cabined to avoid this effect, without eliminating the possibility
of meaningful harassment law in the first place.488
At some level, equality law always requires suppression of speech be-
cause discriminatory speech, such as a sign reading “White Applicants
Only”489 or a remark on a negative performance review that a candidate
for promotion “overcompensated for being a woman”490 is inseparable
from discriminatory conduct. To exclude this evidence is to fail to see dis-
crimination, and to preclude all remedy.
This is not to say discrimination law should reach all workplace
speech.491 But once an employer chooses to close a door to a member of a
485
See Note to Employees From CEO Sundar Pichai (Aug. 8, 2017),
https://www.blog.google/topics/diversity/note-employees-ceo-sundar-pichai/ (“Our co-workers
shouldn’t have to worry that each time they open their mouths to speak in a meeting, they have to
prove that they are not like the memo states, being ‘agreeable’ rather than ‘assertive,’ showing a ‘lower
stress tolerance,’ or being ‘neurotic.’”).
486
See SPERINO & THOMAS, supra note 237, at 32–40 (discussing how courts are ungenerous to
plaintiffs in applying this standard).
487
See Eugene Volokh, Freedom of Speech and Workplace Harassment, 39 UCLA L. Rev. 1791,
1809 (1992) (“A prudent employer who is faced with even a small possibility of liability would quite
likely demand that its employees avoid even arguably harassing speech.”).
488
Kingsley Browne has proposed that hostile environment claims exclude all evidence of speech
that does not count as fighting words, obscenity, defamation, or some other such form of unprotected
speech. Kingsley R. Browne, Title VII As Censorship: Hostile-Environment Harassment and the First
Amendment, 52 OHIO ST. L.J. 481, 544 (1991) (arguing that not even workplace displays of pornog-
raphy should be evidence of sexual harassment). But racial harassment rarely falls into these catego-
ries, and most forms of sexual harassment do not either. See, e.g., Vicki Schultz, Reconceptualizing
Sexual Harassment, 107 YALE L.J. 1683, 1687 (1998) (discussing forms of harassment that undermine
women’s competence rather than using obscenity or threats). Eugene Volokh has proposed an excep-
tion for speech that is not intentionally targeted at a particular employee, but this would not avoid the
problem of overcompliance by rational employers. Volokh, supra note 487, at 1793.
489
See supra note 463.
490
See supra note 246.
491
For example, harassment law should not create liability for discriminatory public statements
by business owners, if those business owners do not close their doors to employees for discriminatory

minority group, it should not expect discriminatory statements to fall out-

side the realm of evidence that would be relevant to the question of
whether it acted for discriminatory reasons. Those employers who can
demonstrate discrimination was not a factor in the employment decision
will escape liability. And of course, the farther a discriminatory comment
was from the context of an employment decision, the less relevant it is
likely to be to a factfinder. But courts go too far in creating special rules
to exclude this type of evidence from any consideration. Employment dis-
crimination cases, already among the hardest to prove,492 are made all the
more impossible by such extreme protection for expressive liberties.
As for politicians, there are also reasons to believe, as an empirical
matter, that considering biased statements in litigation is not likely to have
any unique chilling effects. Most politicians are already circumspect,
avoiding gaffes for reasons related to the desire to be re-elected rather than
in anticipation of lawsuits.493 In the travel-ban litigation, the Fourth Circuit
rejected the chilling-effects argument as off the mark, pointing out that
few campaign statements are likely to be relevant to the motives behind a
challenged government action, and that statements from farther back in a
politician’s history are even less likely to be relevant.494
Some politicians, however, may rise to prominence by eschewing “po-
litical correctness” and making overtly racist and sexist campaign prom-
ises.495 This group is unlikely to be deterred by the prospect of litigation
either. The Fourth Circuit was candidly unconcerned with the risk: “To the
extent that our review chills campaign promises to condemn and exclude
entire religious groups, we think that a welcome restraint.”496 A dissenting
reasons and do not create hostile workplace environments. Cf. Andrew Koppelman, A Free Speech
Response to the Gay Rights/Religious Liberty Conflict, 110 NW. U. L. REV. 1125, 1128 (2016) (ad-
vancing this argument in the context of laws forbidding discrimination against customers). In Title VII
cases, harassment must be severe or pervasive to be actionable. See supra note 46. Public statements
are unlikely to meet this bar.
492
See, e.g., Eyer, supra note 77, at 1282–91 (describing studies).
493
See, e.g., JOHN SIDES & LYNN VAVRICK, THE GAMBLE: CHOICE AND CHANCE IN THE 2012
PRESIDENTIAL ELECTION 115–17 (2013) (discussing how politicians try not to make gaffes that will
attract adverse media coverage in the 24-hour news cycle).
494
Int’l Refugee Assistance Project v. Trump, 857 F.3d 554, 600 (4th Cir. 2017) (en banc) (“A
person’s particular religious beliefs, her college essay on religious freedom, a speech she gave on the
Free Exercise Clause—rarely, if ever, will such evidence reveal anything about that person’s actions
once in office.”), vacated and remanded, 138 S. Ct. 353 (2017), dismissed as moot, 876 F.3d 116 (4th
Cir. 2017). Testimony on discriminatory intent may also be barred by legislative or executive privi-
lege. See Benisek v. Lamone, 241 F. Supp. 3d 566, 574 (D. Md. 2017) (“[I]n deciding whether legis-
lative privilege protects a state legislative actor from discovery, we must balance the significance of
the federal interests at stake against the intrusion of the discovery sought and its possible chilling effect
on legislative action.”).
495
See supra note 85 and accompanying text.
496
Int’l Refugee Assistance Project, 857 F.3d at 600.

