Saget v. Trump: Plaintiffs' Proposed Findings and Conclusions

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., )
) No. 1:18-cv-01599
Plaintiffs, ) Kuntz, J.
) Tiscione, M.J.
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,
PLAINTIFFS’ PROPOSED FINDINGS OF FACT
AND CONCLUSIONS OF LAW
Ira J. Kurzban, (NY Bar No. 5347083) Christopher J. Houpt (NY Bar No. 4452462)
Kevin Gregg* MAYER BROWN LLP
KURZBAN, KURZBAN, 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: (305) 440-0060
ira@kktplaw.com Howard Roin*
Geoffrey M. Pipoly*
Sejal Zota* MAYER BROWN LLP
NATIONAL IMMIGRATION PROJECT OF THE 71 S. Wacker Drive
NATIONAL LAWYERS GUILD Chicago, IL 60606
89 South Street, Suite 603 Phone: (312) 782-0600
Boston, MA 02111 gpipoly@mayerbrown.com
Phone: (919) 698-5015
sejal@nipnlg.org Miriam Nemetz*
MAYER BROWN LLP
1999 K Street, N.W.
Washington, D.C. 20006
*Admitted Pro Hac Vice Phone: (202) 263-3253
mnemetz@mayerbrown.com
Attorneys for Plaintiffs

Plaintiffs respectfully submit their Proposed Findings of Fact and Conclusions of Law.
This submission includes (1) a brief procedural history; (2) a summary of the applicable statutory
provisions; (3) proposed findings of fact; and (4) proposed conclusions of law. Each section
contains numbered paragraphs, and each section begins with paragraph 1. Although the parties
have already submitted to the Court all of the testimony and exhibits cited herein, Plaintiffs also
submit all of the cited evidence with this filing for the Court’s convenience.
PROCEDURAL HISTORY
1. On March 15, 2018, Patrick Saget, Yolnick Jeune, Sabina Badio Florial, Jean
Claude Mompoint, Gerald Michaud, Leoma Pierre, Naïscha Vilme, Guerline Francoise, Beatrice
Beliard, Rachelle Guiriand, Family Action Network Movement, Inc. (“FANM”) and Haiti Liberté
(collectively, “Plaintiffs”) filed this action against President Donald Trump, the United States of
America, the Department of Homeland Security (“DHS”), Kirstjen Nielsen in her capacity as the
Secretary of DHS and Elaine C. Duke as Deputy Secretary of DHS (who was later replaced by
Claire M. Grady) (collectively, “Defendants”) seeking declaratory and injunctive relief. Compl.,
ECF No. 1. On May 31, 2018, Plaintiffs filed an Amended Complaint. Am. Compl., ECF No. 21.
2. Plaintiffs challenge then-Acting Secretary of Homeland Security Elaine C. Duke’s
termination of Temporary Protected Status (“TPS”) for Haiti, effective July 22, 2019. Plaintiffs
claim that the decision to terminate TPS for Haiti was arbitrary and capricious in violation of the
Administrative Procedure Act (“APA”); was based on a new and changed standard for conducting
TPS review, violating the APA as well as the Regulatory Flexibility Act; violated the Due Process
and Equal Protection clauses of the Fifth Amendment of the Constitution; and was ultra vires of
the Immigration and Nationality Act (“INA”).
3. On October 9, 2018, Defendants moved to dismiss the action under Fed. R. Civ. P.
12(b)(1) and 12(b)(6). The Court held oral argument on the motions on November 13, 2018. At the
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oral argument, the Court denied Defendants’ motion to dismiss in an oral ruling. Nov. 13, 2018
Tr. (“Tr.”), Dkt. 72. On December 14, 2018, the Court issued a written decision and order
explaining its ruling. Dkt. 96.
4. The Court held a four-day bench trial that commenced on January 7, 2019 and
concluded on January 10, 2019. During the trial, the Court heard testimony from eight witnesses
called by Plaintiffs. The witnesses included two individual plaintiffs, Rachelle Guirand and Naischa
Vilme; representatives of the two organizational plaintiffs, Haiti Liberté and the Family Action
Network Movement, Inc. (“FANM”); and four expert witnesses. The expert witnesses were Ellie
Happel and Brian Concannon, experts on country conditions in Haiti; Michael Posner, a former
Assistant Secretary of State and an expert on State Department practice and procedure; and Leon
Rodriguez, the former Director of the United States Citizenship and Immigration Services
(“USCIS”) and an expert on USCIS practice and procedure. Defendants called no witnesses. The
Court also received into evidence the deposition testimony of eight witnesses and hundreds of
exhibits. The Court then directed the parties to file proposed findings of fact and conclusions of law.
STATUTORY BACKGROUND
1. In the Immigration Act of 1990, Congress established a procedure for the Attorney
General to provide Temporary Protected Status (“TPS”) to immigrants in the United States when
specified conditions in their home country temporarily prevent their safe return. Congress
subsequently transferred the authority to designate a country for TPS to the Department of
Homeland Security (DHS). See Homeland Security Act of 2002, Pub. L. 107-296, 116 Stat. 2135,
2142–45, 2177–2212 (Nov. 25, 2002) and the Homeland Security Act of 2002 Amendments Act,
Pub. L. 108-7, 117 Stat. 11, 526–32 (Feb. 20, 2003).
2. After “consultation with the appropriate agencies of the Government,” the
Secretary of Homeland Security may designate a country for TPS “only if” she finds:
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(A) [] that there is an ongoing armed conflict within the state and,
due to such conflict, requiring the return of aliens who are nationals of that
state to that state (or to the part of the state) would pose a serious threat to
their personal safety;
(B) [] that—
(i) there has been an earthquake, flood, drought, epidemic, or other
environmental disaster in the state resulting in a substantial, but temporary,
disruption of living conditions in the area affected,
(ii) the foreign state is unable, temporarily, to handle adequately the
return to the state of aliens who are nationals of the state, and
(iii) the foreign state officially has requested designation under this
subparagraph; or
(C) [] that there exist extraordinary and temporary conditions in the
foreign state that prevent aliens who are nationals of the state from returning
to the state in safety, unless the [DHS Secretary] finds that permitting the
aliens to remain temporarily in the United States is contrary to the national
interest of the United States.
8 U.S.C. § 1254a(b)(1).
3. When DHS designates a country for TPS, immigrants from that country can apply
for protection from deportation and employment authorization, among other benefits. 8 U.S.C. §
1254a(a)(1). To be eligible for TPS, the immigrant must: be a national of the TPS-designated
country; have been present in the United States on the date of the initial designation, redesignation,
or extension; be otherwise admissible into the United States; and register within a specified time
frame. 8 U.S.C. § 1254a(c)(1)(A); 8 C.F.R. § 244.2. Immigrants who have been convicted of a
felony or two or more misdemeanors in the United States are categorically barred from TPS
eligibility. See 8 U.S.C. § 1254a(c)(2)(B). Immigrants who have committed a crime described in
8 U.S.C. § 1158(b)(2)(A), or who otherwise pose a danger to the security of the United States are
also ineligible for TPS. Id. TPS protects only eligible individuals present at the time of the
designation and does not affect the government’s ability to deport subsequent entrants or ineligible
individuals.
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4. The Act gives DHS the authority to grant TPS for a period of six to eighteen
months, and requires DHS to review that designation periodically thereafter. 8 U.S.C. §
1254a(b)(2). At least sixty days before a foreign state’s TPS expires, the Secretary, in consultation
with the other agencies, must review the conditions in the foreign state. 8 U.S.C. § 1254a(b)(3)(A).
The law sets forth a non-discretionary procedure for the Secretary to extend or terminate a TPS
designation. Unless the Secretary determines that a foreign state “no longer meets the conditions
for designation under paragraph (1)” of 8 U.S.C. § 1254a(b), the period of designation is
automatically extended for an additional period of at least six months. 8 U.S.C. § 1254a(b)(3)(C).
5. The Secretary’s decision to extend or terminate must follow directly from the result
of this inquiry into conditions. 8 U.S.C. § 1254(b)(3)(B)-(C). The statute does not limit successive
extensions. The decision must be timely published in the Federal Register. 8 U.S.C. §
1254a(b)(1)(C); 8 U.S.C. § 1254a(b)(3)(A)-(B).
6. The TPS statute does not grant the Secretary discretion to terminate TPS if
conditions in the foreign state warrant extension. Defendants admit that the Secretary’s authority
is “limited . . . to the language set forth in the TPS statute.” Nor does the statute limit successive
extensions.
FINDINGS OF FACT
I. LIST OF RELEVANT GOVERNMENT EMPLOYEES
1. The following is a list of Government and Trump Administration employees within
DHS and the White House at times relevant to the facts of this lawsuit.
• John Kelly: Secretary of Homeland Security, January 20, 2017—July 31, 2017; White
House Chief of Staff, July 31, 2017—January 2, 2019. Trump Administration political
appointee.
• Elaine Duke: Acting Secretary of Homeland Security, July 31, 2017—December 6,

2017; Deputy Secretary of Homeland Security, April 10, 2017—July 31, 2017 and
December 6, 2017—April 15, 2018.
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• Kirstjen Nielsen: Secretary of Homeland Security; December 6, 2017—Present; Chief
of Staff to Secretary of Homeland Security John Kelly, January 20, 2017—July 31,
2017; Deputy to White House Chief of Staff John Kelly, September 6, 2017—
December 6, 2017. Trump Administration political appointee.
• Gene Hamilton: Senior Advisor to Secretary Kelly; later, counselor to Attorney

General Jeff Sessions. Prior to Trump Administration, immigration advisor to then-
Senator Jeff Sessions. Member of the Trump Presidential Transition team. Trump
Administration political appointee.
• Stephen Miller: Immigration advisor to President Trump. Prior to Trump

Administration, communications director for then-senator Jeff Sessions. Member of the
Trump Presidential Transition team. Trump Administration political appointee.
• L. Francis Cissna: Director of United States Citizenship and Immigration Services

(“USCIS”), the agency within DHS responsible for recommending to the Secretary of
Homeland Security whether to designate, extend, or terminate TPS, October 5, 2017—
Present. Appointed by Trump Administration.
• James McCament: Acting Director of USCIS, April, 2017—October, 2017; Deputy

Director of USCIS, March, 2017—April, 2017 and October, 2017—Present.
• Kathy Nuebel Kovarik: Chief of Office of Policy and Strategy, USCIS, April, 2017—
Present; former staffer to Senator Chuck Grassley. Member of the Trump Presidential
Transition team. Trump Administration political appointee.
• Robert Law: Senior Advisor, Department of Homeland Security, October, 2017—

Present. Previously Director of Government Relations for the Federation of American
Immigration Reform. Trump Administration political appointee.
• James Nealon: Assistant Secretary of Homeland Security for International Affairs and
Acting Undersecretary for Policy, June, 2017—February, 2018. Former Ambassador
to Honduras, August, 2014—June, 2017.
• Brandon Prelogar: Career researcher/subject matter expert within USCIS Office of

Policy and Strategy. Civil service employee.
• Kathryn Anderson: Career researcher/subject matter expert within USCIS Office of

Policy and Strategy. Civil service employee.
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II. PURSUANT TO ACTS OF PRIOR ADMINISTRATION, HAITI WAS INITIALLY
DESIGNATED FOR TPS ON JANUARY 21, 2010, AND ITS TPS STATUS WAS
REDESIGNATED AND/OR EXTENDED THROUGH JULY 22, 2017.
2. On January 12, 2010, a 7.0 magnitude earthquake devastated the island nation of
Haiti. Haiti was first designated for TPS on January 21, 2010. PX 332.001. According to the
Federal Register notice:
The earthquake destroyed most of the capital city. Initial estimates indicate
that the death toll is substantial. The International Red Cross indicates that
about three million people-one-third of Haiti’s population-have been
affected by the earthquake.
Reports also indicate that concrete homes have collapsed and hospitals are
overflowing with victims. The Presidential Palace, the Ministry of Justice,
Parliament, the tax office and other government buildings, as well as the
United Nations headquarters, and the World Bank offices are among the
buildings reported to be destroyed or damaged. Hospitals and schools have
been destroyed. The Ministry of Public Works and the Ministry of
Communication and Culture have also been damaged.
The country’s critical infrastructure, including its capacity for the provision
of electricity, water, and telephone services, has been severely affected.
Food and water are increasingly scarce. Fuel shortages are emerging as an
immediate concern.
There is limited access to the capital city. Roads are blocked by debris and
other obstacles, and the collapse of the Croix de Mission Bridge has cut off
a major artery between Port-au-Prince and the northern part of the country,
making it more difficult to transport food, fresh water, and medical supplies.
Haiti’s main airport in Port-au-Prince, Toussaint L’Ouverture International
Airport, also has suffered significant damage that is hindering access to the
country.
Haiti has limited resources to cope with a natural disaster, and now has been
struck by its strongest earthquake in 200 years. Although a number of
organizations and countries have pledged humanitarian aid, the magnitude
of the disaster is substantial.
Given the size of the destruction and humanitarian challenges, there clearly
exist extraordinary and temporary conditions preventing Haitian nationals
from returning to Haiti in safety.
PX 332.002.
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3. The initial TPS designation was made pursuant to 8 U.S.C. § 1254a(b)(1)(C), which
allows designation where the Secretary finds “[] that there exist extraordinary and temporary
conditions in the foreign state that prevent aliens who are nationals of the state from returning to
the state in safety, unless the [DHS Secretary] finds that permitting the aliens to remain temporarily
in the United States is contrary to the national interest of the United States.”
4. The TPS designation allowed Haitian nationals to apply for TPS if they had been
“continuously physically present” in the United States since January 21, 2010 and had
“continuously resided” in the United States since January 12, 2010. The initial TPS designation
was effective through July 22, 2011. PX 332.001.
5. On May 19, 2011, DHS Secretary Janet Napolitano both extended the existing TPS
designation for Haiti for eighteen months from July 23, 2011 through January 22, 2013 and re-
designated Haiti for TPS for the same period. The redesignation “allow[ed] additional individuals
who have been continuously residing in the United States since January 12, 2011,” including
“certain Haitians who arrived in the United States following the January 12, 2010 earthquake in
Haiti,” to obtain TPS. PX 334.001-002.
6. In her formal explanation of the reasons for the redesignation and extension of
Haiti’s TPS, Secretary Napolitano stated that the earthquake had “exacerbated Haiti’s position as
the least-developed country in the Western Hemisphere and one of the poorest in the world,” where
80 percent of the population lived below the poverty line, and per capita gross domestic product
was under $2 per day. She specifically found that the cholera outbreak in Haiti exposed the public
health sector’s vulnerability, citing 199,497 cholera cases since the earthquake, including 112,656
hospitalizations and 3,927 deaths. PX 334.002.
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7. TPS for Haitian nationals was extended for 18-month intervals again in October
2012, March 2014, and August 2015. PX 336.001; PX 338.001; PX 339.001. In connection with
each extension, DHS outlined conditions arising from the January 12, 2010 earthquake in Haiti
and its attendant damage to infrastructure, public health, agriculture, transportation, and
educational facilities. Each extension also named the cholera epidemic and the exacerbation of
pre-existing vulnerabilities caused by the earthquake, including food insecurity and a housing
crisis, as contributing to the extension of TPS for Haitian nationals. PX 336.002; PX 338.002-003;
PX 339.002-003.
8. In the final extension of Haiti’s TPS designation on August 25, 2015, DHS
Secretary Jeh Johnson concluded that “many of the conditions prompting the original January 2010
TPS designation and the May 2011 redesignation persist, including a housing shortage, a cholera
epidemic, limited access to medical care, damage to the economy, political instability, security
risks, limited access to food and water, a heightened vulnerability of women and children, and
environmental risks. More than 5 years after the earthquake, Haiti continues to recover.” PX
339.002.
9. Secretary Johnson explained that:
“The January 12, 2010 earthquake caused extensive damage to the

country’s physical infrastructure and public health, agricultural, housing,
transportation, and educational facilities. The Haitian government estimates
that 105,000 houses were destroyed and 188,383 houses collapsed or
suffered considerable damage. At the peak of the displacement, estimates
of people internally displaced range from approximately 1.5 million to 2.3
million. While most of the earthquake related rubble has been cleared, and
there have been improvements to road conditions, the effort to rebuild
damaged buildings has been slow. Virtually all government offices and
ministries were destroyed in downtown Port-au-Prince and, 5 years later,
remain housed in temporary facilities.”
PX 339.002.
10. Secretary Johnson found that Haiti still faced a severe housing shortage:
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“While the country continues to make progress in relocating people made
homeless by the 2010 earthquake, estimates by the International
Organization for Migration in December 2014 put the number of Haitians
still living in internally displaced person (IDP) camps at approximately
80,000 scattered across 105 sites. Basic services available to camp residents
have deteriorated as IDP camps close and funding dries up, with most camps
lacking waste management services and adequate sanitation facilities—
leading to a high risk of cholera transmission—and possessing malnutrition
rates higher than emergency thresholds. Gender-based violence that exists
within these informal settlement areas continues to be a serious concern and
personal security is a serious and pervasive issue. While IDP camps are
closing, Haiti’s housing shortage remains far from resolved. Haiti lacks
sufficient housing units to address its pre-earthquake shortage, replace
damaged or destroyed units, and satisfy projected urban growth. Some
Haitians have returned to unsafe homes or built houses in informal
settlements located in hazardous areas without access to basic services.”
PX 339.002.
11. Secretary Johnson also concluded that “infrastructure damage since the earthquake
has also impacted food security.” He explained that “[d]amage from the 2010 earthquake
exacerbated Haiti’s historic food security challenges. An estimated 2.5 million people are unable
to cover their basic food needs and a January 2015 United Nations report estimated that over
600,000 people were facing severe food insecurity.” PX 339.002.
12. Secretary Johnson also noted that “Haiti’s longstanding public health challenges
were exacerbated by the January 2010 earthquake and an ongoing cholera epidemic that started in
October 2010.” He stated that “[t]he introduction of cholera in Haiti shortly after the earthquake,
and its persistence since then, is mainly due to the lack of access to clean water and appropriate
sanitation facilities. Concerted efforts by Haiti and its partners have reduced the number of
reported cholera cases in the country, but Haiti continues to host the largest cholera epidemic in
the Western Hemisphere.” PX 339.002.
13. He noted that, “[a]s of December 2014, the cholera epidemic has affected
approximately 725,000 people and claimed over 8,800 lives in Haiti since October 2010. In
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January 2015, the U.S. Centers for Disease Control and Prevention stated that outbreaks of
epidemic diseases still occur and that progress has been slow and limited in restoring Haiti’s
physical health infrastructure.” PX 339.002.
14. He noted that “Haiti’s ability to recover has been further constrained by political
instability.” As he explained,
“[t]he January 2010 earthquake had an immediate 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, 28 of 29 government ministry buildings, the National
Police headquarters, and various judicial facilities. Following the expiration
of local and parliamentary mandates on January 12, 2015, Haiti was left
without a functioning legislative branch or duly elected local authorities.
Increasingly, politically and economically motivated protests and
demonstrations have turned violent.”
PX 339.002.
15. Thus, Secretary Johnson concluded, “[a]lthough the Government of Haiti has taken
significant steps to improve stability and the quality of life for Haitian citizens, Haiti continues to
lack the adequate infrastructure, health and sanitation services, and emergency response capacity
necessary to ensure the personal safety of Haitian nationals.” PX 339.003.
III. WHILE CAMPAIGNING FOR THE PRESIDENCY AND WHILE IN OFFICE,

