Case 1:18-cv-01599-WFK-ST Document 69 Filed 11/07/18 Page 1 of 5 PageID #: 3145

Mayer Brown LLP

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November 7, 2018 Main Tel +1 312 782 0600
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BY ECF
Honorable William F. Kuntz, II Geoffrey M. Pipoly
United States District Court Direct Tel +1 312 701 7902
Direct Fax +1 312 706 8108
Eastern District of New York gpipoly@mayerbrown.com
225 Cadman Plaza East
Brooklyn, New York 11201

Re: Saget, et al. v. Trump, et al., 18-CV-1599

Dear Judge Kuntz:

In this case, Plaintiffs challenge the Trump Administration’s unlawful decision to

terminate Temporary Protected Status (TPS) for nearly 60,000 Haitians. The Government filed a
motion to dismiss Plaintiffs’ claims, which is fully briefed and set for oral argument before the
Court on November 13, 2018. On October 30, 2018 the Government filed a letter motion asking
this Court to take the extraordinary and unusual step of staying all district court proceedings until
a completely different case about TPS terminations—currently being litigated in a different
jurisdiction—is resolved on appeal. For the reasons discussed below, Plaintiffs respectfully
request that the Court deny the Government’s request for a stay.

I. Background

Plaintiffs have challenged the Trump Administration’s arbitrary and pre-ordained

decision to terminate TPS for Haiti, in violation of the Administrative Procedure Act, the
Regulatory Flexibility Act, and the Equal Protection and Due Process Clauses of the U.S.
Constitution. Other plaintiffs in other courts have raised similar, though not identical, claims
supported by similar, though not identical, arguments. In one such case, in the Northern District
of California, the plaintiffs challenged the termination of TPS for Haiti and several other nations.
Ramos v. Nielsen, No. 18 CV 1554, 2018 WL 4778285 (N.D. Cal. Oct. 3, 2018).

On October 3, 2018, the Ramos court issued a preliminary injunction halting terminations
of TPS for those countries. Id. at *2. At the same time, the parties in that case entered into a
voluntary agreement to stay the district court proceedings pending appellate review of the
preliminary injunction, and the district court entered a stipulation to that effect. Ramos, No. 18
CV 1554, Dkt. 138. An appeal from the preliminary injunction has been docketed in the Ninth
Circuit. Ramos v. Nielson, No. 18-16981 (9th Cir).

On October 30—nearly a month after the preliminary injunction in Ramos was entered—
the Government moved to stay this case pending appellate review of the Ramos preliminary
injunction. The Government’s request to stay this case is broad and far-reaching—it seeks a stay
of the instant litigation pending the resolution of the Ramos injunction not only in the Ninth
Circuit, but in the Supreme Court as well. (Letter Motion to Stay at 3.)

Mayer Brown LLP operates in combination with other Mayer Brown entities, which have offices in North America,
Europe and Asia and are associated with Tauil & Chequer Advogados, a Brazilian law partnership.
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II. A stay of this case is not warranted.

“A stay is an intrusion into the ordinary processes of administration and judicial review,
and accordingly is not a matter of right, even if irreparable injury might otherwise result.” Nken
v. Holder, 556 U.S. 418, 427 (2009) (internal citations and quotation marks omitted). Courts,
therefore, have broad discretion to decide whether to stay a case. The factors courts use to decide
when a stay is warranted are: “(1) the private interests of the plaintiffs in proceeding
expeditiously with the civil litigation as balanced against the prejudice to the plaintiffs if
delayed; (2) the private interests of and burden on the defendants; (3) the interests of the courts;
(4) the interests of persons not parties to the civil litigation; and (5) the public interest.” In re
HSBC Bank, N.A., Debit Card Overdraft Fee Litigation, 99 F. Supp. 3d 288, 315 (E.D.N.Y.
2015). The burden is on the movant—i.e., the Government—to “to establish a clear case of
hardship or inequity in being required to go forward.” Id.

