Wait be­gins after trial about end­ing TPS for Haitians

Miami Herald - - FRONT PAGE - BY JAC­QUE­LINE CHARLES [email protected]­ami­her­ald.com

A fed­eral trial in New York chal­leng­ing the Trump ad­min­is­tra­tion’s de­ci­sion to end Tem­po­rary Pro­tected Sta­tus, or TPS, for thou­sands of Haitians con­cluded Thurs­day with in­ter­nal govern­ment emails show­ing that the ad­min­is­tra­tion was the Na­tional Lawyers Guild, said while he and his team tried to fo­cus on telling a story dur­ing the trial that be­gan on Mon­day, they will use the time given by Kuntz to sub­mit ad­di­tional ev­i­dence. Dur­ing the trial, Zota’s team and other lawyers serv­ing as co-coun­sel in the suit ar­gued that the ter­mi­na­tion of TPS for Haiti was based on Pres­i­dent Don­ald Trump’s “cat­e­gor­i­cal and defam­a­tory as­ser­tions about all Haitians, which the Haitian TPS

A fed­eral trial on a law­suit over the Trump ad­min­is­tra­tion’s de­ci­sion to end TPS for thou­sands of Haitians con­cluded Thurs­day. But a de­ci­sion in the case isn’t ex­pected un­til after March 1.

re­cip­i­ents were given no op­por­tu­nity to chal­lenge.”

“I’m def­i­nitely feel­ing good that our plain­tiffs were able to have their day in court and ...tell the judge how they are go­ing to be harmed if this TPS ter­mi­na­tion is up­held, and I think this was a very im­por­tant op­por­tu­nity for our plain­tiffs to have,” Zota said. “I re­al­ize that the govern­ment of­fi­cials were not there, but this trial is still about hold­ing them ac­count­able.”

TPS was first given to Haiti by Pres­i­dent Barack Obama after a cat­a­strophic 7.0 mag­ni­tude earth­quake rocked the coun­try nine years ago Saturday on Jan. 12, 2010.

But as the Trump ad­min­is­tra­tion be­gan re­scind­ing the pro­tec­tion for Haitians and some Cen­tral Amer­i­cans, lawyers be­gan fil­ing suits. The New York law­suit is the first of the five to go to trial.

Dur­ing the four days of tes­ti­mony, U.S. De­part­ment of Jus­tice lawyers did not call a sin­gle wit­ness but in­stead re­lied on their cross-ex­am­i­na­tion of the plain­tiffs’ wit­nesses to ar­gue their point that the U.S. De­part­ment of Home­land Se­cu­rity was within its dis­cre­tion when it an­nounced the end of TPS for Haiti in Novem­ber 2017. The de­ci­sion, they said, was based on lengthy con­sul­ta­tions and DHS’ con­clu­sion that Haiti no longer met “the con­di­tion for des­ig­na­tion.”

The an­nounce­ment of Haiti’s ter­mi­na­tion by then-DHS Act­ing Sec­re­tary Elaine Duke came 14 days after the pro­tec­tion for 2,500 Nicaraguans was ter­mi­nated after nearly 20 years. Four months later, Haitians in New York and Florida, in­clud­ing the Fam­ily Ac­tion Net­work Move­ment in Mi­ami (FANM), filed the class-ac­tion law­suit in the Eastern Dis­trict of New York.

Like the other suits rep­re­sent­ing Haitians as well as Sal­vado­rans, Hon­durans, and Su­danese TPS hold­ers, the New York suit ar­gues that Duke vi­o­lated pro­ce­dures and TPS hold­ers’ due process. The de­ci­sion, the suit al­leges, was also rooted in the pres­i­dent’s “racially dis­crim­i­na­tory at­ti­tude to­ward all brown and black peo­ple.”

Dur­ing Thurs­day’s clos­ing ar­gu­ments, at­tor­ney Howard Roin, one of sev­eral lawyers rep­re­sent­ing the plain­tiffs, cited emails and other in­ter­nal govern­ment doc­u­ments, in­clud­ing Duke’s hand­writ­ten Novem­ber 2017 notes, to bol­ster the plain­tiffs’ ar­gu­ment: The White House was not in­ter­ested in the facts about con­di­tions in Haiti as DHS of­fi­cials mulled over whether to con­tinue to shield up to 60,000 Haitians from de­por­ta­tion, and Duke was un­der re­peated pres­sure to ter­mi­nate the pro­gram.

Roin also cited doc­u­ments that were in­tro­duced into the court record bol­ster­ing ad­vo­cates’ as­ser­tions that dur­ing the process, there was dis­agree­ment be­tween Trump po­lit­i­cal ap­pointees who wanted to ter­mi­nate, and govern­ment ca­reer of­fi­cers whose re­search showed that Haiti could not han­dle the re­turn of thou­sands of na­tion­als be­cause the coun­try re­mained a mess.

At­tor­ney Paromita Shah said the Haiti TPS ter­mi­na­tion de­ci­sion was “pre­ar­ranged, pre­med­i­tated from the be­gin­ning,” and based on “ra­cial an­i­mus.”