PRESIDENT TRUMP EXPRESSED HOSTILITY TO NON-WHITE
IMMIGRANTS, INCLUDING HAITIANS.
16. The decisions to terminate TPS for Haiti and other predominantly non-white
countries occurred in a climate infected by President Trump’s “America First” approach to
immigration, including numerous derogatory and animus-inflected statements by the President
against non-white immigrants. During his campaign, President Trump frequently made statements
characterizing non-white immigrants as inferior and undesirable, and expressing his view that they
should be kept out of the country. In June 2015, he started his presidential bid by disparaging South
and Central American immigrants:
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“When Mexico sends its people, they’re not sending their best. … They’re
sending people that have lots of problems, and they’re bringing those
problems with us. They’re bringing drugs. They’re bringing crime. They’re
rapists. And some, I assume, are good people... But I speak to border guards
and they tell us what we’re getting. … They’re sending us not the right
people. It’s coming from more than Mexico. It’s coming from all over South
and Latin America, and it’s coming probably— probably—from the Middle
East. But we don’t know. Because we have no protection and we have no
competence, we don’t know what’s happening. And it’s got to stop and it’s
got to stop fast.”
PX 261 (video exhibit). Later that month, he stated on Twitter that “[d]ruggies, drug
dealers, rapists and killers are coming across the southern border. When will the U.S. get
smart and stop this travesty?” PX 262.001.1
17. On June 28, 2015, in a televised interview on CNN, then-candidate Trump defended
his statements, stating:
“[Y]ou have people coming through the border that are from all over. And
they’re bad. They’re really bad. I’ve spoken to border guards and I said how
bad is it? And they said, ‘Mr. Trump, you have no idea how bad.’ But you
have people coming in and I’m not just saying Mexicans, I’m talking about
people that are from all over that are killers and rapists and they’re coming
into this country. . . I don’t think it’s a small percentage, it’s a lot. But it’s
not Mexicans necessarily, they’re coming from all over.”
PX 264.011-012. On July 6, 2015, candidate Trump released a written statement in which he
asserted that “[t]he United States has become a dumping ground for Mexico and, in fact, for many
other parts of the world.” PX 266.002.
18. President Trump’s expressions of animus toward non-white immigrants continued
after his election and inauguration. In public statements in May and June of 2018, for example,
President Trump referred to immigrants entering the country illegally as “animals” who “aren’t
1
Defendants do not deny that these statements and those cited in the next three paragraphs were
made, but objected on the grounds of relevance and waste of time. See Pretrial Order, ECF Dkt.
114-1, at 7, 9. These statements are relevant and admissible because they demonstrate that
President Trump’s immigration policies were animated by animus toward immigrants of color.
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people” (PX 295 (video exhibit)); stated that Democrats would allow immigrants to “pour into and
infest our Country, like MS-13” (PX 298.001); and said that “[w]e cannot allow all of these people
to invade our Country.” PX 299.001.
19. While in office, President Trump made statements reflecting his explicit bias
against Haitians and immigration by Haitians. In June 2017, during a meeting in the Oval Office
with then-DHS Secretary John Kelly and Secretary of State Rex Tillerson, President Trump
reacted to a document listing how many immigrants had received visas to enter the U.S. in 2017.
Upon learning that 15,000 Haitian people had received such visas, President Trump stated that
they “all have AIDS.” PX 369.001; PX 351.017-018 at ¶ 61; PX 350.009 at ¶ 61. During that same
meeting, President Trump also learned that 40,000 immigrants from Nigeria had received visas to
enter the U.S. in 2017. He reacted by stating that, once they had seen the U.S., these Nigerian
immigrants would never go back to their “huts” in Africa. PX 369.001; PX 351.017-018 at ¶ 61;
PX 350.009 at ¶ 61.2
20. During a January 11, 2018, meeting attended by several U.S. Senators and DHS
Secretary Kirstjen Nielsen, President Trump disparaged a draft immigration plan that protected
people from Haiti, El Salvador, and some African countries, asking “Why are we having all these
people from shithole countries come here?” President Trump asked, “why do we need more
Haitians,” and ordered the bill’s drafters to “take them out.” In the same meeting, President Trump
expressed his preference for more immigrants from places like Norway, where the population is
2
Plaintiffs alleged in the Amended Complaint that the statements discussed in this paragraph were
made (PX 351.017-018 at ¶ 61), and Defendants did not deny the assertions in their Answer (PX
350.009 at ¶ 61). Accordingly, the allegations are deemed to have been admitted. See Fed. R. Civ.
P. 8 (“An allegation—other than one relating to the amount of damages—is admitted if a
responsive pleading is required and the allegation is not denied.”); Weitnauer Trading Company
Ltd. v. Annis, 516 F.2d 878, 880–81 (2d Cir.1975) (holding that the complaint’s “averment was
admitted by appellant’s failure to deny”).
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more than 90 percent white. PX 351.018 at ¶ 62; PX 350.009 at ¶ 62; PX372.0013 Secretary
Nielsen later confirmed during congressional testimony that President Trump had expressed
concern about excluding immigrants from European countries and had expressed admiration for
people from Norway. PX 352 (video exhibit, at time index 1:39-2:55).
21. The Trump Administration also targeted Haiti in connection with the H-2A and H-
2B visa programs. Under these programs, citizens of participating countries may apply for
temporary work visas in certain fields. Although these programs previously included Haiti, the
Trump Administration specifically targeted and then terminated Haiti’s participation on the basis
of outdated reports regarding visa overstays. PX 319.001-004; PX 320.001-003; Tr. 308:7-309:4
(expert witness and former director of USCIS Leon Rodriguez “would have wanted to see current
data demonstrating what the current overstay rate and the current refusal rate were before
entertaining such a decision”).
IV. AFTER PRESIDENT TRUMP TOOK OFFICE, HIS POLITICAL APPOINTEES

PROMPTLY BEGAN TAKING STEPS TO TERMINATE HAITI’S TPS
DESIGNATION.
A. The TPS Review Process Begins With Career Subject Matter Experts at
RAIO, Whose Country Conditions Assessments Are Supposed to Receive
Great Deference within DHS.
22. The “process for gathering information to inform decision makers relating to the
period review for TPS” begins in the Refugee Asylum and International Operations (“RAIO”)
directorate, a subdivision of USCIS. Prelogar Dep. Tr. 31:1-8. RAIO contains a country conditions
unit that is staffed by career civil servants specializing in country conditions research. Trial Tr.
232:6-233:23.
3
As with the statements in the prior paragraph, Plaintiffs alleged in the Amended Complaint that
these statements were made (PX 351.018 at ¶ 62),and Defendants did not deny the assertions in
their Answer (PX 350.009 at ¶ 62). Accordingly, the allegations have been admitted.
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23. RAIO creates a “country conditions assessment for the relevant country,” (the
“RAIO Report”). Prelogar Dep. Tr. 31:9-10. As former USCIS Director Leon Rodriguez testified
at trial, the drafting of the RAIO Report is “the very first thing that occurs within USCIS” in the
TPS review process. Trial Tr. 232:17-233:6. The RAIO researchers who draft the RAIO Report
are not “political appointees” and the RAIO Report is fact-based. Trial Tr. 233:15-23 (Rodriguez).
Indeed, the RAIO Report is a mechanism to “determine the . . . current conditions in a country that
is being considered for an extension [of TPS],” (Prelogar Dep. Tr. 32:19-33:2) in order to “provide
an assessment about whether . . . the statutory conditions continue to be met with respect to a TPS
designation.” Prelogar Dep. Tr. 34:8-10. Because the RAIO report provides the “factual predicate”
for USCIS’s recommendation to the DHS Secretary, it plays a crucial role in the ultimate decision
whether to extend or terminate TPS. Trial Tr. 233:9-14 (Rodriguez).
24. Once the RAIO Report is complete, it is used “to then create a decision memo from
the director [of USCIS] to the Secretary of Homeland Security relating to the TPS . . . decision”
(the “Director Memo”). Prelogar Dep. Tr. 31:19-22. The Director Memo is a “distill[ed]” version
of the more comprehensive RAIO Report. Trial Tr. 235:20-21 (Rodriguez). Thus, relying on the
RAIO Report, the USCIS Office of Policy and Strategy drafts the Director Memo and sends it to
“the Director to send to the Secretary” of Homeland Security. Kovarik Dep. Tr. 28:12-16.
25. As Director Rodriguez testified at trial, the purpose of the Director Memo is to
“give[] the secretary everything they need” to make an informed decision on whether to designate,
extend, or terminate TPS. Trial Tr. 235:20-21. Because the DHS Secretary holds a “tremendous
number of responsibilities,” she looks “to the USCIS, to the director, to [its] staff, as the experts
on Temporary Protected Status,” (Trial Tr. 235:6-14 (Rodriguez)), and gives a “high level of
deference” to the USCIS Director’s TPS recommendation. Trial Tr. 246:5-10 (Rodriguez).
15
26. This process of TPS review is longstanding. Director Rodriguez—who himself
participated in a dozen or more decisions to designate, extend, or terminate countries’ TPS (Trial
Tr. 213:20-25, 216:8-24; PX 330.02)—testified that this process was firmly established for “a long
while” before he became USCIS Director. Trial Tr. 244:21-245:22.
B. In December, 2016 and February, 2017—Before Trump Administration

Officials Were Fully In Place at DHS—USCIS Researchers Assessed That
Conditions in Haiti Were Bleak.
27. The December, 2016 RAIO Report painted a bleak picture of country conditions in
Haiti. The Report found that although Haiti
continues to make progress in a variety of fields, the pace and scope of

recovery has been uneven, and the country remains vulnerable to external
shocks and internal fragility. Many of the conditions prompting the original
January 2010 TPS designation persist, including a housing shortage, a
cholera epidemic and limited access to medical care, damage to the
economy (including extensive damage to Haiti’s physical infrastructure),
political instability, security risks, food insecurity, and environmental risks
(as exemplified by the impact of Hurricane Matthew in October 2016).
PX 326.001.
28. With respect to Haiti’s housing situation, the December, 2016 RAIO Report found
that “significant challenges remain.” PX 326.001. For example, the December, 2016 RAIO report
found that although the number of Haitians living in internally displaced person (“IDP”) camps
had declined since the 2010 earthquake, over 55,000 Haitians were still living in IDP camps. PX
326.002. “However, many individuals who have left the camps have 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. PX 326.002 (internal quotation marks
omitted); see also Trial Tr. 49:19-50:1 (Happel) (many buildings that displaced people returned to
after leaving camps were “uninhabitable,” “in need of repair,” suggesting that “many individuals
who had [at] one point . . . been living in camps were in fact returning to homes that were not
16
sound”); Trial Tr. 473:1-4 (Concannon) (“[S]urveys [of IDPs] shows lots of people went back to
houses that had been declared dangerous but were not repaired, so they are living in houses that
could tumble again.”).
29. Moreover, “living conditions in IDP camps have progressively worsened as many
humanitarian programmes have ended due to lack of funding and in line with the overall strategy
of closing camps.” PX 326.002 (internal quotation marks omitted).
30. The December, 2016 RAIO Report also found that the cholera epidemic in Haiti—
which began after the 2010 earthquake, allegedly “introduced [to Haiti] by UN peacekeepers—
remained a significant issue. Haiti’s cholera epidemic was “reportedly the largest such epidemic
ever registered;” and “[s]ince October, 2010, close to 800,000 Haitians have contracted cholera
and nearly 10,000 people have been killed by the disease.” PX 326.003; see also Trial Tr. 60:4-12
(Happel) (“[I]n the first six months of the epidemic, an estimated 4,000 people were killed. In 2010
and 2011 Haiti accounted for one in two cases of cholera worldwide.”).
31. The December, 2016 RAIO Report also explained that the 2010 earthquake “caused
$7.8 billion in damages and losses to the country’s economy,” which is “equivalent to more than
120 percent of Haiti’s 2009 gross domestic product.” The earthquake “destroyed over 90% of the
buildings in Port-au-Prince, Haiti’s capital, including hospitals, schools, physical infrastructure
and transportation facilities.” PX 326.004.
32. Political instability was also a major problem in Haiti, according to the 2016 RAIO
Report: “The January 2010 earthquake had an immediate 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.” PX 326.004.
17
33. The December, 2016 RAIO Report also concluded that the 2010 earthquake
negatively impacted basic security, food security, and the environment in Haiti, and that the
damage done in those areas had not remediated since. PX 326.005-006.
34. The December, 2016 RAIO Report also addressed the damage caused by Hurricane
Matthew—which hit the island just two months earlier, in October, 2016. The RAIO Report noted
that Hurricane Matthew was “the strongest storm to hit Haiti in more than 50 years,” and that the
damage it caused was extensive, “at a time when the country is already facing an increase in the
number of cholera cases and severe food insecurity and malnutrition.” Following Hurricane
Matthew, some towns in Haiti were “in a state of near total destruction . . . almost wiped off the
map.” Because of Hurricane Matthew, more than “175,000 people were displaced, and at least 546
individuals have died. By mid-December 2016 as many as 1.4 million people were in need of
humanitarian assistance, while 806,000 people were severely food insecure.” PX 326.007-008.
35. The December, 2016 RAIO Report concluded that Haiti remained “fragile and
vulnerable” and continued to “face[] serious challenges”:
With the support of the international community, Haiti continues to rebuild

following the 2010 earthquake. However, Haiti’s progress remains fragile
and vulnerable, and the country faces serious challenges, including a
housing shortage, a cholera epidemic and limited access to medical care,
damage to the economy, political instability, security risks, food insecurity,
and considerable environmental risk. The deleterious impact of Hurricane
Matthew in October 2016 has further hindered Haiti’s ability to recover
from the 2010 earthquake.
PX 326.008.
36. The December 2016 RAIO Report was consistent with an assessment by the State
Department that same month. On December 12, 2016, then-Secretary of State John Kerry
recommended that TPS for Haiti be extended “because certain extraordinary and temporary
conditions related to the 2010 earthquake continue to exist.” Although Secretary Kerry did not
18
recommend redesignation of Haiti’s TPS based solely on Hurricane Matthew’s impact, and noted
that certain conditions had improved somewhat since the earthquake, he nonetheless noted at least
four significant problems that continued to plague Haiti: (1) over 55,000 Haitians were still living
in camps for the internally displaced; (2) gender-based violence continued to be a “serious
concern;” (3) “personal security continues to be a serious and pervasive issue;” and (4)
infrastructure damage to housing in Haiti remain[s].” Accordingly, “Haiti lacks capacity to ensure
the safe return of the 59,000 TPS beneficiaries to the United States.” DX M at 1.
37. In early February 2017, RAIO produced an addendum to its December 2016 RAIO
Report which further detailed Hurricane Matthew’s destructive impacts (the “Hurricane Matthew
Addendum”). In this document, RAIO concluded that the existing crises were “exacerbated by the
impact of Hurricane Matthew.” PX 009.001.
38. The Hurricane Matthew Addendum found that it “will likely take Haiti years to
recover from the damages of Hurricane Matthew,” and that “[o]f the 2.1 million people who were
impacted by Hurricane Matthew in Haiti, close to 1.4 million remain in need of some form of
humanitarian assistance.” For example, Hurricane Matthew “caused an increase in the number of
suspected [cholera] cases;” and left over 175,000 people without housing. PX 009.001-002.
C. In the Spring of 2017, President Trump’s Political Appointees—at the

