Saget v. Trump: Reply in Support of Motion For Extra-Record Discovery

Case 1:18-cv-01599-WFK-ST Document 39 Filed 08/15/18 Page 1 of 17 PageID #: 918
UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK
PATRICK SAGET, SABINA BADIO )

FLORIAL, NAÏSCHA VILME, GERALD )
MICHAUD, BEATRICE BELIARD, )
RACHELLE GUIRAND, JEAN CLAUDE )
MOMPOINT, YOLNICK JEUNE, )
GUERLINE FRANCOIS, LEOMA )
PIERRE, HAÏTI LIBERTÉ, and FAMILY )
ACTION NETWORK MOVEMENT, )
INC., )
)
Plaintiffs, )
) Case No. 1:18-cv-01599
vs. )
)
DONALD TRUMP, President of the )
United States of America, UNITED )
STATES OF AMERICA, DEPARTMENT )
OF HOMELAND SECURITY, KIRSTJEN )
NIELSEN, Secretary of Homeland )
Security, and ELAINE C. DUKE, Deputy )
Secretary of Homeland Security, )
REPLY IN SUPPORT OF MOTION TO SUPPLEMENT THE ADMINISTRATIVE

RECORD AND FOR EXTRA-RECORD DISCOVERY
Plaintiffs Patrick Saget, Sabina Badio Florial, Naïscha Vilme, Gerald Michaud, Beatrice
Beliard, Rachelle Guirand, Jean Claude Mompoint, Yolnick Jeune, Guerline Francois, Leoma
Pierre, Haïti Liberté, and Family Action Network Movement, Inc. hereby submit their Reply in
Support of their Motion to Supplement the Administrative Record and for Extra-Record
Discovery. In support of their Reply, Plaintiffs state as follows:
I. INTRODUCTION
Defendant President Trump’s longstanding explicit bias towards Haitians and other
immigrants of color is well-documented. He believes that Haitians “all have AIDS.” He has
described Haitians as people from “shithole countries.” He has repeatedly compared immigrants
and refugees to snakes who will bite and kill anyone foolish enough to take them in. It is no
surprise, therefore, that when Defendant President Trump took office, he and his Administration
quickly took steps to implement the President’s biases into policies—without regard for whether
those policies were legal.
One such policy was the termination of Temporary Protected Status (“TPS”) not only for
60,000 Haitian nationals living in the United States, but also for tens of thousands of other TPS
recipients. In deciding to terminate TPS, Trump Administration officials ignored the
unambiguous, non-discretionary criteria set forth by Congress for reviewing TPS designations,
and instead imposed their own arbitrary, capricious, and discriminatory decision-making process.
Because Defendants’ TPS termination decision did not follow the statute, applied a changed and
narrowed standard, and was motivated by discriminatory animus, Plaintiffs sued, alleging, inter
alia, violations of the Administrative Procedure Act (“APA”) and the U.S. Constitution.1
At the Pre-Motion Conference in this case, Judge Kuntz denied the government’s motion
to stay discovery because of the “importance of the case.” (Ex. A.) Judge Kuntz is not alone in
his view that the issues raised in this case are important. In two other cases challenging the
Trump Administrations’ TPS terminations, the government’s motions to dismiss those plaintiffs’
APA and constitutional claims have been denied nearly entirely.2 In one of those cases, Ramos,
et al. v. Nielsen, et al., No. 3:18-cv-01554 (C.D. Cal., 2018), discovery is already proceeding in
earnest: Multiple agency officials have already been deposed and the court has ordered the
1
Plaintiffs were not the only ones. At least three other lawsuits have been brought challenging
the Trump Administration’s unlawful termination of TPS: one in Massachusetts (Centro
Presente et al. v. Trump, No. 1:18-cv-10340 (D. Mass. 2018)); one in California (Ramos, et. al.
v. Nielsen, et al., No. 3:18-cv-01554 (N.D. Cal. 2018)); and one in Maryland (NAACP v. DHS,
No. 1:18-cv-00239 (D. Md. 2018)).
2
Centro Presente, No. 1:18-cv-10340 (D. Mass.) (DE 47); Ramos., No. 3:18-cv-01554 (N.D.
Cal.) (DE 55).
2
government to produce documents that it had withheld under the deliberative process privilege.
(Ex. B.)
Despite Judge Kuntz’s unambiguous ruling that, in light of the importance of the case,
“[d]iscovery is not stayed during the pendency of motion practice,” (Ex. A) Defendants insist
that this case is a run-of-the-mill challenge to an agency determination subject to the so-called
“record rule,” and refuse to produce more than a paltry 199 pages they call the whole
administrative record.
Defendants’ attempt to cast this case as an ordinary challenge to agency action ignores
both the facts and the law. Just as in Ramos, Plaintiffs are entitled to extra-record discovery—in
particular, depositions—in connection with their APA claims because they have plausibly
alleged that the administrative record, however it is defined, was created as mere pretext for the
real motivation for Defendants’ decision to terminate TPS: racial animus. Plaintiffs have thus
made an adequate showing of bad faith and improper behavior to warrant extra-record discovery.
Moreover, the government is flatly wrong in asserting that Plaintiffs have merely
“appended constitutional claims to their principal APA claims.” Docket Entry (“DE”) 35 at 28.
Plaintiffs’ constitutional claims could have been brought independent of their APA claims.3 The
fact that two district courts have already declined to dismiss very similar constitutional
challenges to the Trump Administration’s decision to terminate TPS is strong evidence that
Plaintiffs’ constitutional challenges can stand on their own. Accordingly, Plaintiffs are entitled to
depositions on their constitutional claims in any event.
3
For example, the Plaintiffs in NAACP, No. 1:18-cv-00239 (D. Md.) did not bring an APA claim
at all, opting instead to bring only Fifth Amendment, Mandamus, and Declaratory Judgment
claims. See id. at DE. 30.
3
Even assuming that the mere 199 pages Defendants have produced can be fairly
characterized as the administrative record, it is woefully incomplete. In an ordinary case, the so-
called “record rule” presumes that the government has played by the rules in (1) providing all
documents and information actually reviewed in making the challenged decision; and (2)
considering only those documents and information it is permitted to consider in making its
decision. Here, though, Defendants did not play by these rules—their improper behavior and bad
faith conduct mandate, at a minimum, supplementation of administrative record to provide all
documents the agency did or should have considered.
II. ARGUMENT
A. Plaintiffs Are Entitled to Extra-Record Discovery on their APA Claims
The court should grant Plaintiffs full and complete discovery on Plaintiffs’ APA claims,
including depositions of agency officials, because the improper, bad faith, and pretextual nature
of the government’s decision—and, more importantly, the process behind it—warrants extra-
record discovery. Defendants argue that the court in APA cases should not act as “fact-finder”
but that is only true in the typical APA action, in which there are no relevant, hidden facts to
“find.” DE 35 at 14.
This is not a typical APA action. Here, Plaintiffs have alleged specific facts showing that
Defendants engaged in a pattern of duplicitous conduct aimed at covering up their true
motivation for revoking TPS for Haiti and effectively expelling 60,000 Haitians from the United
States: racial animus. Defendants argue that Plaintiffs have failed to make the requisite “strong
showing” of bad faith on the part of the agency, but Defendants ignore: (1) Overton Park’s
holding that extra-record discovery also is required where the government is alleged to have
engaged in improper behavior; (2) Plaintiffs’ showing that Defendants have engaged in bad faith
conduct, not only in the discriminatory motives underlying their revocation of TPS, but in their
4
failure to conduct a good-faith review of the facts relevant to the TPS decision and make that
decision based on those facts as required by the TPS statute; and (3) Overton Park’s holding that
courts should look beyond the administrative record when, as here, it is “so bare that it prevents
effective judicial review.”
1. Plaintiffs Have Alleged Improper Behavior
As Defendants would have it, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402
(1971) permits extra-record discovery only in cases in which plaintiffs can show “bad faith” on
the part of the government. DE 35 at 17, 19, 22, 24. Defendants are wrong. Overton Park also
mandates extra-record discovery in cases in which Plaintiffs show “improper behavior” on the
part of the agency. Id. at 420; see also Maine Care Servs., Inc. v. U.S. Dep't of Agric., 2001 WL
261558, at *2 (D. Me. Mar. 15, 2001) (stating that plaintiff had made no showing of bad faith,
but had made a strong showing of improper behavior, in part due to due process violations).
“Strong evidence of unalterably closed minds” is evidence of improper behavior which can
“justify discovery into the [agency’s] decisionmaking process.” Comm. of 100 on the Fed. City
v. Foxx, 140 F. Supp. 3d 54, 59 (D.D.C. 2015).
Plaintiffs have made detailed factual allegations and have submitted evidence that
Defendants’ decision to terminate TPS was preordained and not based on the factors in the TPS
statute—demonstrating that they approached the decision with “unalterably closed minds” and
warranting extra-record discovery. As discussed in Plaintiffs’ motion, Plaintiffs have provided
documents, obtained in a separate FOIA lawsuit, which show that the government first decided
to revoke TPS for Haiti, and then searched for evidence to justify its decision. For example, the
April 7, 2017, e-mail from Kathy Nuebel Kovarik, the USCIS Chief of Policy and Strategy,
ordering her staff obtain criminal records and public benefit usage rates of Haitian TPS
5
recipients, reveals an attempt to justify the revocation of TPS for Haiti based on Haitian
immigrants’ alleged criminal propensity and use of federal resources, even though neither is a
factor the government may consider under the TPS statute.4 See 8 U.S.C. 1254a.
The Trump Administration’s statements in connection with the May 2017 extension of
TPS for Haiti also evince an intent to revoke that status in the near future. Secretary Kelly stated
in the extension that Haitian nationals should begin to prepare to return to Haiti. DE 21 at ¶ 85.
He issued this pronouncement even though the extension notice itself acknowledged serious,
ongoing conditions which would prevent safe return to Haiti, such as the damage to housing
caused by Hurricane Matthew and the continued vulnerability of Haiti’s residents to food
scarcity and sexual attack. DE 21 at ¶¶ 85–88. Secretary Kelly likewise made public statements
that his re-designation of Haiti was meant to be an “alert” to Haitians to prepare for return to
their country of origin. DE 21 at ¶ 90.
Similarly, L. Francis Cissna, the Director of U.S. Citizenship and Immigration Services
(“USCIS”) in November, 2017 recommended in writing to then-Secretary of Homeland Security
Elaine Duke that TPS for Haiti be terminated, asserting that Haiti had “made significant progress
in recovering from the 2010 earthquake, and no longer continues to meet the conditions for
designation,” and recommended termination. (Ex. C at p. 3.) But Cissna’s own USCIS staff—in
a document on which Cissna purported to rely when drafting his recommendation and which was
4
Defendants argue that, because this e-mail and certain other documents identified by Plaintiffs
concerned the initial extension of TPS for Haiti on May 24, 2017, they could not have played a
role in the subsequent decision to revoke TPS for Haiti. DE 35 at 21. But these documents,
along with Secretary Kelly’s affirmative statements regarding the government’s intent to revoke
TPS for Haiti in the future, show that the government had already begun the process of collecting
information in an attempt to justify its predetermined decision. These documents, therefore, are
part of what the agency considered or should have considered in revoking TPS for Haiti.
Accordingly, they are properly within the scope of discovery and should be included in the
6
drafted only a month before Cissna’s recommendation—found the opposite. (Ex. D.) Indeed,
those USCIS staff members concluded, among other things, that many “of the conditions
prompting the original January 2010 TPS designation persist, and the country remains vulnerable
to external shocks and internal fragility,” and that “Haiti’s recovery from the 2010 earthquake
could be characterized as . . . the country’s tragic pattern of ‘one step forward, two steps back.’”
(Ex. D at p. 1, 18). Put simply, Cissna blatantly misconstrued the available evidence—which
counseled in favor of extending TPS—and recommended termination anyway.
These allegations and supporting documents show that Defendants’ decision to revoke
TPS was a foregone conclusion, made despite clear conditions on the ground in Haiti meriting
continued TPS status. If allowed to take discovery, it is highly likely that Plaintiffs will discover
further evidence of Defendants’ improper predetermination that they would revoke TPS status
for Haiti, regardless of whether the factors specified by the TPS statute supported such a
decision.
Defendants also argue that Plaintiffs are not entitled to obtain discovery regarding the
government’s mental processes because, in a typical APA case, courts should not probe the
mental processes of an agency. DE 35 at 22. Again, though, this is not a typical APA case. And,
courts have held that “once there has been a prima facie demonstration of impropriety the courts
will inquire into the administrative process in order to insure that the decision making was
informed, unbiased, and personal.” KFC Nat. Mgmt. Corp. v. N.L.R.B., 497 F.2d 298, 305 (2d
Cir. 1974) (citing cases). Plaintiffs have provided more than a prima facie showing of
impropriety by the government. Moreover, this case involves allegations that racial animus on
the part of Defendants against Haitians motivated the revocation of TPS for Haiti. Given that
7
racial animus is a personal, mental impression, supplementation of the administrative record with
documents which shed light on the agency’s mental processes is especially key in this case.
2. Plaintiffs Have Plausibly Alleged Bad Faith
Even if a showing of bad faith were necessary to obtain extra-record discovery under
Overton Park, Plaintiffs’ allegations regarding bad faith are not, as Defendants incorrectly
contend, merely conclusory. Rather, Plaintiffs have set forth detailed and well-documented
factual allegations that plausibly identify the bad-faith basis of Defendants’ termination decision.
Thus, this case is not one where accusations of bad faith “are made with no documentation,
support, or explanation beyond their own ipse dixit.” Deukmejian v. Nuclear Regulatory
Comm'n, 751 F.2d 1287, 1328 (D.C. Cir. 1984).
First, Plaintiffs have set forth facts showing Defendants’ bias against immigrants of
color, and, in particular, Haitian immigrants. Well before the November, 2017 TPS termination
decision, at a June, 2017, meeting in the Oval Office, Defendant President Trump stated that
Haitian people “all have AIDS.” DE 21 at ¶ 61. Then-Secretary of State Tillerson was present at
this meeting, as was Secretary of Homeland Security Nielsen. Accordingly, not only did
Defendant President Trump express clear animus towards Haitian immigrants, he did so in the
presence of Mr. Tillerson, an official whose FOIA documents reveal was closely involved in the
decision to terminate TPS. Even after Defendants terminated TPS for Haiti, Defendant President
Trump once again demonstrated his bias against Haitian immigrants, stating, during a January
11, 2018, White House meeting with several U.S. Senators, “[w]hy are we having all these
people from shithole countries [Haiti, El Salvador, and certain African nations] come here?” Id.
at ¶ 62. Defendant President Trump further denigrated Haitians during this meeting, asking
“Why do we need more Haitians?” and ordered the bill’s drafters to “take them out.” Id.
8
President Trump’s repeated, overt racial animus against Haitian immigrants—and stated desire to
prevent Haitian immigrants from staying in the United States—is more than sufficient to show
that Defendants’ conduct was motivated by bad faith See Contreras v. City of Chicago, 1994
WL 700263, at *3 (N.D. Ill. Dec. 13, 1994) (allegations that City of Chicago officials knew of
certain residents’ discriminatory racial animus and agenda and furthered that agenda for political
purposes to appease the residents sufficient to allege bad faith on the part of the City).
Second, the pretextual nature of Defendants’ decision is, itself, evidence of bad faith.
See, e.g., Banner Health v. Sebelius, 2013 WL 11241368, at *6 (D.D.C. July 30, 2013) (agency’s
exclusion “from the record evidence adverse to its position or that the agency's stated rationale is
but a pretext masking its true basis of decision”) (quoting Deukmejian 751 F.2d at 1327).
Although cases analogous to this one are few and far between—itself evidence of the egregious
nature of Defendants’ conduct—at least one court has found bad faith based on an allegation that
the relevant agency had issued a permit hastily and without waiting for input from other
agencies, in what plaintiff described as a “procedural anomal[y].” See Sierra Club v. U.S. Army
Corps of Engineers, 935 F. Supp. 1556, 1567 (S.D. Ala. 1996). In Sierra Club, the plaintiff
argued that the U.S. Army Corps of Engineers had acted in bad faith by issuing a permit one
working day after the permittee submitted a proposal and without considering input from
relevant agencies, such as the U.S. Environmental Protection Agency and the U.S. Fish and
Wildlife Service, who opposed the grant of the permit. Id. The court agreed with plaintiff,
holding that such behavior constituted bad faith which permitted review of extra-record
materials. If merely failing to consider input from other agencies and rushing a permit out the
door constitutes bad faith, then surely basing a decision on racial animus and crafting a decision
based on statutorily improper pretext to hide the true nature of that decision certainly constitutes
9
bad faith. Plaintiffs have more than adequately alleged that the agency behaved improperly and
in bad faith in revoking TPS for Haiti and designating the administrative record, warranting
extra-record discovery in this case.
3. Defendants Ignore Overton Park’s “Bare Record” Prong, Which