70 CLARKE [7/14/2018
judge argued this was “an approach that will limit communication to vot-
ers.”497 The concern may be that voters should hear the biased views of
candidates, so those voters have important information. Perhaps the argu-
ment is that the public is better served by honest declarations of bias from
politicians than “dog whistle” signals that only communicate a candidate’s
discriminatory agenda to in-the-know supporters.498 But when voters hear
biased views, and then elect candidates to enact discriminatory policies,
courts cannot disregard evidence of explicit bias in evaluating those poli-
cies, unless they wish to abdicate their role in enforcing the constitutional
guarantee of equal protection. That this will cause politicians to better veil
discriminatory motives is an inevitable effect of any legal doctrine that
gives force to the concept of discriminatory intent.
Courts may be wary of identifying explicit bias because biased state-
ments are difficult to distinguish from political opinions. Recent research
shows racial appeals may be legitimate with a significant segment of
American voters.499 Justifications for prejudice may be both evidence of
discrimination and political arguments against antidiscrimination law. The
implicit argument is that, by considering these statements, the law stigma-
tizes the accused for their political beliefs, a harm that, on a superficial
level, is akin to the stigmatizing harms of discrimination against women
and minorities. But the law does not prohibit discrimination just because
it is stigmatizing. Sexism, racism, and religious intolerance are systemic
problems with material implications.500 Individual instances of these forms
of discrimination compound broad patterns of group-based inequality in
employment markets, politics, and other domains of social life.501 The
harms to employers and government officials stigmatized by the law’s
judgment that their statements are evidence of discrimination are not com-
parable. Such harms are inevitable if the law is to recognize and condemn
intentional discrimination.502 Discrimination law inevitably stakes out a
position against justifications for discrimination; it cannot remain neutral.
Another variation on this argument may be that judges fear that evi-
dence of explicit bias will unfairly influence juries, who will penalize de-
fendants for transgressing norms of political correctness, rather than eval-
497
Id. at 651 (Niemeyer, J., dissenting).
498
See, e.g., IAN HANEY-LOPEZ, DOG WHISTLE POLITICS: HOW CODED RACIAL APPEALS HAVE
REINVENTED RACISM AND WRECKED THE MIDDLE CLASS ix (2014) (discussing “‘dog whistle poli-
tics’: coded racial appeals that carefully manipulate hostility toward nonwhites”).
499
Valentino, supra note 3, at 1.
500
See supra Part I.
501
502
See Bagenstos, supra note 13, at 1 (discussing how even accusations of implicit discrimination
are understood as moral judgments).

uating the merits of their decisions. Yet this concern is rarely raised ex-
pressly.503 This is because it would generally be difficult to demonstrate
that the danger of prejudice substantially outweighs the probative value of
such evidence.504 Biased statements are highly probative of biased atti-
tudes and workplace cultures.505 And social science evidence suggests rea-
sons to doubt that jurors will be unduly prejudiced against decisionmakers
who make explicitly biased remarks.506
As an empirical matter, it is doubtful that recognizing explicit bias will
have unique chilling effects. As a normative matter, ruling out evidence of
explicit bias incapacitates discrimination law and legitimizes prejudice.
Free speech concerns do not justify this result.
D. Prudential Concerns
A final set of concerns about recognizing explicit bias may be related