“Hav­ing a trial on that is­sue is sig­nif­i­cant be­cause we know those com­ments were made in re­la­tion to TPS for Haitians,” she said. “There is a long history of bias against Haitians in our im­mi­gra­tion sys­tem. But it is clear that this ad­min­is­tra­tion has at least a pub­lic record in mak­ing dis­parag­ing com­ments.”

Shah added that the pub­lic — and Judge Kuntz — needed to hear “the ev­i­dence, the state­ment, the poli­cies that were in place be­fore ter­mi­na­tion hap­pened ... to get a grasp on how ugly and dis­torted this process was.”

Among the other ev­i­dence that lawyers pre­sented dur­ing the trial: in­ter­nal emails from U.S. Cit­i­zen­ship and Im­mi­gra­tion Ser­vices in­di­cat­ing that the agency made in­quiries into whether Haitian TPS re­cip­i­ents re­ceived pub­lic ben­e­fits, com­mit­ted crimes, or pro­vided remit­tances. Though none is rel­e­vant to a TPS ter­mi­na­tion de­ci­sion, DHS, which ac­knowl­edged com­pil­ing the crim­i­nal his­to­ries, was do­ing so at a time when of­fi­cials were try­ing to de­cide how to pro­ceed on the Haiti TPS des­ig­na­tion.

Lawyers also in­tro­duced into ev­i­dence a ca­ble that came from the U.S. em­bassy in Port-au-Prince and con­cluded Haiti was not ready to re­ceive TPS hold­ers. The ca­ble is among sev­eral that were from se­nior U.S. diplomats to top State De­part­ment of­fi­cials and were dis­re­garded de­spite the warn­ing that the mass de­por­ta­tions of Cen­tral Amer­i­cans and Haitians could desta­bi­lize the re­gion and trig­ger a new surge of il­le­gal im­mi­gra­tion. De­spite the ca­bles, the ad­min­is­tra­tion went ahead with its ter­mi­na­tion de­ci­sions, lawyers said.

In rec­om­mend­ing that TPS end for Haiti, USCIS Direc­tor Fran­cis Cissna con­cluded in a Nov. 3, 2017, memo that “Haiti has made sig­nif­i­cant progress in re­cov­er­ing from the 2010 earth­quake, and no longer con­tin­ues to meet the con­di­tions for des­ig­na­tion.”

“While lin­ger­ing ef­fects of the 2010 earth­quake re­main in hous­ing, in­fra­struc­ture, dam­age to the econ­omy, health, san­i­ta­tion ser­vices, se­cu­rity risks and emer­gency re­sponse ca­pac­ity, Haiti has made sig­nif­i­cant progress in ad­dress­ing is­sues spe­cific to the earth­quake,” Cissna ar­gued. He also noted that 98 per­cent of the camps that sprang up after the quake had closed, and Haitian Pres­i­dent Jovenel Moïse had an­nounced that he would be re­build­ing the quake-de­stroyed pres­i­den­tial palace.

Govern­ment lawyers noted these facts dur­ing their cross-ex­am­i­na­tions of wit­nesses. They also ques­tioned the cre­den­tials of some of the wit­nesses, and played a video of one of the plain­tiffs, Hait Lib­erté news­pa­per jour­nal­ist Ken­neth “Kim” Ives, dis­put­ing the quake’s death toll.

El­lie Hap­pel, a lawyer and ex­pert wit­ness, tes­ti­fied that the only rea­son of­fi­cial num­bers show a sig­nif­i­cant drop in the tentc­ity pop­u­la­tion is be­cause camps were force­fully shut down by the Haitian govern­ment. The direc­tor of the Haiti Project at the NYU School of Law’s Global Jus­tice Clinic, Hap­pel noted that the Haitian govern­ment had not kept its prom­ise to re­build hous­ing after the quake.

She also tes­ti­fied that while Cissna had de­scribed Haiti’s er­ratic GDP growth as “pre­dom­i­nantly pos­i­tive,” av­er­ag­ing 1.9 per­cent be­tween 2010 and 2016, he had failed to con­sider that in 2017, GDP was on the de­cline while the coun­try’s domestic cur­rency was rapidly de­pre­ci­at­ing, said Beatrice Lind­strom, an at­tor­ney who at­tended all four days of the trial.

“The ev­i­dence leaves no doubt that Sec­re­tary Duke’s de­ci­sion was made un­der pres­sure from a racist White House, and is ir­rec­on­cil­able with the facts and find­ings of the govern­ment’s own ex­perts,” said Lind­strom, whose boss, Brian Con­can­non, was among those who tes­ti­fied for the plain­tiffs. Con­can­non and Lind­strom are with the Bos­ton-based In­sti­tute for Jus­tice & Democ­racy in Haiti.