Plaintiffs Satisfy
Defendants ignore another critical aspect of Overton Park. Under Overton Park, extra-
record discovery is appropriate “when the record is so bare that it prevents effective judicial
review.” Commercial Drapery Contractors, Inc. v. United States, 133 F.3d 1, 7 (D.C. Cir. 1998)
(citing Overton Park, 401 U.S. at 420). In other words, when the agency has failed to designate
a record sufficient for a court to review the agency’s action courts may order extra-record
discovery to enable themselves to conduct review of the agency’s decision.
That is precisely what happened here. The record in this case is entirely insufficient for
this Court to effectively review the decision to revoke TPS. Plaintiffs have plausibly alleged
specific facts showing that Defendants have withheld documents showing what the agency
actually considered as part of its decision to revoke TPS for Haiti. Defendants contend that these
documents are somehow irrelevant or not part of the record. DE 35 at 22 (“The record here is
ultimately based on a decision made by the Acting Secretary of Homeland Security, not the
Secretary of State.”) The paltry and pretextual 199 pages produced by the government is too
bare, on its face, to permit this Court to review the agency’s decision—it does not include
documents Plaintiffs have shown the agency actually reviewed (and therefore considered) in
revoking TPS for 60,000 Haitians. To the extent Defendants stand by their claim that they are
not required to supplement the record by designating further documents, this Court should permit
Plaintiffs extra-record discovery, including depositions, to flesh out this bare and insufficient
administrative record so that the Court may conduct full and fair judicial review.
10
This case is analogous to one type of case where courts have frequently found that extra
record discovery (or, at minimum, supplementation of the administrative record) is warranted:
cases involving the National Environmental Policy Act (“NEPA”). NEPA cases necessarily
involve a review of information available to the decision-maker to insure that the decision-maker
complied with NEPA’s statutory mandate to adequately review environmental effects and
alternatives. Thus, compliance “can sometimes be determined only by looking outside the
administrative record to see what the agency may have ignored.” Suffolk Cty. v. Sec'y of Interior,
562 F.2d 1368, 1384 (2d Cir. 1977); Ohio Valley Envtl. Coal. v. Aracoma Coal Co., 556 F.3d
177, 201 (4th Cir. 2009) (in the NEPA context “courts generally have been willing to look
outside the record when assessing the adequacy of an EIS or a determination that no EIS is
necessary”). This willingness to look outside the record is because:
‘[A] NEPA suit is inherently a challenge to the adequacy of the

administrative record’ . . . Not surprisingly, therefore, district
courts have considered extra-record evidence where a party seeks
to demonstrate that the agency relied on documents not in the
record, to illustrate factors the agency should have considered, to
provide background information, and to show bad faith.
N. Carolina All. for Transp. Reform, Inc. v. U.S. Dep't of Transp., 713 F. Supp. 2d 491, 514
(M.D.N.C. 2010) (emphasis added). As the Second Circuit has held, in cases brought under
NEPA, “[t]o limit the judicial inquiry regarding the completeness of the agency record to that
record would . . . make judicial review meaningless and eviscerate the very purpose of NEPA.”
Nat'l Audubon Soc. v. Hoffman, 132 F.3d 7, 15 (2d Cir. 1997).
Analogously, Plaintiffs have plausibly alleged that the record is pretext for a decision that
(1) was motivated by racial animus, and (2) was not made in good faith based on review of
country conditions pursuant to the TPS statute. Judicial review of Plaintiffs’ claims cannot
effectively be limited to the record as Defendants define it. See Commercial Drapery
11
Contractors, Inc. v. United States, 133 F.3d 1, 7 (D.C. Cir. 1998) (under Overton Park, even
absent showing of bad faith, extra-record discovery is warranted where “the record . . . prevents
effective judicial review”).
Just as in a NEPA case, “[t]o limit the judicial inquiry regarding the completeness of the
agency record to that record [in this instance] would . . . make judicial review meaningless and
eviscerate the very purpose” of the inquiry here, which involves parsing the motivations of the
agency’s rulemaking to determine whether it (1) constitutes a changed or new rule and (2) was
motivated by racial animus. Nat'l Audubon Soc., 132 F.3d at 15.
B. Plaintiffs Are Entitled to Extra-Record Discovery on their Constitutional

Claims
Even if Plaintiffs were not entitled to extra-record discovery on their APA claims, their
separate constitutional claims require the same fulsome discovery to which Plaintiffs would be
entitled even without their claims under the APA. It is well-settled that “[a] direct constitutional
challenge is reviewed independent of the APA” and courts routinely order discovery in cases
involving both APA and constitutional claims. Grill v. Quinn, 2012 WL 174873, at *2 (E.D. Cal.
Jan. 20, 2012) (listing cases).
Defendants argue that Plaintiffs have merely tacked on meritless constitutional claims for
the sole purpose of obtaining extra-record discovery they could not otherwise obtain for their
APA claims. See DE 35 at 28 (arguing that Plaintiffs have merely “appended constitutional
claims to their principal APA claim” and have simply “included in their Amended Complaint
allegations that they characterize as supporting a claim of unconstitutional agency action.”) Not
so. Plaintiffs’ constitutional claims can stand on their own. Even had Plaintiffs, like the Plaintiffs
in NAACP, No. 1:18-cv-00239 (D. Md.), opted not to bring an APA claim, they still would have
plausibly alleged that Defendants’ decision to terminate TPS violated constitutional principles of
12
equal protection and due process. Indeed, the district courts in Centro Presente, No. 1:18-cv-
10340 (D. Mass.) and Ramos, No. 3:18-cv-01554 (N.D. Cal.) have denied the government’s
motions to dismiss those plaintiffs’ constitutional claims, which largely mirror those brought by
Plaintiffs here. Because Plaintiffs’ “direct constitutional challenge” can stand on its own,
Plaintiffs are entitled to extra-record discovery. Grill, 2012 WL 174873 at *2.
Defendants rely on two cases for the proposition that Plaintiffs’ constitutional claims
should be immune from extra-record discovery. Both are inapposite.
First, in Chiayu Chang v. U.S. Citizenship & Immigration Servs., 254 F. Supp. 3d 160
(D.D.C. 2017), the plaintiffs’ constitutional claims “fundamentally overlap[ped]” with their
claims under the APA. Id. at 162. That is not the case here. Plaintiffs’ APA claims allege that
DHS’s decisionmaking violated the TPS statute and implemented a novel, arbitrarily narrow
standard for TPS review. In contrast, Plaintiffs’ constitutional claims allege that Defendants’
termination of Haiti’s TPS was motivated by discriminatory animus against Haitians. In other
words, Plaintiffs’ APA claims involve the process by which the government terminated TPS for
Haiti, while Plaintiffs’ constitutional claims challenge the actual motivations behind that
decision. Further, in Chiayu Chang, the plaintiffs did not even argue that they were entitled to
discovery for any claims other than their constitutional claims. Id. at 161. In contrast, this case
is not one in which Plaintiffs rely on their constitutional claims merely as a mechanism to
generate discovery. Plaintiffs maintain that all of their claims warrant fulsome discovery.
Second, Ketcham v. U.S. Nat'l Park Serv., No. 16-CV-00017-SWS, 2016 WL 4268346, at
*1 (D. Wyo. Mar. 29, 2016), is also easily distinguishable. In Ketcham, the plaintiff alleged only
a constitutional violation, which was arguably merely a cloaked challenge to agency action. Id.
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at *1. Here, Plaintiffs have plausibly alleged separate and distinct APA and constitutional
claims, both of which have independent merit and deserve separate analysis and discovery.
C. In Any Case, Plaintiffs Are Entitled to a Complete Administrative Record,

Not The Mere 199 Pages the Government Characterizes as the
Administrative Record
Even if Plaintiffs are not entitled to extra-record discovery, the court should order
Defendants to supplement the woefully and impermissibly inadequate 199 pages it calls the
administrative record with all documents and information the agency actually considered in
rendering its decision.
The APA requires production of the “whole record.” 5 U.S.C. § 706. The “whole record”
consists of “all documents and materials that the agency ‘directly or indirectly considered,’ ” no
more and no less.” Oceana, Inc. v. Ross, 290 F. Supp. 3d 73, 77 (D.D.C. 2018) (quoting Maritel,
Inc. v. Collins, 422 F.Supp.2d 188, 196 (D.D.C. 2006)). “If the record is not complete, then the
requirement that the agency decision be supported by ‘the record’ becomes almost meaningless.”
Portland Audubon Soc. v. Endangered Species Comm., 984 F.2d 1534, 1548 (9th Cir. 1993).
Indeed, “[a]n incomplete record must be viewed as a ‘fictional account of the actual
decisionmaking process.’” Id. (quoting Home Box Office, Inc. v. Federal Communications
Comm'n, 567 F.2d 9, 54 (D.C.Cir.1977)). The court may order supplementation of the record “if
petitioners made a prima facie showing that the agency excluded from the record evidence
adverse to its position or that the agency's stated rationale is but a pretext masking the true basis
of its decision.” Pub. Citizen v. Heckler, 653 F. Supp. 1229, 1237 (D.D.C. 1986).
The law is clear: if Plaintiffs can show evidence of impropriety in the designation
process, the burden shifts to the government to prove that the record is accurate. As the Ninth
Circuit has stated:
14
[W]here the so-called “record” looks complete on its face and

appears to support the decision of the agency but there is a
subsequent showing of impropriety in the process, that impropriety
creates an appearance of irregularity which the agency must then
show to be harmless.
Portland Audubon Soc., 984 F.2d at 1548 (9th Cir. 1993) (emphasis added).
In their motion and in their Amended Complaint, Plaintiffs have pointed to instances of
impropriety in the decision-making and record-designation process. See DE 31 at 2-4. The
Kovarik e-mail reveals an agency searching for a reason—any reason—to revoke TPS status for
Haiti. The Tillerson e-mail is evidence that then-Secretary Tillerson exerted influence on the
decision-making process, but the Defendants have taken the position that documents related to
his participation are not part of the administrative record. DE 35 at 21-22. Failing to include
these documents in the administrative record indicates that the government has failed to
accurately delineate the record and suggests that the government has done so in order to preserve
the pretext that its decision to revoke TPS for Haiti was based on an interpretation of the statute,
as opposed to racial animus or some other improper purpose. “An agency[, [however,] may not
unilaterally determine what constitutes the Administrative Record, nor can the agency
supplement the Administrative Record submitted to the district court with post hoc
rationalizations for its decision.” Bar MK Ranches v. Yuetter, 994 F.2d 735, 739–40 (10th Cir.
1993).
Indeed, since their motion was filed, Plaintiffs have subsequently discovered further
evidence that the government omitted crucial documents from the administrative record. For
example, an early draft of the Department of State recommendations regarding TPS for Haiti
cited to in Secretary Tillerson’s recommendation to terminate TPS for Haiti states that longer
delays beyond the end of the current designation would be necessary to avoid serious
consequences. To that end, the draft went on to recommend that DHS “designate an effective
15
date to provide TPS benefits for an additional 36 months beyond the end of the current
designation to provide the Haitian government with adequate time to prepare for the safe
reintegration of approximately 58,706 Haitians.” (Ex. E at p. 7.) But this draft was later
changed—by whom is unclear. The final version of this document recommends only an 18-
month extension. At a minimum, the drafts of the Department of State recommendation should
have been included in Defendants’ productions, but they were not.
These documents illustrate, yet again, the government’s deliberate omission of
documents from the administrative record, likely because they support that the termination
decision represented a changed standard. That is, they reflect a prior judgment that, contrary to
past interpretations, serious impediments to the safe return of nationals caused by intervening
disasters that have hindered recovery are not relevant to the determination whether TPS should
be terminated. Instead, the final document applies a new test which parses impediments to return
into distinct causal categories and treats those that are not directly related to the original disaster
as irrelevant. These documents reveal not only that the government has changed the standards
by which it designates countries under TPS, sans rulemaking, but also that the government is
attempting to hide this fact by failing to designate all documents which should properly be in the
III. CONCLUSION
For these reasons, this Court should grant Plaintiffs’ Motion to Supplement the
Administrative Record and for Extra Record Discovery, and permit Plaintiffs to immediately
serve Defendants with both written and oral discovery.
16
Dated: August 15, 2018
Respectfully Submitted,
/s/ Ira J. Kurzban
Ira J. Kurzban, (NY Bar No. 5347083) Christopher J. Houpt (NY Bar No. 4452462)
Kevin Gregg* MAYER BROWN LLP
KURZBAN, KURZBAN, WEINGER, 1221 Avenue of the Americas
TETZELI & PRATT, P.A. New York, NY 10020
2650 S.W. 27th Avenue, 2nd Floor Phone: (212) 506-2500
Miami, FL 33133 choupt@mayerbrown.com
Phone: (312) 660-1364
ira@kkwtlaw.com Geoffrey M. Pipoly*
Christopher J. Ferro*
Sejal Zota* MAYER BROWN LLP
NATIONAL IMMIGRATION PROJECT OF THE 71 S. Wacker Drive
NATIONAL LAWYERS GUILD Chicago, IL 60606
14 Beacon Street, Suite 602 Phone: (312) 782-0600
Boston, MA 02018 gpipoly@mayerbrown.com
Phone: (919) 698-5015
sejal@nipnlg.org
*Admitted Pro Hac Vice Attorneys for Plaintiffs
17
Case 1:18-cv-01599-WFK-ST Document 39-1 Filed 08/15/18 Page 1 of 4 PageID #: 935
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Exhibit B
Case 1:18-cv-01599-WFK-ST
Case 3:18-cv-01554-EMC
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4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
7 CRISTA RAMOS, et al., Case No. 18-cv-01554-EMC (SK)

8 Plaintiffs,
ORDER RE JOINT LETTER BRIEF
9 V.
10 KIRSTJEN NIELSEN, et al., Regarding Docket Nos. 43, 47

11 Defendants.
12 Plaintiffs seek an order requiring Defendants to produce documents that Defendants have
Northern District of California
United States District Court
13 withheld on the basis of the deliberative process privilege. For the reasons set forth below, the
14 Court GRANTS Plaintiffs’ motion.
15 A. Background
16 On March 12, 2018, Plaintiffs filed a putative class action against the United States
17 Department of Homeland Security (“DHS”), Secretary Kirstjen Nielsen, Deputy Secretary Elaine
18 Duke, and the United States challenging the Trump administration’s new rule for deciding
19 whether to terminate Temporary Protected Status (“TPS”) designations for El Salvador,
20 Nicaragua, Haiti and Sudan. (Dkt. 1, ¶¶ 1, 3.) Plaintiffs are a group of United States citizens,
21 their non-citizen parents, and other non-citizen adults who lawfully obtained the right to live in
22 this country under TPS. (Id., ¶ 1.) Plaintiffs filed the Complaint in this action challenging the
23 decision to revoke the TPS designations for their home countries. (Id., ¶ 1.)
24 Specifically, Plaintiffs allege that Defendants – the DHS and the Secretary and Deputy
25 Secretary of the DHS, acting in their official capacities – violated Plaintiffs’ rights to substantive
26 due process and the equal protection as guaranteed by the Fifth Amendment and violated the
27 Administrative Procedure Act, 5 U.S.C. § 551 et seq. (Dkt. 1, passim.) Plaintiffs allege that racial
28 animus and national-origin animus were significant factors in the adoption of the new rule
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1 revoking TPS designations for Plaintiffs’ home countries, and Plaintiffs cite many specific,
2 uncontroverted statements to support their argument. (Id., ¶¶ 66 - 73.) One group of Plaintiffs are
3 minors, U.S. citizens who will be forced to make an agonizing choice of whether to stay in the
4 U.S. without their parents when those parents are deported. (Id., ¶¶ 50-51.)
5 On May 21, 2018, Defendants filed a motion to dismiss under Fed. R. Civ. P. 12(b)(1) and
6 12(b)(6). (Dkt. 20.) Defendants asserted that the Court lacks subject matter jurisdiction and that
7 Plaintiffs failed to state a claim on which relief may be granted. (Dkt. 20.) The District Court
8 denied the motion to dismiss on June 25, 2018. (Dkt. 34.) Subsequently, the District Court
9 requested, and the parties provided, supplemental briefing with respect to Plaintiffs’ equal
10 protection claims. (Dkts. 36, 40, and 41.) The District Court issued another order denying
11 Defendants’ motion to dismiss. (Dkt. 55.)
12 In the meantime, Plaintiffs pursued limited discovery related to an intended motion for a
13 preliminary injunction concerning the termination of TPS for Plaintiffs’ home countries. (Dkt.
14 28.) Plaintiffs identified for the District Court those documents Plaintiffs needed most urgently
15 for the upcoming preliminary injunction motion, and on June 25, 2018, the District Court ordered
16 Defendants to produce documents responsive to Plaintiffs’ Requests for Production Nos. 1, 4, 6
17 and 7 “within 14 days of the hearing date.” (Dkt. 34.) Defendants provided to Plaintiffs logs of
18 documents they had withheld on the basis of privilege, including the deliberative process
19 privilege. (See Exhibits to Dkt. 43; Dkt. 47-1.) On July 17, 2018, the parties submitted a joint
20 letter brief regarding the scope of the deliberative process privilege and the adequacies of the
21 privilege log. (Dkt. 43.)
22 On July 20, 2018, the District Court referred discovery disputes in this case to the
23 undersigned magistrate judge and ordered the parties to meet and confer on all outstanding
24 discovery and privilege disputes and submit a joint letter brief of the status of the meet and confer
25 by July 30, 2018. (Dkt. 44.) The parties submitted a joint letter brief on July 30, 2018 on
26 remaining discovery disputes. (Dkt. 47.) A hearing occurred on August 2, 2018. At the hearing,
27 Defendants clarified their partial waiver of the deliberative privilege to explain that they had
28 produced to Plaintiffs the “decision package” or “decision packet” – materials the Secretary of the
2
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1 DHS considered in making a decision.1
2 The Court issued two orders addressing subjects other than the scope of the deliberative
3 process privilege and reserved for this Order the issue of the deliberative process privilege after a
4 review of sample documents in camera – some chosen by Plaintiffs from the privilege log and
5 some chosen by Defendants. (Dkts. 49, 52, 53.)
6 Plaintiffs are required to file their motion for preliminary injunction on August 23, 2018.
7 TPS for Sudan will expire on November 2, 2018, and TPS for Nicaragua will expire on January 5,
8 2019. (Dkt. 16 at page 5.) Thus, non-citizen Plaintiffs will be forced to leave the U.S. if the status
9 quo – revocation of TPS designations for their home countries– remains in effect.
10 B. Analysis
11 The deliberative process privilege is a qualified privilege under federal law. FTC v.
12 Warner Comm’n, Inc., 742 F.2d 1156, 1161 (9th Cir. 1984). To qualify for the privilege, a
13 document “must be predecisional – it must have been generated before the adoption of an
14 agency’s policy or decision.” Id. In addition, a document must be “deliberative in nature,
15 containing opinions, recommendations, or advice about agency policies.” Id. “The [deliberative
16 process] privilege does not cover [p]urely factual material that does not reflect the deliberative
17 process.” Desert Survivors v. U.S. Dept. of the Interior, 231 F.Supp.3d 368, 379 (N.D. Cal. 2017)
18 (citing FTC v. Warner., 742 F.2d at 1161). However, the privilege applies where the “factual
19 material is so interwoven with the deliberative material that [the factual material] is not
20 severable.” Id.; see also National Wildlife Fed. v. U.S. Forest Serv., 861 F.2d 1114, 1119 (9th Cir.
21 1988). A court analyzing whether the privilege applies “must balance the public interests at stake
22 in determining whether the privilege should yield in a particular case.” In re Sealed Case, 121
23 F.3d at 746. The government bears the burden of showing that the privilege applies. Modesto
24 Irrigation Dist. v. Gutierrez, 2007 U.S. Dist. LEXIS 21949, at *18 (E.D. Cal. Marc. 8, 2007).
25 In determining whether to lift the qualified privilege, a court should weigh four factors: (1)
26
1
27 Courts allow partial waiver of the deliberative process privilege for the obvious reason
that the governmental agency should be allowed to defend its position based on materials
28 considered for a decision without waiving the privilege completely. In re Sealed Case, 121 F.3d
729, 741 (D.D.C. 1997).
3
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1 the relevance of the evidence, (2) the availability of other evidence, (3) the government’s role in
2 litigation, and (4) the extent to which disclosure would hinder frank and independent discussion
3 regarding contemplated policies and decisions. FTC v. Warner, 742 F.2d at 1161. See also
4 Modesto Irrigation Dist., 2007 U.S. Dist. LEXIS 21949, at *16-17. In addition, courts may
5 consider the following: (5) the interest of the litigant and society in accurate fact finding by the
6 courts, (6) the seriousness of the issues and litigation, (7) the presence of issues concerning alleged
7 misconduct by the government, and (8) the federal interest in enforcement of the law. North
8 Pacifica LLC v. City of Pacifica, 274 F.Supp.2d 1118, (N.D. Cal. 2003) (internal citation
9 omitted).2
10 1. Documents Falling Outside Deliberative Process Privilege
11 Both the privilege logs and the specific categories of documents that Plaintiffs request list
12 many documents for which Defendants claim the deliberative process privilege, but the categories
13 and/or dates of those documents show that they do not fall within that privilege.
14 First, the deliberative process privilege does not protect communications with people who
15 are not part of the deliberative process. Here, Plaintiffs seek documents regarding
16 communications with specific senators about the revocation of TPS for the affected countries.
17 Defendants argue that these materials are part of the deliberative process, but the deliberative
18 process privilege by definition does not include communications with parties who are not part of
19 the deliberative process. Defendants – part of the executive branch – made the decision to rescind
20 TPS for the four affected countries. Defendants chose to communicate with the legislative branch,
21 but Defendants have not met their burden to show that these communications were part of the
22 deliberative process.
23 The privilege does not apply to any document that was generated after the decision was
24 made. For example, Plaintiffs point to certain documents on the privilege log that post-date the
25 decision, and these documents by definition do not fall within the privilege. (Dkt. 54) (referring to
26
27 2
Although several district courts have listed these additional four factors for courts to
28 consider in deciding whether to apply the deliberative process privilege, the Court has not been
able to find a circuit court that adopts these additional four factors.
4
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1 a document referred to as a November 20, 2017 document titled: “FINAL Haiti TPS
2 PAG.pdf.pdf.”) The decision to rescind Haiti’s TPS status was publicly announced on the same
3 date, so it strains credulity that this specific document was predecisional. Defendants cannot
4 assert the privilege to prevent disclosure of those documents.
5 In addition, Plaintiffs seek, in Request for Production No. 6, documents “used to prepare
6 Secretary Nielsen for testimony regarding TPS before the Senate Judiciary Committee on January
7 16, 2018.” (Dkt. 47-3.) These documents obviously are not part of the deliberative process
8 because they are not “predecisional.” FTC v. Warner, 742 F.2d at 1161 (“the document must be
9 predecisional – it must have been generated before the adoption of an agency’s policy or
10 decision”). Here, Defendants made the decisions at issue on November 6, 2017, November 20,
11 2017, and January 8, 2018. (Dkt. 1, n. 50) (citing DHS press releases). It is unclear whether
12 Defendants have withheld documents in response to Request for Production No. 6, but the
13 deliberative process privilege does not apply to documents responsive to that request.
14 2. Documents Generally Protected by the Deliberative Process Privilege
15 Plaintiffs also seek documents that they contend are outside the privilege because they are
16 not deliberative in nature. Plaintiffs seek documents such as draft press releases or documents
17 discussing strategy regarding communications with the public about the decisions to rescind TPS
18 for the four affected countries. (Dkts. 47, 54.) The Court finds that such documents are
19 deliberative in nature and would be covered by the deliberative process privilege, if the privilege
20 were to apply. Lemiuex & O’Neill v. McCarthy, 2017 WL 679652, at * 3-5 (C.D. Cal. Jan. 27,
21 2017) (listing cases holding that deliberations regarding “public relations” policies are
22 deliberative).
3. Governmental Misconduct As Sole Factor for Determination
23
Plaintiffs argue that the deliberative process privilege does not apply any time that there is
24
a credible allegation of misconduct by the government, and Plaintiffs imply that meeting this
25
factor alone renders analysis of the eight factors listed above unnecessary. Although there is
26
language from another circuit indicating that this one factor alone renders further analysis
27
unnecessary, there is no controlling authority setting forth that rule. In fact, the Supreme Court
28
5
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1 held that there must be a strong showing of bad faith or improper behavior before the Court will
2 inquire into the mental processes of decisionmakers, recognizing a limited exception to the “whole
3 record” rule. Citizens to Preserve Overton Park, v. Volpe, 401 U.S. 402, 420 (1971). The
4 language from Overton Park indicates that governmental misconduct is a prerequisite but not the
5 only factor to consider.
6 Plaintiffs cite language from dicta in In re Sealed Case, 121 F.3d at 746, to support their
7 argument that a credible allegation of governmental misconduct alone overcomes the deliberative
8 process privilege. In that case, the Court stated: “the privilege disappears altogether when there is
9 any reason to believe government misconduct occurred.” Id. at 746; see also Modesto Irrigation
10 Dist. v. Gutierrez, 2007 U.S. Dist. LEXIS 21949, at *33 (deliberative process privilege does not
11 apply “when a complaint alleges that the real motive for a facially neutral decision was intentional
12 discrimination [because] the subjective intent of the decisionmakers is relevant”).