Direction of DHS Secretary John Kelly—Repeatedly Instructed Their
Subordinates to Gather Criminality, Welfare, and Immigration Status Data
About Haitian TPS Recipients, In an Effort to Find a Justification for
Terminating Haiti’s TPS.
39. Kathy Nuebel Kovarik, a Trump Administration political appointee, assumed the
role as the Chief of the USCIS Office of Policy and Strategy in the first week of April 2017. She
had worked in another capacity at USCIS for weeks before then. Kovarik Dep. Tr. 52:5-14; PX
309.001-004.
19
40. On Friday, April 7, Trump appointee and Senior Counselor to Secretary Kelly Gene
Hamilton—who days earlier had “prognosticat[ed]” that Kelly “may wish to terminate” TPS for
Haiti (PX 012.001)—sent an email to Kovarik, among others, relaying a directive from Secretary
Kelly to gather data related to Haitian TPS recipients. Specifically, Hamilton wrote that Kelly
wanted to know, among other things, how many Haitian TPS recipients were “on public and
private relief” and “how many have been convicted of crimes of any kind.” PX 103.001.
41. When asked what he meant by “public or private relief,” Hamilton testified that he
meant “welfare.” Hamilton Dep. Tr. 253:3-5.
42. Hamilton testified he did not remember whether Secretary Kelly sought crime and
welfare data for any TPS population other than Haitians. Hamilton Dep. Tr. 256:20-257:2.
43. Former USCIS Director Rodriguez testified that during his time as Director he did
not consider crime rates of TPS beneficiaries when deciding whether to recommend an extension
or termination of TPS. Director Rodriguez explained that is because “by definition, you do not
qualify to receive TPS in the first place if you are a convicted criminal, either in the United States
or in another country, if [USCIS had] records that show you were convicted in another country.
And if you are convicted while you were on TPS, your TPS would ordinarily be . . . terminated . . .
based on that conviction.” Trial Tr. 255:25-256:6.
44. Director Rodriguez added: “[I]f somebody is convicted of a crime while they are
on TPS, ordinarily Immigrations and Customs Enforcement, which is the enforcement agency
within the Department of Homeland Security, would . . . initiate proceedings . . . to terminate their
TPS, and then to potentially place that personal in deportation proceedings.” Trial Tr. 257:24-
258:5.
20
45. Hamilton’s April 7, 2017 email cautioned its recipients to keep the purpose of
Secretary Kelly’s directive to obtain criminality and welfare data about Haitian TPS recipients a
secret. Hamilton wrote: “[i]f you need a specific data set and need to ask someone to pull it, please
do not indicate what it is for. I don’t want this to turn into a big thing where people start prodding
and things start leaking out.” PX 103.001.
46. On April 7, 2017, Kovarik emailed USCIS career researchers Brandon Prelogar and
Kathryn Anderson, instructing them to gather crime and welfare data about TPS recipients
originally requested by Secretary Kelly. PX 015.011. The instructions Kovarik sent mirrored those
in Kelly’s directive. Compare PX 103.001 with PX 015.011.
47. In their combined nine years working as USCIS researchers, (see Prelogar Dep. Tr.
15:9-10; Anderson Dep. Tr. 17:8-14), neither Prelogar nor Anderson had ever previously been
asked to gather criminality or welfare data about a TPS population. Anderson Dep. Tr. 307:16–
308:11; Prelogar Dep. Tr. 110:22–118:20.
48. Kovarik’s April 7, 2017 email also asked for data about “how often [Haitian TPS
recipients] travel back and forth to the island.” PX 015.011. Kovarik described her April 7, 2017
email and Gene Hamilton’s April 7, 2017 email as “nearly identical.” Kovarik Dep. Tr. 74:15.
49. Later on April 7, 2017, Prelogar replied to Kovarik’s instructions. As to the
instruction to gather data about how many Haitian TPS recipients were on “public and private
relief,” Prelogar explained that these data were “[n]ot available specific to TPS holders.” PX
015.010.
50. Anderson also replied to Kovarik’s April 7, 2017, expanding on Prelogar’s email.
Anderson explained that welfare data “specific to TPS holders is not available, but in general, TPS
holders don’t qualify for federal benefits.” PX 015.008.
21
51. On April 10, 2017, DHS staffer Alexander King wrote in an email to Kovarik and
others that he had “been unable to verify whether we can systematically pull electronic criminality
data” for TPS recipients. PX 015.004.
52. On April 25, 2017, Kirstjen Nielsen—who at the time was Chief of Staff to
Secretary Kelly—emailed Hamilton, Acting USCIS Director James McCament, and USCIS staffer
Carl Risch, again relaying Kelly’s desire for criminality and welfare data about Haitian TPS
recipients. Nielsen wrote that Kelly wanted to know:
(1) How many current Haitian TPS folks were illegal pre-TPS
designation?
(2) Since designation, how many have committed crimes?
(3) Since designation, how many are on public assistance? Out of work?
(4) Can we describe what has changed in Haiti warranting the
recommended change (this many be in the memo but I have not seen
it is yet)-would include if verified items such as rebuild of palace,
build of [sic] army, change in UN list, 4-5% growth in GDP.
PX 342.001.
53. A few hours later on April 25, 2017, Kovarik emailed her subordinates “with a
request for data on Haitians with TPS.” PX 015.003. Kovarik’s requests were worded identically
to three of Nielsen’s requests. Specifically, Kovarik wrote that she wanted to know:
designation?
***
***
PX 015.003.
54. In her email, Kovarik acknowledged that data about the criminality of TPS
populations was “difficult to obtain” but instructed USCIS research staff to determine “how can it
be obtained . . . .” PX 015.003.
22
55. Later on April 25, 2017, Anderson responded to Kovarik’s latest email. With regard
to the number of Haitian TPS recipients who were “illegal pre-TPS designation,” Anderson
explained that the “TPS statute does not require individuals to have lawful status in order to qualify
for TPS.” With regard to the number of Haitian TPS recipients on public assistance, Anderson
explained—as she had already done on April 7, 2017—that “TPS beneficiaries are not eligible for
the majority of public benefits. We know of no way internal to USCIS or DHS to determine
whether TPS beneficiaries are on public assistance or out of work.” PX 015.002.
56. Kovarik testified at her deposition could not recall whether she knew that the TPS
statute does not require that TPS recipients have lawful status at the time of a TPS designation
until Kathryn Anderson informed her on April 25, 2017. Kovarik Dep. Tr. 99:13-19. Kovarik was
asked, “in spite of the fact that the statute does not require individuals to have lawful status in order
to qualify for TPS, you were still asking for their status . . . correct?” Kovarik Dep. 103:12-17.
Kovarik responded, “I don’t know if the TPS statute precludes us from asking that question.”
Kovarik Dep. Tr. 103:20-22.
57. On April 27, 2017, Kovarik again emailed USCIS research staffers, writing,
“thanks so much for your help on these data requests,” but cautioned that “the Secretary is going
to be sending a request to us to be more responsive. I know that some of [the data] is not captured,
but we’ll have to figure out a way to squeeze more data out of our systems. So, we may as well
get started.” PX 015.001.
58. DHS communications confirm that the inquiries about criminality and welfare data
were designed to bolster a decision to terminate Haiti’s TPS. On April 28, 2017, at 1:50 PM, the
Office of the USCIS Executive Secretary sent an email to “Policy Clearance.” PX 119.001. The
Office of the Executive Secretary is the office within USCIS that “would distribute a document
23
for review by various entities within USCIS. . . . They would provide the administrative function
of circulating it to the right people who needed to review it.” Anderson Dep. Tr. 133:14-21.
59. The email requested a “memo in regards to the Notice for the termination of TPS
for Haiti.” PX 119.001 (emphasis added)), and specifically directed that the criminality and
welfare “questions asked by [Secretary Kelly] should be included in the memo:”
designation?
(4) Can we describe what has changed in Haiti warranting the
recommended change (this many be in the memo but I have not seen
it is yet)-would include if verified items such as rebuild of palace,
build of [sic] army, change in UN list, 4-5% growth in GDP.
PX 119.001.
60. On May 15, 2017, USCIS Director James McCament sent a supplemental
memorandum which directly addressed Secretary Kelly’s requests for criminality and legality data
about Haitian TPS recipients. PX 139.001. The memorandum stated: “Information regarding
whether TPS beneficiaries have committed crimes is not currently available through USCIS
systems.” PX 139.004. The memorandum went on: “Regarding immigration status at the time of
application, the TPS statute does not require individuals to have lawful status in order to qualify
for TPS.” PX 139.004.
61. Although DHS tried to keep Director Kelly’s inquiries about criminality and
welfare data concerning Haiti TRS recipients secret, on May 9, 2017, these inquiries were reported
in the press. Acting USCIS Director McCament forwarded to Kovarik an email chain containing
two articles reporting on Kovarik’s instructions: one from the Associated Press, and one from
Politico Pro. PX 124.002-006. The Associated Press article quoted directly Kovarik’s April 27,
2017 instruction to “squeeze [out] more data” about Haitian TPS recipients; it also quoted
24
Kovarik’s April 28, 2017 instruction to “find any reports of criminal activity” by Haitian TPS
recipients. PX 124.002-003.
62. The press leak occurred shortly before Secretary Kelly’s planned announcement of
the decision whether to extend Haiti’s TPS, which was scheduled for May 22, 2017. DHS decided
to deny that its inquiries about criminality and welfare had anything to do with the TPS decision.
Thus, on Saturday, May 20, 2017, DHS’s Office of Public Affairs circulated an email with draft
talking points for a press conference scheduled for the following Monday, May 22, 2017, at which
Secretary Kelly’s decision on Haiti’s TPS would be announced. PX 126.005-008.
63. One of the talking points was: “Were crime and public benefits data used to make
the decision? No, criminal history and public benefit usage was not used as criteria for the TPS
determination. The decision was based on whether Haiti met the statutory conditions for TPS.” PX
126.006.
64. Another of the talking points was: “Why secretary Kelly requested data on TPS
Haiti recipients to USCIS staff? Secretary Kelly, separate and distinct from the decision on TPS
for Haiti, asked DHS staff for information to increase his understanding of how the TPS program
operates and the elements of information we have on program recipients.” PX 126.007.
65. Another of the talking points was: “How much did information about criminal
activity by Haitians in the US factor into the decision? None.” PX 126.007.
D. In the Spring of 2017 President Trump’s Political Appointees Instructed That

The USCIS Director’s Decision Memo—On Which the DHS Secretary Relies
in Making TPS Decision—Be Rewritten From Recommending Extension of
Haiti’s TPS to Recommending Termination of Haiti’s TPS.
66. On March 2, 2017, the Office of the USCIS Executive Secretary received a draft
Director Memo and draft Federal Register notice (“FRN”) regarding Haiti’s TPS. PX 011.004-
005. As the cover email explained, the draft Director Memo circulated on March 2, 2017
25
“discuss[ed] relevant country conditions in Haiti and explain[ed] USCIS’s recommendation that
the Secretary extend the TPS designation of Haiti. Following a decision by the Secretary, the FRN
would alert the public that the designation for TPS of Haiti is being extended.” PX 011.004. The
draft Director Memo and draft FRN were delivered to the Director’s office for approval on March
6, 2017. PX 011.003.
67. The Director Memo circulated on March 2, 2017 recommended that Secretary
Kelly “extend Haiti’s designation for TPS for 18 months . . . through January 22, 2019.” PX
144.001. This Director Memo tracked the December, 2016 RAIO Report, explaining:
[A]lthough Haiti continues to make progress in recovering from the 2010

earthquake, many of the conditions prompting Haiti’s designation for TPS
persist. Hurricane Matthew, which struck Haiti on October 4, 2016, has also
significantly contributed to continued extraordinary and temporary
conditions in Haiti that prevent Haitian nationals from safely returning to
Haiti.
PX 144.002. Certain parts of this language came directly from the December, 2016 RAIO Report.
Compare PX 144.002 (“[M]any of the conditions prompting Haiti’s designation for TPS persist.”)
with PX 326.001 (“Many of the conditions prompting the original January 2010 designation
persist.”).
68. This Director Memo also described housing and infrastructure shortages, and
“damage to the economy, health, sanitation services, security risks, and emergency response
capacity,” which it described as the “[l]ingering effects of the 2010 earthquake.” PX 144.002. In
addition, the memo described the damage from Hurricane Matthew and a cholera epidemic, noting
that, since October 2010, “close to 800,000 Haitians have contracted cholera.” PX 144.003.
26
69. Trump political appointees in DHS began discussing ways to change the conclusion
of the Director Memo. On March 19, 2017 Kovarik received an email; the name of the author of
the email is redacted.4 The author of the March 19, 2017 email recognized Haiti’s many
“challenges”—including a “recent hurricane that has caused new problems in Haiti.” Nevertheless,
the author indicated that problems not directly traceable to the 2010 earthquake could be ignored
in the TPS analysis:
As the [Director Memo] confirms, virtually all of [Haiti’s] challenges—

from political instability to food insecurity—are long-standing, intractable
problems. Issues related specifically to the 2010 earthquake, however, have
been largely addressed. For example, 98% of the housing sites for people
displaced by the earthquake have closed.
That being said, all of the problems caused by the earthquake are not
necessarily solved (nor need they be to have TPS terminated), and a recent
hurricane has caused new problems in Haiti . . . .In fact, as you know, ICE
resumed removals to Haiti last year because of the improving situation.
PX 309.002.
70. The political appointees directed that the Director Memo be revised to provide an
option to terminate Haiti’s TPS. Thus, on March 24, 2017, Mark Boivin, a USCIS project manager,
emailed USCIS career researchers Brandon Prelogar and Kathryn Anderson. PX012.002.
Anderson and Prelogar are not Trump Administration political appointees. Boivin wrote: “I
understand that [the Director Memo for Haiti TPS] will now be an action/decision memo and one
of the options will be to terminate. . . .” PX 012.002.
71. Prelogar responded: “The word you got regarding refashioning the memo to
provide options is right, including termination . . . Ultimately, we’re (USCIS) still going to assess
4
Even though this email is plainly responsive to Plaintiffs’ discovery requests in this case—it is a
USCIS email chain with the subject line “Haiti TPS”—it was not produced by Defendants in this
litigation. Accordingly, the only version of the document in the record is a heavily-redacted version
that Plaintiffs obtained in separate Freedom of Information Act (“FOIA”) litigation. In the redacted
email, the name of the sender is obscured.
27
that conditions continue to be met and that extension is warranted.” PX 012.001. But, Prelogar
added, “given the prognostication by [DHS Secretary John Kelly’s] senior counselor that
[Secretary Kelly] may wish to terminate, it may well be a good idea, time permitting, to at least
begin to draft up a termination memo so that, in the event [Secretary Kelly] does decide to end
Haiti TPS, we’re ready to provide the FRN to do it.” PX 012.001. As of March 24, 2017, the Senior
Counselor to Secretary Kelly was Trump Administration political appointee Gene Hamilton.
Hamilton Dep. Tr. 26:11-19.
72. On March 28, Prelogar sent the revised Director Memo for interoffice review, “as
we’ve committed to get the redraft up to the [USCIS front office] by the end of the week.” PX
012.001. The end of that week was March 31, 2017.
73. The following week, which began on April 3, 2017, Trump political appointee
Kathy Nuebel Kovarik assumed the role of Chief of USCIS’s Office of Policy and Strategy.
Kovarik Dep. Tr. 52:5-14.
74. On April 3, 2017, the Office of the Executive Secretary received the “updated TPS
Haiti Decision Memo,” i.e. the Director Memo. The April 3, 2017 draft of the Director’s Memo
“now include[d] options for the Acting Director’s approval,” including termination of Haiti’s TPS
but ultimately recommended extension. PX 011.001.
75. The April 3, 2017 Director Memo noted the “extraordinary and temporary
conditions” that continued to prevent the safe return of Haitians:
[A]lthough Haiti continues to make progress in recovering from the 2010