to possible political repercussions of judicial decisions. Legal actors may
be skeptical of the law’s ability to create social change by regulating em-
ployment markets and politics, fearing backlash that might undermine the
antidiscrimination project or even judicial review itself. For this reason,
courts may find ways to withhold judgment.507 Backlash may be more of
a concern when courts draw attention to explicit bias. Charges of old-fash-
ioned bigotry can engender defensiveness and “poison the atmosphere” for
503
Compare Walker v. Daimler-Chrysler Corp., No. 02-CV-74698-DT, 2005 WL 8154351, at
*13 (E.D. Mich. Nov. 16, 2005) (“Comments made by non-decisionmakers have no bearing on
whether discrimination played a part in the Plaintiff's demotion and allowing these remarks may mis-
lead the jury as to its importance.”), with Burlington v. News Corp., No. CIV.A. 09-1908, 2015 WL
3439149, at *8 (E.D. Pa. May 27, 2015) (holding that evidence that nondecisionmakers used the word
“nigger” was relevant because “[a] reasonabl[e] jury could conclude that Defendants maintained an
atmosphere that permitted treatment of employees differently on the basis of race.”).
504
FED. R. EVID. 403.
505
See, e.g., Ryder v. Westinghouse Electric Corp., 128 F.3d 128, 132 (3d Cir. 1997) (explaining
that the importance of evidence of statements of “formal or informal managerial attitudes . . . seems
to become ever more critical as sophisticated discriminators render their actions increasingly more
subtle to circumvent adverse judicial precedent.”). In any event, that such statements are prejudicial
should not generally preclude admission. See, e.g., White v. Honeywell, Inc., 141 F.3d 1270, 1276
(8th Cir. 1998) (reasoning that “[t]he possibility that a jury might be so inflamed by the contents of
the [racist] remark so as to decide the case based on passion, needs to be balanced against the fact that
such remarks are potent evidence of attitude and environment” in concluding evidence was admissi-
ble).
506
See, e.g., Eyer, supra note 77, at 1278–79 (collecting studies showing survey participants’
resistance to seeing discrimination, even when obvious). See also Phoenix v. Coatesville Area Sch.
Dist., No. CV 15-00072, 2016 WL 3000823, at *5 (E.D. Pa. May 24, 2016) (case in which the jury
heard evidence of the decisionmaker’s overt racism, including text messages about wanting to get rid
of black employees including the plaintiff that used the n-word and referred to lynching, but the jury
found the plaintiff was terminated for poor performance evaluations).
507
Cf. A LEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 70 (1962) (discussing the
“passive virtues,” in other words, how the Supreme Court “stays its hand” by “withholding constitu-
tional judgment” in controversial matters).

72 CLARKE [7/14/2018
problem-solving and settlement.508 They may “hand[] a political weapon

to . . . racial intransigents.”509 While this Article is not the place to rehash
debates over the role of the judiciary as a counter-majoritarian institu-
tion,510 it can attempt a brief discussion of two recent case studies in which
courts straightforwardly confronted explicit bias. These case studies offer
qualified support for the claim that “[c]onflict is not only or always de-
structive.”511 Additionally, hostile reactions to charges of implicit bias
demonstrate that it may be impossible to pursue antidiscrimination goals
without backlash. Moreover, judicial legitimacy may be undermined if the
public believes judges are ignoring obvious facts for partisan reasons.
One possible case study is NAACP v. McCrory, the 2016 Fourth Cir-
cuit opinion holding that a North Carolina election reform law was ex-
pressly motivated by discrimination.512 North Carolina’s NAACP presi-
dent, Reverend William J. Barber, “declared the ruling ‘another major vic-
tory for justice’ that allows people to vote without ‘expansive restrictions
by racist politicians or racist policies.’”513 News stories interpreted the
opinion as “delivering a stern rebuke to the state’s Republican General
Assembly and Governor Pat McCrory.”514 Four months after the opinion,
508
Kenneth L. Karst, The Costs of Motive-Centered Inquiry, 15 SAN DIEGO L. REV. 1163, 1165
(1978).
509
Id. at 1166 (offering this explanation for Supreme Court decisions in the 1960s that found
grounds other than illicit motives for invalidating legislative action).
510
Compare, e.g., GERALD ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SO-
CIAL CHANGE? (2d ed. 2008) (arguing that courts cannot cause social change, although they may con-
solidate it) with Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash,
42 HARV. C.R.-C.L. L. REV. 373 (2007) (“In our view the pendulum has swung too far, from excessive
confidence in courts to excessive despair.”). Many of the arguments in this debate—about whether
court decisions are outpacing public opinion or invalidating the results of the legislative process—do
not apply to all of the examples in this Article. Although the acceptability of explicit bias may be on
the upswing, majorities still condemn discrimination based on race and sex. See PEW RESEARCH CTR.,
THE PARTISAN DIVIDE ON POLITICAL VALUES GROWS EVEN WIDER 4 (Oct. 7, 2017), http://www.peo-
ple-press.org/2017/10/05/4-race-immigration-and-discrimination/ (6 in 10 survey respondents report
“the country needs to continue making changes to give blacks equal rights with white”); Juliana
Menasce Horowitz et al., Wide Partisan Gaps in U.S. Over How Far the Country Has Come on Gender
Equality, PEW RESEARCH CTR. (Oct. 18, 2017), http://www.pewsocialtrends.org/2017/10/18/wide-
partisan-gaps-in-u-s-over-how-far-the-country-has-come-on-gender-equality/ (8 in 10 survey re-
spondents report “it is very important for women to have equal rights with men in our country”).
511
Reva B. Siegel, Community in Conflict: Same-Sex Marriage and Backlash, 64 U.C.L.A. L.
REV. 4, 6 (2017).
512
See supra notes 375-381 and accompanying text.
513
Associated Press, US High Court Refuses to Reinstate North Carolina Voter ID, FOX NEWS
(Aug. 31, 2016), http://www.foxnews.com/politics/2016/08/31/us-high-court-refuses-to-reinstate-
north-carolina-voter-id.html.
514
David A. Graham, North Carolina’s Deliberate Disenfranchisement of Black Voters, THE
ATLANTIC (July 29, 2016), https://www.theatlantic.com/politics/archive/2016/07/north-carolina-vot-
ing-rights-law/493649/. See also Linda Greenhouse, The Courts Begin to Call Out Lawmakers, N.Y.
TIMES (Aug. 18, 2016), https://www.nytimes.com/2016/08/18/opinion/the-courts-begin-to-call-out-
lawmakers.html (“Legislators, perhaps assuming they had friends in high judicial places, had taken
bold, even flagrant steps to suppress the black vote . . . . Judges responded, . . . .”).