13 Although some language indicates that this factor (credible allegation of governmental
14 misconduct) alone destroys the deliberative process privilege, the Court finds it necessary to
15 examine the four factors identified in FTC v. Warner and the additional four factors from other
16 district courts. After examining all factors, the Court finds that applying the qualified deliberative
17 process privilege is not warranted here.
18 Defendants argued that the rational basis review applies to the examination of this case,
19 citing Trump v. Hawaii, __ U.S. __, 138 S.Ct. 2392 (2018). (Dkt. 41 at pages 2 - 5). The District
20 Court rejected the application of the test of rational basis review to the claims in this case. (Dkt.
21 55 at pages 53 – 54.) In addition, even if the rational basis review applied here, the Supreme
22 Court noted in Trump v. Hawaii that “we may consider plaintiffs’ extrinsic evidence” when
23 analyzing a decision under the test of rational basis review. 138 S.Ct. at 2420.
24 4. Four Factors of FTC v. Warner Test
25 An examination of the four factors set forth in Warner support a finding that the qualified
26 deliberative process privilege does not protect the disclosure of documents at issue. First, with
27 regard to relevance, the allegations of racial animus and national-origin animus, which have
28 withstood a motion to dismiss, show that the materials withheld by Defendants are relevant to this
6
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1 litigation. In this case, the central allegations are that racial animus and national-origin animus led
2 to the decisions at issue. Defendants deny that accusation. (Dkt. 16 at pages 2 - 3.) Given that
3 conflict and given the District Court’s ruling allowing this case to proceed under Plaintiffs’
4 theories, the subjective intent of the decisionmakers is squarely relevant to this litigation.
5 Plaintiffs seek more than simply the “decision package” or the “decision packet” that
6 Defendants produced and instead seek memoranda and accompanying documents “concerning
7 TPS determinations” for the four affected countries (Plaintiffs’ Request for Production of
8 Documents, No. 1) and communications regarding “country conditions” for the four affected
9 countries (Plaintiffs’ Request for Production of Documents, No. 4). Plaintiffs allege that
10 Defendants provided one reason for rescinding TPS for the four countries but in fact relied upon
11 other invalid reasons for their decision. Given this allegation, the materials Plaintiffs seek are
12 relevant to the litigation.

13 Second, Plaintiffs cannot obtain this evidence from any other source. By definition, only
14 Defendants have information about their decisionmaking. At least one court considers this to be
15 the most important factor in analyzing the deliberative process privilege. North Pacifica , 274
16 F.Supp.2d at 1123-1124. Third, the government is a defendant in this litigation, and this factor
17 weighs against applying the privilege here.
18 Finally, production of the materials that Plaintiffs seek might hinder frank discussion of
19 policies, but this is a concern in every case. Although this is a valid concern for any request from
20 the government, here Defendants provide no specific argument or evidence to meet their burden
21 that production of these materials will in fact hinder frank discussions about policies. It is possible
22 that Defendants assume that any disclosure of information creates the stifling effect on frank
23 discussion, but without any specific information, the Court cannot find that there is any particular
24 reason that production hinders that discussion here.
25 In this case, where there are serious, credible allegations that racial animus or national
26 origin bias affected the decisions to rescind TPS for the affected four countries, the balancing of
27 four factors weighs in favor of disclosure.
28 5. Analysis of Other Factors

7
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1 In addition, the analysis of the additional four factors favors not applying the privilege.
2 The additional four factors are somewhat duplicative of the FTC v. Warner factors above. First,
3 society has a strong interest in accurate fact finding, and, as noted above, Plaintiffs have no other
4 method of obtaining information about their allegations other than to seek documents regarding
5 the deliberative process privilege. The issues here, equal treatment of immigrants to the U.S. and
6 forced separations of U.S. citizen children from their parents, are very serious issues for this
7 country. The seventh factor - the presence of issues concerning alleged misconduct by the
8 government – is similar to the factor of alleged misconduct of the government. Here, Plaintiffs
9 have made a credible argument, based on specific allegations sufficient to withstand a motion to
10 dismiss, that the government used impermissible discriminatory grounds to rescind the TPS
11 designations at issue. Finally, the federal interest in enforcement of the law is a neutral factor, as
12 enforcement of law for either side is not the central issue of this case. Consideration of these
13 factors also weighs in favor of disclosure of materials otherwise protected by the deliberative
14 process privilege.
15 C. Conclusion
16 For these reasons, the Court finds that applying the deliberative process privilege to protect
17 disclosure of materials from Defendants is not proper, and the Court GRANTS Plaintiffs’ motion
18 to compel production of responsive documents withheld on the basis of the deliberative process
19 privilege. The Court ORDERS Defendants to produce those documents by August 17, 2018.
20 Defendants claim that some documents they have withheld on the basis of the deliberative process
21 privilege are also protected by other privileges, such as the attorney-client privilege and law
22 enforcement privilege. (Dkt. 61 at page 2.) Defendants need not produce those documents which
23 are protected by some other privilege by August 17, 2018, but Plaintiffs may later challenge the
24 application of any other privilege in this Court.
25 IT IS SO ORDERED.
26 Dated: August 10, 2018
27 ______________________________________
SALLIE KIM
28 United States Magistrate Judge
8
Exhibit C
Exhibit D
US. Citizenship
and Immigration
Services
TPS CONSIDERATIONS: HAITI (OCTOBER 2017)

NATURAL DISASTER
BACKGROUND & OVERVIEW
The January 12, 2010 earthquake that struck Haiti caused extensive damage to the country's
physical infrastructure and public health, agricultural, housing, transportation, and educational
facilities. Haitian government estimates of the death toll caused by the earthquake have ranged
from 230,000 to as high as 316,000 people, though the accuracy of differing estimates is in
dispute.' Estimates of people internally displaced range from approximately 1.5 million' to 2.3
million3 at the peak of displacement.
Although some progress regarding reconstruction and recovery has been made in a variety of
sectors, billions of dollars in pledged foreign assistance never materialized, and the pace and
scope of Haiti's recovery has been uneven.' Many of the conditions prompting the original
January 2010 TPS designation persist, and the country remains vulnerable to external shocks and
internal fragility. Haiti has also experienced various setbacks that have impeded its recovery,
including a cholera epidemic and the impact of Hurricane Matthew—the latter of which struck
Haiti in October 2016 and "severely worsened the pre-existing humanitarian situation" in the
country.5 As of August 2017, Haiti "continues to be affected by a convergence of humanitarian
needs," 6 including food insecurity, internal displacement, an influx of returnees from the
Dominican Republic, the persistence of cholera, and the lingering impact of various natural
disasters.' Moreover, Haiti's recovery has also been impacted by a series of other challenges
1 O'Conner, Maura R., Two Years Later, Haitian Earthquake Death Toll in Dispute, Columbia Journalism Review,
Jan. 12, 2012.
2 Status of Post-Earthquake Recovery and Development Efforts in Haiti (December 2014), U.S. Department of State,
Dec. 2014.
3 Key Statistics, Office of the Secretary-General's Special Adviser on Community-Based Medicine & Lessons from
Haiti, United Nations, 2012.
US Gives Haitian Immigrants 6-month TPS Extension, Voice of America News, May 22, 2017; Charles,
Jacqueline, Senate Democrats to Trump administration: Let Haitians stay, Miami Herald, Apr. 27, 2017.
5 Haiti. Humanitarian Snapshot (June 2017), United Nations Office of the Coordination of Humanitarian Affairs
(UNOCHA), Jul. 4. 2017.
6 Haiti - Humanitarian Situation Report - August 2017, United Nations Children's Fund (UNICEF), p.1, Aug. 2017.
Haiti. Humanitarian Snapshot (June 2017), United Nations Office of the Coordination of Humanitarian Affairs
(UNOCHA), Jul. 4. 2017; Haiti Humanitarian Bulletin - Issue 64 1 May 2017, United Nations Office for the
Coordination of Humanitarian Affairs (UNOCHA), p.5, Jun. 11, 2017.
WWW.1.1sels.gov
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related to housing, healthcare, economic growth, political instability, security, and environmental
concerns.
HOUSING SHORTAGE & INTERNAL DISPLACEMENT
Even before the 2010 earthquake, Haiti faced a substantial national housing deficit, estimated at
700,000 housing units.' With an estimated $2.3 billion in damages—approximately 40% of the
total housing was the sector most impacted by the earthquake.' The Haitian government
estimated that 105,000 houses were destroyed and 188,383 houses collapsed or suffered
considerable damage. m The International Organization for Migration (TOM) claimed that 1.5
million Haitians were internally displaced and moved into internally displaced person (IDP)
camps and other temporary sites following the disaster."
While the number of IDP camps/sites and displaced individuals from the 2010 earthquake have
significantly declined, Haiti still faces considerable obstacles related to housing. According to
data from the International Organization for Migration (TOM), from July 2010 to June 2017,
there has been a net decrease in displacement by 97 percent, and 98 percent of sites have
closed.12 However, as IOM reported in June 2017, "Camp closures, relocation and rental subsidy
programs began decreasing substantially in March 2015, a trend which continues today.""
According to Amnesty International, many individuals who have left the IDP camps/sites have
reportedly "moved back to unsafe houses or started building or reconstructing their houses, in
most cases with no assistance or guidance, and often in informal settlements located in hazardous
areas."14 Amnesty International has also claimed that over 60,000 IDPs have been forcibly
evicted from camps since 2010 by private landowners, often with the assistance or implicit
support of Haitian authorities.15
As of June 2017, around 37,867 IDPs (9,347 households) were still living in 27 camps.'
According to IOM, the number of organizations providing assistance to IDPs has declined in
8 Ten facts about Haiti's housing crisis, Amnesty International, Jan. 12, 2015,
https ://www. amnesb.T. org/en/articles/news/2015/01/ten-facts-about-haiti-s-housing-crisis/, (last visited Aug. 16,
2017).
9 Ten facts about Haiti's housing crisis, Amnesty International, Jan. 12, 2015,
https://www.amnes.org/en/articles/news/2015/01/ten-facts-about-haiti-s-housing-crisis/, (last visited Aug. 16,
2017).
lo Key Statistics, Office of the Secretary-General's Special Adviser on Community-Based Medicine & Lessons from
11 Five Years After 2010 Earthquake, Thousands of Haitians Remain Displaced, International Organization for
Migration, Jan. 9, 2015, https://www.iom.int/news/five-years-after-2010-earthquake-thousands-haitians-remain-
displaced, (last visited Aug. 16, 2017).
12 IOM Haiti — DTM Report — June 2017, International Organization for Migration, p.5, June 2017.
14 Haiti: internal displacement, forced evictions, statelessness - the catalogue to violations continue, Amnesty
International, p.6, Mar. 31, 2016.
15 "15 Minutes to Leave": Denial of the Right to Adequate Housing in Post-Quake Haiti, Amnesty International, p.9,
21, Jan. 2015; Haiti: internal displacement, forced evictions, statelessness - the catalogue to violations continue,
Amnesty International, p.6, Mar. 31, 2016.
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recentyears, and "living conditions in the camps are precarious and access to basic services
remains a major challenge for the displaced population."17 A vast majority of the
aforementioned individuals still living in camps/sites "are currently not targeted by partners for
durable solutions."18
In October 2016, Hurricane Matthew impacted over 236,000 homes—"of which 44% were
destroyed and 42% severely damaged" 19—and displaced approximately 175,000 people in
Haiti .20 In areas most affected by the storm, approximately 90% of homes were destroyed 21
IOM reported in June 2017 that 3,597 individuals were living in 48 displacement sites due to the
impact of Hurricane Matthew and spring flooding in Grande' Anse and Sud departments22.23
While post-earthquake IDP camps are closing, Haiti's housing shortage remains far from
resolved. The 2010 earthquake exacerbated the country's pre-existing shortage of adequate and
affordable housing.' The Government of Haiti has estimated that the country will need as many
as 500,000 additional housing units over the next 10 years to make up for its shortage prior to the
earthquake, to replace housing lost as a result of damage from the disaster, and to accommodate
projected urban growth.25
CHOLERA EPIDEMIC & HEALTHCARE
Haiti's longstanding public health challenges were exacerbated by the January 2010 earthquake
and an ongoing cholera epidemic that started in October 2010.26 According to the U.S. Agency
for International Development (USAID), "even before the 2010 earthquake, Haiti's healthcare
system was not able to respond to the needs for basic healthcare services."27 The 2010
earthquake significantly impacted Haiti's health sector, destroying 50 health centers, the
Ministry of Health, and part of the country's primary teaching hospita1.28 Damages from both
the 2010 earthquake and Hurricane Matthew in October 2016—the latter of which affected 99
19 Haiti Humanitarian Bulletin - Issue 64 j May 2017, United Nations Office for the Coordination of Humanitarian
Affairs (UNOCHA), p.4, Jun. 11, 2017.

