Feds ask appeals court to reverse TPS ruling so administration can deport Haitians

The U.S. Department of Justice is asking a federal appeals court to overturn a New York federal judge’s decision earlier this year that blocked the Trump administration from ending Temporary Protected Status, or TPS, for tens of thousands of Haitians.

In a 71-page brief filed Thursday on behalf of the Department of Homeland Security, DOJ lawyers argue that U.S. District Judge William F. Kuntz of the Eastern District of New York erred when he issued a nationwide temporary injunction that prevented Homeland Security from taking steps to force Haitian TPS holders to return to Haiti. .

In his April ruling, Kuntz said 50,000 to 60,000 Haitians and their U.S.-born children would suffer “irreparable harm” if TPS ended and they were forced to return to a country that is unsafe. He also said that Elaine Duke, the secretary of Homeland Security at the time, was politically motivated in her decision.

“Clearly political motivations influenced Secretary Duke’s decision to terminate TPS for Haiti,” Kuntz said. “A TPS termination should not be a political decision made to carry out political motivations. Ultimately, the potential political ramifications should not have factored into the decision to terminate Haiti’s TPS.”

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Government lawyers said Kuntz was wrong on his assessment of Duke, and any influence or input from the White House in her decision “provide no bases for setting aside that decision,” they argue.

“After obtaining extensive discovery, plaintiffs have identified no evidence indicating that Secretary Duke harbored discriminatory animus against “non-white immigrants,” government lawyers told the U.S. Court of Appeals for the Second Circuit. “On the contrary, the record reflects that the Secretary carefully considered the TPS termination decision after consulting with relevant government stakeholders and fully explained her decision to terminate TPS for Haiti.”

Lawyers for the plaintiffs, which include 10 Haitians, a Haitian newspaper and the Miami-based Family Action Network Movement, argued that Duke’s decision to end TPS for Haitians was arbitrary, discriminatory and rooted in President Donald Trump’s “racially discriminatory attitude toward all brown and black people.”

Ira Kurzban, who is among several lawyers representing the plaintiffs in the case, said “based on what the government has submitted, we have a substantial chance or prevailing in the case. I think the evidence and the law supports the Haitians’ plaintiffs and Kuntz’s position that the government violated the administrative procedure act and the Constitution in terminating TPS.”

The New York lawsuit was the first of five TPS-related lawsuits to go to trial. Prior to Kuntz’s injunction, a federal judge in California in October 2018 granted a temporary injunction blocking the administration from deporting Haitian TPS holders and others as their termination deadlines approached.

U.S. District Judge Edward Chen granted the temporary injunction as part of a California lawsuit filed by lawyers on behalf of TPS recipients from Haiti, Nicaragua, El Salvador and Sudan who have U.S.-born children.

Since the inception of the TPS program, the U.S. has designated 21 countries and the province of Kosovo for TPS. Since 2016, a dozen countries have lost the designation, which is given as a result of war or natural disaster.

Jacqueline Charles has reported on Haiti and the English-speaking Caribbean for the Miami Herald for over a decade. A Pulitzer Prize finalist for her coverage of the 2010 Haiti earthquake, she was awarded a 2018 Maria Moors Cabot Prize — the most prestigious award for coverage of the Americas.