9th Cir­cuit re­in­states de­por­ta­tion of 300,000

San Francisco Chronicle Late Edition - - BAY AREA - By Bob Egelko

A fed­eral ap­peals court on Mon­day re­in­stated the Trump ad­min­is­tra­tion’s or­der to de­port more than 300,000 un­doc­u­mented im­mi­grants whose home coun­tries were hit by disas­ters, re­ject­ing a judge’s de­ci­sion that the or­der was an ar­bi­trary change of pol­icy and may have been mo­ti­vated by racism.

In re­vok­ing Tem­po­rary Pro­tected Sta­tus for peo­ple who fled El Sal­vador, Nicaragua, Haiti and Su­dan, Pres­i­dent Trump’s Depart­ment of Home­land Se­cu­rity may have re­versed the poli­cies and le­gal in­ter­pre­ta­tions of its pre­de­ces­sors, but can­not be chal­lenged in court, the Ninth U.S. Cir­cuit Court of Ap­peals in San Fran­cisco said in a 2­1 rul­ing.

“The de­ci­sion to des­ig­nate any for­eign coun­try for TPS be­gins and ends with the sec­re­tary” of Home­land Se­cu­rity, Judge Con­suelo Cal­la­han said in the ma­jor­ity opin­ion. She said the sec­re­tary’s au­thor­ity to con­sider con­di­tions in a for­eign coun­try and de­cide whether they jus­tify con­tin­ued U.S. shel­ter “is not only broad, but un­re­view­able.”

And although Pres­i­dent Trump’s de­scrip­tion of Haiti and African na­tions as “s—hole coun­tries” was “of­fen­sive and dis­parag­ing,” Cal­la­han said, there is no ev­i­dence that it con­trib­uted to his ad­min­is­tra­tion’s re­vo­ca­tion of pro­tected sta­tus.

In dis­sent, Judge Mor­gan Chris­ten said fed­eral law does not al­low the gov­ern­ment to dras­ti­cally change its le­gal in­ter­pre­ta­tions and poli­cies with­out ex­pla­na­tion when the re­sult is harm to peo­ple who have rea­son­ably re­lied on the prior poli­cies.

“The lives of 300,000 nonci­t­i­zens and 200,000 U.S. cit­i­zen chil­dren will be for­ever changed by these TPS ter­mi­na­tions,” Chris­ten said.

In a sep­a­rate opin­ion, Judge Ryan Nel­son said the num­ber would ac­tu­ally be lower be­cause a fed­eral judge in New York, in an­other case, has barred the de­por­ta­tion of the 46,000 Haitians with Tem­po­rary Pro­tected Sta­tus, a de­ci­sion the Trump ad­min­is­tra­tion is ap­peal­ing. Nel­son agreed with Cal­la­han that the ad­min­is­tra­tion’s change of pol­icy was im­mune from ju­di­cial re­view but said the New York or­der, still in effect, shows why in­di­vid­ual fed­eral judges gen­er­ally should not be al­lowed to is­sue na­tion­wide in­junc­tions against fed­eral gov­ern­ment poli­cies.

Nel­son was ap­pointed by Pres­i­dent Trump, Cal­la­han by Pres­i­dent

Ge­orge W. Bush, and Chris­ten by Pres­i­dent Barack Obama.

The Amer­i­can Civil Lib­er­ties Union, which sued on be­half of nine im­mi­grants with pro­tected sta­tus and five U.S.­born chil­dren of im­mi­grants in the pro­gram, said it would ap­peal the rul­ing.

“The pres­i­dent’s vile state­ments about TPS hold­ers made per­fectly clear that his ad­min­is­tra­tion acted out of racial an­i­mus,” said ACLU at­tor­ney Ahi­lan Aru­lanan­tham. “The Con­sti­tu­tion does not per­mit pol­icy to be driven by racism.”

In a state­ment, the Jus­tice Depart­ment said, “We ap­plaud the Ninth Cir­cuit’s recog­ni­tion of the plain lan­guage of the Im­mi­gra­tion and Na­tion­al­ity Act and its re­jec­tion of the base­less ac­cu­sa­tions of an­i­mus be­hind the ac­tions taken by the Depart­ment of Home­land Se­cu­rity.”

Tem­po­rary Pro­tected

Sta­tus, es­tab­lished by a 1990 fed­eral law, al­lows un­doc­u­mented im­mi­grants with no se­ri­ous crim­i­nal records to live and work in the United States if a nat­u­ral dis­as­ter or war in their home­land has made it un­safe to re­turn. The sta­tus is typ­i­cally re­newed ev­ery 18 months.

Im­mi­grants from 10 na­tions cur­rently hold the sta­tus. They in­clude 263,000 Sal­vado­rans, who were al­lowed to re­main in the United States af­ter a 2001 earth­quake; 5,300 Nicaraguan­s, af­ter a hurricane in 1998; 46,000 Haitians, fol­low­ing a 2010 quake; and 1,000 Su­danese be­cause of an on­go­ing civil war.

Past ad­min­is­tra­tions have ex­tended the pro­tec­tions be­cause of new or con­tin­u­ing hard­ships in a mi­grant’s home­land; for ex­am­ple, con­tin­ued hurricane dam­age and an out­break of cholera in Haiti, and vi­o­lence and nat­u­ral disas­ters in Nicaragua and El Sal­vador.

But in 2017, Trump’s then­sec­re­tary of Home­land Se­cu­rity, Elaine Duke, said the hard­ships caused by the orig­i­nal disas­ters in the four coun­tries no longer ex­isted, and the law did not al­low the United States to ex­tend pro­tected sta­tus based on cur­rent con­di­tions abroad.

In an Oc­to­ber 2018 in­junc­tion against the de­por­ta­tions, U.S. District Judge Edward Chen of San Fran­cisco said fed­eral law re­quires the gov­ern­ment to of­fer a ra­tio­nal ex­pla­na­tion for new le­gal in­ter­pre­ta­tions and other pol­icy changes that cause hard­ship to in­di­vid­u­als.

Chen also noted that Trump’s “s—hole coun­tries” slur came dur­ing a White House meet­ing on Tem­po­rary Pro­tected Sta­tus, a week be­fore Home­land Se­cu­rity an­nounced the ter­mi­na­tion of TPS for Haitians. The judge cited other racial den­i­gra­tions by Trump and also noted Duke’s 2018 state­ment that the end­ing of pro­tected sta­tus was “a re­sult of an Amer­ica first view” — an in­di­ca­tion, the judge said, that she was car­ry­ing out the pres­i­dent’s agenda.

But the ap­peals court ma­jor­ity said there was no ev­i­dence that Trump “per­son­ally sought to in­flu­ence the TPS ter­mi­na­tions.”

Not­ing that the ad­min­is­tra­tion had ex­tended pro­tected sta­tus for other na­tions with non­white pop­u­la­tions, Cal­la­han said the pol­icy shift could be at­trib­uted to the ad­min­is­tra­tion’s “em­pha­sis on a ‘merit­based en­try’ sys­tem, its fo­cus on Amer­ica’s eco­nomic and na­tional se­cu­rity in­ter­ests, and its view on the lim­i­ta­tions of TPS and the pro­gram’s seem­ing overex­ten­sion by prior ad­min­is­tra­tions.”

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