20 Thomas, Alice, Two Steps Back: Haiti Still Reeling from Hurricane Matthew, Refugees International, p.4, April
2017.
2017.
22 Haiti is divided administratively into 10 departments. See The World Factbook: Haiti, CIA, Jul. 27, 2017,
https://www.cia.govilibrarv/publications/the-world-factbook/geos/ha.html, (last visited Aug. 17, 2017).

zs IOM Haiti — DTM Report — June 2017, International Organization for Migration, p.8, June 2017.
24 Haiti - Housing and Settlements Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar.
2017.
25 Haiti - Housing and Settlements Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar.
2017.
26 Haiti - Health Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar. 2017.
27 Haiti — Health Infrastructure Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar. 2017.
28 Haiti — Health Infrastructure Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar. 2017;
Haiti - Health Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar. 2017.
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health facilities29—"exacerbated an existing lack of adequate health infrastructure, such as health

care and storage facilities, as well as access to electricity, clean water and sanitation systems."3°
In June 2017, the United Nations Economic and Social Council reported that "Haiti has some of
the worst health indicators in the world, which continue to stymie economic development."31
Approximately 40 percent of the population lacks access to fundamental health and nutrition
services.' Maternal and infant mortality rates are respectively three and five times higher than
the regional averages,33 and "only 45 percent of all children between the ages of 12 months and
23 months are fully vaccinated."34 Public spending in the health sector is low, and the country
has a limited number of health professionals and a deficit of health infrastructure.35
A cholera epidemic that began in October 2010—reportedly the largest such outbreak of cholera
in recent history—remains ongoing and continues to place additional strains on Haiti's
beleaguered public health system.' From October 2010 through June 2017, there have been an
estimated 813,000 cases of cholera in Haiti, and 9,676 people have been killed by the disease
(which was allegedly introduced by United Nations peacekeepers).37
While progress has been made in combatting cholera since the peak of the epidemic in 2011,38
cholera has become endemic in Haiti, "with seasonal peaks regularly triggering emergency
interventions."" In 2016, the number of suspected cholera cases increased, mainly due to a
spike in suspected cases in areas affected by Hurricane Matthew in the aftermath of the storm.'
29 Haiti: Hurricane Matthew Humanitarian Dashboard (as of Feb. 2017), United Nations Office for the Coordination
of Humanitarian Affairs (UNOCHA), p.1, Mar. 3, 2017.

31 Report of the Ad Hoc Advisory Group on Haiti, United Nations Economic and Social Council, p.4, Jun. 29, 2017.
33 Better Spending, Better Care: A look at Haiti's Health Financing, The World Bank,
http://www.worldbank.org/en/country/haiti/publication/better-spending-better-care-a-look-at-haitis-health-financing
(last visited Aug. 21, 2017).
34
Report of the Ad Hoc Advisory Group on Haiti, United Nations Economic and Social Council, p.4, Jun. 29, 2017.
36 Haiti - Health Fact Sheet, U.S. Agency for International Development (USAID), p.1, Mar. 2017; Lefevre,
Adrienne, The Consequences of Contaminated Water, Centers for Disease Control and Prevention, Mar. 21, 2017,
https://blogs.cdc.gov/globa1/2017/03/21/the-consequences-of-contaminated-water/ (last visited Aug. 21, 2017).
37 Hurricane Matthew: '1.4 million need help in Haiti', Al Jazeera, Oct. 11, 2016; Partlow, Joshua, In the wake of
Matthew, Haitian towns struggle with cholera, Washington Post, Oct. 9, 2016; Zavis, Alexandra, U.N. admits a role
in deadly Haiti cholera epidemic, Los Angeles Times, Aug. 18, 2016; Yakupitiyage, Tharanga, UN "Profoundly
Sorry" for Haiti Cholera Outbreak, Inter Press Service, Dec. 2, 2016; Haiti: Cholera figures (as of 30 June 2017),
United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), Jul. 24, 2017.
38 Fact Sheet: Cholera situation in Haiti, 1 January/15 April 2017, United Nations Country Team in Haiti, Apr. 27,
2017.
39 Haiti: Fighting the Spread of Mosquito-Borne Diseases, Doctors Without Borders/Medicins Sans Frontieres
(MSF), Jul. 24, 2017, http://www.doctorswithoutborders.org/article/haiti-fighting-spread-mosquito-borne-diseases

(last visited Aug. 21, 2017).
40 New approach to cholera in Haiti — Report of the Secretary General, United Nations General Assembly, p.4, May
3, 2017.
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While the number of suspected cases of cholera has declined since 2016,41 Haiti nevertheless
remains "extremely vulnerable" to the disease." According to the United Nations Office for the
Coordination of Humanitarian Affairs (UNOCHA), cholera continues to impact Haiti due to a
lack of funding for the country's National Plan for the Elimination of Cholera (PNEC), weak
water and sanitation infrastructure, the lack of access to quality medical care, and high
population density and mobility to urban areas.'
ECONOMY
Haiti is the poorest country in the Western Hemisphere, with poverty, vulnerability to natural
disasters, corruption, and low levels of education serving as significant obstacles to sustained
economic development.' Haiti's weak infrastructure and the difficulty of doing business limit
investment, and the country remains vulnerable to damage from natural disasters and dependent
on foreign aid or direct budget support for more than 20% of its annual budget.' The 2010
earthquake caused $7.8 billion in damages and economic losses—"equivalent to more than 120
percent of Haiti's 2009 gross domestic product (GDP)"46—and destroyed an estimated 90
percent of buildings in Port-au-Prince, Haiti's capital, including hospitals, schools, physical
infrastructure, and transportation facilities.' Although Haiti's economy started to recover from
the earthquake—with economic growth at 5.5% in 2011— GDP growth has slowed to 1.2% in
2015 and 1.4% in 2016 as a result of political uncertainty, drought, declining foreign aid, and
currency depreciation." According to June 2017 data from the World Bank, Haiti's GDP growth
is forecasted to further decline to 0.5% in 2017.49
While Haiti has made slight improvements in reducing poverty levels and increasing access to
education and sanitation since 2000, a 2014 World Bank report noted that the "wealth generated
in the country is largely inadequate to meet the needs of the people."' According to the World
Bank, "more than 6 million out of 10.4 million (59%) Haitians live under the national poverty
line of US$ 2.42 per day and over 2.5 million (24%) live under the national extreme poverty line
41 New approach to cholera in Haiti — Report of the Secretary General, United Nations General Assembly, p.4, May
3, 2017.
42 Fact Sheet: Cholera situation in Haiti, 1 January/15 April 2017, UN Country Team in Haiti, Apr. 27, 2017.
43 Haiti: Cholera figures (as of 30 June 2017), United Nations Office for the Coordination of Humanitarian Affairs
(UNOCHA), Jul. 24, 2017.
44
The World Factbook: Haiti, CIA, Jul. 27, 2017,
https://www.cia.gov/library/publications/the-world-factbook/geos/ha.html, (last visited Aug. 17, 2017).
45 The World Factbook: Haiti, CIA, Jul. 27, 2017,
https://www.cia.gov/library/publications/the-world-factbook/geos/ha.html, (last visited Aug. 17, 2017).
46
Key Statistics, Office of the Secretary-General's Special Adviser on Community-Based Medicine & Lessons from
47 Haiti: Infrastructure, IHS Jane's Sentinel Security Assessment - Central America and the Caribbean, Aug. 15,
2017, http://janes.ihs.com/CentralAmericaCaribbean/Display/1302231 (last visited Aug. 25, 2017).
https://www.cia.gov/library/publications/the-world-factbook/geos/ha.html, (last visited Aug. 17, 2017); Global
Economic Prospects: A Fragile Recovery, The World Bank Group, p.90, Jun. 2017.
49
Global Economic Prospects: A Fragile Recovery, The World Bank Group, p.90, Jun. 2017.
5° Poverty and Inclusion in Haiti: Social gains at timid pace, The World Bank Group, p.1-2, 2014.
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of US$1 23 per day "51 An additional one million people are at risk of falling into poverty
following an external shock, such as a natural disaster.52 An estimated 40% of Haitians are
unemployed.53
According to the United Nations Economic and Social Council, Haiti "is highly dependent on
remittances from its diaspora."54 Remittances—estimated at over $2 billion per year in 2015,
including more than $1.3 billion from Haitians living in the United States55—are Haiti's
"primary source of foreign exchange, equivalent to more than a quarter of GDP, and nearly
double the combined value of Haitian exports and foreign direct investment."56 Moreover,
remittances have also "helped to support education, health and the subsistence requirements" of
Haiti's population.'
GOVERNANCE & POLITICAL INSTABILITY
Per INS Jane's, with its history of political instability, economic struggles, political violence, and
pervasive human rights abuses, Haiti "has long been seen as a model of poor and corrupt
governance."58 Even before the earthquake, the Haitian government "could not or would not
deliver core functions to the majority of its people.' The January 2010 earthquake had an
immediate and significant impact on governance and the rule of law in Haiti, killing an estimated
18 percent of the country's civil service and destroying key government infrastructure, including
the National Palace, the Parliament, 28 of 29 government ministry buildings, the Haitian
National Police's headquarters, and various judicial facilities (including courts and correctional
facilities).6°
On April 19, 2017, Haitian President Jovenel Moise announced a project to rebuild the National
Palace, which was significantly damaged in the 2010 earthquake and subsequently demolished.61
51 The World Bank in Haiti: Overview, The World Bank, Jul. 27, 2017,
http://www.worldbank.org/en/country/haiti/overview#1 (last visited Aug. 18, 2017).
52 Poverty and Inclusion in Haiti: Social gains at timid pace, The World Bank Group, p.4, 2014.
53 Haiti - Economic Growth & Agricultural Development Fact Sheet, U.S. Agency for International Development
(USAID), Mar. 2017.
Report of the Ad Hoc Advisory Group on Haiti, United Nations Economic and Social Council, p.8, Jun. 29, 2017.
55 Remittance Flows Worldwide in 2015, Pew Research Center, Aug. 31, 2016,
http://www.pewglobal.org/interactives/remittance-map/ (last visited Aug. 17, 2017).
https://www.cia.gov/librarv/publications/the-world-factbook/geos/ha.html, (last visited Aug. 17, 2017).
58 Haiti: Executive Summary, IHS Jane's Sentinel Security Assessment - Central America and the Caribbean, Aug.
15, 2017, http://janes.ihs.com/Janes/Display/haits010-cac (last visited Aug. 25, 2017).
59 Haiti - Democracy, Human Rights & Governance Fact Sheet. U.S. Agency of International Development
(USAID), p.1, Mar. 2016.
Haiti: Democracy, Human Rights, and Governance, U.S. Agency for International Development (USAID), Jul.24,
2017, https://www.usaid.gov/where-we-work/latin-american-and-caribbean/haiti/democracy-human-rights-and-
governance (last visited Aug. 22, 2017).
61 Haiti to rebuild National Palace toppled in 2010 quake, AFP, Apr. 20, 2017; McFadden, David, Haiti to rebuild
National Palace smashed in 2010 earthquake, Associated Press, Apr. 19, 2017.
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Moise stated that he would like for construction to start before the end of 2017.62 President Moise
also pledged that the Parliament and the Palace of Justice would be rebuilt during his five-year
term in office.63 In August 2017, IHS Jane's reported that, among the public buildings destroyed
by the earthquake, only the Supreme Court of Justice had been reconstructed and was operational
in 2017.64 In October 2017, the Haitian government launched an international architecture
competition for proposals to rebuild the National Palace.'
In June 2016, the October 2015 presidential election results were annulled, and new elections
were scheduled for October 2016—yet were subsequently postponed due to the impact of
Hurricane Matthew.66 On November 20, 2016, Jovenel Moise, a banana plantation owner, was
elected president with enough votes to avoid a run-off.67 Moise was officially declared the
winner of Haiti's presidential election on January 4, 2017,68 and was sworn in on February 7.69
On January 29, 2017, Haiti held elections for eight senators and one seat in the lower chamber of
congress.' Nationwide municipal elections were also held on this date for the first time since
December 5, 2006.71
While Haiti successfully completed its electoral process in February 2017 after two years of
contested results and political crises, its new government faces various challenges to promote
recovery and reconstruction.72 According to USAID, although Haiti possesses "the formal
structures of a democracy, many of these have yet to become fully functional."' Haiti's state
institutions lack sufficient resources, and "provide limited services to only a small percentage of
the population."' In late June 2017, the United Nations Economic and Social Council reported
that, while Haiti's new government has expressed a desire to improve the country's political and
socioeconomic situation, "it is also clear that the Government has limited capacity to ensure a
62 Haiti to rebuild National Palace toppled in 2010 quake, AFP, Apr. 20, 2017.
63 McFadden, David, Haiti to rebuild National Palace smashed in 2010 earthquake, Associated Press, Apr. 19, 2017.
64 Haiti: Infrastructure, IHS Jane's Sentinel Security Assessment - Central America and the Caribbean, Aug. 15,
2017, http://janes.ihs.com/CentralAmericaCaribbean/Display/1302231 (last visited Aug. 25, 2017).
65 Fulcher, Merlin, Competition: National Palace, Haiti, The Architects' Journal, Oct. 10, 2017,
https://www.architectsjournal.co.uk/competitions/competition-national-palace-haiti/10024240.article (last visited

Oct. 12, 2017); Haiti - FLASH : Architecture Competition for the Reconstruction of the National Palace, Haiti Libre,
Oct. 4, 2017.
66 Domonoske, Camila, 14 Months After Elections Began, Haiti Finally Has A President-Elect, NPR, Jan. 4, 2017.
67 Charles, Jacqueline, Banana farmer wins Haiti presidency, according to preliminary results, Miami Herald, Nov.
28, 2016.
68 Haiti: Jovenel Moise confirmed winner of presidential election, BBC News, Jan. 4, 2017.
69 Businessman Jovenel Moise Sworn In as Haiti's President, Voice of America News, Feb. 7, 2017.
70 Low turnout in Haiti's local elections, AFP, Jan. 29, 2017.

71 McFadden, David, Haiti holds final round of election cycle started in 2015, Associated Press, Jan. 29, 2017;
Charles, Jacqueline, Haiti election cycle nears end with Sunday vote and more than 5,000 seats up for grabs, Miami
Herald, Jan. 27, 2017.
(USAID), p.1, Mar. 2017.