earthquake, many of the conditions prompting Haiti’s designation for TPS
persist. Hurricane Matthew, which struck Haiti on October 4, 2016, has also
significantly contributed to continued extraordinary and temporary
conditions in Haiti that prevent Haitian nationals from safely returning to
Haiti.
28
PX 143.002. The April 3, 2017 Director Memo also described housing and infrastructure
shortages, and “damage to the economy, health, sanitation services, security risks, and emergency
response capacity,” which it described as the “[l]ingering effects of the 2010 earthquake.” PX
143.002. In addition to describing the damage from Hurricane Matthew, the memo noted the
continuing effects of the cholera epidemic that infected “close to 800,000 Haitians” since October
2010. PX 143.003. These portions of the April 3, 2017 Director Memo are identical to the version
of the Director memo that circulated on March 2, 2017. Compare PX 144.002-003 with PX
143.002-003.
76. Unlike the March 2 version, which only recommended extension of TPS, the April
3, 2017 Director Memo presented three options: extend TPS for Haiti; terminate TPS for Haiti; or
redesignate TPS for Haiti, coupled with an extension of the current designation. PX 143.003-004.
Ultimately, the April 3, 2017 Director Memo stated that “USCIS assesses that extension, rather
than termination of Haiti’s TPS designation is warranted and recommends an extension of 18
months.” PX 143.005.
77. By April 10, 2017, the Director Memo had been rewritten yet again; this time, the
recommendation was for “termination of Haiti’s TPS designation . . . .with an effective date of
January 22, 2018.” PX 122.006. To reach that result, the memo was revised to minimize or remove
altogether factual findings that painted a bleak picture of Haiti’s country conditions.
78. For example, the March 2, 2017 and April 3, 2017 Director Memos each found:
“[A]lthough Haiti continues to make progress in recovering from the 2010 earthquake, many of
the conditions prompting Haiti’s designation for TPS persist.” PX 144.002; 143.002. By contrast,
the April 10, 2017 Director Memo purged the earlier drafts’ reference to the “persist[ance]” of
conditions warranting continued designation, stating instead: “Haiti has made significant progress
29
in recovering from the 2010 earthquake and no longer continues to meet the conditions for
designation.” PX 122.003.
79. The revisions to the Director Memo also shifted focus away from conditions not
“specific” to the 2010 earthquake. The March 2, 2017 and April 3, 2017 Director Memos each
stated: “Lingering effects of the 2010 earthquake remain in housing, infrastructure, damage to the
economy, health, sanitation services, security risks, and emergency response capacity.” PX
144.002; PX 143.002. By contrast, the April 10, 2017 Director Memo stated: “While lingering
effects of the 2010 earthquake remain in housing, infrastructure damage to the economy, health,
sanitation services, security risks, and emergency response capacity, Haiti has made significant
progress in addressing issues specific to the earthquake.” PX 122.003.
80. Similarly, the revisions to the Director memo minimized the relevance of current
housing deficits because they existed “before the 2010 earthquake.” Specifically, the March 2,
2017 and April 3, 2017 Director Memos each stated: “Over 55,000 of the estimated 2 million
Haitians who lost their homes in the earthquake are still living in 31 camps for internally displaced
persons without viable options to leave.” PX 144.002; PX 143.002. By contrast, the April 10, 2017
Director Memo stated: “96 percent of people displaced by the earthquake and living in internally
displaced person . . . camps have left those camps. Over 98 percent of the IDP camps have closed.
While those persons who have left the camps have not necessarily moved into ideal housing, Haiti
had a substantial housing deficit long before the 2010 earthquake.” PX 122.003.
81. The March 2, 2017 and April 3, 2017 Director Memos each found: “Hurricane
Matthew, which struck Haiti on October 4, 2016, has also significantly contributed to continued
extraordinary and temporary conditions in Haiti that prevent Haitian nationals from safely
returning to Haiti.” PX 143.002; PX 144.002. By contrast, the April 10, 2017 Director Memo
30
found: “Hurricane Matthew, which struck Haiti on October 4, 2016, has contributed to suffering
in Haiti, but this suffering was confined to 3 of Haiti’s 10 departments, and the damage did not
halt Haiti’s overall recovery trajectory.” PX 123.003.
82. The April 10, 2017 Director Memo also departed from prior versions by minimizing
the relevance of current problems in Haiti because they predate the 2010 earthquake. For example,
the April 10, 2017 Director Memo stated: “Haiti is the poorest country in the western hemisphere,
and it had enormous problems long before the 2010 earthquake. Even before the earthquake, the
Haitian government could not or would not deliver core functions to the majority of its people.”
PX 122.003.
83. Unlike the March 2, 2017 or the April 3, 2017 Director Memo drafts, the April 10,
2017 Director Memo was signed by Acting USCIS Director James McCament. PX 122.003.
84. Notwithstanding the politically-directed revisions to the Director Memos, DHS fact
finders continued to find that the actual country conditions in Haiti warranted extension of its TPS.
85. For example, on May 1, 2017, Potts responded to Kovarik’s April 28, 2017
instruction to gather information about “how things are in Haiti.” PX 212.003. Potts wrote,
“[u]nfortunately, conditions in Haiti remain difficult.” PX 212.001. Potts gave five specific
examples of current conditions in Haiti, to illustrate these “difficult” conditions, including that
“Haiti has not fully recovered from the 2010 earthquake;” that “Hurricane Matthew struck Haiti,”
causing billions of dollars in damage; that “shelter and food remain scarce in Haiti’s southern
peninsula,” and that just a week earlier, from “April 20 to 24, 2017, heavy rains caused flooding”
in Haiti, affecting nearly 350,000 people. PX 212.001.
86. Similarly, on May 10, 2017, RAIO published a new research memo, titled “Haiti:
TPS Addendum.” The TPS Addendum found that “Haiti has yet to fully recover from the 2010
31
earthquake,” noting that “[b]illions of dollars in promised [earthquake] aid never materialized.”
PX 141.001.
87. The TPS Addendum noted that more than “46,000 quake victims continue to live
in tents and under tarps,” and, citing United Nations statistics, found that Haiti remains “extremely
vulnerable to cholera.” PX 141.001; see also Trial Tr. 556:2-5 (Concannon) (“It’s very clear . . .
[even] to someone who does not have a Ph.D that a tarp does not comport with . . . internationally
recognized standards for . . . secure housing.”).
88. The TPS Addendum added that Haiti had not recovered from Hurricane Matthew,
which affected 1.4 million people. “Hurricane Matthew caused an estimated $2.8 billion worth of
damage—equivalent to 1/3 of Haiti’s gross domestic product.” And, following Hurricane
Matthew, “the United Nations requested a $139 million emergency appeal for humanitarian aid of
which only $86 million was funded as of April 2017.” PX 141.001 (internal quotation marks
omitted).
89. The TPS Addendum also contained an analysis of Haiti’s gross domestic product
growth since 1997, finding the following since 2010, the year the earthquake hit:
 2010: -5.498
 2011: 5.524
 2012: 2.885
 2013: 4.234
 2014: 2.797
 2015: 1.185
PX 141.002.
32
E. In May 2017, After Leaks That The Trump Administration Was Investigating
Alleged Criminality of Haitian TPS Recipients And Considering Terminating
Haiti’s TPS, Secretary Kelly Briefly Extended Haiti’s TPS for Six Months, But
Warned That It Would Be Terminated Soon.
90. As noted above (see Section IV.C supra), shortly before the decision on whether to
extend Haiti’s TPS, the press learned of the DHS inquiries about Haiti’s TPS recipients criminal
and welfare histories. In addition, by April 30, 2017, the April 10 Director Memo recommending
that TPS be terminated had leaked to the press. PX 018.002-003. These press leaks apparently
caused Secretary Kelly and DHS management to reconsider the termination recommended in the
April 10, 2017 Director Memo. PX 123. Consequently, on May 22, 2017, DHS issued a press
release announcing that Secretary Kelly was extending TPS for Haiti by six months. PX 160.001.
91. It is clear, however, from DHS’s press release and other public statements as well
as DHS internal emails that the six-month extension was merely a temporary reprieve, and that
DHS has decided to terminate Haiti’s TPS.
92. The press release stated that DHS “urges Haitian TPS recipients who do not have
another immigration status to use” the six month extension “to prepare for and arrange their
departure from the United States.” PX 160.001.5
93. DHS communications confirmed that DHS had decided to terminate. On May 19,
2017, Anderson attended a meeting including, among others, then-Deputy DHS Secretary Elaine
Duke and Gene Hamilton. Anderson Dep. Tr. 106:4-8; PX 053.001. Anderson took notes of the
May 19, 2017 meeting. Gene Hamilton said that, in his view, TPS was “to be used” as an “extreme
measure” and not “out of whole air like [the] Obama administration.” PX 053.001; Anderson Dep.
Tr. 269:14-270:1.
5
PX 160 is part of what the Government designated as the Administrative Record at AR-S_HAITI-
00000193-94.
33
94. During the May 19, 2017 meeting, Anderson recorded that then-Deputy Secretary
Duke relayed that there was “[e]very expectation that Haiti may not be renewed again,” and that
in Secretary Kelly’s view, “Haiti is still a horrible place to live, but good . . . If we recommend
terminating [Secretary Kelly] will be inclined to follow us, but be clear.” Anderson Dep. Tr. 274:
8-17; PX 053.002.
95. During the May 19, 2017 meeting, Anderson recorded that Hamilton said that
Secretary Kelly was “not hesitant to make TPS designations when warranted,” and that then-
Deputy Secretary Duke said of TPS beneficiaries “[w]e need to know who is here, what they are
doing, are they being productive?” Anderson Dep. Tr. 288:6-9; PX 053.004.
96. On Monday, May 22, 2017 Anderson attended a press conference call about
Secretary Kelly’s decision on Haiti’s TPS. Anderson Dep. Tr. 252:12-22; 298:8-12. Anderson
recalled that Gene Hamilton attended the call, as well as a host of communication staff from DHS.
Anderson Dep. 298: 15-19. Anderson took detailed notes of this call. Anderson’s notes reflect that
DHS informed the press that Kelly had “asked for info” about the criminality of Haitian TPS
recipients, and that this request for criminality data was simply a “common sense” question,
ostensibly made to ensure the “programmatic integrity” of TPS. PX 051.002; Anderson Dep. Tr.
301:10-14.
97. Similarly, according to Anderson’s notes taken during the May 22, 2017 press
conference call, the Trump Administration, and Secretary Kelly in particular had “concerns about
the TPS program as a whole,” and planned to look at TPS with “fresh eyes.” PX 051.003.
98. A few days later, Kathryn Anderson took detailed notes of a meeting. Anderson
Dep. Tr. 309:1-9. Secretary Kelly was present at the meeting. At the meeting, Secretary Kelly
34
opined that Congress had “no moral courage” because it failed to include a “sunset clause” for
TPS. PX 052.004; Anderson Dep. Tr. 317:1-5.
99. At the meeting, Kelly said of Haitians, “[n]ot a bad people, but they are welfare
recipients.” PX 052.005; Anderson Dep. Tr. 321:14-322:4. Anderson recalled that she wrote down
these words “to remember what Secretary Kelly said.” Anderson Dep. Tr. 321:1-2.
100. On May 24, 2017, the Federal Register published official notice extending Haiti’s
TPS for six months. PX 340.003. Despite extending Haiti’s TPS for six months, Secretary Kelly
advised the Haitian government to take “steps to prepare for the eventual end of its TPS
designation.” PX 149.001.6
101. Despite Secretary Kelly’s signaling that TPS for Haiti was coming to an end, the
FRN found:“[C]onditions in Haiti supporting its designation for TPS persist.” The FRN noted that
“over 55,000 Haitians who lost their homes in the earthquake are still living in 31 camps for
internally displaced persons without viable options to leave. Gender-based violence in these camps
continues to be a serious concern, and personal security is a serious and pervasive issue. Some
people who were displaced by the earthquake, although no longer in camps, have moved back to
unsafe homes or relocated to informal settlements located in hazardous areas.” PX 340.003
102. The FRN also pointed out the effects of more recent natural disasters. It explained
that “Hurricane Matthew made landfall in Haiti on October 4, 2016, causing extensive damage to
crops, housing, livestock, and infrastructure across Haiti’s southwest peninsula,” that “over
175,000 people were left without housing” by the storm; and that “significant losses of crops and
livestock in the regions damaged by Hurricane Matthew impacted the entire country.” It also noted
that “[h]eavy rains in late April 2017 caused flooding and landslides in South, South East,
6
00000011-13.
35
Grand’Anse, and Nippes departments, with South department most impacted. At least four people
were killed, nearly 10,000 homes may have been damaged, and at least 350,000 people may have
been affected. According to a Haitian government official, an estimated 80% of the spring harvest
in South department may have been destroyed.” According to the FRN, “the damage from
Hurricane Matthew and the recent heavy rains are compounding the existing food insecurity
experienced by an estimated 3.2 million people (approximately 30 percent of the population) in
September 2016.” PX 340.003.
103. The FRN also acknowledged that “Haiti’s weak public health system is further
strained due to an ongoing cholera epidemic, whose inception was traced to U.N. peacekeepers
assisting with earthquake recovery.” It pointed out that, “[s]ince October 2010, close to 800,000
Haitians have contracted cholera, and nearly 10,000 people have died from the disease.” While it
noted that “progress has been made in combatting cholera” and that “Haiti has made some progress
in the health sector in recent years,” it emphasized that “Haiti faces longstanding public health
challenges, where 40% of the population lacked access to basic health services before the 2010
earthquake. As of 2016, this figure remains the same—40% of the population lacks access to
fundamental health and nutrition services.” PX 340.003.
104. It concluded: “While the lack of access to safe drinking water and Haiti’s weak
sanitation infrastructure remain significant concerns, these are not new problems. Extreme
poverty, corruption, and low levels of education in Haiti challenge its resilience and have
contributed to the government’s longstanding inability to adequately provide for the security,
health, and safety of its citizenry.” PX 340.003.
36
F. In April and May, 2017, Career Officials at USCIS Privately Express Concern
at Trump Administration Officials’ Approach to the TPS Review Process Was
Incompatible With the Actual Conditions in Haiti
105. During April and May, 2017, after Trump Administration political appointees took
the reins at DHS and USCIS, career officials within DHS privately expressed skepticism over
those appointees’ approach to the TPS review process.
106. On April 13, 2017, RAIO researcher LeRoy Potts emailed Anderson. Potts wrote:
“Maybe we can get together next week and chat? For now, I’m hoping you can give me your take
on the Haiti TPS decision? I’d like to know a little bit more about how it was decided current
conditions ‘don’t merit ongoing TPS designation . . . ?” PX 016.001.
107. Anderson replied the next day:
“[T]he short answer is that the decision was a political one by the [USCIS
Front Office] and [Secretary Kelly’s] advisors. Their position was that Haiti
was designated [for TPS] on account of the 2010 earthquake, and those
conditions have significantly improved. The extraordinary conditions Haiti
currently faces are longstanding, intractable problems . . . .”
PX 016.001. At her deposition, Anderson testified that her “sense is that TPS decisions are not
always impacted by political priorities are this one was.” Anderson Dep. Tr. 199:21-200:1. At his
deposition, Prelogar added that, in his view, TPS review for Haiti in May, 2017 was “handled
differently” than prior TPS reviews he had participated in. Prelogar Dep. Tr. 149:1-20.
108. By April 30, the April 10, 2017 Director Memo recommending that Haiti’s TPS be
terminated had leaked to the press. On April 30, 2017, the New York Times published an editorial
quoting the April 10, 2017 Director Memo and urging Secretary Kelly to extend TPS for Haiti. PX
018.002-003.
109. Anderson and Prelogar emailed each other privately about the April 30, 2017 New
York Times editorial which referenced the leaked Director Memo and urged DHS to extend Haiti’s
TPS. Anderson wrote: “I especially appreciated that [the editorial] noted the memo did cite a bunch
37
of horrible conditions, but then somehow reached the wrong conclusion.” Prelogar responded:
“Right? Give me a break.” PX 018.001. Prelogar later testified that by “Give me a break,” he meant
the statement to be “expressive of . . . my contention that the country conditions and the statutory
requirements suggested a different decision” than termination. Prelogar Dep. Tr. 127:10-12.
110. Anderson confided in an email to Prelogar that she was “fuming” following a
follow-up phone call she had after the May 19, 2017 meeting she attended with Trump political
appointee Hamilton and then-Deputy Secretary Duke. PX 025.001; Anderson Dep. Tr. 243:7-9. In
the email discussion Prelogar wrote: “These people need a helping hand out. So deeply distraught
to hear this pillar of normality (our trusty second in charge) was anything but.” PX 025.002.
111. Prelogar later explained in his deposition that he was “referring to the impression
that I had . . . that the deputy secretary was – seemed to be in alignment with some of the
perspectives on temporary protected status that were being advanced by parties with whom we
disagreed,” about the approach to the TPS review process. Prelogar Dep. Tr. 146:19-147:2.
G. Between May and November 2017, The Government of Haiti Pleads For TPS
To Stay In Place, Repeatedly Insisting It Could Not Repatriate TPS Recipients
112. On May 4, 2017 Haiti’s Ambassador to the United States, Paul Altidor, sent a letter
to Secretary Kelly “asking for an extension of TPS, a stay of deportations to Haiti and the much-
needed time to adequately prepare to welcome our citizens home.” PX 172.002. Ambassador
Altidor wrote that Haiti had “encountered a number of roadblocks in the rebuilding process” from
the 2010 earthquake, including Hurricane Matthew which had “caused, by some estimates, more
than two (2) billion USD worth of damage and resulted in complete destruction of some parts of
the country.” PX 172.001. Additionally, Ambassador Altidor wrote that the cholera epidemic
“continu[ed] to devastate our citizens given our vulnerable conditions.” PX 172.001. According to
38
Ambassador Altidor, Haiti’s “recovery is not yet at a stage where we can receive and provide the
necessary support for more than 50,000 arrivals back to the country.” PX 172.002.
113. Four days later, on May 8, 2017, Ambassador Altidor sent a second letter to
Secretary Kelly requesting an in-person meeting to discuss Haiti’s TPS designation. PX 171.001.
In his May 8, 2017 letter, Altidor wrote that Haiti’s government “strongly believes that a renewal
of TPS for Haitians, for at least another eighteen (18) months, is in the national interest of both
Haiti and the United States.” PX 171.001. In addition to reiterating concerns over the devastation
of Hurricane Matthew and the ongoing cholera epidemic (PX 171.002), as he had done in his May
4, 2017 letter, Ambassador Altidor added that “[A]llowing TPS to expire before Haiti can absorb
and support their return will cause an immediate increase in poverty in Haiti, as thousands of
households will no longer have an economic lifeline.” PX 171.001.
114. On or about May 15, 2017 Secretary Kelly met with Haitian Foreign Minister
Antonio Rodrigue. PX 022.001. In that meeting, “Secretary Kelly requested . . . that the
Government of Haiti take steps to prepare for the eventual end of its TPS designation,” even though
the “Government of Haiti . . . stresse[d] it does not yet have the ability to accept back all its TPS
beneficiaries.” PX 150.001.7
115. A week later, on May 22, the DHS press release announcing the brief, six-month
extension of TPS stated that “Secretary Kelly was particularly encouraged by representations made
to him directly by the Haitian government regarding their desire to welcome the safe repatriation
of Haitian TPS recipients in the near future.” PX 160.001.8 In the press conference call announcing
7
00000028-30.
8
PX 160 is part of what the Government designated as part of the Administrative Record at AR-
S_HAITI-00000193-94.
39
the decision, the press was informed that Secretary Kelly “highly encourages” Haitian TPS
recipients to “pack up.” PX 051.001.
116. On May 31, 2017, Secretary Kelly travelled to Haiti to meet with Haitian President
Moise. PX 310.001. Trump political appointee Gene Hamilton travelled with him. Hamilton Dep.
Tr. 152:2-6. The briefing materials prepared by DHS for secretary Kelly in advance of his trip
explained that TPS
is an emotionally-charged issue in Haiti, and while the recent six-month

extension allayed some immediate fears, concerns remain about its potential
expiration. . . . Once TPS expires, [TPS recipients] will be expected to
depart the United States and return to Haiti. However, given the current lack
of economic opportunity in Haiti, Haitian government officials privately
speculate that even if TPS were to expire, many Haitians would be unlikely
to return to Haiti voluntarily.
PX 310.001-002; 004.
117. By July, 2017, James Nealon, the former U.S. Ambassador to Honduras, had joined
DHS as the Assistant Secretary of Homeland Security for International Affairs and Acting
Undersecretary for Policy. Nealon Dep. Tr. 27:12-22. Nealon testified that when he arrived at
DHS, there was a “general feeling” that TPS for Haiti was going to be terminated. Nealon Dep.
Tr. 128:9-17. Nealon expected a decision to terminate based on his “conversations with [John]
Kelly.” Nealon Dep. Tr. 245:15-246:14, 129:5-10, 129:20-25, 130:1-6. Nealon “expected
termination,” and decided he needed to “help mitigate the consequences of that decision.” Nealon
Dep. Tr. 128:9-17, 129:1-3.
118. On July 27, 2017 Nealon emailed, among others, Kirstjen Nielsen, James
McCament, and Gene Hamilton. PX 355.001. The purpose of Nealon’s email was to summarize
the phone call Nealon and McCament had held with Ambassador Altidor the day before. PX
355.001. Nealon wrote that the purpose of the call was to “urge progress on preparing Haitian
citizens to return home with the impending end of TPS.” PX 355.001.
40
119. In the phone call, Ambassador Altidor told Nealon that the Moise Administration
“understands that TPS is a temporary program, but that Haiti is not ready to absorb a large number
of returnees,” and although the Haitian government was working towards being able to re-absorb
TPS recipients, “those conditions don’t yet exist.” Ambassador Altidor explained that Haitian
officials “don’t want to welcome their citizens back only to see them attempt to return to the United
States for lack of opportunity, or worse, be attracted to criminal activity because of lack of
legitimate work opportunities.” PX 355.001.
120. Nealon added: “[T]he Ambassador asked directly if TPS will end in 2018. His
message was clear – ‘we understand it’s a temporary program, but we’re not ready, please extend
it.’” PX 355.001.
121. Through the fall of 2017, the Haitian government continued to warn Trump
Administration officials that it was not prepared to repatriate Haitian TPS recipients. On October
4, 2017, Ambassador Altidor sent a letter to then-Acting DHS Secretary Elaine Duke. Altidor
again asked for an eighteen month extension of Haiti’s TPS designation. PX 147.001.9
122. Again citing devastation from Hurricane Matthew, the cholera epidemic, and
newly-inflicted damage from Hurricanes Maria and Irma, (PX 147.002), Altidor wrote “[a]t this
precarious juncture, an 18-month extension or a TPS de-designation beyond January 2018 is a
necessity.” PX 147.003. Altidor invited Acting Secretary Duke to visit Haiti: “We sincerely
believe that once you see the conditions on the ground, it will become clear that an additional
eighteen (18) months extension or redesignation is in the shared national interests of both Haiti
and the United States.” PX 147.001.
9
PX 147 is part of what the Government designated as part of the Administrative Record at AR-
HAITI-00000004-6.
41
123. About a month later, Haiti’s Embassy in the United States sent a memorandum to
DHS, again urging an extension of TPS. PX 148.001. The memorandum’s purpose was to “lay[]
out the totality of the circumstances, as it exists in Haiti which is relevant under the TPS
calculations.” PX 148.001. The memorandum went on to list factors counseling in favor of an
extension of TPS, including: (a) the earthquake and internally displaced persons; (b) additional
natural disasters since the earthquake, including Hurricane Matthew; (c) the cholera epidemic; (d)
draught and flooding; and (e) poor economic conditions. PX 148.001-002.
124. Instead of accepting Ambassador Altidor’s invitation to view the problems
plaguing Haiti in person, Acting Secretary Duke chose to meet stateside with Foreign Minister
Rodrigue on November 13, 2017. PX 149.001. The briefing materials Duke was given prior to the
meeting noted—again—that “Haiti has taken some steps to prepare for the eventual end of its TPS
designation but it is unclear how extensive or effective these steps have been in preparing Haiti for
the potential return of tens of thousands” of people. PX 149.001.
125. Director Cissna attended the meeting with Acting Secretary Duke and Haiti’s
Foreign Minister Rodrigue. He remembered that the “foreign minister basically expressed his
desire that the Secretary would extend TPS . . . he and his staff made that desire very clear.” Cissna
Dep. Tr. 134, 16-20. Notably, the November 20, 2017 press release announcing Haiti’s TPS
termination refers to the fact that Acting Secretary Duke and Foreign Minister Rodrigue “met . . .to
discuss the issue” of TPS, but conspicuously omits that Rodrigue asked that TPS be extended. PX
114.001.
126. Despite the Haitian Government’s repeated warnings that it could not safely accept
the return of Haitian TPS recipients, Gene Hamilton insisted that the Haitian government had a
“strong desire to have their nationals return to Haiti.” Hamilton Dep. Tr. 175:11-3. In Hamilton’s
42
recollection, Haitian government officials “repeated[ly] ask[ed]” for “their people back, . . . they
just simply needed a little more time to do it.” Hamilton Dep. Tr. 152:16-21. The record contradicts
these assertions.
H. By June 2017, Trump Administration Officials Had Decided to Terminate

