Nat'l Ass'n v. Dep't of Homeland Sec.

• Decision Date: 12 March 2019
• Docket Number: Civil Action No. DKC 18-0239
• Citation: 364 F.Supp.3d 568
• Parties: NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al. v. UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.
• Court: U.S. District Court — District of Maryland

364 F.Supp.3d 568

NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, et al.

v.UNITED STATES DEPARTMENT OF HOMELAND SECURITY, et al.

Civil Action No. DKC 18-0239

United States District Court, D. Maryland.

Filed March 12, 2019

Ajmel Quereshi, NAACP Legal Defense Fund, Washington, DC, Cara McClellan, Sherrilyn A. Ifill, Deuel Ross, Jin Hee Lee, Kristen Johnson, Natasha C. Merle, Raymond Audain, Samuel Spital, NAACP Legal Defense and Educational Fund, Inc., Antonio M. Haynes, Erika A. James, James Irving McClammy, Davis Polk and Wardwell LLP, New York, NY, Khyla Danielle Craine, Baltimore, MD, for Plaintiffs.

Adam D. Kirschner, Joseph C. Dugan, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

DEBORAH K. CHASANOW, United States District Judge

This is one of several recent cases challenging the decisions to end Temporary Protected Status ("TPS") for nationals of various countries. See, Centro Presente v. Dep't of Homeland Sec'y , No. 18-cv-10340-DJC (D.Mass. filed February 22, 2018)(Haiti, El Salvador, and Honduras); Ramos v. Nielson , No. 18-cv-1554-EMC (N.D.Cal. filed March 12, 2018) (Haiti, Sudan, El Salvador, and Nicaragua); Saget v. Trump , No. 18-cv-1599-WFK (E.D.N.Y. filed March 15, 2018) (Haiti); Casa De Maryland, Inc. v. Trump , No. 18-cv-845-GJH (D.Md. filed March 23, 2018) (El Salvador); and Bhattarai v. Nielsen , No. 19-cv-731-EMC (N.D.Cal. filed February 10, 2019) (Honduras and Nepal). While not entirely uniform in their reasoning, district court decisions reject challenges to subject matter jurisdiction, and find at least some of the complaints to state viable claims, both statutory and constitutional. As a result of the decisions already produced by those courts, the analysis here need not be extensive.

I. Factual Background¹

Plaintiffs, the National Association for the Advancement of Colored People ("NAACP"), Haitian Women for Haitian Refugees ("HWHR"), and the Haitian Lawyers Association, Inc. ("HLA"), seek declaratory relief and to enjoin the November 2017 decision of Defendants, the U.S. Department of Homeland Security ("DHS"), former acting DHS Secretary Elaine C. Duke ("Duke"), and current DHS Secretary Kristjen Nielsen ("Nielsen"), terminating Temporary Protected Status ("TPS") for Haitian nationals based on alleged Due Process and Equal Protection violations. Plaintiffs argue that Defendants' decision "reflects an egregious departure from the TPS statute's requirements and an intent to discriminate on the basis of race and/or ethnicity." (ECF No. 30 at 1).

The Amended Complaint contains three counts. Count I asserts a violation of the Fifth Amendment, both equal protection (intent to discriminate against Haitian immigrants because of race and/or ethnicity) and due process (irrational government action). Counts II and III seek mandamus and declaratory relief, respectively.

Section 244(c)(2) of the Immigration and Nationality Act ("INA"), codified in 8 U.S.C. § 1254a, allows the Secretary of Homeland Security ("Secretary")² to designate Temporary Protected Status ("TPS") for a country under certain conditions, for example: (i) if "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," or (ii) if the Secretary finds that a country is temporarily unable to handle the return of its nationals. 8 U.S.C. § 1254a(b)(1)(B)(i)-(ii). The TPS designation protects nationals of that country from removal while the designation is in effect, and allows them to hold a registration document and obtain work authorization in the United States. Id. § 1254a(a).

The Secretary has the discretion to designate TPS for an initial period of 6 to 18 months. Id. § 1254a(b)(2). After the allotted time has expired, the Secretary is required to review the conditions in the foreign state and determine whether to renew its TPS status. Id. § 1254a(b)(3)(A). A renewal may extend the designation for up to 18 months. Id. § 1254a(b)(3)(C). If the Secretary determines the conditions no longer warrant TPS, she must terminate the designation. Id. § 1254a(b)(3)(B). The Secretary must publish renewal and termination decisions in the Federal Register. Id. § 1254a(b)(3).

Haiti received an 18-month TPS designation in January 2010, after an earthquake "destroyed most of the capital city" and caused numerous deaths in 2010. (ECF No. 30 ¶ 21). Different administrations later extended the designation in May 2011, October 2012, March 2014, and August 2015. (Id. ¶¶ 23, 28, 33, 38). Each respective Secretary supported the extensions with a discussion of Haiti's country conditions, including continuing impacts from the 2010 earthquake, multiple cholera

outbreaks resulting from a breakdown in healthcare infrastructure, breakdowns in law enforcement and government stability, lack of access to basic health services, a high unemployment rate, and compromised food security, among other issues. (Id. ¶¶ 24-46).