(USAID), p.1, Mar. 2017.
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public administration system that can effectively guarantee the rule of law and a functioning
justice system, promote the fight against corruption and effectively protect human rights."'
In early October 2017, the Miami Herald reported that, "in recent weeks, Haiti has been engulfed
in protests over tax hikes, with massive and sometimes violent street demonstrations."76 Anti-
government protests erupted in mid-September after the Haitian parliament approved the
government budget, which opponents have argued contains tax increases that would hurt
impoverished families. 77 Multiple demonstrations have occurred since mid-September, and the
protests have spread from Port-au-Prince to other areas of the country.' Some of the protests
have become violent, with demonstrators reportedly throwing rocks, damaging property,
blocking traffic, and burning cars and tires, and the Haitian police responding to the unrest by
firing tear gas and water at protesters.' At least two people have been killed and others have
been injured during the demonstrations.'
SECURITY
By creating new security vulnerabilities and stimulating an increase in crime, the 2010
earthquake had a deleterious impact on public security in Haiti.81 The escape of thousands of
prisoners and the diffusion of gangs throughout Port-au-Prince in the aftermath of the earthquake
overwhelmed Haiti's historically weak justice system and police.' An overall climate of
insecurity in IDP camps left many IDPs vulnerable to violence and crime, including gender-
based violence, theft, and domestic violence." Violence against women reportedly increased in
the aftermath of the earthquake."
75 Report of the Ad Hoc Advisory Group on Haiti, United Nations Economic and Social Council, p.4-5, Jun. 29,
2017.
76 Charles, Jacqueline, Haiti requests 18-month TPS extension from Trump administration, The Miami Herald, Oct.
9, 2017.
77 Violence erupts at budget opposition protest in Haiti, Agence France-Presse (AFP), Sep. 30, 2017; HAITI: Budget
proves contentious, LatinNews, Regional Report: Caribbean & Central America, Oct. 2017; Charles, Jacqueline,
Violent protest erupt in Haiti over budget passed on the eve of Hurricane Irma, The Miami Herald, Sep. 12, 2017.
8° Violence erupts at budget opposition protest in Haiti, Agence France-Presse (AFP), Sep. 30, 2017; HAITI: Budget
81 Berg, Louis-Alexandre, Crime, Politics and Violence in Post-Earthquake Haiti, United States Institute of Peace,
p.1-2, Sep. 28, 2010.
p.1-2, Sep. 28, 2010.
p.1-2, Sep. 28, 2010.
84
Haiti: Violence against women, including sexual violence; state protection and support services (2012-June 2016),
Canada. Immigration and Refugee Board of Canada, Dec. 15, 2016 .
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Crime rates in Haiti are high, and the general security situation is "unpredictable."85 The U.S.
Department of State's Bureau of Diplomatic Security has reported that homicide, armed
robberies, and crimes against persons (including gender-based violence) are major concerns.'
Demonstrations, roadblocks, and political rallies regularly occur, and have at times led to violent
incidents.' Violence against women is reportedly widespread, and has been characterized as a
chronic or systemic problem." Impunity levels are high, and the capacity of Haiti's police force
is "relatively low "89 In general, Haitians "lack basic policing services," and criminals are
reportedly able to operate without fear of the police.9°
According to the U.S. Department of State, "rates of kidnapping, murder, and rape rose in
2016."91 The Government of the United Kingdom has reported that "crime levels have
continued to increase in 2017."92 In July 2017, the United Nations Secretary General reported
that, since his previous report in March 2017, "growing tensions linked to socioeconomic
grievances notwithstanding, key indicators, including crime and civil protests, remained within
historically established statistical parameters."93
MINUSTAH
In 2004, the United Nations Stabilization Mission in Haiti (MINUSTAH) was established
following a rebellion that led to the removal of President Jean-Bertrand Aristide and subsequent
violence, including armed clashes, killings, and kidnappings.' In the aftermath of the violence
and the establishment of MINUSTAH, "uniformed U.N. troops provided the only real security" in
Haiti for years.95 However, the Associated Press reported in March 2017 that, "these days, Haiti's
police do most of the heavy lifting and the mood has changed."96
85 Haiti — Safety and Security, Government of Canada, Jul. 21, 2017, https://travel.gc.ca/destinations/haiti (last
visited Aug. 22, 2017); Haiti — Safety and Security, GOV.UK, https://www.gov.uk/foreign-travel-
advice/haiti/safety-and-security (last visited Aug. 22, 2017).
86 Haiti 2017 Crime & Safety Report, U.S. Department of State, Apr. 26, 2017.
87 Haiti — Safety and Security, Government of Canada, Jul. 21, 2017, https://travel.gc.ca/destinations/haiti (last
visited Aug. 22, 2017)
88 Haiti: Violence against women, including sexual violence; state protection and support services (2012-June 2016),
Canada. Immigration and Refugee Board of Canada, Dec. 15, 2016.
89
Haiti: Executive Summary, IHS Jane's Sentinel Security Assessment - Central America and the Caribbean, Aug.
15, 2017, http://janes.ihs.com/Janes/Display/haits010-cac (last visited Aug. 25, 2017).
Haiti 2017 Crime & Safety Report, U.S. Department of State, Apr. 26, 2017.
91 Haiti Travel Warning, U.S. Department of State, May 22, 2017,
https://travel.state.gov/content/passports/en/alertswarnings/haiti-travel-warning.html (last visited Aug. 22, 2017).
92 Haiti — Safety and Security, GOV.UK, https://www.gov.uk/foreign-travel-advice/haiti/safety-and-security (last
visited Aug. 22, 2017).
Report of the Secretary-General on the United Nations Stabilization Mission in Haiti, United Nations Security
Council, p.5, July 12, 2017.
94
Haiti is Ready for UN Peacekeepers to Leave Soon, Associated Press, Mar. 9, 2017.
95 Haiti is Ready for UN Peacekeepers to Leave Soon, Associated Press, Mar. 9, 2017.
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MINUSTAH' s tenure in Haiti has been controversial.' The Los Angeles Times has described the
U.N. military presence in Haiti as "never really welcome,"98 while some Haitians view the U.N.
peacekeeping mission as "an occupying force," 99 or as an incursion into Haiti's sovereignty. loo
In March 2017, the Associated Press characterized the peacekeepers' tenure as "rocky," noting
that they:
have earned praise for boosting security, paving the way to elections and providing
crucial support after disasters, particularly the devastating 2010 earthquake. But
some troops have also been accused of excessive force, rape and abandoning babies
they fathered.1°1
In addition, U.N. troops from Nepal are "widely blamed" for introducing cholera to the
country,102 with the source of cholera reportedly traced by scientists to a U.N. base.1°3 Moreover,
some U.N. troops have reportedly been "implicated in a sexual abuse scandal, including a sex ring
that exploited Haitian children."1"
On April 13, 2017, the United Nations Security Council decided that MINUSTAH "would
gradually draw down its military component during the next six months, finally withdrawing
from Haiti by 15 October 2017."105 MINUSTAH will be replaced by the United Nations
Mission for Justice Support in Haiti (MINUJUSTH), which will seek to "help the Haitian
Government strengthen rule-of-law institutions, further develop and support the Haitian National
Police and engage in human rights monitoring, reporting and analysis."1°6 MINUJUSTH will
comprise up to seven Formed Police Units (FPU) consisting of 980 personnel, and 295
Individual Police Officers for an initial six month period from October 16, 2017 to April 15,
2018.1" In July 2017, the United Nations Secretary General reported that "the ongoing
97 Simmons, Ann M., U.N. peacekeepers are leaving after more than two decades, but where does that leave Haiti?,
Los Angeles Times, Apr. 17, 2017; Lederer, Edith, The U.N. Just Unanimously Voted to End Its Peacekeeping
Mission in Haiti, Associated Press, Apr. 13, 2017.
Los Angeles Times, Apr. 17, 2017.
100 Simmons, Aim M., U.N. peacekeepers are leaving after more than two decades, but where does that leave Haiti?,
102 Charles, Jacqueline, A Haiti without U.N. peacekeepers? After almost 13 years, it may happen , Miami Herald,
Feb. 14, 2017.
104 Simmons, Aim M., U.N. peacekeepers are leaving after more than two decades, but where does that leave Haiti?,
105 Security Council decides UN Mission in Haiti will close by October; approves smaller follow-on operation, UN
News Service, Apr. 13, 2017.
106 In visit to Haiti, Security Council delegation to reaffirm support for country's stability and development, UN
News Service, Jun. 23, 2017.
1°7 Security Council decides UN Mission in Haiti will close by October; approves smaller follow-on operation, UN
News Service, Apr. 13, 2017.
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withdrawal of the MINUSTAH military and police components has not affected the overall
security situation.' los
FOOD SECURITY
Damage from the 2010 earthquake exacerbated Haiti's historic food security challenges. The
earthquake displaced over 600,000 people from urban to rural areas and caused significant
damage to physical infrastructure; these factors contributed to a sharp decline in income and food
availability, as well as an increase in the price of food in the aftermath of the earthquake.109
While the international community provided emergency food assistance and support for the
agricultural sector to help avert a post-earthquake food crisis, food insecurity has remained a
significant challenge for Haiti."° Haiti depends on imports to meet more than 50 percent of its
food needs,' and is extremely vulnerable to fluctuations in global food prices.' l2 Chronic
malnutrition impacts approximately half of Haiti's population."'
In recent years, food and nutritional security in Haiti have gradually deteriorated due to the
impact of Tropical Storm Isaac and Hurricane Sandy in 2012 and three consecutive years of
severe drought (exacerbated by El Nino).1" Hurricane Matthew also exacerbated food insecurity
in Haiti."' The impact of the hurricane caused an estimated $580 million in damages to the
country's agricultural sector, and extensive damage to "crops, livestock and fisheries as well as
to infrastructure such as irrigation — with the most affected areas having up to 100 percent crop
damage or destruction. /1116 Approximately "428,000 farmers were decapitalized" and food
108
109
Special Report: FAO/WFP Crop and Food Security Assessment Mission to Haiti, Food and Agriculture
Organization of the United Nations & The World Food Programme, Sep. 21, 2010,
http://www.fao.org/docrep/012/ak353e/ak353e00.htm, (last visited Aug. 21, 2017).
110 Haiti: six months on, agriculture needs more support, Food and Agriculture Organization of the United Nations,
Jul. 15, 2010, http://www.fao.org/emergencies/fao-in-action/stories/stories-detail/en/c/147984/, (last visited Aug. 21,
2017); Haiti — Agriculture and Food Security Fact Sheet, U.S. Agency for International Development (USAID), p.1,
Mar. 2017.
111 Haiti — Agriculture and Food Security Fact Sheet. U.S. Agency for International Development (USAID), p.1,
Mar. 2017.
112 Food Assistance Fact Sheet — Haiti, U.S. Agency for International Development (USAID), Aug. 7, 2017.
113
Report of the Ad Hoc Advisory Group on Haiti, United Nations Economic and Social Council, p.3, Jun. 29,
2017.
114 ECHO Factsheet — Haiti — June 2016, European Commission's Directorate-General for European Civil
Protection and Humanitarian Aid Operations, Jun. 10, 2016; Food Assistance Fact Sheet — Haiti, U.S. Agency for
International Development (USAID), Aug. 7, 2017; ECHO Factsheet — Haiti — May 2017, European Commission's
Directorate-General for European Civil Protection and Humanitarian Aid Operations, May 2017,
http://ec.europa.eu/echo/files/aid/countries/factsheets/haiti en.pdf (last visited Aug. 21, 2017)
115 Haiti — Agriculture and Food Security Fact Sheet. U.S. Agency for International Development (USAID), p.1,
Mar. 2017.
116 Damages to agricultural sector in storm-hit Haiti estimated at $580 million — UN agency, UN News Centre, Nov.
23, 2016.
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production infrastructure was significantly impacted by the storm.' In August 2017, USAID
reported that, "more than six months later, the storm's impact continues to drive elevated levels
of food insecurity in the worst-affected communities."118 As of May 2017, approximately 5.82
million people were facing food insecurity in Haiti,119 including 2.35 million people who "were
severely food-insecure and in need of immediate assistance.' 120 >
NATURAL DISASTERS & ENVIRONMENTAL CONCERNS
Due to its geographic location, weak infrastructure, and limited government resources, Haiti is
particularly susceptible to natural disasters.121 Per the World Bank, Haiti has been impacted by
natural disasters "almost every year since 1971, losing on average two percent of GDP every
year due to hydrometeorological events."122 An estimated 98 percent of the Haitian population is
exposed to two or more types of natural disasters.'23 As a result of its exposure to natural
hazards and the vulnerabilities of its population, Haiti "consistently ranks among the most
vulnerable countries in the world to disasters and climate change ',124 According to the 2017
Global Climate Risk Index, Haiti ranked as the third most affected country in the world by
extreme weather events from 1996 to 2015; during this time, Haiti averaged $222 million in
damages per year—equivalent to 1.49% of GDP on average.'
Located along the "hurricane belt,"126 Haiti is regularly impacted by tropical storms and
floods.127 Haiti suffered severe flooding in 2002, 2003, 2006, and 2007.128 During the 2008
hurricane season, Haiti was impacted by four storms "which killed more than 800 people and
devastated nearly three-quarters of its agricultural land."129 In the fall of 2012, Hurricane Sandy
117 Haiti Humanitarian Bulletin - Issue 64 1 May 2017, United Nations Office for the Coordination of Humanitarian
118 Food Assistance Fact Sheet — Haiti, U. S.Agency for International Development (USAID), Aug. 7, 2017.

120
121 Five dead, 19 missing after Haiti rains, flooding — officials, Reuters, May 19, 2017.
122 World Bank Supports Haiti's Post-Matthew Reconstruction, The World Bank, Jun. 8, 2017.
123 Thomas, Alice, Two Steps Back: Haiti Still Reeling from Hurricane Matthew. Refugees International, p.4, April
2017.
124 Thomas, Alice, Two Steps Back: Haiti Still Reeling from Hurricane Matthew, Refugees International, p.4-5,
April 2017.
125 Kreft, Rinke, Eckstein, David and Melchior, Inga, Global Climate Risk Index 2017, Germanwatch, p. 23, Nov.
2016.
2017.
127 Jones, Sam, Why is Haiti vulnerable to natural hazards and disasters?, The Guardian, Oct. 4, 2016.
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affected 1.8 million Haitians; flooded, damaged, or destroyed 18,000 homes; damaged key
infrastructure, including roads, hospitals, and schools; and killed 60 people.130
More recently, Haiti has been "grappling with a heavy rainy season" in 2017.131 The rainy
season, which began in April, has resulted in:
floods and landslides, damage to homes and destruction of harvests, especially in

the departments of South, Grand' Anse and Nippes, which were the most affected
departments by Hurricane Matthew. Erosion of roads have impacted access to
several communes, especially in the South department.132
By late May, at least seven people had been killed and 15,000 households were in need of
immediate humanitarian assistance.' The rainy season coincides with hurricane season in
Haiti, which typically lasts from June 1 to November 30.134 In June 2017, the United Nations
Economic and Social Council reported that the Haitian government "has indicated that it does
not have the capacity in terms of equipment and personnel to mitigate any disaster that may
result" from the current hurricane season.135
On September 7, 2017, Hurricane Irma—a Category 5 hurricane—impacted northern Haiti (one

of the poorest regions of the country),' with heavy rains, wind, and flooding causing
"significant damages in the Nord-Est, Nord-Ouest, Nord, Artibonite and Centre departments."'
The impact of Hurricane Irma led to the evacuation of over 12,500 people, left one person dead
and another missing, and injured more than a dozen others.138 In addition, 4,903 homes were
flooded, 2,646 were damaged, and 466 were destroyed.139 Hurricane Irma also caused extensive
139 UN relief agency estimates 1.8 million Haitians have been affected by Hurricane Sandy, United Nations Office
for the Coordination of Humanitarian Affairs, Nov. 2, 2012.

131 Five dead, 19 missing after Haiti rains, flooding — officials, Reuters, May 19, 2017.
132 Haiti - Humanitarian Situation Report - August 2017, United Nations Children's Fund (UNICEF), p.2, Aug.
2017.
133 Haiti Humanitarian Bulletin - Issue 65 1 June-July 2017, United Nations Office for the Coordination of
Humanitarian Affairs (UNOCHA), p.1, Aug. 17, 2017; Five dead, 19 missing after Haiti rains, flooding — officials,
Reuters, May 19, 2017.
134 Haiti - Humanitarian Situation Report - August 2017, United Nations Children's Fund (UNICEF), p.2, Aug.
2017.
135
Report of the Ad Hoc Advisory Group on Haiti, United Nations Economic and Social Council, p.6, Jun. 29,
2017.
136 Charles, Jacqueline, Irma mostly spared Haiti. But for struggling farmers, the damages are devastating, The
Miami Herald, Sep. 9, 2017.

137 ACT Alliance Rapid Response Fund No. 13/2017: Hurricane Irma in Haiti, ACT Alliance, Sep. 26, 2017.
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damage to crops and livestock in affected areas,' with an estimated 18,000 families in northern
Haiti losing their food crops due to the impact of the storm.'
Located along several major fault lines, Haiti has also been impacted by powerful earthquakes.'
In 2016, Haiti suffered from its third consecutive year of drought, which was exacerbated by El
Nilio.143 Extensive deforestation exposes Haiti to and exacerbates flooding, mudslides, and soil
erosion. 144
HURRICANE MATTHEW
The strongest hurricane to strike the country in more than 50 years and the third strongest ever
recorded in Haiti, Hurricane Matthew made landfall in southwestern Haiti as a Category 4
hurricane on October 4, 2016.1 45 With 145-mile-an-hour winds and torrential rains,146 Hurricane
Matthew "violently struck south-western Haiti... causing widespread damage, flooding and
displacement ."147 Heavy flooding occurred in the most affected departments, including
Grand'Anse, South, Nippes and South East departments.' Per UNOCHA, the impact of the
hurricane occurred at a time when Haiti was "already facing an increase in the number of cholera
cases and severe food insecurity and malnutrition."'
According to UNOCHA, Hurricane Matthew caused the greatest humanitarian crisis in Haiti
since the 2010 earthquake.15° Hurricane Matthew affected 2.1 million people in Haiti; of this
amount, 1.4 million were estimated to be in need of humanitarian assistance in the aftermath of
140 After the Hurricane — an overview of the damage Irma and Maria left. behind, International Federation of Red
Cross And Red Crescent Societies, Sep. 22, 2017.
141 Moloney, Anastasia, Floods leave Haitian fanners struggling in Irma's wake: U N , Thomson Reuters
Foundation, Sep. 13, 2017.

142 Jones, Sam, Why is Haiti vulnerable to natural hazards and disasters?, The Guardian, Oct. 4, 2016; Thomas,
Alice, Two Steps Back: Haiti Still Reeling from Hurricane Matthew, Refugees International, p.4, April 2017.
2017; WFP Haiti - Country Brief, World Food Programme, p 2, May 2017.
2017; Jones, Sam, Why is Haiti vulnerable to natural hazards and disasters?, The Guardian, Oct. 4, 2016.
145 Hurricane Matthew: '1.4 million need help in Haiti', Al Jazeera, Oct. 11, 2016; Haiti: Hurricane Matthew
Emergency Appeal n° MDRHT012, International Federation of Red Cross and Red Crescent Societies, p.1, Oct. 6,
2016; Thomas, Alice, Two Steps Back: Haiti Still Reeling from Hurricane Matthew, Refugees International, p.4,
April 2017;
146 Beaubien, Jason, How Many Houses Did Hurricane Leave Standing In Port Salut, Haiti?, NPR Morning Edition,
Oct. 11, 2016; Guyler Delva, Joseph, Hurricane Matthew toll in Haiti rises to 1,000, dead buried in mass graves,
Reuters, Oct. 10, 2016.
147 Haiti: Hurricane Matthew — Situation Report No.6, United Nations Office for the Coordination of Humanitarian
Affairs (UNOCHA), p.1-4, Oct. 10, 2016.

Affairs (UNOCHA), p.1-4, Oct. 10, 2016.

Affairs (UNOCHA), p.4, Oct. 10, 2016.

159 Haiti Humanitarian Bulletin - Issue 64 May 2017, United Nations Office for the Coordination of Humanitarian
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the storm.151 An estimated 175,000 people were displaced,152 and 546 people were killed.153
Hurricane Matthew also caused "widespread damage to homes, roads, public infrastructure,
hospitals, and schools."154 Damages from Hurricane Matthew were estimated at nearly $2.8
billion—equivalent to 1/3 of Haiti's gross domestic product155—and were particularly severe in
Haiti's housing and food security sectors.156
In the aftermath of Hurricane Matthew, the international humanitarian community coordinated

with the Government of Haiti to provide emergency humanitarian assistance to those affected by
the storm.157 Humanitarian assistance was provided in a variety of fields, including emergency
shelter, health, food security, protection, etc.158 In early March 2017, UNOCHA reported that
over 1 million people had been reached with humanitarian assistance in the most affected regions
of Grand'Anse, Sud and Nippes departments.159 UNOCHA also noted that the emergency
response was ending at this time, with the focus shifting to early recovery.160
According to a United Nations official, as of mid-April 2017, shelter and food remained scarce
in Haiti's southern peninsula.161 In March 2017, an international non-governmental organization
reported that at least 13 people in Grand'Anse department had died due to hurricane related food
shortages in the region, and some Haitians were reportedly living in caves and eating poisonous
plants to survive.162 UNOCHA reported in May 2017 that "affected people continue to live in
precarious conditions, particularly in hard-to-reach areas."163
151
Haiti Humanitarian Bulletin - Issue 64 1 May 2017, United Nations Office for the Coordination of Humanitarian
152
Thomas, Alice, Two Steps Back: Haiti Still Reeling from Hurricane Matthew, Refugees International, p.4, April
2017.
153
154
Thomas, Alice, Two Steps Back: Haiti Still Reeling from Hurricane Matthew Refugees International, p.4, April
2017.
155 Charles, Jacqueline, Senate Democrats to Trump administration: Let Haitians stay, Miami Herald, Apr. 27, 2017;
Charles, Jacqueline, Six months after Hurricane Matthew, food, shelter still scarce in Haiti, Miami Herald, Apr. 12,
2017.
156


159 Haiti: Hurricane Matthew Situation Report No.35 (04 March 2017), United Nations Office for the Coordination

160 Haiti: Hurricane Matthew Situation Report No.35 (04 March 2017), United Nations Office for the Coordination

161 Charles, Jacqueline, Six months after Hurricane Matthew, food, shelter still scarce in Haiti, Miami Herald, Apr.
12, 2017.
162 Charles, Jacqueline, Desperate Haitians living in caves, eating toxic plants in post-hurricane Haiti. Miami Herald,
Mar. 24, 2017.