Haiti’s TPS, and Were Trying to Find Pretextual Reasons to Justify that
Decision Notwithstanding the Actual Conditions in Haiti.
127. On June 6, 2017, Secretary Kelly testified before the Senate Homeland Security
and Governmental Affairs Committee. During questioning, Secretary Kelly was asked about his
approach to TPS designations and extensions. Kelly testified that, in his view, TPS “is for a specific
event. . . . in Haiti, it was the earthquake. Yes, Haiti had horrible conditions before the earthquake,
and those conditions aren’t much better after the earthquake. But the earthquake was why TPS was
– was granted and – and that’s how I have to look at it.” PX 213.070. Kelly added that, in his view,
“the word [in the statute] is ‘temporary,’ and I – I think those that have been . . . in my position
over the years have simply automatically extended it.” PX 213.071.
128. After she took over as DHS Secretary, Kirstjen Nielsen stated even more bluntly
that the TPS statute forbade her from considering country conditions other than those connected
to the original designating event—in Haiti’s case, the 2010 earthquake. In testimony to Congress,
Nielsen explained that, in her view, “the law really restricts [a DHS Secretary’s] ability to extend
TPS. The law says that if the effects of the originating event . . . do not continue to exist, then the
Secretary of Homeland Security must terminate.” PX 345.003 (emphasis added).
129. Former USCIS Director Rodriguez testified at trial that when deciding whether to
extend, redesignate, or terminate TPS under 8 U.S.C. § 1254a(b)(3), USCIS historically
interpreted the term “extraordinary and temporary conditions” (as used at 8 U.S.C.
§ 1254a(b)(1)(C), the subsection under which Haiti received TPS) to require an analysis of
conditions at the “particular point in time when the adjudication is occurring,” (Trial Tr. 250:11-
43
12) that “prevent nationals from returning to the country in safety, which means significant threat
to life or health.” Trial Tr. 248:30–249:12. This includes, Director Rodriguez added, “conditions
that were not necessarily caused by,” and conditions “untethered” to, the initial event that led to a
TPS designation. Trial Tr. 251:13-14, 252:6-14.
130. Under the statute and established practice, prior to the Trump Administration, the
USCIS Director and DHS Secretary considered many factors to determine whether it is safe for
nationals to return to a country and whether the receiving country can absorb the return of TPS
recipients, including but not limited to the number of TPS recipients, and issues of “public safety,
national security, healthcare, housing, [and] education” in the receiving county. Trial Tr. 214:20-
25.
131. Indeed, Director Rodriguez opined that, historically, the USCIS Director and DHS
Secretary considered “intervening factors arising after a country’s original TPS designation, such
as subsequent natural disasters, issues of governance, housing, health care, poverty, crime, general
security, and other humanitarian considerations . . . . regardless of whether those intervening
factors had any connection to the event that formed the basis for the original designation or to the
country’s recovery from that originating event.” PX 330.005, ¶ 21.
132. Kathryn Anderson testified that during the May 22, 2017 press conference call
about Secretary Kelly’s decision on Haiti’s TPS, a DHS official said of Haiti: “Conditions have
substantially improved since 2010. Congress asked us to look at conditions that led to initial
designations and not at other conditions. Understand some fine lines to draw there.” Anderson
Dep. Tr. 297:10-14. Anderson recorded this statement in her notes. PX 051.001.
133. On June 7, 2017—the day after Secretary Kelly testified in the Senate—USCIS
Writer-Editor Tina Wimbush sent a high-priority email to, among others, the USCIS Executive
44
Secretary. The email contained “[i]nstructions/[n]ote[s] from the Secretary’s Office” for drafting
responses to letters to Secretary Kelly from the public about Haitian TPS. According to the email,
Secretary Kelly “want[ed] a stronger response beginning to build a case for not extending” TPS
for Haiti. PX 029.003.
134. In particular, Secretary Kelly instructed that letter responses should “[h]ighlight
[the] temporary nature” of TPS, and state that the “2010 Earthquake is the only reason for TPS
being granted-Not based on hurricane or current economic conditions-Not based on cholera
epidemic.” PX 029.003.
135. The June 7, 2017 email contained the following suggested language for inclusion
in letter responses: “As you know, granting TPS was based solely on [the] 2010 earthquake that
ravaged Port au Prince. Primarily localized damage in [the] capital region of Port au Prince.
Recovery slow but steady, UN has determined their stabilization force is no longer needed.
Decision to rebuild palace shows economic [sic] is recovering.” PX 029.003.
136. Career USCIS researchers who conducted factual investigations of country
conditions believed that Secretary Kelly’s talking points were untrue. Anderson thought that
Secretary Kelly’s proposed language was “ridiculous,” and “amazing (and mostly incorrect),”
adding “this idea of localized damage from the earthquake is insane.” Prelogar agreed with
Anderson’s sentiment, describing Secretary Kelly’s proposed language as “[u]nreal.” PX 029.002.
137. Prelogar had been working on drafting a letter response to a Catholic Cardinal
regarding Haiti’s TPS. In order to comply with Kelly’s instructions regarding the content of letter
responses, Prelogar decided to “just pull some stuff from [Secretary Kelly’s May 22, 2017]
statement” announcing the TPS extension. PX 029.002.
45
138. While drafting the letter response to the Cardinal, Prelogar said to Anderson: “I’m
torn between taking a first run at saying not untrue things and just quoting Secretary Kelly saying
untrue things from the get go.” Anderson responded: “At least the untrue things said by Sec[retary]
K[elly] can be attributed to him.” PX 029.002 (emphasis added).
139. Ultimately, Prelogar drafted a letter response extensively quoting Secretary Kelly’s
May 22, 2017 announcement extending TPS. Anderson reviewed his draft letter response and
emailed Prelogar: “That’s the best possible combo of true things from you and quotes of not true
things from [Secretary Kelly].” PX 030.001.
I. In the Late Summer and Fall of 2017, the State Department Recommended
Terminating TPS for Haiti Following a “Highly Unusual” Process In Which
the Recommendation of the U.S. Embassy in Haiti Was Ignored
140. As part of the process to review a country’s TPS status, DHS consults with the
Department of State to obtain the State Department’s assessment of country conditions and
recommendation whether to extend or terminate TPS. Anderson Dep. Tr. 33:13–36:22. The
primary purpose of consultation with the Department of State is to obtain the State Department’s
input on conditions in the country. Anderson Dep. Tr. 36:11–22.
141. The process begins at the State Department when RAIO contacts “the Department
of [S]tate to initiate their own process of putting together a country conditions assessment and
generally a recommendation.” Prelogar Dep. Tr. 31:11-14.
142. As former Assistant Secretary of State Michael Posner explained, the State
Department’s vast network of foreign service officers enables it to report effectively on local
country conditions. PX. 331.002.
143. Assistant Secretary Posner explained that the local U.S. Embassy provides the State
Department’s front line of country conditions analysis in a process overseen by the ambassador.
PX. 331.002–.004; Trial Tr. 114:11–115:7.
46
144. Because of the ambassador’s and embassy’s special access to accurate information,
the State Department gives great deference to the ambassador’s factual reports. PX. 331.002–.003;
Trial Tr. 115:20–116:4. As James Nealon—himself a former Ambassador—testified, “[A]n
ambassador’s input carries a tremendous amount of weight in the Department of State.” Nealon
Dep. Tr. 109: 8-10.
145. The embassy’s report is passed on to the applicable regional bureau and policy
bureaus for the preparation of a document for submission to the Secretary of State (the “Secretary
of State Memo”). Trial Tr. 114:18–115:18 (Posner). The Secretary of State Memo is reviewed and
approved by the embassy and applicable bureaus before submission to the Secretary. Trial Tr.
126:24–131:17 (Posner); see, e.g., PX. 145.006. Clearance from the embassy is especially
important given its primary role in information gathering regarding country conditions. Trial Tr.
126:24–131:17.
146. This embassy-driven process applies to the State Department’s preparation of
recommendations on TPS. Trial Tr. 116:5–12.
147. The bureau for Western Hemisphere Affairs, or WHA, is the regional bureau for
Haiti. Trial Tr. 115:19–21.
148. On May 31, 2017 Secretary of State Rex Tillerson found that “Haiti still lack[ed]
the capacity to fully ensure a safe return of the 59,000 TPS beneficiaries residing in the United
States.” As such, he recommended that Secretary Kelly extend TPS for Haiti. PX 256.001.
149. On August 3, 2017, the U.S. Embassy in Haiti sent a cable again recommending
extension of Haiti’s TPS. The Embassy analyzed of the facts on the ground, acknowledging that
there had been some progress in Haiti but concluding that Haiti was unprepared to reabsorb 59,000
people. PX. 370.001–003; Trial Tr. 118:17–121:23. For example, the Embassy’s cable noted that
47
“country conditions have improved but remain generally poor,” and went on to note that “more
than 98 percent of Haitians [are] exposed to two or more types of disasters.”
150. Ultimately, the Embassy cable concluded that “[e]xtending TPS for Haiti is in the
U.S. national interest. At this time the [Government of Haiti] is not capable of facilitating the
reabsorption of the 59,000 Haitians currently holding TPS in the United States.” The Embassy
cable further concluded that “[l]ingering issues from the 2010 earthquake, additional effects of the
cholera epidemic, and the aftermath of Hurricane Matthew exacerbate this concern, and a
termination of TPS for Haiti would threaten the country’s ability to make needed progress across
numerous sectors.” PX 370.003
151. Despite the U.S. Embassy’s conclusion that the facts warranted an extension of
Haiti’s TPS, the cable from the regional bureau, the WHA, recommended termination. Despite
acknowledging that “[s]pecific lingering effects of the earthquake remain in the areas of
infrastructure, health, sanitation services, and emergency response capacity,” that “Haiti continues
to be affected by lingering earthquake damage,” and that “the aftermath of Hurricane Matthew in
2016, the heavy rains and landslides in 2017, Hurricane Irma in September 2017, and the additional
effects of the cholera epidemic continue to affect Haiti,” the WHA nonetheless concluded that the
conditions for TPS “have ceased to exist,” and conditions in Haiti have “improved such that they
no longer prevent nationals of Haiti from returning in safety.” PX 371.001-005.10
152. The WHA recommended terminating TPS despite also finding that “Haiti continues
to lack the capacity to ensure that the large population of TPS beneficiaries currently residing in
the United States can return in safety.” PX 371.001. Thus, the facts in the WHA cable closely track
10
PX 371 is part of what the Government designated as the Administrative Record at AR-
S_HAITI-00000045-49.
48
Secretary Tillerson’s May, 2017 recommendation to extend TPS, but the WHA cable relies on it
as a basis for terminating TPS. Compare PX 371.001 with PX 256.001.
153. Assistant Secretary Posner testified that the WHA’s recommendation was “highly
unusual.” Trial Tr. 126:12. He explained that “it’s almost as if” the WHA presented “two different
narratives in the same document. They’re acknowledging there are lots of problems [in Haiti] but
at the end of the day, they seem to push those aside and say we’re ready to . . . terminate TPS.”
Trial Tr. 125:22-126:1.
154. Assistant Secretary Posner elaborated on how the WHA breached established
protocols when it “ignore[d]” the U.S. Embassy’s view that Haitian TPS should be extended:
“I don’t remember seeing in my time at the State Department a document

basically making a . . . factual policy recommendation like this coming from
a Regional Bureau [the WHA] that basically ignores embassy reporting and
recommendations. The embassy and the Regional Bureau [the WHA]
together come to others, like the one I ran, with a joint view. [The WHA
cable is] highly unusual. In fact, I just don’t remember a time where you’d
have the embassy saying one thing and the Regional Bureau reporting up to
the Secretary and making a recommendation that casts the embassy’s views
aside and basically doesn’t even present what the embassy’s perspective is.”
Trial Tr. 126:12-23.
155. When an embassy, regional bureau, or policy bureaus disagree on a
recommendation to the Secretary, the parties typically present their views to the Secretary in a
“split memo” presenting the competing positions. PX. 331.002. Because the WHA’s
recommendation to terminate Haiti’s TPS conflicted with the State Department’s Bureau of
Population and Refugee Management, which recommended extension of TPS, the bureaus
presented a split memo to the Secretary. PX 246. The split memo did not, however, present the
U.S. Embassy’s position that Haitian TPS should be extended and, in fact, ignored the principle
findings from the U.S. Embassy about conditions in Haiti. Trial Tr. 157:23–158:8; 159:4–8
(Posner).
49
156. The split memo attached the WHA memorandum, which ignored the facts and
analysis presented in the Embassy cable and omitted the necessary clearance page. PX. 246.004;
Trial Tr. 126:12-131:17; 158:24–159:8 (Posner).
157. The split memo did not present the U.S. Embassy’s position that Haitian TPS
should be extended and, in fact, ignored the principle findings from the embassy about conditions
in Haiti, even though the embassy’s factual reporting is the starting point for determinations based
on country conditions. Trial Tr. 157:23–158:8; 159:4–160–10 (Posner).
158. The split memo did include a clearance page, indicating which applicable bureaus
and divisions had cleared the document. PX. 246.005. This clearance page lacks any indication
that the U.S. Embassy in Haiti cleared the document. Id.. This failure to obtain clearance from the
U.S. Embassy is improper and a violation of established State Department practices and
procedures. Trial Tr. 157:8–158:25;159:9–160:10.
159. Ultimately, Secretary Tillerson adopted the “highly unusual” WHA
recommendation, and on October 31, 2017, he wrote to Acting Secretary Duke recommending that
she terminate TPS not only for Haiti, but for El Salvador, Nicaragua, and Honduras. PX 133.001.11
160. About a week later, however, the military weighed in against terminating Haiti’s
TPS. On November 6, 2017 U.S. Southern Command sent a cable to Acting Secretary Duke noting
that terminating TPS for Haiti would likely have “near and long term repercussions for Haitian
stability,” and in particular noting “increased humanitarian challenges in the aftermath of
hurricanes and other potential future disasters.” DX A at 1.
11
PX 133 is part of what the Government designated as the Administrative Record at AR- HAITI-
00000031-32.
50
161. Contrary to Secretary Tillerson’s assertion that conditions in Haiti have improved
to the point that “they no longer prevent nationals of Haiti from returning in safety,” (PX 133.001),
the State Department at the same time advised U.S. Citizens that it was unsafe for them to travel
to Haiti. On September 13, 2017 the State Department issued a travel warning to U.S. Citizens
advising them to “carefully consider the risks of traveling to Haiti due to its current security
environment and lack of adequate medical facilities and response.” PX 375.001. In December,
2017, the State Department issued the same travel warning again. PX 376.001.
J. In October, 2017, the TPS Review Process Began Again, and RAIO Again
Reported Haiti’s Dire Country Conditions
162. By the end of July, 2017, John Kelly had left DHS to take over as White House
Chief of Staff. Elaine Duke—previously the Deputy Secretary of Homeland Security—became
Acting DHS Secretary. With Haiti’s TPS set to expire on January 22, 2018, (PX 340.001), it now
fell to Acting Duke to decide whether to extend or terminate TPS.
163. In the fall of 2017, Haiti was not the only country for which Duke needed to make
a TPS decision. The TPS designations for Honduras, Nicaragua, and El Salvador also were due to
expire soon. See 81 FRN 30331 (Honduras’ TPS set to expire on January 5, 2018); 81 FRN 30325
(Nicaragua’s TPS set to expire on January 5, 2018); 81 FRN 44645 (El Salvador’s TPS set to
expire on March 9, 2018).
164. In October 2017, RAIO issued an updated report on Haiti’s country conditions.
Like the report RAIO prepared in December 2016, the 2017 report presented a bleak picture of
Haiti’s country conditions.
51
165. Like its December, 2016 predecessor, the October, 2017 RAIO Report found that
“[m]any of the conditions prompting the original January 2010 TPS designation persist, and the
country remains vulnerable to external shocks and internal fragility.” PX 366.001.12
166. With respect to Haiti’s housing shortage and internal displacement, the October,
2017 RAIO Report found that “[a]s of June 2017, around 37,867 IDPs . . . were still living in 27
camps.” PX 083.002. “In October, 2016, Hurricane Matthew impacted over 236,000 homes—of
which 44% were destroyed and 42% severely damaged—and displaced approximately 175,000
people in Haiti. In areas most affected by the storm, approximately 90% of homes were destroyed.”
PX 366.003 (internal quotation marks omitted).
167. With respect to the cholera epidemic and healthcare, the October, 2017 RAIO
Report found that “[d]amages from both the 2010 earthquake and Hurricane Matthew in October
2016—the latter of which affected 99 health facilities—exacerbated an existing lack of adequate
health infrastructure.” And, the “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.” 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.” PX 366.003-004 (internal quotation marks omitted); see
also Trial Tr. 492:12-13 (Concannon) (noting that Cholera is “still very much present today” in
Haiti).
168. With respect to Haiti’s economy, the October, 2017 RAIO Report found that the
earthquake “caused $7.8 billion in damages and economic losses—equivalent to more than 120
percent of Haiti’s 2009 gross domestic product,” and that although the economy had begun to
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52
recover, “GDP growth slowed to 1.2% in 2015 and 1.4% in 2016.” PX 083.005 (internal quotation
marks omitted). Over a quarter of Haiti’s gross domestic product comes from remittances sent
back to Haiti from diaspora members living in the United States diaspora members living in the
United States, (PX 366.005-006), meaning that the repatriation of TPS recipients would further
damage Haiti’s fragile economy. The October, 2017 RAIO Report also noted significant
challenges in terms of Haiti’s public security, governance and political instability, food security,
and the environment. PX 366.008-009; 012-014.
169. The October, 2017 RAIO Report found that “[b]y creating new security
vulnerabilities and stimulating an increase in crime, the 2010 earthquake had a deleterious impact
on public security in Haiti. The escape of thousands of prisoners and the diffusion of gangs
throughout Port-au-Prince in the aftermath overwhelmed Haiti’s historically weak justice system
and police.” PX 366.008.
170. The October, 2017 RAIO Report also noted that Hurricane Irma, a Category 5 storm
which struck Haiti in September, 2017, had displaced more than 12,500 people and impacted about
8,000 homes. PX 366.013.
171. The October, 2017 RAIO Report also addressed Hurricane Matthew. Noting that
Hurricane Matthew was the “strongest Hurricane to strike the country in more than 50 years and
the third strongest ever recorded in Haiti,” RAIO noted that 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.” 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
the storm. An estimated 175,000 people were displaced and 546 people were killed.” The damage
53
from Hurricane Matthew is “estimated at nearly $2.8 billion—equivalent to 1/3 of Haiti’s gross
domestic product.” PX 366.014-016 (internal quotation marks omitted)
172. The October, 2017 RAIO Report noted that “approximately 5.82 million people,”
constituting half of Haiti’s population, face “food insecurity in Haiti.” PX 366.012. Former USCIS
Director Rodriguez testified that this is “an overwhelming factor in favor of extension of TPS”
since food insecurity significantly undercuts the ability of nationals to safely return to a country.
Trial Tr. 266:3-9; Trial Tr. 270:3-15.
173. Ultimately, the October, 2017 RAIO Report concluded that “Haiti’s recovery [from
the 2010 earthquake] 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.” Indeed, RAIO wrote:
“Haiti’s recovery from the 2010 earthquake could be characterized as . . . one step forward, two
steps back.” PX 366.018 (internal quotation marks omitted)
174. The testimony of Plaintiffs’ experts on country conditions in Haiti, as well as the
expert reports submitted by them (PX 328 and PX 329), confirmed the information in the RAIO
report. The Government presented no evidence to contradict the facts presented in the RAIO report
or to undermine its conclusion that Haiti had not recovered from the earthquake.
175. Former USCIS Director Rodeiguez reviewed the October, 2017 RAIO report and
concluded that it reflects “a very extensive analysis of a variety of conditions” relevant to the
ability of TPS beneficiaries to return to Haiti and “the ability of that country to reabsorb those
nations,” including conditions stemming from both “the original triggering circumstance” and “a
54
number of other relevant conditions that might not be directly associated with the original
triggering circumstances.” Trial Tr. 229:14–230:2.
K. In October, 2017, Robert Law of the Anti-Immigrant Group FAIR Joined