McCrory was unseated in a close governor’s race by his democratic oppo-

nent.515 The General Assembly, however, remained in Republican con-
trol.516 Over the opposition of the Assembly, the new governor dropped
the state’s petition for review of the McCrory decision in the Supreme
Court.517 However, it is dangerous to infer too much from this example, as
the main issue in the governor’s race was not voting rights, but controversy
over North Carolina’s House Bill 2, a law restricting restroom use by
transgender people.518 Commentators now regard North Carolina’s politics
as increasingly acrimonious and partisan, but the causes are complex, and
the role of judicial intervention uncertain.519 Yet the McCrory opinion sur-
vived the political conflict and remains good law.
A second potential case study is Floyd v. City of New York, the 2013
case recognizing that explicit bias motivated the NYPD’s stop-and-frisk
policy under New York City mayor Michael Bloomberg.520 In response to
the Floyd litigation, the Bloomberg administration launched a media cam-
paign to delegitimize the case and the judge.521 The opinion’s straightfor-
ward allegations of racism likely played a role in that backlash. After the
decision, the police commissioner “stated that the District Court’s conclu-
sions were particularly questionable given the NYPD’s status as “the most
racially and ethnically diverse police department in the world.”522 The di-
versity of the police force was not an issue in the case, nor was it relevant
to any issue in the case.523 This misdirected response could be explained
as an effort by the commissioner to defend himself against the charge that
515
David A. Graham, North Carolina’s ‘Legislative Coup’ Is Over, and Republicans Won, THE
ATLANTIC (Dec. 16, 2016), https://www.theatlantic.com/politics/archive/2016/12/north-carolinas-re-
publicans-succeed-in-power-grab/510950/.
516
Id.
517
See N.C. State Conf. of NAACP v. McCrory, 137 S. Ct. 1399 (2017) (Roberts, J., dissenting
from the denial of certiorari).
518
Veronica Stracqualursi, Gov. Pat McCrory Concedes NC Governor’s Race to Democratic
Challenger Roy Cooper, ABC NEWS (Dec. 5, 2016), http://abcnews.go.com/Politics/gov-pat-mccrory-
concedes-nc-governors-race-democratic/story?id=43985544 (reporting that 66% of voters in North
Carolina exit polls opposed House Bill 2).
519
Jason Zengerle, Is North Carolina the Future of American Politics?, N.Y. TIMES MAG. (June
20, 2017), https://www.nytimes.com/2017/06/20/magazine/is-north-carolina-the-future-of-american-
politics.html (discussing partisan acrimony, the urban-rural divide, the restroom controversy pitting
LGBT rights and business interests against religious traditionalists, gerrymandering, and demographic
changes in North Carolina).
520
521
See Kalhan, supra note 210, at 1062–63 (“While the trial was still underway, the Bloomberg
administration—after failing to persuade the court to dismiss the complaints, grant summary judg-
ment, or deny class certification in any of the stop and frisk cases—initiated an aggressive media
campaign personally attacking Judge Scheindlin, in what some observers regarded as an effort either
to intimidate Judge Scheindlin or to delegitimize her and the stop and frisk litigation in the eyes of the
public.”); id. at 1068–69 (discussing how City officials reacted to the decision by “continu[ing] to
malign Judge Scheindlin in personal terms and to question her integrity”).
522
Id. at 1068.
523
Id.