163 Haiti Humanitarian Bulletin - Issue 64 May 2017, United Nations Office for the Coordination of Humanitarian
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The Haitian government and the international community continued to support Haiti's efforts to
recover from Hurricane Matthew during the summer of 2017. On June 30, 2017, President
Jovenel Moise declared a state of emergency in areas hit by the storm.164 The World Bank
announced grants of $100 million in June 2017 and an additional $100 million in July 2017 to
support Haiti's recovery from the impact of Hurricane Matthew.165 In addition, the Miami
Herald reported in July 2017 that the Inter-American Development Bank would reroute $85
million in funding to support reconstruction efforts in southern Haiti.166
Nevertheless, in June 2017, the World Bank reported that reconstruction needs from Hurricane
Matthew "were assessed at US$2.2 billion or 25 percent of GDP."167 In July 2017, the Miami
Herald reported that residents of the areas most impacted by Hurricane Matthew in southern
Haiti felt abandoned by international donors and the Haitian government.168 The Inter-
American Development Bank's representative for Haiti told the Miami Herald in July 2017 that,
even with the additional funding from its organization for areas impacted by Hurricane Matthew:
"The situation is so dire that even if we fully disbursed the $85 million that we have
committed to the South after the hurricane, there are still a lot of people in need, a
lot of villages that were badly affected by the hurricane and need further
investment," he said. "We will need lots more resources."169
In October 2017, Agence France-Presse reported that—one year after Hurricane Matthew—Haiti
was still suffering from the consequences of the storm, and had yet to change "the way the
country prepares for natural disasters."170
HAITIAN RETURNEES FROM THE DOMINICAN REPUBLIC
A crackdown on undocumented migrants in the Dominican Republic has contributed to an influx

of returnees to Haiti in recent years.' From July 2015 through July 2017, IOM recorded that
164 Charles, Jacqueline, After Hurricane Matthew, many victims in Haiti feel abandoned, Miami Herald, Jul. 14,
2017.
2017; World Bank Approves Additional US$80 Million for Haiti's Hurricane Recovery, The World Bank, Jun. 14,
2017; Haiti - Post-Matthew : Additional $80M grants from the World Bank, Haiti Libre, Jun. 15, 2017.
2017.
167 World Bank Supports Haiti's Post-Matthew Reconstruction, The World Bank, Jun. 8, 2017.
2017.
2017.
170 A year after Hurricane Matthew, Haiti more vulnerable than ever, Agence France-Presse (AFP), Oct. 4, 2017.
171 Azam, Ahmed, Forced to Flee Dominican Republic for Haiti, Migrants Land in Limbo, The New York Times,
Dec. 12, 2015; Partlow, Joshua, A Haitian border town struggles with new rules in the Dominican Republic, The
Washington Post, Jun. 24, 2015; McFadden, David, An aid agency is relocating several thousand people who had
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215,121 Haitian migrants spontaneously returned or were deported to Haiti." In June 2017,
IOM reported that the "total number of returnees has averaged between 6000 and 8000
individuals on a monthly basis" since August 2016.173 However, the total number of returnees
may actually be higher, as IOM stated that it had only been able to monitor half of border
crossings between the two countries since September 2016 due to budget constraints.'
Deportations from the Dominican Republic have drastically increased since April 2017; July
2017 had the highest number of official deportations since October 2015.175
In July 2017, the United Nations Secretary-General reported that returnees from the Dominican
Republic:
continue to find themselves in a situation of vulnerability owing to the

insufficient reception capacity of the Haitian authorities and a lack of
reintegration opportunities. This group will likely continue to need assistance in
the foreseeable future, including with regard to the determination of their legal
status.176
Similarly, in August 2017, the Miami Herald commented on the Haitian government's "inability
to absorb the influx" of returnees from the Dominican Republic, also noting that "their arrival,
mostly ignored by Haitian authorities, has burdened humanitarian organizations that have
struggled to help amid deep budget cuts and indifference."' Many migrants reportedly "arrive
in precarious conditions,"' while some returnees reportedly live in "makeshift camps" along
the border similar to those inhabited by IDPs from the 2010 earthquake."
fled to Haiti from the Dominican Republic and set up informal settlements along the Haitian side of the border,
Associated Press, Mar. 30, 2016; Maloney, Anastasia, U.N. urges Dominican Republic to prevent deportations of
Haitians, Thomson Reuters Foundation, Jul. 29, 2015.
172
UN Migration Agency Opens Haiti's First Border Resource Centre to Help Returning Haitians, International
Organization for Migration, Jun. 27, 2017; IOM Haiti border monitoring sitrep: Tracking returnees from the
Dominican Republic, International Organization for Migration, International Organization for Migration, Aug. 3,
2017.
174 IOM Haiti border monitoring sitrep: Tracking returnees from the Dominican Republic, International Organization
for Migration, International Organization for Migration, Jun. 29, 2017.

175 IOM Haiti border monitoring sitrep: Tracking returnees from the Dominican Republic, International Organization
for Migration, International Organization for Migration, Aug. 3, 2017; Haiti Humanitarian Bulletin - Issue 65 f June-
July 2017, United Nations Office for the Coordination of Humanitarian Affairs (UNOCHA), p.1-2, Aug. 17, 2017.
176
177 Charles, Jacqueline, The countdown for Haitians with TPS has started. And that has many in Haiti worried.,
Miami Herald, Aug. 4, 2017.

178
UN Migration Agency Opens Haiti's First Border Resource Centre to Help Returning Haitians, International
Organization for Migration, Jun. 27, 2017.
179 Following political crisis Haiti must urgently advance human rights agenda, Amnesty International, Mar. 17,
2017.
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SUMMARY
Haiti's recovery has been hindered by subsequent natural disasters and various political, social,
health, security, and economic conditions which have negatively impacted the country in recent
years. Haiti remains vulnerable to external shocks, and its internal fragility has left it unable to
adequately respond to a wide range of persistent humanitarian needs. As UNOCHA and the
United Nations Country Team in Haiti reported in January 2017:
With more than 98% of Haitians exposed to two or more types of disasters, the
impact of recurring natural disasters is particularly severe, especially considering
the already pre-existing protection, socio-economic and environmental
vulnerabilities and disparities. Most Haitians remain vulnerable to natural hazards
and disasters, such as floods, landslides, droughts, earthquakes and hurricanes.
With more than a half of its total population living in extreme poverty, Hurricane
Matthew has once more demonstrated Haiti's weakened ability to cope, recover and
adapt to shocks from natural disasters. Meanwhile, as a result of electoral-related
tensions, politically motivated demonstrations and insecurity have affected the
humanitarian operating environment since mid- 2015 against the backdrop of a
decreasing humanitarian presence in the field due to the lack of humanitarian
funding.'
Due to the conditions outlined in this report, Haiti's recovery from the 2010 earthquake could be
characterized as falling into what one non-governmental organization recently described as "the
country's tragic pattern of 'one step forward, two steps back." 8'
180 Haiti. Humanitarian Response Plan January 2017 - December 2018, United Nations Office for the Coordination
of Humanitarian Affairs (UNOCHA)/United Nations Country Team in Haiti, p.6, Jan. 2017.
2017.
AR-HAITI-00000063
Exhibit E
UNCLASSIFIED
Case U.S. Department of
1:18-cv-01599-WFK-ST State Case 39-5
Document No. F-2017-17275 Doc No.
Filed 08/15/18 C06512545
Page 2 of 24Date: 03/29/2018
PageID #: 976
RELEASE IN FULL
THE SECRETARY OF STATE

WASHINGTON
October 31, 2017
The Honorable
Elaine C. Duke
Acting Secretary of the Department of Homeland Security
Washington, DC 20528
Dear Acting Secretary Duke:
The State Department has assessed that El Salvador, Haiti, Honduras, and Nicaragua no
longer meet the conditions required for continued designation for Temporary Protected Status
(TPS). The disruption in living conditions in El Salvador, Honduras, and Nicaragua attributable
to the environmental disasters that served as the basis for their TPS designations has decreased in
severity to a degree that it may no longer be considered "substantial" within the meaning of the
TPS statute. The extraordinary and temporary conditions that served as the basis for Haiti's most
recent designation have sufficiently improved such that they no longer prevent nationals of Haiti
from returning in safety. Attached are country conditions reports that provide the Department's
assessment of conditions in each country as they pertain to their respective TPS designations.
Given the number of impacted beneficiaries, and to minimize any negative implications
that termination would have on our bilateral relations with these countries, I recommend that
should the Department of Homeland Security (DHS) decide to terminate TPS for these countries,
that you do so with delayed effective dates of 18 months. An 18-month wind down period would
provide adequate time for long-term beneficiaries to arrange for their departure and for their
home countries to prepare for their reception and reintegration.
I do not make these recommendations lightly. As you consider your decision, I am sure
you are well aware of the significant humanitarian, foreign policy, and political interests at play.
First and foremost, termination of TPS would likely leave hundreds of thousands of TPS
recipients — many of whom have lived and worked in the United States for more than 15 years
and have U.S. citizen children — out of legal status. For those that depart, they will return to
countries with limited economic opportunities for their reintegration. In the case of El Salvador
and Honduras, both countries continue to have some of the world's highest homicide rates, and
weak law enforcement capabilities and inadequate government services will make it difficult for
their respective governments to ensure the protection of returning citizens — no less the U.S.
citizen children who may accompany their parents.
Termination of TPS will also likely generate a backlash from the governments
themselves, particularly the Honduran and Salvadoran governments, who have agreed to engage
with the United States in support of the U.S. strategy in Central America. Central American
leaders are likely to assert that the resources required for a large-scale re-integration of TPS
beneficiaries and their dependents will undermine the Central America Strategy and Central
America's complementary Alliance for Prosperity, both of which seek to generate prosperity for
the region's citizens and reduce irregular migration to the United States. They may take
retaliatory actions counter to our long-standing national security and economic interests like
withdrawing their countemarcotics and anti-gang cooperation with the United States, reducing
UNCLASSIFIED U.S. Department of State Case No. F-2017-17275 Doc No. C06512545 Date: 03/29/2018
UNCLASSIFIED U.S. Department of Document
Case 1:18-cv-01599-WFK-ST State Case No'.
39-5F-2017-17275 Doc No.
Filed 08/15/18 C06512545
Page 3 of 24Date: 03/29/2018
PageID #: 977
-2-
their willingness to accept the return of their deported citizens, or refraining from efforts to
control illegal migration.
However, the fact remains that the conditions in these countries do not — in the State
Department's judgment — meet the legal requirements necessary for extension. Should DHS
decide to terminate the programs, I hope our Departments can work together in a thoughtful,
coordinated manner to develop a plan to work with the four governments, TPS beneficiaries
themselves, Congress, NGOs, and other stakeholders to mitigate any negative impact on U.S.
national security and foreign policy priorities. As indicated, an 18-month wind down period will
be critical to our efforts.
I thank you in advance for including the Department of State's. Bureaus of Western
Hemisphere Affairs (WHA) and Population, Refugees, and Migration, as well as our public
affairs team, in your Department's planning for the public announcement of any TPS decisions,
including to foreign audiences. Additionally, I request that you provide WHA with no less than
48-hours lead time prior to the public announcement so that it can notify counterpart
governments, on an embargoed basis, of the decision. I also recommend DHS delay a public
announcement for Honduras until November 27, to prevent TPS issues from unduly influencing
the November 26 presidential election.
Sincerely,
Rex W. Tillerson
Enclosures:
As stated.
Case 1:18-cv-01599-WFK-ST State Case No.
39-5F-2017-17275 Doc No.
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RELEASE IN FULL
SENSITIVE BUT UNCLASSIFIED
DEPARTMENT OF STATE RECOMMENDATION REGARDING

TEMPORARY PROTECTED STATUS (TPS) FOR HAITI — 2017
I. Statutory Basis for Designation
Have the conditions under which the foreign state was designated for temporary protected
status ceased to exist?
(SBU) Yes, the conditions have ceased to exist. The extraordinary and temporary conditions
that served as the basis for Haiti's most recent designation have sufficiently improved such that
they no longer prevent nationals of Haiti from returning in safety. Former Secretary of
Homeland Security Janet Napolitano originally designated Haiti for TPS effective January 21,
2010, on the basis of extraordinary and temporary conditions in the wake of Haiti's 2010
earthquake. Since 2010, a 2011 re-designation and four subsequent extensions of TPS
designation for Haiti have been made by DHS Secretaries. The most recent extension, effective
from July 23, 2017 — January 22, 2018, cited not only temporary and extraordinary conditions in
the wake of the 2010 earthquake, but subsequent conditions, including: 2016's Hurricane
Matthew, April 2017 heavy rains and landslides, security vulnerabilities that some Haitians who
reside in Internally Displaced Persons (IDP) areas experience, and health vulnerabilities due to a
weak public health_system, which has been strained by a cholera epidemic. The extension also
noted Haiti's serious economic and security challenges (82 FR 23830).
(SBU) Country conditions have improved since the January 2010 earthquake. The IDP
population has decreased 97 percent from its peak in 2010. A legitimized government is in place
after two years of electoral impasse. As of October 15, 2017, all UN military personnel have
been withdrawn from Haiti; to be replaced by a police only successor mission focused on
strengthening rule of law and promoting human rights.
(SBU) Specific lingering effects of the earthquake remain in the areas of infrastructure, health,
sanitation services, and emergency response capacity. Although significant steps have been
taken to improve the stability and the quality of life for Haitian citizens, Haiti continues to lack
the capacity to ensure that the large population TPS beneficiaries currently residing in the United
States can return in safety. However, Haiti maintains the ability safely to receive traditional
levels of returned Haitian nationals, and is currently doing so.
(SBU) Based on these facts, we assess that the extraordinary and temporary conditions that
served as the basis for Haiti's most recent designation have sufficiently improved such that they
no longer prevent nationals of Haiti from returning in safety.
A. Armed Conflict
1. Is the foreign state still involved in an ongoing, internal armed conflict?
(U) No.
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a. If so, would the return of nationals of the foreign state to that state (or
to the part of the state) still pose a serious threat to their personal
safety?
(U) N/A.
B. Environmental Disaster
1. Does there continue to be a substantial, but temporary, disruption of

living conditions in the area affected by the environmental disaster?
(U) N/A.
2. Is the foreign state still unable, temporarily, to handle adequately the

return to the state of aliens who are nationals of the state?
(U) N/A.
3. Does the foreign state continue to support the TPS designation?
(U) N/A.
C. Extraordinary and Temporary Conditions
1. Has the foreign state experienced extraordinary and temporary conditions

that prevent aliens who are nationals of the state from returning to the state
in safety?
(SBU) No. In the wake of the 2010 earthquake, Haiti continues to be affected by lingering
earthquake damage. The earthquake destroyed virtually all government offices and ministries in
downtown Port-au-Prince, leaving most in long-term temporary facilities spread throughout the
city. However, country conditions and the Government of Haiti's capacity have improved
sufficiently to allow for the safe return of a moderate flow of Haitian nationals.
(SBU) Since the earthquake, the IDP population had decreased 97 percent (from two million to
37,000) from its estimated peak in 2010, to the point where today, just 27 of the original
1,555 IDP sites remain open. Despite these gains, gender-based violence in the IDP areas
remains a serious concern, and personal security is a serious and pervasive problem. An
estimated 41,000 Haitians who have been made homeless as a result of various natural disasters
since 2010, including Hurricane Matthew in 2016, affecting Haiti remain in IDP areas.
(SBU) With more than a half its total population living in extreme poverty, Hurricane Matthew
demonstrated Haiti's weakened ability to cope, recover, and adapt to shocks from natural
disasters. This fragility was exposed again most recently by Hurricane Irma, which temporarily
displaced over 10,000 people into shelters and exacerbated an existing food security crisis on the
northern coast.
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(SBU) With the withdrawal of the United Nations Stabilization Mission in Haiti's (MINUSTAH)
military component underway, the Haitian National Police (HNP) will be called upon to shoulder
increased responsibility for maintaining order throughout the country. However, the HNP
remains highly concentrated in Port-au-Prince and has limited resources, challenging its ability
to guarantee security throughout the country. The United States and our international partners
continue to work to train and support the development and growth of the HNP, which has been
increasingly perceived as professional and capable of providing security.
2. Would permitting nationals of the foreign state to remain temporarily in the

United States be contrary to the national interest of the United States?
(SBU) No. Permitting Haitians to remain temporarily in the United States would not be contrary
to the U.S. national interest. Current TPS beneficiaries have been in TPS status in the United
States for six or seven years. The population has been stable and has successfully settled there.
The current practice of returning newly arrived illegal migrants via the resumed non-criminal
deportation flights has greatly disincentivized new attempts at large-scale illegal migration.
H. Discretionary Factors
What, if any, additional information relevant to this decision should be brought to

the attention of the Department of Homeland Security?
(SBU) An abrupt termination of TPS for Haiti that does not provide a period for an orderly
transition could jeopardize progress made in our bilateral relationship, particularly our robust
partnership with Haiti on migration.
(SBU) Setting a Negative Historical Precedent: Approximately 58,706 Haitians received TPS
benefits following the 7.0 magnitude earthquake in 2010. Since 1990 when the TPS statute was
passed, approximately 22 countries have been designated under the statute. Only three countries
have had their TPS designation terminated without a period of at least six months provided for
orderly transition — those cases involved beneficiary populations of as few as 316, and as many
as 4,018. The average duration of a TPS designation has been 8.5 years. By this measure, an
immediate effective date for termination of Haiti's TPS designation would be a statistical outlier.
Haiti has been designated for TPS for less than eight years, and its sudden termination with no
delay in effective date to allow for orderly transition period would affect 14 times more people
than the largest group of TPS beneficiaries whose status was terminated without an extended
transition period (which last occurred in 1993).
(SBU) A Cooperative Partnership: Haiti is a committed and cooperative partner in stemming

the irregular flow of migrants to the United States, accepting regular deportation flights, and
preventing further illegal migration of Haitians upon their return. This cooperation was best
exemplified through their support in managing the irregular flow of Haitian migrants arriving at
the U.S. southwest border with Mexico in 2016. Despite political turmoil and economic
uncertainty in Haiti, when more than 6,500 Haitians presented themselves at U.S. ports of entries
(a 1,300 percent increase from 2015), the Haitian government agreed to receive non-criminal
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deportation flights for the first time since the 2010 earthquake. This proved to be a strong
deterrent mechanism, bringing a near cessation of Haitians presenting themselves at the U.S.
southwest border. To date, Haiti has accepted over 5,200 deportees.
(SBU) Haiti has also shown a commitment to adequately prepare in the event TPS is terminated.
Since then-DHS Secretary Kelly's visit to Haiti on May 31, Haiti has made the following
preparations:
• (SBU) Establishment of a Working Group: The Government of Haiti established a

minister-level working group focused on efforts to mitigate factors that cause Haitians to
migrate illegally. A sub-group was created in order to focus specifically on preparations
for the possible DHS termination of TPS; understanding the need to ensure employment
opportunities exist for TPS beneficiaries when they return to Haiti.
• (SBU) Outreach to Diaspora Leaders: Haiti's Ambassador in Washington has worked
to raise awareness amongst influential diaspora leaders, so they can effectively share
information with the Haitian community in the United States on how a policy change will
affect them.
• (SBU) Providing Legal Assistance: The Haitian Mission in the United States
established a hotline to provide legal assistance by way of immigration attorneys.
(SBU) Implications of a Termination: While the Haitian government has exemplified its
commitment to remain a cooperative partner of the United States, an abrupt DHS termination of
TPS benefits for Haitian beneficiaries would jeopardize this progress. It would also threaten the
strides the Government of Haiti has made towards political stability. After two years of electoral
impasse, President Jovenel Moise and his government have been legitimized and are able to
focus on developing a more secure, stable, and self-sufficient Haiti. It is in our interest to remain
committed to the country's long-term security, democratic development, and economic growth,
as well as to recognize when adequate conditions exist to warrant DHS termination of TPS.
(SBU) An immediate DHS termination of benefits at this juncture, when Haiti is focused on
developing opportunities that allow Haitians to stay and help build their country, would have
implications not only for Haiti's stability, but for the region. Haitians who are involuntarily
returned to a country that is not yet able to handle the influx of returns would further incentivize
illegal migration, to the United States and other destinations. This would strain the already
limited resources of our North American, Central American, and Caribbean partners. To this
end, such an irregular flow of Haitian migrants, similar to what was seen in 2016, could threaten
the progress made on the U.S. strategy in Central America, and the efforts we have made to
further secure our borders. It is therefore in the national security interests of the United States to
ensure an orderly transition of Haitian TPS beneficiaries.
III. Recommendation
(SBU) The extraordinary and temporary conditions that served as the basis for the 2010
designation and 2011 re-designation have sufficiently improved such that they no longer prevent
nationals of Haiti from returning in safety. However, lingering issues from the 2010 earthquake,
the aftermath of Hurricane Matthew in 2016, the heavy rains and landslides in 2017, Hurricane
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Irma in September 2017, and the additional effects of the cholera epidemic continue to affect
Haiti. It is in the national interest of the United States to ensure that Haiti's inability to absorb a
large number of TPS beneficiaries does not jeopardize the progress Haiti has made in receiving
criminal and noncriminal deportees from the United States. Based on these factors, the
Department recommends that the Acting Secretary of Homeland Security designate an
effective date to provide TPS benefits for an additional 36 months beyond the end of the
current designation to provide the Haitian government with adequate time to prepare for
the safe reintegration of approximately 58,706 Haitians.
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(SBU) DEPARTMENT OF STATE RECOMMENDATION REGARDING

