Memos reveal TPS anxiety
Documents capture Trump team’s debate on ending temporary immigrant safeguards.
SAN FRANCISCO — As Sudanese immigrants listened, U.S. District Judge Edward Chen grilled a Trump administration lawyer arguing that immigrants who were granted temporary protected status could safely return to a homeland long plagued by armed conflict.
The stakes were high for hundreds of thousands of people from not only the African nation but also El Salvador, Nicaragua and Haiti. Since last year, the Trump administration had rolled back TPS benefits for people from these countries and others, leaving them vulnerable to deportation.
But in their battle to prevent this from happening, immigrant advocates in the case of Ramos vs. Nielsen wielded a special weapon: the government’s own words.
The judge asked Justice Department attorney Adam Kirschner whether he knew what percentage of the Sudanese population lives in regions still considered dangerous.
“No, your honor,” Kirschner said.
“Wouldn’t it matter before you deport somebody whether their family is in a safe or unsafe region?” Chen retorted.
On Wednesday, Chen sided with the plaintiffs in the class-action lawsuit brought in March by the American Civil Liberties
Union of Southern California, the National Day Laborer Organizing Network and the law firm of Sidley Austin. The judge’s ruling suspends the termination of TPS for residents from the four named countries so they won’t be deported while the case plays out in court.
More than 1,000 Sudanese immigrants alone would have been at risk of deportation starting on Nov. 2.
The judge’s ruling was not only a setback against the government, but also suggests that Chen could rule against the Trump administration in the end. He wrote that without court intervention, immigrants who have built lives of more than a decade in this country would be subject to removal.
“Absent injunctive relief, TPS beneficiaries and their children indisputably will suffer irreparable harm and great hardship,” Chen wrote.
In their case, plaintiffs were helped by hundreds of pages of memos and emails that revealed the Trump administration’s struggle to articulate why the humanitarian protections were no longer necessary.
In the documents, career diplomats and other experts cautioned that the decisions would result in significant humanitarian and political repercussions, while Department of Homeland Security staffers searched for “positive gems” to justify their arguments that recipients no longer needed legal protections.
Lawyers representing the plaintiffs argued that government officials ignored facts, approached their decisions about TPS with a political agenda and were motivated by racism. Administration officials denied those allegations, saying the program was never intended to provide longterm reprieve.
“As intended by Congress, TPS was always meant to be a temporary mechanism to address urgent humanitarian conditions,” Department of Homeland Security spokeswoman Katie Waldman said in a written statement. She said a review showed some countries no longer meet the requirements justifying extension of the program.
Plaintiffs’ lawyers say officials illegally diverged from how all previous administrations interpreted the law as part of a broad effort to reduce all immigration to the U.S.
Government lawyers say they are merely emphasizing different factors in weighing whether to extend protections. Homeland Security Secretary Kirstjen Nielsen told members of a congressional committee in April that she can’t extend protections if the original reasons they were granted under no longer exist.
TPS is a form of humanitarian relief granted to countries devastated by natural disasters or war that allows beneficiaries to work legally while they remain in the U.S. Created in 1990, the program applies to people from 10 countries. But the Trump administration has announced the termination of TPS for 98% of those who have it, many of whom have lived in the U.S. for decades. After the lawsuit was filed, Trump also canceled TPS for Honduras and Nepal.
Immigrants from the four countries named in the suit make up the majority of the more than 300,000 total beneficiaries. Nearly 200,000 are from El Salvador alone.
Plaintiffs’ lawyers argued that government officials were driven by Trump’s “America first” agenda.
On Oct. 22, Kathy Nuebel Kovarik, chief of U.S. Citizenship and Immigrations Services’ Office of Policy and Strategy, asked her senior advisor Robert Law to revise a draft memo on the TPS decision for Haiti. Months earlier, government researchers had highlighted conditions that remained crippling — cholera, drought, a migrant crisis, and displacement from Hurricane Matthew in 2016 and the 2010 earthquake — and recommended that protections be extended for 18 months.
Law was hired from the Federation for American Immigration Reform, one of the most influential organizations advocating for a reduction of legal and illegal immigration. He responded that the draft was overwhelmingly weighted for extension, “which I do not think is the conclusion we are looking for.”
Two weeks later, on Nov. 6, the day then-acting Homeland Security Secretary Elaine Duke decided to terminate TPS for Nicaragua, she defended her decision to White House Chief of Staff John F. Kelly. “These decisions along with the public statements will send a clear signal that TPS in general is coming to a close,” she wrote. “I believe it is consistent with the President’s position on immigration.”
Four months later, on March 29, Duke wrote in a personal memo that “the TPS program must end for these countries soon.… This conclusion is the result of an America first view of the TPS decision.”
In his decision Wednesday, Chen said the plaintiffs showed substantial evidence that Duke illegally changed the criteria without any justification. He said they also raised serious questions about whether the decisions were “influenced by the White House and based on animus against non-white, non-European immigrants,” in violation of the Constitution.
Sudan has been on a list of state sponsors of terrorism since 1993. Its president, Omar Hassan Ahmed Bashir, was indicted in 2009 and 2010 on charges of genocide, war crimes and crimes against humanity in the western region of Darfur. The United Nations estimates that the Darfur conflict has driven nearly 2 million people from their homes and killed 300,000.
Experts said they were concerned that Homeland Security was mischaracterizing the situation in Sudan and warned that the only way to justify TPS termination would be to cut back all explanation of the situation in the country instead of “providing sanitized country conditions in a publicfacing document,” which would “invite criticism,” according to an Aug. 31, 2017, email.
Two days before Duke authorized the Sudan termination, U.S. Citizenship and Immigration Services Director Francis Cissna criticized the memo drafted to announce the decision, saying it was full of contradictions. He highlighted a section affirming that the country remained dangerous and that statutory requirements for temporary protective status designation were still being met.
“This memo reads like one person who strongly supports extending TPS for Sudan wrote everything up to the recommendation section, and then someone who opposes extension snuck up behind the first guy, clubbed him over the head, pushed his senseless body out of the way, and finished the memo,” Cissna wrote. “Am I missing something?”
In the San Francisco courtroom last week, Sudanese immigrant Hiwaida Elarabi watched both sides make their case.
Elarabi, 55, came to the U.S. in 1997 as a tourist but stayed after the war severely worsened back home. The U.S. government designated Sudan for TPS that year. For Elarabi, a tech worker with a master’s degree in bioinformatics from Brandeis University in Massachusetts, the possibility that she could be deported was devastating. She described the judge’s decision Wednesday as a huge relief.
“I am afraid to return to Sudan, and I cannot imagine living in the United States without legal status,” she said. “The deadline ... was coming really fast, and it was terrifying and distressing.”