The Government’s own cases establish that stay is an exception rather than the rule. See,
e.g., Handy v. Shaw, Bransford, Veilleux & Roth, 325 F.3d 346, 352 (D.C. Cir. 2003) (“We
emphasize, as has the Supreme Court, that the district court may exercise its discretion to decline
jurisdiction for the purpose of judicial economy only in truly exceptional circumstances.”). The
Government comes nowhere close to showing that “exceptional circumstances” warranting a
stay are present here.

A. A stay would prejudice Plaintiffs’ precarious position.

Plaintiffs have a strong interest in proceeding with this case and a stay presents grave
prejudice. The relief provided by Ramos is tenuous: the preliminary injunction is temporary, was
issued in another circuit, and, although the legal issues overlap to some degree, is not based on
the same arguments presented here. The Plaintiffs’ interest weighs heavily against a stay.

The injunction issued in Ramos provides only preliminary relief to Plaintiffs and could be
overturned at any time in the Ninth Circuit, putting Plaintiffs in the precarious position of relying
on a decision of a court in another jurisdiction to protect their interests. And as the Government
itself points out (Letter Motion to Stay at 4), the preliminary injunction in Ramos has been
appealed to the Ninth Circuit, not to the Second Circuit. Thus, the outcome of Ramos in the
Ninth Circuit—no matter what it is—will not bind this Court. At a minimum, the Ninth Circuit
may determine that its decision is limited only to that Circuit thus foreclosing any relief to
plaintiffs class in this case. There is no reason for this Court to stay this case on the basis that
preliminary relief has been granted in another case in another circuit.1 See, e.g., Strubel v.
Capital One Bank (USA), N.A., 179 F. Supp. 3d 320, 323-24 (S.D.N.Y. 2016) (declining to stay

1
The Government’s motion also requests a stay of proceedings in this case pending the outcome
of the Supreme Court’s review, if any, of the Ramos preliminary injunction. Even assuming that
the Supreme Court decides to review the Ramos preliminary injunction—a longshot assumption,
at best—it, too could overturn the injunction based on the arguments presented in Ramos, which,
as explained below, are different from the arguments presented here.
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ruling on summary judgment pending a decision of the Supreme Court, even though the Supreme
Court’s decision could be dispositive in the case at bar).

Moreover, events in Ramos do not provide grounds for a stay in this case because the two
cases present distinct issues supported by distinct arguments. Although this case and Ramos both
challenge TPS terminations, Plaintiffs here have raised jurisdictional arguments in response to
the motion to dismiss that were not raised in Ramos, and thus any relief in this case may well be
based, in whole or in part, on entirely different grounds. Unlike the plaintiffs in Ramos, Plaintiffs
here argue that the Court has jurisdiction to review Plaintiffs’ claims because the Government
arbitrarily terminated Haiti’s TPS without making the determination required by the TPS statute.
(See Dkt.62 at 13-19.) A stay in this case would completely deny Plaintiffs’ the opportunity to
seek relief premised on the individual facts and law of this case.

Finally, the stay in Ramos is not grounds for a stay in this case because that stay was
agreed to by the parties and was entirely voluntary. That court did not weigh the benefits and
burdens of a stay; it merely entered an agreed stipulation. An agreed stay in one case is not
grounds for a disputed stay in another case.

Therefore, because the Ramos stay is agreed, because the Ramos injunction provides only
preliminary relief in another circuit, and this case presents different arguments than Ramos, a
stay here would strongly prejudice Plaintiffs and should be denied.

B. There is no burden on the Government.

The Government has identified no specific burden to proceeding in this case, nor has it
sought to stay other TPS cases. Even setting aside the prejudice to Plaintiffs, the Government’s
failure to demonstrate a burden provides an independent reason to deny the stay.