TEMPORARY PROTECTED STATUS (TPS) FOR HONDURAS — 2017
Have the conditions under which the foreign state was designated for temporary
protected status ceased to exist?
(SBU) Yes, the conditions under which Honduras was designated for TPS have ceased to
exist. Attorney General Janet Reno originally designated Honduras for TPS on January 5, 1999,
on the basis of environmental disaster. The original designation reads, "Hurricane Mitch swept
through Central America causing severe flooding and associated damage in Honduras. Based on
a thorough review by the Departments of State and Justice, the Attorney General finds that, due
to the environmental disaster and substantial disruption of living conditions caused by Hurricane
Mitch, Honduras is unable, temporarily, to handle adequately the return of Honduran nationals"
(64 FR 524). Subsequent Attorneys General and Secretaries of the Department of Homeland
Security extended TPS for Honduras 13 times in 18-month increments; the most recent extension
was effective July 6, 2016. The 2016 extension cited not only Hurricane Mitch, but also
subsequent environmental disasters, including: (1) severe rains, landslides, and flooding, and
heavy winds associated with Tropical Storm Hanna toward the end of 2014; (2) a dramatic
increase in mosquito-borne diseases in 2014 and 2015; and (3) a prolonged regional drought and
coffee rust epidemic (81 FR 30331).
(SBU) Honduras remains vulnerable to severe weather events, but the disruption of living
conditions attributable to Mitch in the affected area has decreased in severity to a degree
that it should no longer be regarded as "substantial" within the meaning of the statute.
Since the storm, much of the destroyed infrastructure and housing has been rebuilt. The social
and economic conditions affected by the storm have stabilized and people are able to conduct
their daily activities without impediments related to the damage of Mitch.
(SBU) The conditions in Honduras that caused it to be designated for TPS on the basis of
the environmental disaster — i.e., the substantial disruption of living conditions caused by
Hurricane Mitch, which rendered Honduras temporarily unable to adequately handle the
return of its nationals and habitual residents, no longer exist.
A. Armed conflict
1. Is the foreign state currently involved in an ongoing, internal, armed

conflict?
(U) No.
to the part of the state) pose a serious threat to their personal safety?.
(U) N/A.

(
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1. Has the foreign state in question experienced an earthquake, flood, drought,

epidemic, or other environmental disaster in the state?
(U) Yes. Honduras is vulnerable to extreme weather events. In 1998, Hurricane Mitch swept
through Central America causing severe flooding and associated damage in Honduras. Since
Hurricane Mitch, Honduras has continued to experience other natural disasters.
a. If so, does there continue to be a substantial, but temporary,

disruption of living conditions in the area affected?
(SBU) No. Honduras has stabilized from previous disruptions. Much.of the infrastructure and
housing destroyed by Hurricane Mitch has been rebuilt. While Honduras has been experiencing
a prolonged drought, the Department assesses that the disruption of living conditions attributable
to Hurricane Mitch should no longer be regarded as "substantial." The government has
_demonstrated its ability to rebuild its infrastructure and housing and provide other basic services
to its citizens.
2. Is the foreign state still unable, temporarily, to handle adequately the return
to the state of aliens who are nationals of the state?
(SBU) Yes. Honduras continues to suffer from the same serious security and economic
challenges that have led many Honduran nationals with TPS to remain in the United States, and
have spurred even more Hondurans to migrate to the U.S. since TPS was granted. The
Government of Honduras received approximately 22,000 deportees from the United States and
more than 45,000 deportees from Mexico in 2016. While the Honduran government's
infrastructure for receiving returned migrants has improved over the last three years, it is largely
due to investments by the U.S. government. If TPS is not renewed, Honduras'will require
significant additional resources and coordination to adequately receive the immediate return of
an additional 86,163 former TPS beneficiaries and potentially their family members.
(SBU) The immediate return of 86,163 Hondurans who currently hold TPS could overwhelm the
government's ability to properly reintegrate them and make it more likely they would attempt to
return to the United States illegally. Recognizing most Hondurans who migrate do so for
economic reasons, adding tens of thousands of returnees to an economy that is not prepared to
integrate them will only exacerbate the principal driver of illegal immigration. This would also
impose severe burdens on a cooperative but under-resourced Honduran government and would
be counterproductive to U.S. interests. .
(SBU) If the Government of Honduras were expected to immediately receive and reintegrate
86,163 deportees and potentially their family members, it would likely cause a negative public
reaction and strain the bilateral relationship. Many of the deportees would be accompanied by
their U.S.-born children, many of whom would be vulnerable to recruitment by gangs. The
Honduran government would be forced to dedicate significant resources to receiving its
nationals, which would undermine the medium to longer-term U.S. economic, security, and
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governance goals in Honduras, and would likely lead to an increase in illegal immigration from
Honduras to the United States.
(SBU) Yes. Honduran President Juan Orlando Hemandez met with Vice President Pence on
June 15, 2017, on the margins of the Conference on Prosperity and Security in Central America
in Miami and requested an extension of TPS. On July 18, 2017, Honduran Minister of Foreign
Affairs Maria Dolores Agnero Lara submitted an official request for extension.

in safety?
(U)

(U) N/A.
What, if any, additional information relevant to this decision should be brought

to the attention of the Department of Homeland Security?
(SBU) Honduras is a consistent partner of the United States. It has shown itself willing to
proactively address concerns related to illegal immigration by investing time, money, and
political capital in trying to keep its citizens in Honduras. It is also a receptive partner for the
U.S. government and other goyenunents in the region seeking to deport Honduran nationals.
Honduran authorities have also extradited numerous fugitives, including Honduran nationals to
the United States since 2014, including a number of major drug traffickers.
(SBU) As a part of the U.S. strategy in Central America, the U.S. government is providing
approximately $2 billion in FY 2015 to FY 2017 assistance to secure our borders, protect U.S.
citizens, and increase opportunities for U.S. and other businesses. U.S. engagement and
programs aim to dismantle transnational criminal organizations, combat drug trafficking, halt
illegal immigration, and promote sustainable economic growth by addressing the underlying
causes of insecurity, impunity, and lack of economic opportunity. These efforts, combined with
Honduras' own efforts under the Alliance for Prosperity, protect U.S. national security and create
conditions to incentivize Honduran citizens to remain and prosper in their home country.
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(SBU) Despite recent improvements in Honduras' security situation, insecurity and widespread
unemployment and low wages continue to be among the main factors cited by returned migrants
for their decision to migrate to the United States.
(SBU) In rural areas that are largely dependent on subsistence agriculture, one out of five
Hondurans continues to live in extreme poverty (on less than USD $1.90 per day according to
the World Bank). These rural areas, where a disproportionately large number of Hondurans in
the United States, including TPS beneficiaries, originate, have been particularly affected by the
drought, which has been persisting since 2014, and many families have resorted to reducing their
caloric intake. According to a July 2016 United Nations World Food Programme report, one in
four people in Honduras are struggling to feed themselves.
(SBU) Although Honduras was been able to reduce its national homicide rate from 86 per
100,000 in 2011 to 58 per 100,000 in 2016, it continues to have one of the highest murder rates
in the world for a country not at war. This was not always the case, and continues to represent
extraordinary circumstances created by a combination of gang activity, drug trafficking, and poor
economic conditions. To the extent efforts the government and the international community are
helping to bring down this rate, it is a temporary condition that can change with continued
implementation of improved security and economic policies.
(SBU) Impunity for all categories of crime, including serious offenses like murder and
kidnapping, is high. Yet the current administration, with U.S. assistance, has taken steps to
address these problems. Honduras has been a collaborative extradition partner, leading many
Honduran criminals to self-surrender in lieu of probable arrest and extradition. Nearly 30 such
indicted criminals now face justice in the United States for corruption, drug trafficking, and
money laundering. The Honduran government is implementing a roadmap to overhaul the
Honduran National Police, which has included replacing its troubled former investigative
division with a new, better trained and equipped force that is currently up and running. It is also
working to hire 15,000 new officers by 2022, roughly 3,200 per year above attrition, almost
doubling the size of the force.
(SBU) Permitting Hondurans to remain temporarily in the United States would not be contrary to
the U.S. national interest. Current TPS beneficiaries have been in TPS status in the United States
for 18 years. The population has been stable and has successfully settled there. The current
practice of returning newly arrived illegal migrants via the resumed non-criminal deportation
flights has greatly disincentivized new attempts at large-scale illegal migration.
Ill. Recommendation
(SBU) Since the grounds for Honduras' January 5, 1999 designation for TPS on the basis
of environmental disaster no longer exist, the Department recommends that should the
Acting Secretary of Homeland Security decide to terminate TPS for Honduras, that the
Acting Secretary designate an effective date to provide TPS benefits for 36 months beyond
the end of the current designation to allow for an orderly transition. Providing the
Honduran government more time to improve security and economic conditions and repatriation
systems would increase the likelihood Hondurans would return voluntarily and reduce the
likelihood deported migrants would seek to return to the United States illegally. It would also
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allow the U.S. government the time to mitigate any possible negative foreign policy impacts
stemming from the decision to ensure sustained effective bilateral cooperation on a wide range of
issues, such as combatting transnational criminal organizations and addressing the underlying
causes of illegal immigration. Moreover, since 1999, Honduran nationals have had TPS, and
during that time, many started families, opened businesses, and bought houses and properties. A
delayed effective date would provide them and their family members with time to organize their
departure from the United States.
(SBU) In addition, the Department recommends that the public announcement of a new effective
date be delayed until November 27 so as not to interfere in the domestic politics of Honduras'
November 26 presidential election. In order to meet a statutory requirement, the Department of
State recommends communication of a DHS decision to the head of government only on
November 3.
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TEMPORARY PROTECTED STATUS (TPS) FOR EL SALVADOR — 2017
(SBU) Yes, the conditions under which El Salvador was designated in 2001 have ceased to
exist. Attorney General John Ashcroft designated El Salvador for TPS on March 9, 2001, on the
basis of environmental disaster stemming from a devastating earthquake on January 13, 2001,
followed by two more earthquakes on February 13 and 17, 2001. Subsequent Attorneys General
and Secretaries of Homeland Security Have extended the TPS designation for El Salvador eleven
times; the most recent extension was effective September 10, 2016, and expires on March 9,
2018. This extension cited not only the 2001 earthquakes, but subsequent natural disasters and
environmental challenges, including: (1) hurricanes and tropical storms; (2) heavy rains and
flooding; (2) volcanic and seismic activity; (3) an ongoing coffee rust epidemic;'(4) a prolonged
regional drought that was impacting food security; and (5) an outbreak of mosquito-borne
illnesses, all of which have slowed recovery from the 2001 earthquakes. It also noted El
Salvador's serious economic and security challenges (81 FR 44645).
(SBU) While the 2001 earthquakes and subsequent environmental disasters have slowed
economic growth, the disruption of living conditions attributable to the earthquakes in the
affected area has decreased in severity to a degree that it should no longer be regarded as
"substantial" within the meaning of the statute. The social and economic conditions affected
by the earthquakes have stabilized and people are able to conduct their daily activities without
impediments related to damage from the earthquakes. Many of the homes and infrastructure
destroyed by the earthquakes have been restored, and economic activity has resumed.. However,
because El Salvador remains unable, due to ongoing security and economic conditions, to handle
adequately the precipitous return of its nationals — should the Acting DHS Secretary decide to
terminate TPS for El Salvador, the Department recommends that the effective date of the
termination should be delayed 36 months to allow El Salvador much needed time to reabsorb its
nationals, and permit the TPS holders time to close out their affairs in the United States.
A. Armed conflict
1. Is the 'foreign state currently involved in an ongoing, internal, armed

conflict?
(U) No.
to the part of the state) pose a serious threat to their personal safety?
(U) N/A.
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(SBU) Yes, but the conditions have ceased to exist. El Salvador experienced a series of
earthquakes and aftershocks in early 2001, followed by additional environmental disasters since
2001, including Tropical Storm Stan in 2005, a series of earthquakes in 2006, and storms in 2009
(Ida) and 2010 (Agatha). Most recently, El Salvador declared a drought emergency in 2016,
after multiple years of low rainfall that has added to the challenges presented by the prior
environmental disasters.

(SBU) No, the disruption of living conditions attributable to the 2001 earthquakes should
no longer be regarded as "substantial." Many basic services that were impaired following the
2001 earthquake have been restored.
(SBU) Despite progress in recovery from the 2001 earthquakes, El Salvador continues to
experience frequent and significant natural disasters and environmental challenges the effects of
which should not be discounted, and which affect its ability to adequately handle a precipitous
return of its nationals residing in the United States. Agriculture accounts for 10 percent of GDP
but 20 percent of employment, mostly low-wage and subsistence earners who are otherwise
likely to migrate illegally. The 2014-2016 drought was particularly acute in the eastern region of
the country, where a disproportionately large number of Salvadorans in the United States,
including TPS beneficiaries, originate. The drought led to the loss of staple and export crops,
and the death of thousands of cattle. The sugarcane industry suffered irreversible damage to 20
percent of cropland. The coffee industry lost over 40,000 jobs, equivalent to half the sector's
employment, as production fell by half after the coffee rust outbreak in the region. Sugar and
coffee are the two largest agricultural products in the sector.
(SBU) Problems of slow growth and lack of employment, in part due to the series of natural
disasters, continue to plague the country. El Salvador has experienced the worst GDP growth
rate in the region for 10 straight years — and is only projected to reach 2.4 percent growth for
2017, which is largely due to growth in remittances from the United States and low oil prices.
Without remittance growth or with higher oil costs, economic growth would have been negative.
El Salvador needs to create approximately 60,000 new jobs every year to meet the needs of its
current population, yet was only able to create approximately 12,000 jobs in 2016. A 2012 study
by the Ministry of Economy indicates a national housing deficit of 446,000 dwellings,
exacerbated by a growing population in a young demographic (50 percent of the population is
,under the age of 30).
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(SBU) Yes, El Salvador continues to suffer from serious security and economic challenges and is
unable to adequately handle the immediate return of a large number of TPS beneficiaries — a total
of 263,282 Salvadorans — and potentially their family members, including a significant number
of children, most of whom are dual U.S.-Salvadoran nationals. The Salvadoran foreign minister
estimates at least 200,000 U.S.-bom, dual-national children would be impacted by the end of
TPS, although the numbers could be much higher.
(SBU) The Salvadoran government works closely with DHS to facilitate the deportation of
Salvadorans from the United States, accepting additional deportation flights and expediting the
issuance of temporary travel documents to returnees. El Salvador has facilitated the return of
52,000 deportees in 2016, 21,000 from the United States and 31,000 from Mexico. Reports
indicate; however, that many of the returnees try to return to the United States illegally shortly
after their deportation back to El Salvador. This is because the government cannot provide basic
services for these returned nationals and the economy cannot create sufficient jobs to employ
them. High levels of insecurity also continue to hinder El Salvador's ability to adequately handle
a precipitous return of TPS beneficiaries. Homicide rates in El Salvador in 2016 were the
highest in the world outside a war zone, at 81 homicides per 100,000 inhabitants in 2016, and
growth was the lowest in Central America, creating a climate of fear and hopelessness that
continues to drive migrants north. Parents in many communities in El Salvador fear boys may be
targeted for gang recruitment and girls may be forced into sexual relations with gang members.
Many parents in El Salvador refuse to even send their children to school out of fear of the gangs.
(SBU) According to a survey by the University of Kansas, the median age of TPS holders is 43
years and approximately 61 percent have no children left in Central America. These returnees
would need to compete with locals to find scarce jobs in order to support themselves and their
families legally. The lack of legitimate employment opportunities is likely to push some
repatriated TPS holders, or their children, into the gangs or other illicit employment. In addition,
the immediate return of a population of TPS Salvadoran nationals of the magnitude currently
residing in the United States — which El Salvador is currently unable to adequately absorb or
employ — could intensify the push factors that drive illegal migration.
(SBU) High levels of insecurity as well as ongoing effects from the series of natural disasters El
Salvador has experienced also hamper economic growth and prosperity. El Salvador has
experienced the worst GDP growth rate in the region for 10 straight years — and is only projected
to reach 2.4 percent growth for 2017, which is largely due to growth in remittances from the
United States and low oil prices. Without remittance growth or with higher oil costs, economic
growth would have been negative. El Salvador needs to create approximately 60,000 new jobs
every year to meet the needs of its current population, yet was only able to create approximately
12,000 jobs in 2016. A 2012 study by the Ministry of Economy indicates a national housing
deficit of 446,000 dwellings, exacerbated by a growing population in a young demographic (50
percent of the population is under the age of 30). Extortion of businesses drives up costs and
discourages investment. Business leaders assess that extortion payments have tripled since 2013,
with small businesses paying approximately 10-20 percent of their income to organized crime,
while larger businesses face monthly payments in the tens of thousands of dollars. The Central
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Bank estimates that extortion fees paid by businesses could amount to approximately
$756 million — or almost 3 percent of GDP — though other estimates are lower.
(SBU) Yes. On June 15, in a meeting with Vice President Pence at the Conference on Prosperity
and Security in Central America, Salvadoran Vice President Ortiz requested an extension of
TPS. Extension of TPS is the single highest foreign policy priority of the Salvadoran
government.

in safety?
(U) N/A.