USCIS
176. From 2015 to October, 2017, an attorney named Robert Law was the Director of
Government Relations for a Washington DC-based advocacy group, the Federation for American
Immigration Reform (“FAIR”). Law Dep. Tr. 26:15-27:1. FAIR advocates for a restrictive
immigration regime in the United States. PX 072.015.
177. During his time working for FAIR, Law interacted with Kathy Nuebel Kovarik
when she was a staffer for Senator Chuck Grassley; Stephen Miller, when he was communications
director for then-Senator Jeff Sessions; and Gene Hamilton, when he Senior Advisor to Secretary
Kelly. Law Dep. Tr. 48:22-49:12; 54:16-21; 56:12-13; Hamilton Dep. Tr. 25:15-18. In one
conversation, Law and Miller discussed “limiting immigration to the U.S.” Law Dep. Tr. 52:4-7.
178. During the transition from the Obama Administration to the Trump Administration,
Law co-authored a FAIR publication titled “Immigration Priorities for the 2017 President
Transition.” PX 097.001. The article advocated that President Trump should “order significant
reductions in the number of aliens admitted to the United State each year pursuant to . . . Temporary
Protected Status” in the first 100 days of his administration. PX 097.018. The article also urged
the Trump Administration to “issue regulations barring the approval of deferred action for . . . any
alien present in the United State pursuant to a grant of . . . Temporary Protected Status.” PX
097.019.
179. In March 2017, FAIR published its legislative priorities for the 115th Congress. PX
072.001, 016. Law had an “editorial role in the production” of these legislative priorities, Law
Dep. Tr. 29:7-11, which included convincing Congress to “[r]estrict Temporary Protected Status
55
(TPS) to aliens legally present in the U.S. when an event that triggers TPS designation occurs.”
PX 072.008.
180. In October, 2017, Robert Law was hired to work for USCIS. His first day was
October 16, 2017. Law Dep. Tr. 56:8.
L. In October, 2017, Trump Political Appointees Ensured That The Director

Memo Recommended Terminating Haiti’s TPS
181. Notwithstanding the facts presented in the October, 2017 RAIO Report, Trump
political appointees were resolved to terminate Haiti’s TPS. On October 13, 2017, after receiving
a draft Director Memo for Haiti’s TPS, Kovarik emailed DHS civil service employees Prelogar
and Anderson. Kovarik wrote that “[t]he problem is that [the Director Memo] reads as though we’d
recommend an extension b/c we talk so much about how bad it is [in Haiti], but there’s not enough
in there about positive steps that have been taken since its designation.” PX 036.001.
182. In the expert opinion of former USCIS Director Rodriguez’s opinion, this email
from Kovarik “suggests a predetermination as to the outcome of the adjudication and the interest
in essentially card-stacking to drive a particular outcome, in this case, termination of TPS.” Trial
Tr. 298:21-24, 299:3-5.
183. Prelogar responded to Kovarik a few minutes later, stating that because country
conditions in Haiti were objectively bad, the “strongest argument for termination” (which Trump’s
political appointees had been pushing since the spring) would be that those conditions are not
“clearly linked” to the original grounds for TPS designation:
We can comb through the country conditions to try to see what else there
might be, but the basic problem is that it IS bad there [under] all of the
standard metrics. Our strongest argument for termination, we thought, is
just that it is not bad in a way clearly linked to the initial disasters prompting
the designations.
56
Prelogar added: We can work . . . to try to get more, and/or comb through the country conditions
we have again looking for positive gems, but the conditions are what they are. PX 037.001.
184. On October 20, 2017, DHS Spokesman and Trump Administration official David
Lapan forwarded an email containing a transcript of a “gaggle” from the previous day. During the
gaggle, Lapan was asked: “In the case of Haiti . . . are they [within DHS] reviewing the effects of
the cholera epidemic or just sticking to the earthquake? Lapan responded: No, it’s the earthquake.
That was, again, by statute, it’s the condition that created the TPS designation in the first place,
the conditions in the country at that time that are considered.” PX 040A.004.
185. Lapan went on:
We’re looking at the fact that temporary protected status means temporary
and it has not been temporary for many years and that we have created, the
U.S. government, the situation where people have lived in this country a
long time. But it always should have been the understanding that it was
temporary. But every time it’s well, then we’re going to give an extension
and then we’re going to give an extension and soon you have people who
have been living here 20 plus years under what was supposed to be a
temporary program . . .
Again, if you take a look at Haiti, for example, when we talked about the
conditions in Haiti having to do with the earthquake, which is where the
TPS designation came from in the first place, nobody would argue that a
week before, a month before, a year before the earthquake, things in Haiti
weren’t pretty bad. But we can’t judge for temporary protected status what
the conditions were that have nothing to do with the event that created TPS
to start with. . . . [T]he statute provides that TPS is designated and decisions
about extended should be based on the conditions that predicated the
designation, not everything else that may point to the fact that those
countries have problems.
PX 040A.005-006.
186. Political appointee Kovarik was dissatisfied with the draft Director Memo.
Consequently, on October 22, 2017—less than a week after Robert Law’s first day at USCIS—
Kovarik forwarded to Law the version of the Director Memo that Prelogar had sent to Kovarik on
57
October 12, 2017. Kovarik wrote: “Can you look at this draft? I need to circulate to some folks but
want another set of eyes on it.” PX 127.001.
187. Law replied that the draft did not support “the conclusion we are looking for”:
The draft is overwhelmingly weighted for extension which I do not think is

the conclusion we are looking for. The memo seems to dismiss or downplay
the positive developments that should suggest reauthorization is
inappropriate. The memo also makes no mention of the substantial amount
of foreign aid the U.S. and charities have invested in Haiti since the
earthquake—another relevant factor to indicate that Haiti no longer meets
the definition of TPS
Kovarik replied seven minutes later: “Edit away!” PX 127.001.
188. Robert Law is not an expert on country conditions in Haiti. He is a lawyer and a
“policy advisor.” Law Dep. Tr. 44:20. In his time at FAIR—where he worked for five years before
joining USCIS (Law Dep. Tr. 68:15)—his responsibilities focused on “legislation, [and] meeting
with members of congress,” not analyzing conditions on the ground in foreign countries. Law Dep.
Tr. 24:1-5.
189. Twenty-nine minutes after receiving the draft Director Memo, with no time to
conduct any factual investigation, Law completely changed the conclusion of the Director Memo,
emailing Kovarik: “Edits attached. I made the document fully support termination and provided
comment boxes where additional data should be provided to back up this decision.” PX 127.001.
190. In Director Rodriguez’s opinion, this email exchange between Law and Kovarik
does “not suggest an impartial adjudication of the issue, but rather a certain predetermined
outcome.” Id. 299:18-20.
191. About a week later, on October 31, 2017, Law emailed DHS employee Jacob
Stubbs seeking additional information to justify terminating Haiti’s TPS. Law wrote:
I have an important research project for you . . . I need positive data on the
current status of Haiti to bolster the recommendation to terminate TPS.
Look back to Sec. Kelly’s 6 mo extension for language citing
58
‘improvements’ or the like that I can plug in. . . . unemployment/workforce,
wages, etc. Be creative.
PX 086.001.
192. In October, 2017, at the same time it was drafting the Director Memo for Haiti,
USCIS was also preparing draft Director Memoranda on TPS for three Central American
countries: Nicaragua, El Salvador, and Honduras. Trump political appointees sought to change
those memos as well.
M. The November, 2017 Director Memo Signed by Director Cissna

Recommended Terminating Haiti’s TPS
193. On November 3, 2017, USCIS issued a Director Memo, signed by Trump political
appointee Director Cissna (the “Cissna Memo”). In this memo, Director Cissna formally
recommended that Acting Secretary Duke terminate Haiti’s TPS. PX 136.001.13 In so
recommending, Director Cissna both ignored and mischaracterized material evidence contained in
the October 2017 RAIO Report.
194. The October, 2017 RAIO Report found that “[m]any of the conditions” in Haiti
“prompting the original January, 2010 TPS designation persist, and the country remains vulnerable
to external shocks and internal fragility.” PX 366.001. By contrast, the Cissna Memo claimed that
Haiti had “made significant progress in recovering from the 2010 earthquake,” and “no longer
continues to experience the extraordinary and temporary conditions that formed the basis of Haiti’s
designation and redesignation of TPS.” PX136.001.
195. Whereas the October, 2017 RAIO Report specifically identified the impact of
Hurricane Matthew on housing—noting that over 236,000 homes were impacted and that 90% of
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59
homes in areas most affected by the storm were destroyed (PX 366.003)—the Cissna Memo made
no mention of the impact of Hurricane Matthew on housing.
196. Whereas the October, 2017 RAIO Report found that the 2010 earthquake “creat[ed]
new security vulnerabilities and stimulat[ed] an increase in crime,” including because of the fact
that the earthquake led to the escape of “thousands of prisoners,” (PX 366.008), the Cissna Memo
asserted that “a lack of personal security [in Haiti] is pervasive, but . . . is not a post-earthquake
phenomenon.” PX 136.003. Former USCIS Director Rodriguez testified, however, that when he
was leading USCIS, the analysis he and his staff undertook involved examining “extraordinary
conditions without . . . requiring that those extraordinary [and] temporary conditions be exactly
the same ones that existed at the time of the initial designation.” Trial Tr. 268:17-20. Director
Rodriguez added that:
When I was director, the way in which [issues] were presented to me by

career staff, the way in which these [RAIO] Reports were written, the way
that I created the recommendations that I gave to the secretary, these sorts
of facts that are not necessarily directly the result of whatever the original
trigger of the event was are still highly relevant to this question of whether
there continued to be conditions that prevented the ability of nationals to
return in safety.
Trial Tr. 269:1-9.
197. The October, 2017 RAIO Report noted that Haiti’s cholera epidemic was
“reportedly the largest such outbreak in recent history,” (PX 366.004), and dedicated an entire
section to analyzing the cholera outbreak and Haiti’s healthcare system. The Cissna Memo’s
country conditions analysis, by contrast, contains a single reference to cholera, noting that the
epidemic is “at its lowest level since the outbreak started,” with no mention that it remains an
epidemic. PX 136.004. The Cissna Memo itself notes that the 2011 redesignation for Haiti was
based in part on the cholera outbreak. PX 136.002.
60
198. And, whereas the October, 2017 RAIO Report noted that Haiti’s annual GDP
growth had “slowed to 1.2% in 2015 and 1.4% in 2016,” from 4.2% in 2013 and nearly 3% in
2014, (PX 366.005) the Cissna Memo describes Haiti’s GDP growth as “erratic, but predominantly
positive . . . averaging 1.9%” since 2010. PX 136.003.
199. Whereas the October, 2017 RAIO Report noted that the economic impact of the
earthquake was equivalent to “120 percent of Haiti’s . . . gross domestic product,” (PX 366.005),
the Cissna Memo made no similar finding about the economic impact of the earthquake.
200. The October, 2017 RAIO Report noted that remittances from Haitians living in the
United States accounted for over a quarter of Haiti’s gross domestic product. PX 366.006. The
Cissna Memo made no mention of this fact.
201. The October 17, 2017 RAIO Report dedicated an entire section of analysis to the
impact on Haiti of Hurricane Matthew. RAIO noted that Hurricane Matthew was the “strongest
hurricane to strike [Haiti] in more than 50 years,” that it “affected more than 2.1 million people,”
and that it caused nearly $2.8 billion in damage—“equivalent to 1/3 of Haiti’s gross domestic
product.” PX 366.014-016.
202. By contrast, the Cissna Memo’s mentions Hurricane Matthew only twice—and
only once in its country conditions analysis. In the country conditions analysis the Cissna memo
found: “The deterioration in food security is the consequence of Hurricane Matthew’s severe
impact on southwest Haiti.” PX 136.004. Later, the Cissna Memo mentions, without any
substantive analysis of the impact of the storm, the “destruction caused by Hurricane Matthew” as
“the most significant event that could be considered in support of a redesignation” of TPS, but
goes on to conclude that “USCIS is not recommending redesignating Haiti for TPS” on account of
Hurricane Matthew. PX 136.005.
61
203. The Cissna Memo also included findings nowhere to be found in the October, 2017
RAIO Report. For example, the Cissna Memo noted that following the earthquake in 2010,
“Immigration and Customs Enforcement (ICE) ceased removing Haitians to Haiti,” but that on
September 22, 2016, DHS Secretary Jeh Johnson “announced that DHS would resume removals
of Haitian nationals,” ostensibly because the situation in Haiti now warranted such action. PX
136.003.
204. The Cissna Memo does not explain how—if at all—the resumption of removals of
Haitians without TPS bears on the analysis under the TPS statute. Nor does the Cissna Memo
account for the fact that three months after Secretary Johnson resumed removals then-Secretary of
State Kerry recommended that Haiti’s TPS be extended, noting that “Haiti lacks capacity to ensure
the safe return” of TPS beneficiaries. DX M at 1.
205. Former USCIS Director Leon Rodriguez’s testimony underscored that Cissna’s
“read[ing]” of the TPS statute broke radically from how the statute was previously applied.
Rodriguez emphasized that TPS does not “amount to protection from deportation” for all nationals
of a designated country; “it is not uncommon” for the U.S. to grant TPS to nationals of a country
and, at the same time, remove criminals and other nonqualifying individuals to that country. Trial
Tr. 215:7-17. “[T]he fact that one group of nationals of a country is protected both from deportation
and the harms that may result when they return to their country, does not mean that every national
of that country is entitled to that same protection.” Trial Tr.. 288:5-8.
206. The Cissna Memo embraces the notion that country conditions not attributable
directly to the 2010 earthquake are irrelevant to the TPS analysis. The Cissna Memo argues that
Haiti’s problems could not be “directly tied to the 2010 earthquake.” PX 136.004.
62
207. In Director Rodriguez’s expert opinion, Director Cissna did not “give[ ] the
secretary everything [she] need[ed] to make a full and sound decision as to TPS” for Haiti, Trial
Tr. 273:25–274:1, having failed to “fully identify . . . very relevant factors” contained in the RAIO
report. Trial Tr. 271:14-18.
N. As The Deadline for Her Decision Approached, Acting Secretary Duke

Struggled to Manufacture a Rationale For Terminating TPS
208. Acting Secretary Duke’s handwritten notes—many of which were included in the
documents the Government designated as part of the administrative record—reveal her thought
processes during her review of Haiti’s TPS.
209. Reciting a Trump campaign slogan in her handwritten notes, Acting Secretary Duke
wrote, “I believe America First,” but she opined that “not sure ending TPS is America first
strategy.” PX 164.004. 14
210. In other notes concerning her thought process with respect to TPS for El Salvador,
Honduras, and Nicaragua, which she was reviewing at the same time she was considering Haiti’s
TPS. Acting Secretary Duke again focused on the Trump Administration’s America First, policy,
writing: “The TPS program must end for these countries soon . . . [t]his conclusion is the result of
an America First view of the TPS decision.” PX 179.001.
211. Acting Secretary Duke’s handwritten notes also acknowledged that at the time, she
did not yet know the rationale for terminating Haiti’s TPS. Regarding termination of TPS for Haiti,
Duke wrote, “Haiti TPS is dramatically different from the other three countries due to the limited
duration of TPS. Haiti – 7 years; Honduras and Nicaragua – 19 years. . . . Separate out Haiti. They
14
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63
have been given a preview of what is likely to happen. Eight years is not the same as 20 years.”
PX 164.003-004.
212. Duke also noted the need to find a rationale to terminate TPS. She wrote: “rationale:
don’t know, need to rationalize conflicting info” and “all agree[d]” that TPS “must end.” PX
164.004.
213. Duke also wrote of the “need” for a “plan for a decision” and to “foreshadow” the
upcoming terminations. She asked in her notes, “do we need a better strategy to lay a groundwork
before terminating (diplomacy) to ensure neg[ative] consequences don’t occur[?]” Regarding
termination, Duke added, “better than term[inate] in 18 [months] dealing w[ith] fall out . . . still
could end in 18 [months], just w[ith]out the ‘punch.’” Duke also wanted to defer making any
decision about Haiti in order to “give full discretion to Kirstjen [Nielsen] and prepare her better.”
PX 164.004.
O. In Early November, 2017, the White House Pressured Acting Secretary Duke
to Terminate TPS for Haiti and Other Non-White Countries
214. In early November, 2017 the evidence shows that the White House increasingly
leaned on Acting Secretary Duke to terminate TPS not only for Haiti, but for certain Central
American countries as well.
215. On November 3, 2017—the same day as the Cissna Memo recommending
termination of Haiti’s TPS—the White House sponsored a Principals Small Group Meeting for the
purpose of “coordinat[ing] the conditions and process for terminating temporary protected status
(TPS) for aliens from El Salvador, Honduras, Nicaragua, and Haiti.” PX 152.011.15 The meeting
incuded Acting Secretary Duke, White House advisor Stephen Miller, former Homeland Security
15
S_HAITI-00000117-32.
64
advisor Tom Bossert, former Attorney General Jeff Sessions, and Trump political appointee
Hamilton. Hamilton Dep. Tr. 184:16-185:22. The meeting’s briefing materials expressly
recommended that Duke “[t]erminate with an effective date of January 5, 2019 and engage
Congress to pass a comprehensive immigration reform to include a merit based entry system. “ PX
152.013.
216. At the meeting, Sessions and others pressured Acting Secretary Duke to terminate
TPS not only for Haiti, but the other three countries, too. According to Duke’s handwritten notes
from the meeting, Sessions said that Duke “can’t keep certifying”, that “no one has guts to pull the
trigger,” and that Duke should “just bite the bullet” and decertify. He added that it would be
“dangerous to separate out Haitians” because it would show “prejudice against Haitians.” The
political consequences of the decision to terminate TPS were also discussed at the meeting, as the
administration did not want the decision to “get too close to end of 2019 political and midterms.”
PX 151.001, 003.16
217. The White House continued to pressure Duke after the November 3, 2017 meeting.
According to Duke’s handwritten notes, she had a call with Tom Bossert and Zack Fuentes (both
of the White House) on November 5, 2017, and they told her that “conditions in 4 countries no
longer exist,” that “gutless fed[eral] bureaucrats have extended” TPS, and that the White House
would be “extremely disappointed if [she] kick[ed the termination decision] into lap of next
sec[retary].” PX 163.009.17
16
S_HAITI-00000113-16.
17
S_HAITI-00000275-86.
65
218. On November 6, 2017 at 3:23 PM., Acting Secretary Duke emailed White House
Chief of Staff Kelly regarding her decision to terminate TPS for Nicaragua, with an effective date
of 18 months later, and to extend a “no decision” for Honduras. In her email she wrote:
“These decisions along with the public statements will send a clear signal
that TPS in general is coming to a close. I believe it is consistent with the
President’s position on immigration. . . . While some are portraying this
differently, this decision is really just a difference in strategy to get to the
President’s objectives.”
PX 169.001.
219. Approximately three hours after her initial email to Kelly on November 6, 2017,
Acting Secretary Duke emailed Kelly at 6:44 p.m., writing, “I had a discussion with [Tom Bossert]
this evening and he informed me of a strategy I was not previously aware of. I incorporated this
new information into my final decision and the published timeframe for the Nicaragua termination
is 12 months, not 18.” PX 96.001.
220. Per Acting Secretary Duke’s request, Chad Wolf of DHS forwarded Bossert the
portion of Duke’s email to Kelly regarding TPS for Nicaragua and Honduras. PX 173. Bossert
responded, “Thank you for all the time and effort today, and for the 12 month outcome.” Later,
Bossert replied in an email, opining that Duke’s TPS decisions would signal a “clear need for
statutory reform of our immigration system.” PX 165.001.
221. In November 10, 2017 email to Acting Secretary Duke, Stephen Miller, Hope
Hicks, Sarah Huckabee Sanders, Tom Bossert, and others, Kelly wrote:
The conversation revolved around ‘make a decision.’ That the decision on

