Reversal of deportation order could be nearing
A federal judge in San Francisco on Tuesday seemed likely to block the Trump administration from deporting the first of more than 300,000 undocumented immigrants who have been allowed to stay in the United States, for decades in some cases, because of catastrophes in their home countries.
U.S. District Judge Edward Chen, who heard more than two hours of arguments, did not issue an immediate ruling on the government’s attempt to revoke Temporary Protected Status for former residents of El Salvador, Nicaragua, Haiti and Sudan. But he appeared to agree with the immigrants’ lawyers that the revocation was legally dubious for two reasons: as an unexplained reversal of past administrations’ policies, and as a reflection of President
Trump’s racial bias.
Chen, who refused to dismiss the suit in June, is due to rule on an injunction against the administration’s action by Nov. 2, when protections for up to 1,000 Sudanese are due to expire. Deportations to the other three countries are scheduled through 2019.
Chen cited a newly disclosed memo by then-Homeland Security Secretary Elaine Duke, written last November, that said the revocation was “a result of an America First view,” one of Trump’s frequent slogans.
That could plausibly be interpreted as “ending immigration status for those who are nonwhite,” Chen said. He also noted that Trump had been discussing Temporary Protected Status during a White House meeting in January when he asked why the U.S. was admitting so many people from “s—hole countries,” such as Haiti and African nations.
A week later, the administration announced the termination of protected status for Haitians.
Justice Department lawyer Adam Kirschner told Chen that Duke had been “struggling” with the issue, and noted that she had decided in November to retain protected status for Haiti and Honduras, two decisions that were reversed by her successor.
“The ultimate decision was hers,” Kirschner said. But Chen said Duke’s writings showed she had been aware of Trump’s policies and possibly was influenced by them.
To overturn the revocations, “we just have to prove (racism was) a motivating factor,” said Ahilan Arulanantham, an American Civil Liberties Union lawyer.
Chen wondered if that would permanently bar the administration from revoking protections.
“When would the taint end?” he asked.
“When the president stops making these openly racist statements,” Arulanantham said.
Temporary Protected Status, established by a 1990 federal law, allows undocumented immigrants with no serious criminal records to live and work in the U.S. if a disaster or war in their homeland has made it unsafe to return. The status is renewed every 18 months.
Immigrants from 10 nations currently hold Temporary Protected Status. The lawsuit was filed on behalf of 263,000 Salvadorans, 5,300 Nicaraguans, 46,000 Haitians and 1,000 Sudanese. Lawsuits elsewhere are challenging the Trump administration’s planned termination of protections for 86,000 Hondurans and 9,000 Nepalese. Their deportations would also impact the immigrants’ U.S.-born children, who number in the hundreds of thousands.
In all, Trump has announced plans to terminate protected status for 98 percent of those who held it when he took office, Arulanantham said.
Salvadorans were granted protected status after a 2001 earthquake, and Haitians after a series of quakes that started in 2010. Protections were granted for Nicaraguans in 1998 after a hurricane, and for Sudanese because of an ongoing civil war.
Past administrations have renewed the protections due to ongoing hardships in the immigrants’ homelands, such as outbreaks of disease and violence. Trump’s Department of Homeland Security said it would withdraw protected status once the hardships caused by the original disaster no longer exist.
With that shift, immigrant-rights lawyers argued, the administration violated a law that requires a rational explanation for policy changes that cause hardship to individuals.
Attorney Emi MacLean of the National Day Laborers Organizing Network said the Trump administration has failed to explain why it is disregarding continuing hardships in countries like Haiti and El Salvador because they allegedly have no connection to the initial disasters.
“A different administration comes with a different perspective,” responded Kirschner, the government’s lawyer, but the Trump administration is entitled to its own interpretation of the law and the facts on the ground, and “Congress has said that decision is not for judicial review.”
Chen seemed unpersuaded. He said past administrations had not insisted on tying current hardships to the initial disasters.
“It seems to me by every measure there was a change,” the judge said.
“A different administration comes with a different perspective.” Adam Kirschner, Justice Department lawyer