After President Trump took office, then-DHS Secretary John Kelly extended the TPS designation for six months, from July 23, 2017 to January 22, 2018. (Id. ¶ 51). Although he found the country conditions in Haiti to be severe enough to warrant a shorter TPS renewal, he signaled the administration's intent to terminate the TPS designation soon. (Id. ¶ 55).

On November 20, 2017, in the face of strong political support to the contrary, then-acting Secretary Duke announced her decision to terminate TPS for Haiti with a delayed effective date of 18 months.³ (Id. ¶ 74). Her press release stated that the extraordinary conditions caused by the 2010 earthquake no longer existed. (Id. ¶ 75). She later published her decision as a Notice in the Federal Register. See Termination of the Designation of Haiti for Temporary Protected Status, 83 Fed. Reg. 2,648 (Jan. 18, 2018). The Notice was published four days before the TPS designation was set to expire. Plaintiffs allege that the "unprecedented delay" caused uncertainty and economic losses for Haitians living in the United States, including loss of jobs and certain federal benefits. (Id. ¶ 76).

Plaintiffs seek to enjoin Defendants from implementing the TPS termination decision and to secure declaratory relief that the decision is a violation of Due Process and Equal Protection rights. (Id. ¶¶ 46). Plaintiffs contend that the decision was not based upon objective evidence but was intended to discriminate against Haitian immigrants on the basis of race and/or ethnicity.

Plaintiffs claim to have circumstantial and direct evidence, including (1) alleged DHS targeted searches for evidence that Haitians with TPS in the United States were criminals and recipients of public welfare, (ECF No. 30 ¶¶ 87-88); (2) President Trump's alleged comments that Haitians "all have AIDS" and "Why do we need more Haitians?" and the alleged order to drafters of the immigration bill to "take [Haitians] out," (id. ¶¶ 96-98); (3) President Trump's alleged question in response to Haitian immigrants "Why are we having all these people from shithole countries come here?" ( id. ); (4) President Trump's alleged comments expressing a preference for immigrants from places like Norway, where the population is over 90 percent white, ( id. ); President Trump's comments about other minority races, (id. ¶¶ 90-95); (5) Secretary Duke's failure to acknowledge evidence of Haiti's troubling country conditions today, (id. ¶¶ 77-86); (6) the "unprecedented" delay in publishing the Notice in the Federal Register, (id. ¶ 76); (7) Secretary Duke's failure to consider all factors in the statutory mandate, (id. ¶ 80); and (8) influence from the presidential administration to pressure the Secretary to rescind Honduras's designation as part of a broader strategic goal on immigration, (id. ¶ 102).

II. Procedural History

On April 17, 2018 Plaintiffs filed a first amended complaint. (ECF No. 30). Defendants filed a motion to dismiss for lack of jurisdiction pursuant to Fed.R.Civ.P. 12(b)(1) and for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6) on May 7, 2018. (ECF No. 36). Plaintiffs responded in opposition on June 7, 2018. (ECF No. 45). Defendants replied on June 27, 2018. (ECF No. 58). Plaintiffs were granted leave to file a surreply (ECF No. 61) and did so on July 6, 2018 (ECF No. 62).

The issues are fully briefed, and the court now rules, no hearing being deemed necessary. Local Rule 105.6. For the reasons that follow, Defendants' motion will be denied in part and granted in part.

III. Standard of Review

Generally, "questions of subject matter jurisdiction must be decided ‘first, because they concern the court's very power to hear the case.’ " Owens–Illinois, Inc. v. Meade , 186 F.3d 435, 442 n.4 (4th Cir. 1999) (quoting 2 James Wm. Moore et al. , Moore's Federal Practice § 12.30[1] (3d ed. 1998) ). The plaintiff bears the burden of proving that subject matter jurisdiction properly exists in the federal court. Evans v. B.F. Perkins Co., a Div. of Standex Int'l Corp. , 166 F.3d 642, 647 (4th Cir. 1999). In a 12(b)(1) motion, the court "may consider evidence outside the pleadings" to help determine whether it has jurisdiction over the case before it. Richmond, Fredericksburg & Potomac R.R. Co. v. United States , 945 F.2d 765, 768 (4th Cir. 1991) ; see also Evans , 166 F.3d at 647. There are two ways to present a 12(b)(1) motion to dismiss. Adams v. Bain , 697 F.2d 1213, 1219 (4th Cir. 1982). "A defendant may either contend (1) that the complaint fails to allege facts upon which subject matter jurisdiction can be based; or (2) that the jurisdictional facts alleged in the complaint are untrue." Id. The court should grant the 12(b)(1) motion "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Richmond , 945 F.2d at 768. When a defendant makes a facial challenge to subject matter jurisdiction, as Defendants do here, "the...