74 CLARKE [7/14/2018
he holds racist attitudes. The Floyd decision was handed down during a
contested New York City mayoral campaign. Democrat Bill de Blasio pre-
vailed in that election, in part due to his pledge to reform stop-and-frisk.524
The de Blasio administration then dropped the City’s appeal of the Floyd
decision.525 Some researchers give credit to the Floyd litigation for de-
creases in New York City’s stop-and-frisk practices,526 coinciding with
overall decreases in crime.527 Even the sensationalist New York Daily
News, long a critic of the Floyd decision, conceded in 2017 that “All now
agree: The old way of stop-and-frisk was wrong. The new way is better.
It’s not perfect, but it’s progress.”528
In both of these cases, electoral returns could be interpreted as ratify-
ing judicial condemnations of explicit bias. These examples demonstrate
that there is no inevitable backlash that will undermine the staying power
of judicial decisions recognizing explicit bias. However, conclusions
about cause-and-effect cannot be drawn, and it is uncertain whether these
judicial decisions may contribute to longer-term trends in political polari-
zation. It is impossible to assess whether these decisions would have been
less divisive if they had rested on other grounds, such as disparate impact
theories, assertions of implicit bias, or the universal rights to vote and to
be free from unwarranted police harassment. But there are good reasons
to be skeptical.529 Samuel Bagenstos points to the 2016 election campaign,
in which Vice Presidential candidate Mike Pence treated accusations of
implicit bias in policing as “bad mouthing” law enforcement.530 Progres-
sives are advocating the same policy agenda, only they have reframed their
524
Kenneth Lovett, NYC Elections 2013: Exit Polls Show Bill de Blasio Swept Virtually Every
Demographic over Joe Lhota, N.Y. DAILY NEWS (Nov. 6, 2013, 1:46 AM), http://www.nydailyn-
ews.com/news/election/exit-polls-show-bill-de-blasio-swept-demographic-article-1.1507854 (report-
ing that, of the 55% of voters who “considered the use of stop-and-frisk as excessive. . . 87%—backed
de Blasio”).
525
Kalhan, supra note 210, at 1044.
526
Michael D. White et. al., Federal Civil Litigation As an Instrument of Police Reform: A Nat-
ural Experiment Exploring the Effects of the Floyd Ruling on Stop-and-Frisk Activities in New York
City, 14 OHIO ST. J. CRIM. L. 9, 52–53 (2016) (noting that between 2011 and 2014, the NYPD de-
creased its number of stop-and-frisk incidents by 93% and arguing “[i]t is reasonable to assert an
association between the Floyd case—as well as the attention it garnered—and the substantial decline
in stop-and-frisk that began in 2012. Certainly, the change in mayor and police commissioner in early
2014 . . . explains the continued decline in 2014”).
527
Id. at 60.
528
Editorials, A Policing Rift that Healed: The Remarkable Transformation of Stop-and-Frisk in
New York City, N.Y. DAILY NEWS (Nov. 26, 2017), http://www.nydailynews.com/opinion/policing-
rift-healed-article-1.3651968.
529
See, e.g., Samuel R. Bagenstos, Universalism and Civil Rights (with Notes on Voting Rights
After Shelby), 123 YALE L.J. 2838, 2852 (2014) (“Compassion fatigue may limit the utility of a uni-
versalist response to civil rights problems.”); Michael Selmi, Was the Disparate Impact Theory a Mis-
take?, 53 UCLA L. REV. 701, 740 (2006) (explaining how disparate impact theories, which are prem-
ised on the numerical underrepresentation of minorities, can engender the same sort of backlash as
affirmative action).
530
Bagenstos, supra note 13, at 1.