TPS was entirely [Duke’s]. That whatever she decided she’d be criticized
but that comes with the job. My view was to grant limited (no more than 12
months or so vice the maximum 18 months allowed by the TPS program)
to the Central American TPS recipients who have been here for 20 years.
This approach then gives us time to work out a permanent solution with the
hill. Similar thinking on Haiti.” He later added, “[C]alls to leaders and staff
within an organization to help in the decision making process particularly
66
when they call looking for guidance, which includes ensuring agenda
adherence, is EXACTLY what a chief-of-staff does.
PX 184.001.
P. Duke Terminates TPS for Haiti After a Briefing from Cissna and Kovarik,
Who Relied on the Cissna Memo
222. On November 20, 2017, Acting Secretary Duke made her decision. TPS for Haiti
would be terminated. DHS issued a press release announcing the decision to terminate TPS for
Haiti:
“The decision to terminate TPS for Haiti was made after a review of the
conditions upon which the country’s original designation were based and
whether those extraordinary but temporary conditions prevented Haiti from
adequately handling the return of their nationals, as required by statute.
Based on all available information, including recommendations received as
part of an inter-agency consultation process, Acting Secretary Duke
determined that those extraordinary but temporary conditions caused by the
2010 earthquake no longer exist.”
PX 114.001.
223. The press release noted that “Acting Secretary Duke met with Haitian Foreign
Minister Antonio Rodrigue” to discuss TPS, (PX 114.001) but did not reflect what Director Cissna
remembered about that meeting: that the “foreign minister basically expressed his desire that the
Secretary would extend TPS . . . he and his staff made that desire very clear.” Cissna Dep. Tr. 134,
16-20.
224. After the announcement, Prelogar emailed Anderson: “Unbelievable.” PX 042.001.
Prelogar explained that he found “unbelievable” that “an announcement by the secretary that in
my view was riddled with errors of various sorts would be released.” Prelogar Dep. Tr. 231:9-11.
225. On January 18, 2018, the Federal Register Notice officially terminating TPS for
Haiti was published. PX 341.001.
67
226. Exactly as in the Cissna Memo, the FRN found that “only approximately 38,000”
people who lost their homes in the earthquake are still living in IDP camps. Compare PX 341.003
with PX 136.003.
227. Exactly as in the Cissna Memo, the FRN found that Haiti’s gross domestic product
was “positive . . . averaging” a little under 2% growth per year. Compare PX 341.003 with PX
136.003.
228. The FRN found that although Haiti “has grappled with a cholera epidemic that
began in 2010 in the aftermath of the earthquake, cholera is currently at its lowest level since the
outbreak began.” PX 341.003.
229. Whereas the October, 2017 RAIO Report dedicated an entire section of analysis to
the impact of Hurricane Matthew on Haiti—noting that the storm affected over 2 million people
and caused nearly $2.8 billion in damage (equivalent to 1/3 of Haiti’s gross domestic product)—
the FRN announcing the termination of TPS for Haiti made not one mention of Hurricane Matthew
of its effect on Haiti. PX 341.003.
230. On January 9, 2018—a little more than a week before the FRN for Haiti was
published—Director Cissna emailed his subordinates, including Kovarik and Law. He wanted
information about TPS beneficiaries. Cissna wrote:
This may have been asked many times before, but do we have data on the
percentage of TPS beneficiaries from El Salvador (or any other country)
who were in the country illegally _before_ the TPS designation . . . ? Do we
collect that info on the tps form?
PX 076.001.
68
V. PLAINTIFFS WILL BE CONCRETELY, IRREPARABLY HARMED AS A
RESULT OF DEFENDANTS’ HAITI TPS DECISION UNLESS THE DECISION IS
ENJOINED
231. Individual Plaintiffs Patrick Saget, Sabina Badio Florial, Naïscha Vilme, Gerald
Michaud, Beatrice Beliard, Rachelle Guirand, Jean Claude Mompoint, Yolnick Jeune, Guerline
Francois, and Leoma Pierre are all Haitian nationals and beneficiaries of TPS. Trial Tr. 169:15-20,
181:16-21; Joint Pre-Trial Order, Stipulation 2. If the termination of Haiti’s TPS goes into effect,
Plaintiffs, as well as 50,000-60,000 Haitian TPS holders, will lose their immigration status and be
faced with the agonizing choice of self-deporting to a country with unsafe conditions, or remaining
in the United States unlawfully. Plaintiffs do not have any other basis “to remain in the United
States.” Trial Tr. 177:21-23, 178:1, 190:3-8. “As Haiti continues to lack the capacity to ensure that
the large population of TPS beneficiaries currently residing in the United States can return in
safety,” Plaintiffs and their families will suffer concrete and irreparable harms if the Defendants’
termination of TPS is not enjoined. PX 158.001.18
232. These TPS holders have lawfully lived in this country for years. They work, obey
the law, and are “deeply rooted in [their] communit[ies].” Trial Tr. 169:11-14, 181:12-15, 182:8-
25, 405:18-20; Joint Pre-Trial Order, Stipulation 2. In addition, thousands of families with U.S.-
citizen children, such as Plaintiff Rachelle Guirand’s, will face the devastating choice of (1)
returning to their country of origin alone, leaving their children behind; (2) taking their U.S. citizen
children with them to a country that they do not know, and where the safety of the TPS holders
and their children cannot be ensured; or (3) staying in the United States and retreating into the
shadows, knowing they cannot work legally and could be deported at any time. The pending TPS
terminations of Haiti are already causing severe psychological, economic and other harm that will
18
PX 366 is part of what the Government designated as the Administrative Record at AR-HAITI-
00000040-45.
69
be further exacerbated once the terminations go into effect. This harm is amply illustrated in the
testimonies of Plaintiffs Naïscha Vilme and Rachelle Guirand.
B. Rachelle Guirand
233. Rachelle Guirand is a 40-year old “home health aide and certified nursing
assistant.” Trial Tr. 180:18-20, 182:8-25. In addition to working full time, she attends school
part-time with hopes of becoming a dental hygienist one day. Id. 183:10-22. She has a nine-year
old son born in the United States. Id. 184:1-10. They have a “very close” relationship, id.
184:16-19, and she dreams for her son to go to college and “help his community” one day.
234. Should the termination of Haiti’s TPS go into effect, Ms. Guirand would lose her
work authorization and her TPS status. Trial Tr. 190:3-11. Ms. Guirand then would lack legal
status to remain in the U.S. Id. 190:3-8. If forced to return to Haiti, Ms. Guirand “would never
imagine going to Haiti and leaving him here” in the U.S., even though it will mean uprooting her
son from everything that he knows and threaten his safety and health. Id. 185:15-20. Ms. Guirand
does not know where she will live or how she will provide for her son in Haiti, where home health
aides are scare or non-existent. Id. 187:6-11, 189:21-25, 190:1-2.
235. Ms. Guirand has lived in the United States since 2009. Trial Tr. 186:5-6. Her home
in Haiti “was destroyed” in the earthquake. Id. 186:9-18. She has no close family or friends
remaining in Haiti, except her father who is “an old man and struggling himself.” Id. 187:6-11.
She does not know how she will begin to re-integrate herself to life in Haiti where she would be
forced to “start all over again.” Id. 187:18-25, 188:1-3.
236. Ms. Guirand is most “worried about [her] son’s life.” Trial Tr. 188:3-4. If she is
unable to find work, she will “deprive him of the obligation that [she has] to provide for him.” Id.
188:4-7. In particular, she is concerned about his schooling. Without work, she will be unable to
afford private school, and the number of student slots in the public schools are limited in Haiti. Id.
70
188:11-25. As Ms. Guirand explains, without someone “to refer you” (like an official “in the
Government”), her son will not be selected for admission in the public-school system. Id. 188:15-
17, 189:1-3 (“So I’m worried about all these things. If I’m not able to work, I can’t find work, I
would not be able to provide school for my son who basically—the basic needs that he deserves.”).
237. Ms. Guirand is also anxious about her son’s asthma. Her son requires both a
nebulizer and a mobile pump, neither of which she has previously seen in Haiti. Trial Tr. 189:13-
16. Fresh on her mind, her relative died from an “asthmatic crisis” because the hospital lacked the
necessary materials to treat him. Id. 189:13-16. Adding to her concern is whether she would have
the means to pay for medical care in Haiti, should her son require it. Id. 189:7-12, 23-25. She very
much fears not being able to give her son “what he needs” to survive in Haiti. Id. 189:23-25.
C. Naïscha Vilme
238. Naïscha Vilme (“Ms. Vilme”) is a 22-year-old native and citizen of Haiti. Trial Tr.
167:9-12. She currently resides in Brooklyn, New York in valid and unexpired TPS. Her mother
and three siblings live in Brooklyn, and all are TPS recipients. Id. 174:14-23. If Acting Secretary
Duke’s termination of Haiti’s TPS goes into effect, Ms. Vilme will be stripped of legal status to
remain in the U.S. Id. 177:21-23, 178:1.
239. Ms. Vilme lawfully entered the U.S. with her family in January 2010, following
Haiti’s devastating earthquake. Trial Tr. 168:8-71. When they came, Ms. Vilme and her family
intended to remain in the U.S. “until it was safe for [them] to come back” to Haiti. Id. 169:1-2.
Ms. Vilme and her family do not believe it safe to return to Haiti. Id. 3-8.
240. Ms. Vilme was 13 years old when the earthquake hit Haiti. During the earthquake,
she recalls driving with her mother in an effort to get home, where she
saw people on the floor, somebody looked lifeless, a lot of them were injured. Some of
them knocked on the car windows to ask us for help but there was nothing we could have
done really.
71
Trial Tr. 21-24.
241. Ms. Vilme has lived in Brooklyn, New York for nearly nine years, and has
authorization to work. Trial Tr. 9-23. She attended middle school and high school in Brooklyn,
and college at York College in Queens, recently graduating with bachelor’s degrees in both math
and psychology. Id. 170:3-15. She volunteers with the homeless population in Brooklyn, providing
them coats in the winter and meals and hygiene products in the summer. Id. 173:1-9.
242. She dreams of obtaining a doctorate in clinical psychology, and of one day
becoming a clinical psychologist. Trial Tr. 170:13-5, 171:1-4. To this end, she received excellent
grades in college, and volunteers five to eight hours each week at York College, conducting
research as part of a study seeking to cure Alzheimer’s disease. Id. 170:16-19, 171:23–172:25.
243. Ms. Vilme has not applied to Ph.D programs in the U.S. because, due to uncertainty
regarding TPS for Haiti, she is not “sure that [she] would be in the country long enough to complete
the program.” Trial Tr. 171:19-21. To support herself, she works 18 to 20 hours each week at York
College, tutoring and taking notes for students with mental, physical, and psychological
disabilities. Id. 173:1–174:11.
244. The termination of Haiti’s TPS has caused significant stress to Ms. Vilme and her
family because they “don’t know how to plan their lives,” making the family “very anxious.” Trial
Tr. 176:18-23.
245. If Ms. Vilme loses TPS and returns to Haiti, she will be unable to attend a doctorate
program in the United States in clinical psychology, and will be unable to practice clinical
psychology in Haiti. Trial Tr. 176:4-8 (explaining that “it’s a very uncommon profession in
Haiti . . . mental health is a taboo topic.”).
246. Ms. Vilme fears what will happen to her should she lose TPS and be forced to return
to Haiti. Her family home was partially destroyed in the 2010 earthquake. Trial Tr. 175:11-14. Her
72
father and grandfather have passed away. Id. 174:24-25, 177:17-18. It is not safe for young women
to leave their homes at night, and because she has lived in the U.S., she “would easily fall victim
to a crime.” Id. 177:4-16.
D. Remaining Individual Plaintiffs and Other Haitian Nationals with TPS
247. The effects of removal to Haiti on the tens of thousands of U.S. citizen children of
TPS-holders born in the United States will be “traumatic and catastrophic.” Trial Tr. 415:24-25,
416:1, 21-25, 417:1-9. These children will be forced to move to a country they do not know,
jeopardizing their futures and dreams. Id. 417:2-9, 189:21-25. They face potentially severe
hardships in those new countries, including food insecurity, where “half of the Haitian population
is malnourished.” Id. 61:8-11. “The statistics on food insecurity are spe cifically concerning
[for] very young people,” as “stunting—meaning not adequate physical growth—is a problem.”
Id. 61:18-21. The lack of water infrastructure also places those who live in Haiti today and those
who are to return, “at risk of sickness.” Id. 56:25, 57:1-4.
248. The psychological harm that TPS recipients and their families are suffering,
triggered by the impending TPS termination, is severe. Trial Tr. 187:12-15 (since “the
announcement of the TPS termination” Ms. Guirand has “been living with the stress over [her]
head.”). Haitian TPS holders in Florida, the largest population of Haitian TPS holders, are
experiencing “high levels of stress” necessitating “mental health counseling, crisis intervention,
and psychosocial intervention.” Id. 409:22-25, 410:1. Some TPS beneficiaries are even “afraid to
send their kids to school.” Id. 409:2-14 (describing how FANM staff encourage these parents to
send their kids to school and educate the teachers about the “high levels of stress” the families and
students are experiencing due to the impending TPS termination).
249. The TPS termination will also inflict enormous economic harm on TPS recipients
facing loss of immigration status and work authorization. This includes Plaintiff Rachelle Guirand,
73
a home health aide and certified nursing assistant, who will lose her ability to work legally here if
the termination is not enjoined. Trial Tr. 190:3-11. Other TPS holders risk losing their businesses
or other material assets, leading to further economic harm. Id. 414:25, 415:1-6 (describing how
FANM will assist Haitian TPS beneficiaries “liquidate assets” and “close their businesses” should
the impending termination go into effect).
250. The individual Plaintiffs and Haitian TPS holders cannot easily rebuild the lives
that have created in the United States over the years. As a general matter, they face seemingly
insurmountable challenges to re-integrate themselves and secure employment in a country they
have long since left and that is lacking in jobs and whose economy is declining. PX 366.005 (“An
estimated 40% of Haitians are unemployed; Haiti’s GDP growth is forecasted to further decline to
0.5% in 2017.”).19 Most importantly, Plaintiffs face the prospect of returning to countries where
they do not feel, and are not, safe. In its report, the State Department concludes that “Haiti
continues to lack the capacity to ensure that the large population [of] TPS beneficiaries currently
residing in the United States can return in safety.” PX 158.001.20 United States military experts
similarly warn of serious security problems should Haitian TPS beneficiaries be forced to return,
to the point of possibly necessitating U.S. military “intervention” in Haiti. PX 344.001.21 The
government of Haiti itself also warns of serious risks to returning nationals, including a lack of
housing, food and infrastructure, and the risk of contracting cholera. PX 148.002-003.22 The
USCIS RAIO office unambiguously made Director Cissna aware of these conditions in its report.
19
00000046-63.
20
00000040-45.
21
00000001-03.
22
00000007-09.
74
PX 366.001 (“Many of the conditions prompting the original January 2010 TPS designation
persist, and the country remains vulnerable to external shocks and internal fragility . . . As of
August 2017, Haiti continues to be affected by a convergence of humanitarian needs, 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.”).23 These consistent
warnings show that the individual Plaintiffs to this action face harms concerning matters of life
and death.
E. FANM
251. Family Action Network Movement (“FANM”) is a non-profit organization based
in Miami, Florida that provides “wrap-around services to low income families and also advocates
for their members.” Trial Tr. 379:16-18.
252. FANM was created in 1991 to provide services to the South Florida Haitian
immigrant and refugee community. Trial Tr. 380:12-16.
253. Marleine Bastein (“Ms. Bastein”) serves as the Executive Director of FANM. Ms.
Bastein is responsible for writing grant applications, managing grants, supervising staff, raising
funds, and speaking for the organization. Trial Tr. 380:1-2, 382:21–383:1.
254. Today, FANM is a “one-stop shop” for low-income members of the South Florida
community, providing a full array of services, including: mental health counseling, crisis
counseling, after-school programs for children, adult education programs, computer education
programs for the elderly, parenting classes for new immigrants, counseling for survivors of sexual
violence, community outreach, and how-to trainings designed to teach FANM members and
patrons to “advocate for themselves.” Trial Tr. 380:22–381:5, 381:11–382:3. FANM obtains its
23
00000046-63.
75
fiscal resources through local government grants, private foundations, fundraising, and
membership dues. Id. 406:24–407:1-4. While 75% of the individuals FANM services are Haitian,
FANM serves all low-income families in the South Florida community. Id. 382:6-10, 426:13-15.
255. Since Donald Trump became President of the United States in January of 2017,
FANM has provided South Florida’s community of Haitian TPS holders with a litany of additional
services. This has included providing updated information about TPS through print and social
media, holding bi-weekly community meetings to apprise members of changes to TPS, and
psycho-social counseling of TPS holders and their U.S. citizen children. Trial Tr. 383:8-21. FANM
has spent approximately 3% of its fiscal resources on these activities since January 2017. Id.
384:13-20; see also id. 405:1–406:1-2 (describing reaction of TPS holders at one such meeting,
reflected at PX 348.022).
256. Prior to January of 2017, FANM devoted only 1% of its fiscal resources to
TPS-related activities. Trial Tr. 384:4-9.
257. Because FANM does not have a dedicated source of funding for its TPS-related
activities, the financial resources devoted to TPS-related activities come from FANM’s “general
support” fund. Trial Tr. 385:7-11. FANM has historically used its “general support” funding to
pay for and support FANM’s “[i]nfrastructure, to organize training, to support staff,” and to pay
intern salaries. Id. 385:21–386:7.
258. Ms. Bastien has devoted approximately 22% of her time to TPS-related activities
since January 2017. Trial Tr. 384:21-24. Prior to January 2017, Ms. Bastien devoted approximately
1% of her time to TPS-related activities. Id. 383:24–384:3.
259. FANM and Ms. Bastien perform these TPS-related activities because FANM “is a
very trusted organization” in the Miami community that has “been working with the TPS recipients
76
and their families for many years.” Trial Tr. 386:10-14. No other organization in Miami can
provide the services that FANM provides to South Florida’s low-income community and Haitian
TPS recipient population. Id. 386:25–387:6.
260. FANM’s fiscal budget for 2019 is approximately $1.4 million. Trial Tr. 406:20-23.
FANM estimates that if TPS is terminated in 2019, 10% of its budget, or $140,000, will be devoted
to TPS-related activities. Id. 407:11-17.
261. FANM will devote this money to continue, among other TPS-related activities, its
weekly/biweekly community meetings addressing issues related to TPS, mental health and crisis
counseling programs for TPS recipients, and to additionally provide small-business counseling
and child-rearing assistance to TPS recipients. Trial Tr. 409:16-25–410:7.
262. Should TPS for Haiti terminate in July 2019, FANM will work with the thousands
of Haitians in South Florida who hold TPS to help liquidate assets, provide lawyer referrals, advise
and facilitate small business closures, and advise parents on how to prepare their children for the
devastating choice of either (a) family separation or (b) relocation to Haiti. Trial Tr. 414:13–415:8.
263. Because FANM does not have a dedicated source of funding for its TPS-related
activities in 2019, it will obtain the necessary $140,000 by taking money from FANM’s
undesignated “general support” fund. Trial Tr. 407:19–408:1.
264. But-for the need to fund TPS-related activities in 2019, FANM’s “general support”
fund would go toward FANM’s “infrastructure,” including the hiring of personnel and subsidizing
of services that lack a specific, dedicated source of funding. Trial Tr. 408:10-18. This includes
FANM’s “outreach and community organizer,” who travels to the homes of Haitian immigrants in
the South Florida community to treat their stress and anxiety, and encourages undocumented
immigrants to send their children to school. Id. 409:1-14.
77
265. If FANM is required to use “general support” funding to subsidize TPS-related
activities, it will likely be forced to stop funding other programs, beginning with its “outreach and
community organizer.” Trial Tr. 408:19-25.
266. Moreover, because FANM estimates receiving only $75,000 in “general support”
funding for 2019, FANM will need to dedicate time and personnel to fundraise in order to obtain
the entire $140,000 it needs to serve South Florida’s Haitian community of TPS holders. Trial Tr.
408:2-7, 407:19-20.
267. FANM has 20 paid employees. Trial Tr. 382:11-12. One of FANM’s employees
holds TPS. Id. 410:9-14. FANM has devoted resources to training her, and she has become “part
of our team . . . a member of the village.” Id. 410:19-21, 411:7-10. If TPS for Haiti is terminated
and the employee is forced to leave the U.S., FANM and its remaining staff will suffer a serious
professional and emotional loss, and FANM will have to devote additional resources to locate,
hire, and train a replacement employee. Id. 410:15–411:10.
268. FANM has approximately 300 members, each of whom pays a $25 per year
membership fee.24 Trial Tr. 382:15-20. Approximately 150 of FANM’s members hold TPS and
actively participate in FANM meetings. Id. 411:12-16. Another 30 FANM members with TPS are
able to pay, and do in fact pay, membership dues. Id. 411:15-16.
269. If TPS is terminated and the these 180 TPS beneficiaries are forced to leave the
U.S., FANM will suffer a “tremendous” social, psychological, and financial impact. Trial Tr.
412:3-4. In addition to the loss of membership dues, removal from the U.S. of hardworking,
taxpaying TPS holders will result in a financial, psychological, and emotional strain on the South
24
Although the membership fee is required, FANM will waive the fee “[i]f they can’t pay it.” Id.
382:19-20.
78
Florida community FANM serves, requiring, that FANM increase its services to FANM’s
remaining members and beneficiaries. Id. 412:3-22, 413:22–414:4.
270. Based on Ms. Bastien’s education, training, and experience as a community leader
and social worker, Ms. Bastien opines that removal to Haiti of Haitian TPS holders will have a
“traumatic and catastrophic” effect on their U.S. citizen children. Trial Tr. 417:8-9.
F. Haiti Liberté
271. Haiti Liberté “is the largest Haitian weekly [newspaper] published in New York,”
and is a Plaintiff in this case. Trial Tr. 359:21-24.
272. Haiti Liberté is “independently owned and operated,” distributed throughout New
York (primarily Brooklyn and Queens), Boston, New Jersey, Washington, D.C., Miami, Ft.
Lauderdale, West Palm Beach, Montreal, Paris, and Haiti, with a readership that is approximately
95% Haitian. Trial Tr. 361:2-6, 10-16, 23-25, 362:1-3. It is distributed through Haiti Liberte’s
website, newsstands, small kiosks, and bookstores. Id. 361:19-22.
273. Haiti Liberté has a “small office” in Haiti with two staff, but telephone
communication with the staff is sporadic and “impractical . . . because of the fragility of the
infrastructure there.” Trial Tr. 369:20-25, 371:14-18.
274. Haiti Liberté circulates approximately 5,000 papers each week, with an average of
800 to 1,000 daily “hits” on its website. Trial Tr. 362:9-13. It employs approximately 12 people in
the U.S., with annual gross revenue of about $250,000. Id. 362:12-18. It does not make a profit.
Id. 369:1-3.
275. Haiti Liberté is not dominant in the field of newspaper publishing, and competes
with other Haiti-centric newspapers, in addition to standard international publications. Trial Tr.
362:19-23, 366:20-22.
79
276. Kenneth Ives works for Haiti Liberté and testified at trial on its behalf. Trial Tr.
359:11-19. Although he believes that some “charitable NGO[s]” in Haiti “inflate statistics,” he
does not consider FANM or the Institute for Justice and Democracy in Haiti, both based in the
U.S., akin to charitable NGO’s based in Haiti. Id. 375:22–376:6.
277. One of Haiti Liberté’s “best writers,” Jackson Rateau (“Mr. Rateau”), currently
lives in the U.S. with TPS. Trial Tr. 360:2-3, 9-11, 363:3-9. He writes, on average, two articles per
week in both French and Creole, covering news, analysis, and events in Haiti, and participates in
Haiti Liberté’s weekly in-person editorial meetings. Id. 363:13–364:1. Mr. Rateau is also one of
Haiti Liberté’s “principal fundraisers,” and leaders of Haiti Liberté’s vital “community group,”
called “le club des amis d’Haiti Liberté.” Id. 360:4, 364:16-17. If Mr. Rateau is forced to depart
the U.S., “[i]t would be very difficult” to replace him “because he has proficiency as a good writer
in French,” buttressed by his skills as a “novelist.” Id. 364:4-9.
278. If Secretary Duke’s termination of TPS goes into effect and approximately 50,000
Haitians are removed to Haiti, Haiti Liberté expects to lose a substantial percentage of its
“volunteer base . . . fundraising base, [and] readership.” Trial Tr. 360:7-8; id. 365:17-23. Haiti
Liberté also expects to lose a significant amount of advertising revenue, derived principally from
“Haitian businesses,” because (1) those businesses are either owned or frequented by Haitian TPS
holders, and the businesses will either close or lose revenue; and (2) as Haiti Liberté’s U.S.
readership decreases as a result of repatriations to Haiti, U.S. businesses will be less inclined to
advertise in the publication. Id. 365:5-12.
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CONCLUSIONS OF LAW
I. PLAINTIFFS HAVE STANDING TO CHALLENGE DEFENDANTS’ DECISION