The party seeking a stay must “establish a clear case of hardship or inequity in being
required to go forward.” In re HSBC Bank, N.A., Debit Card Overdraft Fee Litigation, 99 F.
Supp. 3d 288, 315 (E.D.N.Y. 2015). The Government has not done so. Instead, the Government
makes an unspecific and conclusory argument that proceeding on a fully-briefed motion to
dismiss “would simply impose unnecessary litigation burdens on the Government,” without any
additional explanation. (Letter Motion to Stay at 5.) And, the Government contends, the merits of
its motion to dismiss warrant a stay. Id. This amounts to a request for a sub silentio ruling on the
motion to dismiss through the motion to stay. The Government’s merits arguments on the motion
to dismiss are not grounds for a stay, and the Government has offered no other reason why
proceeding with this case is particularly burdensome.
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Moreover, as of this filing, the Government has not moved to stay other cases around the
country challenging TPS terminations following Ramos,2 which casts doubt on how serious a
burden to the Government this case presents.3 It is unlikely that this TPS case, and only this TPS
case is a particular burden to the Government.

Finally, it bears noting, as the District of Maryland did just last week, that “the President
himself appears to have had little reluctance to pursue personal litigation despite the supposed
distractions it imposes on his office.” District of Columbia, et al. v. Trump, No. PJM 17-1596,
Dkt. 135 (D. Md. Nov. 2, 2018) (citing lawsuits brought by the President and the President’s
public invitations to citizens to sue him since he took office). The President’s personal readiness
to participate in ongoing litigation suggests this case poses no special burden.

For these reasons, the Government has not established a “clear case of hardship or
inequity in being required to go forward” and indeed has not objected to allowing other parallel
cases to go forward. Accordingly, this factor weighs against a stay.

C. The Court, the public, and the public interest are all served by expeditious
resolution of this case.

Plaintiffs allege that the Trump Administration’s decision to terminate TPS was pre-
ordained and divorced from the review required by the TPS statute, and was motivated by
President Trump’s racial animus towards Haitians and other immigrants of color. Plaintiffs
allege that the TPS termination violated the Administrative Procedures Act and the Regulatory
Flexibility Act, was ulta vires, and violated the Due Process and Equal Protection Clauses of the
Constitution.

The public has an acute interest in ensuring that constitutional rights are upheld and that
arbitrary and capricious decisions by government actors are prohibited. The public interest and
the interests of non-parties weigh against a stay.

For the foregoing reasons, Plaintiffs respectfully request that the Court deny the
Government’s motion to stay this case.

Plaintiffs thank the Court for its consideration.

2
See, e.g., Centro Presente, et al. v. Trump, et al., No. 1:18-cv-10340 (D. Mass.); NAACP, et al.
v. Dept. of Homeland Security, et al., No. 1:18-cv-00239 (D. Md.); Casa De Maryland, Inc. et al.
v. Trump, et al., No. 8:18-cv-00845 (D. Md.).
3
It is particularly noteworthy that the Government has not moved to stay proceedings in Centro
Presente, a case in which discovery is proceeding in earnest, and, therefore, in which the
Government’s supposed burden would be greater than in other cases.
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Respectfully Submitted,

By: /s/ Ira J. Kurzban By: /s/ Sejal Zota

Ira J. Kurzban Sejal Zota
Kevin A. Gregg NATIONAL IMMIGRATION PROJECT OF THE
KURZBAN, KURZBAN, WEINGER, NATIONAL LAWYERS GUILD
TETZELI & PRATT, P.A. 14 Beacon Street, Suite 602
2650 S.W. 27th Ave., 2nd Floor Boston, MA 02018
Miami, FL 33133 Phone: (919) 698-5015
Phone: (786) 410-4706 sejal@nipnlg.org
ira@kkwtlaw.com

By: /s/ Geoffrey M. Pipoly

Geoffrey M. Pipoly
Christopher J. Ferro
Sara Norval
MAYER BROWN LLP
71 S. Wacker Drive
Chicago, IL 60606
Phone: (312) 782-0600
gpipoly@mayerbrown.com

cc: BY E.C.F.