arguments in terms of implicit and explicit bias.531 This distinction is un-

important to opponents of antidiscrimination policies. To these opponents,
“the notion that the bias is ‘implicit’ and endemic to the human condition”
is “background noise.”532
Backlash arguments take different form in employment discrimination
cases. Courts recognizing explicit bias in employment discrimination
cases would be following the instructions of Congress, rather than invali-
dating the actions of the elected branches. But another type of backlash
argument relates to the free speech objection: that without discriminatory
speech as a “safety valve,” people are more likely to engage in discrimi-
natory actions.533 There is experimental evidence suggesting that when
people suppress prejudice because they believe others are censoring them,
the effect may be to increase discrimination rather than diminish it.534 This
is a good argument for rethinking diversity trainings and other interven-
tions that rely on generating external, rather than internal, motivations for
compliance.535 But the possibility that opponents of discrimination law
will retaliate by covertly discriminating is not a reason to allow overt dis-
crimination. This is an argument for policing covert forms of discrimina-
tion, not for ignoring explicit bias.
Concerns about judicial legitimacy often focus on how far courts can
push powerful interests—government officials and corporate leaders ac-
cused of discrimination—but ignoring bias may also undermine judicial
legitimacy. The public and victims of discrimination may lose faith in the
judicial system if judges behave like “ostrichs,” sticking their heads in the
531
Id. at 23.
532
Id.
533
Browne, supra note 488, at 541 (making a “safety valve” argument with respect to harassment
and arguing “[e]xpressions of hostility may be superior to the manifestations of hostility that might
result if the expression is prohibited”).
534
See, e.g., Thomas E. Ford, et al., Putting the Brakes on Prejudice Rebound Effects: An Ironic
Effect of Disparagement Humor, 157 J. SOC. PSYCHOL. 458, 459–60 (2017) (discussing several studies
on rebound effects in which participants asked to suppress prejudices later exhibit more biases, and
reporting on the results of an experiment showing suppression of humor that disparages social groups
caused participants to indicate they would take action against the disparaged groups); Lisa Legault et
al., Ironic Effects of Antiprejudice Messages: How Motivational Interventions Can Reduce (but Also
Increase) Prejudice, 22 PSYCHOL. SCI. 1472, 1473 (2011) (“Ironically, motivating people to reduce
prejudice by emphasizing external control produced more explicit and implicit prejudice than did not
intervening at all.”).
535
See, e.g., Katharine T. Bartlett, Making Good on Good Intentions: The Critical Role of Moti-
vation in Reducing Implicit Workplace Discrimination, 95 VA. L. REV. 1893, 1960–71 (2009) (dis-
cussing reasons diversity trainings fail and proposing alternatives based on motivational principles
that “support employee autonomy, competence, and relatedness”); Alexandra Kalev et al., Best Prac-
tices or Best Guesses? Assessing the Efficacy of Corporate Affirmative Action and Diversity Policies,
71 AM. SOC. REV. 589, 590 (2006) (“We find a clear pattern in the data. Structures establishing re-
sponsibility . . . are followed by significant increases in managerial responsibility. Programs that target
managerial stereotyping through education and feedback . . . are not followed by increases in diver-
sity.”).

76 CLARKE [7/14/2018
sand to ignore blatant and well-publicized facts about discriminatory in-

tent.536
IV. RECOGNIZING EXPLICIT BIAS
This Article’s prescriptive advice is simple: courts should consider ex-

plicit bias as evidence of discrimination, employing normal rules of evi-
dence. Arguments for foreclosing consideration of explicit remarks, in-
cluding interpretive difficulties, remedial problems, First Amendment im-
plications, and prudential concerns, do not justify a de facto evidentiary
privilege for explicitly biased remarks. While there are many legal reforms
that would better address inequality, few are plausible in the current polit-
ical climate.537 The aim of this Article is to draw judicial and public atten-
tion to explicit bias, and to resist efforts to legitimize it.
Implementation of this Article’s proposal requires only the conscien-
tious efforts of judges, who should find ample bases for distinguishing
cases from Palmer, Feeney, and the stray remarks doctrine. While the Su-
preme Court may be a hostile forum for constitutional discrimination cases
generally,538 its doctrines do not preclude lower courts from considering
explicit bias. Trump v. Hawaii will generally be distinguishable because it
pertained to an immigration policy with national security implications in-
volving the entry of non-citizens.539 Arlington Heights calls for a holistic
review of evidence of discriminatory intent, considering history, context,
effects on minority groups, and statements by decisionmakers.540 Lower
courts might protect their rulings from review with careful appraisals of
all of the facts, in local and historical context.541
In employment discrimination cases, courts should disband with the
stray remarks doctrine and use a holistic inquiry to assess evidence of dis-
parate treatment. Federal circuit courts should follow the example of the
536
This point has been advanced by a number of judges in the travel ban litigation. See, e.g., Int’l
Refugee Assistance Project v. Trump, 883 F.3d 233, 345 (4th Cir. 2018) (en banc) (Wynn, J., concur-
ring) (“Ignoring relevant information—particularly when, as with the President’s statements regarding
the suspension on entry, the information is widely known and disseminated—also undermines judicial
legitimacy by making the public believe judicial decisions rest on a false or inaccurate characterization
of the governing facts.”).
537
See EDELMAN, supra note 350, at 218.
538
See, e.g., Haney-López, supra note 14 (describing hostile treatment of all discrimination
claims in the Supreme Court except those challenging affirmative action plans).
539
See supra note 156.
540
541
See, e.g., Rogers v. Lodge, 458 U.S. 613, 623 (1982) (holding that the “clearly-erroneous
standard” applies to a “district court’s findings of discriminatory purpose” and stating “this Court has
frequently noted its reluctance to disturb findings of fact concurred in by two lower courts”).