One of the long­est tes­ti­monies came from Leon Ro­driguez, the for­mer direc­tor of U.S. Cit­i­zen­ship and Im­mi­gra­tion Ser­vices in the Obama ad­min­is­tra­tion. Dur­ing his more than four hours on the stand, Ro­driguez tes­ti­fied that the Trump ad­min­is­tra­tion ap­proach to TPS not only de­vi­ates from past prac­tices but is also il­le­gal. Cissna, he said, had failed to con­sider the to­tal­ity of Haiti’s cir­cum­stances, such as food inse­cu­rity and crime statis­tics, in de­ter­min­ing if it could take back its na­tion­als.

Asked di­rectly by the judge whether Cissna’s rec­om­men­da­tion vi­o­lated the law, Ro­driguez said “yes.”

The suit was filed on be­half of three South Florid­i­ans, seven New York­ers, the weekly Brook­lyn-based Haitian news­pa­per Haïti Lib­erté, and the Mi­amibased Haitian rights ad­vo­cacy group FANM.

Ives, a top jour­nal­ist at the news­pa­per, tes­ti­fied that one of his pa­per’s main re­porters and fundraisers, Jack­son Rateau, would have to re­turn to Haiti should he lose his sta­tus and would not be able to ef­fec­tively do his job. Dur­ing the hear­ing, the govern­ment sought to use Ives’ own words to raise ques­tions about the ex­tent of the dev­as­ta­tion, play­ing a video in which Ives ac­cused non­govern­men­tal or­ga­ni­za­tions of prof­it­ing off Haiti and the Haitian govern­ment of in­flat­ing the quake death toll. The Haitian govern­ment, cit­ing log books that its driv­ers kept, re­vised its death fig­ure to 316,000, sixth months after the disaster. Ives said the num­ber was closer to be­tween 60,000 and 80,000.

The earth­quake death toll has al­ways been in dis­pute. The Haitian govern­ment, cit­ing logs it had driv­ers keep as they trans­ported bod­ies to mass graves, re­ported the of­fi­cial num­ber to be more than 316,000 while the U.S. Agency for In­ter­na­tional De­vel­op­ment es­ti­mated it to be 46,000 to 85,000.

“Haiti still has not re­cov­ered from the earth­quake, has been rocked by a cholera epi­demic, and is still reel­ing in the af­ter­math of Hur­ri­cane Matthew in 2016 and Hur­ri­cane Irma in 2017,” Ives said.

The plain­tiffs are ask­ing the judge to find that DHS did not do an ad­e­quate re­view and must con­duct a new re­view on whether Haiti can ab­sorb the re­turn of its im­mi­grants. With four other law­suits also await­ing a day in court, le­gal ex­perts say any de­ci­sion Kuntz makes will be “per­sua­sive prece­dent.”

“A de­ci­sion on the mer­its es­pe­cially after trial would have col­lat­eral con­se­quences on all of our cases,” said Ray­mond Au­dain, an NAACP Le­gal De­fense Fund at­tor­ney, who de­scribed Kuntz as a fair judge who made it clear this year that he takes these is­sues very se­ri­ous. “We are hop­ing for a fa­vor­able rul­ing.”

Au­dain said al­though the NAACP Le­gal De­fense Fund was the first to sue the ad­min­is­tra­tion on be­half of Haitian TPS hold­ers, a Mary­land fed­eral judge still has not ruled on the govern­ment’s mo­tion to have the com­plaint dis­missed.

In Oc­to­ber, a fed­eral judge in Cal­i­for­nia granted a tem­po­rary in­junc­tion blocking the ad­min­is­tra­tion from de­port­ing Haitian TPS hold­ers and oth­ers as their ter­mi­na­tion dead­lines ap­proach. U.S. Dis­trict Judge Ed­ward Chen granted the tem­po­rary in­junc­tion as part of a Cal­i­for­nia law­suit filed by lawyers on be­half of TPS re­cip­i­ents who are from Haiti, Nicaragua, El Sal­vador, and Sudan and have U.S.-born chil­dren. The de­ci­sion is be­ing ap­pealed by the govern­ment and ex­perts say Kuntz’s rul­ing should have no im­pact on the in­junc­tion..

In ad­di­tion to the Cal­i­for­nia and NAACP Le­gal De­fense Fund suits, there are two oth­ers, in­clud­ing one by the Lawyers’ Com­mit­tee for Civil Rights and Eco­nomic Jus­tice. It filed suit on be­half of Sal­vado­rans, Hon­durans, and Haitians in Bos­ton fed­eral court. The com­mit­tee pre­vi­ously chal­lenged the con­sti­tu­tion­al­ity of Trump’s ex­ec­u­tive or­der tar­get­ing sanc­tu­ary cities.

Mar­leine Bastien is the direc­tor of FANM, which is part of the class-ac­tion law­suit in the Eastern Dis­trict of New York against the U.S. govern­ment.

ALEXIA FODERE Mi­ami Her­ald file, 2018

Michel Bien-Aime wants Haitians in the U.S. to con­tinue to re­ceive Tem­po­rary Pro­tected Sta­tus. He was par­tic­i­pat­ing in a protest at the Lit­tle Haiti Cul­tural Cen­ter in Mi­ami.

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