(U) N/A.

(SBU) El Salvador is a consistent partner of the United States in working to combat illegal
immigration and transnational criminal organizations. The Government of El Salvador has
shown itself willing to proactively address concerns related to illegal immigration, investing
time, money, and political capital in trying to keep its citizens in El Salvador. El Salvador is also
a receptive partner for the U.S. government and other governments in the region seeking to
deport Salvadoran nationals. If, however, the Government of El Salvador were expected to
immediately absorb 263,282 of its citizens, its institutional capacity and willingness to continue
to be a receptive partner would diminish. In addition, without a delayed effective date, the
Salvadoran government would be forced to dedicate all available resources to receiving its
nationals, undermining the medium- to longer-term U.S. goals in El Salvador, which could lead
to an increase in illegal migration from El Salvador to the United States.
(SBU) As a part of the U.S. strategy in Central America, the U.S. government continues efforts
to build security, improve prosperity, and strengthen institutions. The Department of State and
USAID are investing approximately $2 billion in FY 2015 to FY 2017 assistance to advance our
economic, security, and governance goals in Central America. These efforts, combined with El
Salvador's own efforts under the Alliance for Prosperity, protect U.S. national security by
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combatting transnational criminal organizations, including gangs, and creating conditions for
Salvadoran citizens to remain and prosper in their home country.
(SBU) The Government of El Salvador is making a concerted effort to fight crime and restore its
economy. The government is expanding a national security plan that significantly reduced
homicides in the most crime-ridden municipalities and passed legislation that has helped cut off
imprisoned gang members from their rank-and-file members. It is targeting gang financial
networks and dismantling extortion rings. El Salvador has demonstrated willingness to combat
illegal migration through the creation of a Border Intelligence and Coordination Center,
deploying Salvadoran officers to McAllen, Texas, to screen incoming migrants for gang ties and
making Salvadoran arrest and investigation records available to DHS and local law enforcement
agencies throughout the United States.
(SBU) The Salvadoran government cooperates with U.S. law enforcement in a variety of fields,
including investigating transnational gang crime, extraditing criminals, and interdicting drugs.
Information sharing on MS-13 gang activity between the two governments has led to major
takedowns in the United States. In 2016, El Salvador seized 9.0 metric tons of cocaine — more
than four times the amount seized the previous year. El Salvador has been particularly active on
maritime seizures of illegal narcotics, including via the Cooperative Security Location at
Comalapa Airport, where U.S. surveillance flights track movements of narcotics in the Pacific,
but the lease must be renegotiated before 2020. Since 2010, extradition of criminals to the
United States has been another example of ongoing cooperation. More recently, the Government
of El Salvador opened negotiations with the United States on a detainee transfer agreement to
permit the immediate movement of interdicted drug traffickers in the Pacific to U.S. custody for
prosecution, a major objective of the U.S. Department of Justice. The immediate deportation of
TPS beneficiaries in the United States would create tension with the Salvadoran government, and
could jeopardize cooperation in these critical areas.
(SBU) On the economy, the Salvadoran government intends to join a customs union with
Guatemala by the end of 2017 to reduce the costs of trade and improve commerce, while it also
works to improve the business climate for investment by reducing bureaucratic procedures.
Through the Alliance for Prosperity, El Salvador is leading the effort to improve the situation on
the ground to attract Salvadorans back to El Salvador in the future. In 2017, the Government of
El Salvador passed legislation'and kicked off programs through the Ministry of Foreign Affairs
to assist Salvadorans deported from the United States, including through small loans and training
to show them how to access public services. The U.S. Millennium Challenge Corporation
invested $490 million in 2007 to boost agriculture, build roads, provide clean water, and improve
education. In 2014, MCC signed a second compact for $367 million, including $88 million in
funding from the government of El Salvador, to improve the investment climate, employment,
and transportation infrastructure.
(SBU) The broad U.S. support for improving security and economic opportunity in El Salvador
is designed to address the underlying drivers of illegal migration and lay the groundwork for an
eventual return of many Salvadorans from the United States. Under current conditions, however,
immediate repatriation of the TPS beneficiaries and their families would likely endanger those
U.S. foreign policy goals. Introducing an additional 263,282 working-age people and children
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vulnerable to recruitment by transnational criminal organizations (TCOs), such as MS-13, to a

country rife with gangs and that cannot provide the 60,000 jobs required every year for its
current population will undermine U.S.-Salvadoran efforts to combat TCOs. With no
employment and few ties, options for those returning to El Salvador and those overwhelmed by
the additional competition will likely drive increased illegal migration to the United States and
the growth of MS-13 and similar gangs. A delayed effective date of 36 months will allow much-
needed time for our work with the government of El Salvador to combat TCOs and create jobs to
bear fruit. This will hopefully mean that the large number of returnees will have access to
employment and services, making their re-entry smoother and increasing the likelihood that they
will remain in El Salvador.
(SBU) Finally, Permitting El Salvadorans to remain temporarily in the United Stites would not
be contrary to the U.S. national interest. Current TPS beneficiaries have been in TPS status in
the United States for 16 years. The population has been stable and has successfully settled there.
The current practice of returning newly arrived illegal migrants via the resumed non-criminal
deportation flights has greatly disincentivized new attempts at large-scale illegal migration.
HI. Recommendation
(SBU) Since the grounds for El Salvador's January 13, 2001, designation for TPS on the
basis of environmental disaster no longer exist, the Department recommends that should •
the Acting Secretary of Homeland Security decide to terminate TPS for El Salvador, that
the Acting Secretary designate an effective date to provide TPS benefits for an additional
36 months beyond the end of the current designation for the purpose of orderly transition.
Providing the government more time to improve conditions and repatriation systems is directly
in the U.S. national interest, since it would reduce incentives for illegal immigration and
encourage continued bilateral cooperation on other national security issues, including the fight
against transnational criminal organizations. It would increase the likelihood of sustaining
effective cooperation with the United States on a wide range of issues. Improved conditions in
El Salvador would give Salvadorans residents there, especially young people, an incentive to_
continue to seek their fortunes in El Salvador, and would make it more likely that Salvadorans in
the United States would return to El Salvador voluntarily. Moreover, since 2001, 263,282
Salvadoran nationals have received TPS, and during that time, many started families, opened
businesses, and bought houses and properties in the United States. This period of transition
would provide them and their family members with time to prepare for their departure from the
United States.
(SBU) While the conditions in El Salvador that justified the designation of El Salvador for TPS
on the basis of environmental disaster no longer exist, a sudden DHS termination of TPS for El
Salvador without a delayed effective date would overwhelm the country's ability to absorb
returnees.
UNCLASSIFIED U.S. Department of.
Case 1:18-cv-01599-WFK-ST State Case39-5
Document No. F-2017-17275 Doc No.
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1RELEASE IN FULL

TEMPORARY PROTECTED STATUS (TPS) FOR NICARAGUA — 2017
Statutory Basis for Designation
(SBU) Yes, the conditions have ceased to exist. Attorney General Janet Reno originally
designated Nicaragua for Temporary Protected Status (TPS) effective January 5, 1999, on the
grounds of environmental disaster. The original designation reads, "Hurricane Mitch swept
through Central America causing severe flooding and associated damage in Nicaragua. Based on
a thorough review by the Departments of State and Justice, the Attorney General finds that, due
to the environmental disaster and substantial disruption of living conditions caused by Hurricane
Mitch, Nicaragua is unable, temporarily, to handle adequately the return of Nicaraguan
nationals" (64 FR 526). Subsequent Attorneys General and Secretaries of the Department of
Homeland Security have extended TPS for Nicaragua 13 times in 18-month increments, most
recently effective July 6, 2016. This extension cited not only Hurricane Mitch, but subsequent
environmental disasters that have caused additional damage and exacerbated the persisting
disruptions caused by Hurricane Mitch, including: (1) heavy rains and extensive flooding in
October 2014, May 2015, and June 2015; (2) significant earthquakes in April and October 2014;
(3) 426 eruptions of the Telica volcano between early-May and late-July 2015; and (4) a
prolonged regional drought and coffee rust epidemic (81 FR 30325).
(SBU) Nicaragua is prone to severe weather and seismic events, and has suffered significant
political turmoil over the last 40 years, which has made it difficult to recover fully from weather
and seismic events. While Nicaragua has never fully rebuilt and recovered from Hurricane
Mitch, the disruption of living conditions attributable to Mitch in the affected area has
decreased in severity to a degree that it should no longer be regarded as "substantial"
within the meaning of the statute. The social and economic conditions affected by the storm
have stabilized and people are able to conduct their daily activities without impediments related
to the damage of Mitch. In addition, the overall Nicaraguan economy has strengthened due to
increased foreign direct investment and exports of textiles and commodities, which improves
Nicaragua's ability to handle the return of its nationals. Nicaragua's GDP has averaged over five
percent growth since 2010, and was 4.7 percent in 2016, some of the highest and most consistent
growth rates in the region. Nicaragua's GDP per capita (controlled for inflation) is higher today
than in 1998, although its GDP has not fully recovered from the country's civil war in the 1980s
(see chart below).
(SBU) We assess that the conditions in Nicaragua that caused it to be designated for TPS
on the basis of the environmental disaster — i.e., the substantial disruption of living
conditions caused by Hurricane Mitch, which rendered Nicaragua temporarily unable to
adequately handle the return of its nationals and habitual residents, no longer exist.
UNCLASSIFIED
No. F-2017-17275 Doc No.
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Figurv. 1.1: .Nicnragtra's timeIine .of GDP per capita

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A. Armed conflict
1. Is the foreign state currently involved in an ongoing, internal, armed

conflict?
(U) N/A.
to the part of the state) still pose a serious threat to their personal
safety?
(U) N/A.

(U) Yes. Nicaragua's location makes it vulnerable to extreme weather and seismic events. In
1998. Hurricane Mitch hit the Atlantic coast of Nicaragua with dewistating results. The
hurricane adversely impacted two million.people, causing significant suffering and damage
estimated at $1.5 billion. The 2017 Global Climate Risk index lists Nicaragua as fourth in the
world among countries most affected by extreme weather events. Hurricane Mitch, for exainple,
was preceded and followed by a series of tropical storms and hurricanes that adversely affected
the living conditions of Nicaraguans. In 2007, Hurricane Felix caused significant damage;
particularly to the Caribbean Coast. in 2009, Tropical Storm Alma left more than 25,000 people
homeless. Collectively, these storms contributed to poor living conditions and infrastructure in
affected areas.
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(U) In addition, over the past four years Nicaragua has experienced prolonged drought, which
has also disrupted living conditions. The drought has endangered the country's food security,
with the greatest impact among households in poor rural communities. The lack of rain has led
to reduced water table levels and levels in lakes, rivers, streams, and wells. There has been a
reduction in water flow to communities, with some wells completely drying up.
(SBU) No. Nicaragua has stabilized from previous disruptions, and while Nicaragua has been
experiencing a prolonged drought, we assess that the disruption of living conditions attributable
specifically to Hurricane Mitch should no longer be regarded as "substantial." This is because
the government has demonstrated its ability to provide basic services to its citizens.
(SBU) For example, while it remains the second poorest country in the Western Hemisphere, the
Government of Nicaragua is actively seeking to increase economic growth by supporting and
promoting foreign investment. The government has been working to improve access to remote
communities and has built new roads in many of the areas affected by Mitch, including the first
paved road to connect the Pacific side of the country to the Caribbean Coast, which is nearly
completed. In addition, electrification of the country has increased from 50 percent of the
country in 2007 to 90 percent today. Internet access is also now widely available in Nicaraguan
municipalities, thanks to foreign direct investment in the telecommunications sector, which has
fueled the expansion of 3G mobile coverage and broadband networks throughout the country.
Public infrastructure investment has been a high priority for the government and has been
growing in the last two years.
(SBU) No. Although the country remains poor and it would be challenging for returnees to find
good jobs, we assess the government of Nicaragua would nevertheless be able to handle
adequately the return of the approximately 5,349 TPS beneficiaries and potentially their family
members.
(U) Despite a regression in building democratic institutions and lack of good governance, the
Nicaraguan economy continued to show positive top-line economic results, including GDP
growth of 4.7 percent in 2016. Despite this growth, Nicaragua outranks only Haiti in the
Western Hemisphere in terms of GDP per capita. Poverty remains a significant issue: four in
10 Nicaraguans live on less than $2.50 per day, and one in seven rural Nicaraguans live on.less
than $1.20 per day (according to 2016 Nicaraguan government statistics). The nominal average
private sector wage was $323 per month in November 2016, which covered 73.7 percent of the
standard basket of consumer goods for a family of six.
(U) The Government of Nicaragua is actively seeking to increase economic growth by
supporting and promoting foreign investment. The government emphasizes its pragmatic
management of the economy through a model of consensus and dialogue with private sector and
labor representatives. A key draw for investors is Nicaragua's relatively low-cost and young
labor force, with approximately 75 percent of the country under 39 years old. Nicaragua is a
UNCLASSIFIED
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party to the Central America-Dominican Republic Free Trade Agreement (CAFTA-DR) and
enjoys a strong trade relationship with the United States.
(U) Nicaragua remains significantly less affected by crime and gang-related violence than its
northern neighbors. The homicide rate is seven per 100,000 inhabitants, significantly lower than
other countries in the region. Its relative security has helped to attract tourism and foreign
investment.
(U) The Government of Nicaragua has not recently communicated its support for an extension or
re-designation of TPS to the U.S. government.
1. Has the foreign state experienced extraordinaryand temporary conditions

in safety?
(U) N/A.
(U) N/A.

(SBU) The Government of Nicaragua continues to consolidate power and close democratic
space. President Ortega now enjoys solid control over all four branches of government —
Executive, Legislative, Judicial, and Electoral — to include the Supreme Court of Justice, the
Supreme Electoral Council, and a super-majority in the National Assembly. Most recently, in
2016, the ruling Sandinista National Liberation Front party eliminated any meaningful,
independent opposition from competing in the November 6 national elections and effectively
removed the system of checks and balances for electoral oversight.
(SBU) The Government of Nicaragua continues to speak out strongly against U.S. activities in
the region and terminates Nicaraguan government employees and party members who have
unauthorized contact with anyone from the U.S. Embassy. Local employees at the U.S. Embassy
suffer constant discrimination and harassment because of their employment. Political party
committees in each neighborhood monitor the activities of everyone in the community and report
to political and security leaders. It is possible that returnees from the United States would suffer
some level of discrimination and harassment.
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HI. Recommendation
(SBU) Since the grounds for Nicaragua's January 5, 1999, designation for TPS on the basis of
environmental disaster no longer exist, the Department recommends that should the Acting DHS
Secretary decide to terminate TPS for Nicaragua, that such a termination not take immediate
effect and TPS benefits continue for an additional 18 months beyond the end of the current
designation for the purpose of orderly transition. Since 1999, Nicaraguan nationals have had
TPS; and during that time, many started families, opened businesses, and bought houses and
properties. This period of transition would provide them and their family members time to
prepare for their departures from the United States and as a result, also decrease the probability
that these former beneficiaries would attempt to remain without status.
UNCLASSIFIED U.S. Department of State Case No. F-2017-17275 Doc No. C06512796 'Date: 03/29/2018

Saget v. Trump: Reply in Support of Motion For Extra-Record Discovery

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Saget v. Trump: Reply in Support of Motion For Extra-Record Discovery

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Case 1:18-cv-01599-WFK-ST Document 39 Filed 08/15/18 Page 1 of 17 PageID #: 918

UNITED STATES DISTRICT COURT

PATRICK SAGET, SABINA BADIO )

REPLY IN SUPPORT OF MOTION TO SUPPLEMENT THE ADMINISTRATIVE

Discovery. In support of their Reply, Plaintiffs state as follows:

those policies were legal.

recipients. In deciding to terminate TPS, Trump Administration officials ignored the

depositions on their constitutional claims in any event.

faith conduct mandate, at a minimum, supplementation of administrative record to provide all

documents the agency did or should have considered.

A. Plaintiffs Are Entitled to Extra-Record Discovery on their APA Claims

Defendants engaged in a pattern of duplicitous conduct aimed at covering up their true

effective judicial review.”

1. Plaintiffs Have Alleged Improper Behavior

v. Foxx, 140 F. Supp. 3d 54, 59 (D.D.C. 2015).

warranting extra-record discovery. As discussed in Plaintiffs’ motion, Plaintiffs have provided

their country of origin. DE 21 at ¶ 90.

(“USCIS”) in November, 2017 recommended in writing to then-Secretary of Homeland Security

counseled in favor of extending TPS—and recommended termination anyway.

2. Plaintiffs Have Plausibly Alleged Bad Faith

Comm'n, 751 F.2d 1287, 1328 (D.C. Cir. 1984).

extra-record discovery in this case.

3. Defendants Ignore Overton Park’s “Bare Record” Prong, Which

discovery to enable themselves to conduct review of the agency’s decision.

record discovery (or, at minimum, supplementation of the administrative record) is warranted:

necessary”). This willingness to look outside the record is because:

‘[A] NEPA suit is inherently a challenge to the adequacy of the

Nat'l Audubon Soc. v. Hoffman, 132 F.3d 7, 15 (2d Cir. 1997).

effective judicial review”).

motivated by racial animus. Nat'l Audubon Soc., 132 F.3d at 15.

B. Plaintiffs Are Entitled to Extra-Record Discovery on their Constitutional

Jan. 20, 2012) (listing cases).

Plaintiffs are entitled to extra-record discovery. Grill, 2012 WL 174873 at *2.

should be immune from extra-record discovery. Both are inapposite.

C. In Any Case, Plaintiffs Are Entitled to a Complete Administrative Record,

rendering its decision.

Circuit has stated:

[W]here the so-called “record” looks complete on its face and

impropriety in the decision-making and record-designation process. See DE 31 at 2-4. The

have been included in Defendants’ productions, but they were not.

These documents illustrate, yet again, the government’s deliberate omission of

serve Defendants with both written and oral discovery.

Dated: August 15, 2018

*Admitted Pro Hac Vice Attorneys for Plaintiffs

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