California Supreme Court in eliminating the stray remarks doctrine alto-

gether.542 Federal courts would be wise to abandon the regressive formal-
ism that plagues employment discrimination law generally and renders ev-
idence of explicit bias inconsequential.543 They should at least be more
vigilant in correcting district court opinions that apply the stray remarks
doctrine formalistically, divorced from the context of the other evidence
in the case.544 Progressive state courts have more options for recognizing
explicit bias than federal ones, and litigants might think carefully about
whether they should bring their claims under state law.545 To the extent
judges are trained on implicit bias, they should learn about the resilience
of explicit bias as well.546
This Article does not argue that explicit bias is always relevant to dis-
crimination cases, nor that a finding of bias must automatically invalidate
public policy or an employment decision. Rather, explicit bias should be
treated like other types of evidence—evaluated for its relevance on a case-
by-case basis—not routinely screened out through the use of special doc-
trines. Using normal rules of evidence, and considering the totality of the
circumstances, courts might conclude that some biased statements were so
far removed from a challenged decision that the prejudicial effects of in-
troducing the evidence outweigh its probative value.547 A finding of bias
is not a basis for automatic invalidation—the law also asks whether a pol-
icy or decision might have been independently justified by compelling
non-discriminatory reasons.548
It is true that legal confrontation of explicit bias, on its own, may not
lead to any victories by plaintiffs. Courts are generally skeptical of dis-
crimination claims,549 and when it becomes harder to dismiss them on one
542
Reid v. Google, Inc., 235 P.3d 988, 1008–11 (Cal. 2010).
543
See, e.g., SPERINO & THOMAS, supra note 237.
544
Some circuits have attempted this on occasion. See, e.g., Tomassi v. Insignia Fin. Group, Inc.,
478 F.3d 111, 115 (2d Cir. 2007) (“We did not mean to suggest that remarks should first be categorized
either as stray or not stray and then disregarded if they fall into the stray category.”).
545
See, e.g., The Honorable Goodwin Liu, State Constitutions and the Protection of Individual
Rights: A Reappraisal, 92 N.Y.U. L. REV. 1307, 1312 (2017); Chuck Henson, Title VII Works–That's
Why We Don’t Like It, 2 U. MIAMI RACE & SOC. JUST. L. REV. 41, 110–11 (2012) (discussing varying
state approaches to employment discrimination law).
546
I make this recommendation on the assumption that such trainings are inevitable. I note the
evidence on whether diversity trainings are effective is mixed. See Katerina Bezrukova, A Meta-Ana-
lytical Integration of Over 40 Years of Research on Diversity Training Evaluation, 142 PSYCHOL.
BULL. 127, 127 (2016) (finding diversity trainings increase awareness and skills, but are less effective
in changing attitudes and behaviors); Kalev et al., supra note 535, at 604 (finding diversity trainings
have mixed effects, sometimes causing counterproductive reactions).
547
See supra 504–506 and accompanying text.
548
549
See, e.g., Eyer, supra note 77, at 1278–79 (discussing research on meritocracy beliefs as an
explanation for the high loss rate for plaintiffs in employment discrimination cases).

78 CLARKE [7/14/2018
ground, courts find another.550 Moreover, confrontation with explicit bias

will not achieve all the goals of any civil rights movement. The causes and
consequences of inequality are complex. Inequality is persistent, ever
morphing into new social forms.
This Article advocates a holistic approach to problems of inequality,
not one that would limit potential evidence of discrimination to statements
of explicit bias. Such a limited view would reinforce the “bad apple” the-
ory of discrimination—that inequality is driven solely by biases on the part
of a few individuals, rather than sustained by individuals in interaction
with social, economic, and institutional structures. The “bad apple” view
risks turning discrimination law into a “hunt for individual bigots.”551 On
this understanding, the solution to problems of inequality is simply to fire
those employees who express biased views, or to vote those politicians
who express racist and sexist ideas out of office. This may once again
cause people to hide their bigotries and engage in covert discrimination.552
Systemic enforcement efforts by administrative agencies,553 more thought-
ful and empirically-grounded approaches by employers,554 and creative
public policy solutions555 are required for change. Any broad-based na-
tional effort, however, seems unlikely in the short term. The hope of this
Article is that for now, some courts can at least recognize explicit bias,
joining the effort to resist the normalization of prejudice.
CONCLUSION
Antidiscrimination scholars are surely correct to decry the lack of le-

gal options for combatting the effects of implicit bias, structural inequality,
and other subtle forces that narrowly constrict equal opportunity and per-
petuate systems of racism, sexism, and religious intolerance. But they
should stop arguing that explicit bias is in the past. Explicit bias is ubiqui-
tous. Important norms against discrimination are in jeopardy. While legal
recognition of explicit bias will not eliminate the ideologies, prejudices,
550
See, e.g., Stephen F. Befort, An Empirical Examination of Case Outcomes Under the ADA
Amendments Act, 70 WASH. & LEE L. REV. 2027, 2028 (2013) (finding that after Congress made it
more difficult to dismiss disability discrimination cases on the ground that the plaintiff was not disa-
bled, courts began dismissing more cases on an alternative ground: that the plaintiff was not qualified).
551
Haney-López, supra note 14, at 1798.
552
See, e.g., Texas Dep’t of Hous. & Cmty. Affairs v. Inclusive Communities Project, Inc., 135 S.
Ct. 2507, 2516 (2015) (describing the evolution of discrimination in housing markets from formal
segregation to both overt and covert discriminatory actions).
553
See, e.g., Olatunde C.A. Johnson, Beyond the Private Attorney General: Equality Directives
in American Law, 87 N.Y.U. L. REV. 1339, 1340 (2012)
554
See, e.g., Frank Dobbin et al., Rage Against the Iron Cage: The Varied Effects of Bureaucratic
Personnel Reforms on Diversity, 80 AM. SOC. REV. 1014 (2015).
555
See ROITHMAYR, supra note 11, at 135–50.

and material forces of racial injustice, anti-Muslim hatred, or the subordi-

nation of women, it would at least resist the message that these biases are
legitimate grounds for action in politics, law enforcement, and the work-
place.

Response To The Government's Motion To Dismiss - Saget v. Trump

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Case 1:18-cv-01599-WFK-ST Document 62 Filed 10/09/18 Page 1 of 38 PageID #: 2281

UNITED STATES DISTRICT COURT

PATRICK SAGET, SABINA BADIO )

PLAINTIFFS’ RESPONSE TO DEFENDANTS’ MOTION TO DISMISS PURSUANT TO

PRELIMINARY STATEMENT ................................................................................................... 1

2. To Prevail, Plaintiffs Are Not Required to Show that Duke

Battaglia v. General Motors Corp.,

Battalla Vidal v. Nielsen,

Bowen v. Mich. Academy of Family Physicians,

Carter v. HealthPort Techs., LLC,

Celotex Corp. v. Catrett,

Centro Presente, at al., v. DHS, et al.,

Chamber of Commerce of the U.S. v. Reich,

Chambers v. Time Warner, Inc.,

Elgin v. Dept. of Treasury,

Encino Motorcars, LLC v. Navarro,

FCC v. Fox Television Stations, Inc.,

INS v. St. Cyr,

Lewis-Mota v. Sec’y of Labor,

McNary v. Haitian Refugee Center,

Mhany Mgmt., Inc. v. Cty. of Nassau,

Nat’l Sec. Counselors v. CIA,

Ohio v. Wyandotte Chems. Corp.,

Ramos, et al. v. Nielsen et al,

Regents of Univ. of Cal. v. Bakke,

Reno v. Catholic Soc. Servs., Inc.,

Ru Jun Zhang v. Lynch,

United States v. Nixon,

United States v. Yonkers Bd. Of Educ.,

Village of Arlington Heights v. Metropolitan Housing Development Corporation,

5 U.S.C. § 500, et seq............................................................................................................. passim

8 U.S.C. § 1160(e)(1) .....................................................................................................................15

8 U.S.C. § 1182(f) ..........................................................................................................................25

8 U.S.C. § 1252(a)(2)(D) ...............................................................................................................18

8 U.S.C. § 1252(b)(9) ....................................................................................................................17

8 U.S.C. § 1254a .................................................................................................................... passim

5 U.S.C. § 601 et seq......................................................................................................................23

75 Fed. Reg. 3476 ............................................................................................................................4

76 Fed. Reg. 29,000 .........................................................................................................................4

77 Fed. Reg. 59,943 .........................................................................................................................5

79 Fed. Reg. 11,808 .........................................................................................................................5

80 Fed. Reg. 51,582 .........................................................................................................................5

82 Fed. Reg. 23,830 .........................................................................................................................7

83 Fed. Reg. 2,648 .........................................................................................................................11

Fed. R. Civ. P. 12(b)(1)..................................................................................................................12

Fed. R. Civ. P. 12(b)(6)..................................................................................................................12

Fed. R. Civ. P. 56(c) ......................................................................................................................12

or other “extraordinary” conditions. In November 2017, the Acting Secretary of Homeland

During 2017, Administration officials at multiple levels worked feverishly to manufacture

designation, ignoring other devastating events that occurred after.

to end TPS; in his view, he was just “ensuring agenda adherence.”

ones raised here. This Court should do the same.

a war—which make it unsafe for them to return.

States at the time of designation are eligible. Id. §1254a(c)(1)(A)(i).

B. Extension and Termination

foreign state). Id. § 1254a(b)(3)(A).

II. Factual Background

A. Haiti is Designated for TPS Following the 2010 Earthquake

exacerbation of pre-existing vulnerabilities caused by the earthquake, including food insecurity

B. President Trump’s Racial Bias

color. He campaigned on an explicitly anti-immigrant platform, repeatedly referring to immigrants

such as “bad hombres” and “animals.” Ex. 9; Ex. 10.

C. The Trump Administration Reluctantly Extends, Then Terminates, Haitian TPS