TO TERMINATE HAITI’S TPS DESIGNATION
A. The Individual Plaintiffs Have Standing.
1. To establish Article III standing, a “plaintiff must allege personal injury fairly
traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested
relief.” Raines v. Byrd, 521 U.S. 811, 818 (1997) (emphasis and internal quotations omitted); see
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). Similarly, to establish standing to obtain
injunctive relief, a plaintiff must show that (1) he or she will suffer an injury that is actual and
imminent, not conjectural or hypothetical (injury in fact); (2) the injury is fairly traceable to the
challenged action of the defendant (causation); and (3) it is likely that a favorable judicial decision
will prevent or redress the injury (redressability). Summers v. Earth Island Inst., 555 U.S. 488, 493
(2009) (citing Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167,
180–181 (2000)).
2. The first prong, or “injury in fact,” must be “particularized” and “concrete.”
Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016), as revised (May 24, 2016); see Lujan, 504
U.S. at 560. An injury is “particularized” where it “affect[s] the plaintiff in a personal and
individual way.” Spokeo, Inc., 136 S. Ct. at 1548. “Concrete” injuries include both tangible and
intangible harms, but do not include “bare procedural violation[s], divorced from any concrete
harm.” Id. at 1549; see also Summers, 555 U.S. at 496.
3. Where the plaintiff is “an object of the [challenged U.S. Government] action (or
forgone action) at issue[,]” courts may presume causation and redressability because “there is
ordinarily little question that the action or inaction has caused him injury, and that a judgment
preventing or requiring the action will redress it.” Lujan, 504 U.S. at 561–62; see United States v.
81
Vazquez, 145 F.3d 74, 81 (2d Cir. 1998) (emphasizing this point); Island Online, Inc. v. Network
Sols., Inc., 119 F. Supp. 2d 289, 297 (E.D.N.Y. 2000) (same).
4. Here, the individual Plaintiffs have standing to obtain injunctive relief. Their injury
is actual and imminent; it is fairly traceable to the challenged action of Defendants; and a favorable
judicial decision will prevent or redress the injury. Absent judicial intervention, each of the
individual Plaintiffs’ TPS and work authorization will expire on July 22, 2019.25 At that point,
each will lack legal status to remain in the U.S., will be unable to work lawfully, and will be subject
to removal from the United States.
5. Furthermore, the individual Plaintiffs will face a litany of additional harms should
they be removed from their lives in the U.S., including but not limited to possible separation from
their U.S. citizen children, loss of property in the U.S., and emotional and psychological trauma.
See Findings of Fact Section V, supra. Once in Haiti, the individual Plaintiffs and their U.S. citizen
minor children will face additional injuries from having to return to an unsafe country that is not
ready to receive them. As Plaintiffs’ expert witnesses testified and as the USCIS RAIO report
outlines, these conditions include exposure to a cholera epidemic, political instability, food
insecurity affecting 50% of the population, housing shortages and dangerous housing, rampant
gender violence, widespread lack of personal security, and conditions caused and exacerbated by
recent devastating hurricanes. See Findings of Fact Section IV.J, supra.
6. These injuries are directly traceable to Defendants’ actions: But for the unlawful
termination of Haiti’s TPS designation, the individual Plaintiffs would retain their lawful
25
The Honorable Edward M. Chen (N.D. C.A.) has issued a preliminary injunction “enjoining the
government from implementing or enforcing Secretary’s decisions to terminate TPS designations
of affected countries pending final resolution on the merits,” see Ramos v. Nielsen, 336 F. Supp.
3d 1075 (N.D. Cal. 2018), but the injunction is only preliminary and has been appealed to the
Ninth Circuit. See Ramos v. Nielsen, No. 18-16981 (9th Cir.). Put simply, the Ramos injunction
could be lifted at any time.
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immigration status in the U.S. and would not be at risk of imminent removal to Haiti. The Court
can redress Plaintiffs’ injury by issuing a permanent injunction prohibiting enforcement of
Secretary Duke’s termination of Haiti’s TPS. 26
B. FANM and Haiti Liberté Have Associational And Organizational Standing.
7. The organizational Plaintiffs, FANM and Haiti Liberté, also have standing to sue.
Organizations may sue for injunctive relief on their own behalf (organizational standing) or on
behalf of their members (associational standing). Sierra Club v. Morton, 405 U.S. 727, 734-736
(1972). FANM and Haiti Liberté have both forms of standing.
8. An organization has standing to sue for injunctive relief on its own behalf where
the challenged act affects the organization’s ability to function, or to “vindicate its own concrete
interest in performing those activities for which it was formed.” Alfred L. Snapp & Son, Inc. v.
Puerto Rico, ex rel., Barez, 458 U.S. 592, 611 (1982). For example, an organization may challenge
acts that cause it to suffer “financial injury,” that affect its “ability to provide counseling and
referral services,” or that result in a tangible “drain on the organization’s resources.” Bank of Am.
Corp. v. City of Miami, Fla., 137 S. Ct. 1296, 1303, 197 L. Ed. 2d 678 (2017); Havens Realty
Corp. v. Coleman, 455 U.S. 363, 379 (1982).
9. FANM has organizational standing because the termination decision has hampered
and will impede its ability to provide wrap-around services to low-income and immigrant families
and to advocate on behalf of FANM’s non-TPS members. See Alfred L. Snapp & Son, Inc., 458
U.S. at 611. The decision has also hindered FANM’s ability to provide counselling and referral
services by causing a significant drain on the organization’s “general fund” financial resources and
26
As the Court has recognized, even if an injunction were issued, the DHS Secretary would retain
authority to determine whether to extend, redesignate, or terminate TPS for Haiti, but she would
be required to do so in a manner consistent with the TPS statute, the APA, and the U.S.
Constitution.
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human resources. See Bank of Am. Corp., 137 S. Ct. at 1303; Farm Labor Org. Comm. v. United
States Border Patrol, 162 F. Supp. 3d 623, 636 (N.D. Ohio 2016), aff’d sub nom. Muniz-Muniz v.
United States Border Patrol, 869 F.3d 442 (6th Cir. 2017) (organizational standing satisfied by
threat of future harm, such as “[a] drain on an organization’s resources”).
10. Since President Trump took office in January of 2017, FANM has had to devote
approximately 3% of its funds to TPS-related services and advocacy—up from 1% in previous
years. Trial Tr. 384:13-20. As a result of the decision to terminate Haiti, FANM will need to
devote approximately 10% of its 2019 budget, or about $140,000, to such activities. Id. 407:11-
17. In addition, FANM will lose one of its 20 employees, whom it has trained by investing
significant resources. Id. 410:9-14, 410:19-21, 411:7-10.
11. Because FANM does not receive specifically designated funding to perform
TPS-related activities, it funds its TPS-related activities through its “general support” fund. Trial
Tr. 407:19-408:1. FANM has used and will continue to use its “general support” fund to finance
TPS-related activities at the expense of investing in FANM’s infrastructure, hiring necessary staff,
and providing “wrap-around services” to non-TPS holders, including community outreach.27 See
Comm. for Immigrant Rights of Sonoma Cty. v. Cty. of Sonoma, 644 F. Supp. 2d 1177, 1195 (N.D.
Cal. 2009) (organizational standing established “because plaintiffs allege that the Committee’s
mission of opposing anti-immigrant policies is frustrated as a result of defendants’ actions, and
that the Committee has diverted resources to combat defendants’ policies.”); Common Cause/Ga.
v. Billups, 554 F.3d 1340, 1350 (11th Cir. 2009) (“‘[A]n organization has standing to sue on its
27
According to Ms. Bastien, FANM must perform these functions because no other organization
in Miami can provide the services that FANM provides to Miami’s low-income community and
Haitian TPS recipients. See Tr. 386:10-14, 25–387:6; see also We Are Am./Somos Am., Coal. of
Arizona v. Maricopa Cty. Bd. of Supervisors, 809 F. Supp. 2d 1084, 1099 (D. Ariz. 2011) (standing
established even where injury results from organization “acting by their own choosing.”).
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own behalf if the defendant’s illegal acts impair its ability to engage in its projects by forcing the
organization to divert resources to counteract those illegal acts.’” (quoting Fla. State Conference
of the NAACP v. Browning, 522 F.3d 1153, 1165 (11th Cir. 2008)).
12. As a result of Defendants’ termination of Haiti’s TPS, FANM’s director, Ms.
Bastein, will have to devote approximately 22% of her time to TPS-related activities, at the
expense of her responsibilities to manage grants, write grants, supervise staff, raise money, and
speak at events for FANM on issues unrelated to non-TPS. Tr. 384:21-24, 380:1-2, 382:21-383:1.
See Browning, 522 F.3d at 1165–66 (organizational standing established on the ground that the
organizations “reasonably anticipate[d] that they [would] have to divert personnel and time to
educating volunteers and [affected individuals] on compliance” with statute’s requirements).
13. Similarly, Haiti Liberté has organizational standing to sue for injunctive relief
because the removal of approximately 50,000 individuals (and thousands more of their U.S. citizen
children) will reduce Haiti Liberté’s readership in the United States, by approximately 10%. Trial
Tr. 360:7-8, 364:24-365:12, 365:17-23. In addition, as businesses owned and frequented by TPS
recipients close and/or lose revenue, Haiti Liberté’s advertising revenue will decrease. Id. 365:5-
12. Finally, the departure of a key employee (Mr. Rateau) will make it exceedingly difficult for
Haiti Liberté to cover news and current events in Haiti in both Creole and French and will weaken
Haiti Liberté’s vital community support group: le club des amis d’Haiti Liberté. Id. 364:4-9. All
of these factors will hinder Haiti Liberté from fulfilling its mission of reporting on Haitian news
and current events to Haitians living in the U.S., Canada, France, and Haiti. Id. 351:2-6, 10-16,
23-25, 362:1-3.
14. FANM and Haiti Liberté also have associational standing. An organization has
standing to sue on behalf of its members when: “(a) its members would otherwise have standing
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to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s
purposes; and (c) neither the claim asserted nor the relief requested requires the participation of
individual members in the lawsuit.” Hunt v. Washington State Apple Advertising Com’n, 432 U.S.
333, 343 (1977). The plaintiff organization must “establish[] that at least one identified member
had suffered or would suffer harm.” Summers, 555 U.S. at 498; see Lujan, 504 U.S. at 563.
15. FANM has associational standing because 180 of its members—approximately 30
of whom pay dues—and one of its employees have TPS; will suffer harm if Secretary Duke’s
decision to terminate TPS goes into effect; and those members and employees would have standing
to sue in their own right. Because (1) FANM was created to provide services to the South Florida
Haitian immigrant and refugee community (Trial Tr. 380:12-16); (2) it provides services to South
Florida’s entire low-income community (id. 379:16-18); (3) 75% of the individuals FANM serves
are Haitian (id. 382:6-10, 426:13-15); and (4) FANM actively provides services to TPS holders
and their families and advocates on their behalf (383:8-21), the interests of its members that FANM
seeks to protect are germane to its purposes. See Hunt, 432 U.S. at 343; see also El Rescate Legal
Servs., Inc. v. Exec. Office of Immigration Rev., 959 F.2d 742, 748 (9th Cir. 1992) (organizations
established standing to challenge U.S. government policy of not providing full translations to
asylum seekers where organizations were “established to assist Central American refugee clients,
most of whom [we]re unable to understand English”). Finally Plaintiffs’ claims would not require
the participation of FANM’s individual members in the lawsuit because “individual participation
is not normally necessary when an association seeks prospective or injunctive relief for its
members.” United Food & Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S.
544, 546 (1996) (internal quotation marks omitted). In any case, Plaintiff Yolnick Jeune is a
member of FANM.
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16. Haiti Liberté enjoys associational standing because one of its 12 employees—Mr.
Rateau—has TPS; will suffer harm if the decision to terminate Haiti’s TPS designation goes into
effect; and would have standing to sue in his own right. The interests that Haiti Liberté seeks to
protect through this lawsuit are germane to its purpose, and neither the claims asserted nor the
permanent injunction requested require participation of Mr. Rateau. See United Food &
Commercial Workers Union Local 751, 517 U.S. at 546.
C. Haiti Liberté Has Standing Under The Regulatory Flexibility Act.
17. The Regulatory Flexibility Act (“RFA”) provides a cause of action for “a small
entity that is adversely affected or aggrieved by final agency action.” 5 U.S.C. § 611(a).
18. Haiti Liberté qualifies as a “small business” and “small entity” under the RFA
because it is “independently owned and operated and [it] is not dominant in its field of operation.”
15 U.S.C. § 632(a)(1) (providing definition of “small business concern,” the same definition used
for a “small business” under the RFA pursuant to 5 U.S.C. § 601(3), (6)).
19. The Small Business Association (“SBA”) provides “‘detailed definitions or
standards by which a business concern may be determined to be a small business concern for the
purposes of [the Act] or any other Act.’ The SBA publishes these small business definitions in
13 C.F.R. § 121.201.” Nw. Min. Ass’n v. Babbitt, 5 F. Supp. 2d 9, 15 (D.D.C. 1998) (quoting
15 U.S.C. § 632(a)(2)(A)).
20. At a minimum, Haiti Liberté is a “small business” that is not dominant in the field
of newspaper publishing and that qualifies as a “small entity” under the RFA because it has only
approximately 12 employees. See 13 C.F.R. § 121.201(511110) (listing “small business” in the
category of “newspaper publishers” as those entities with under 1001 employees); see id.(519130)
(same, for category of “Internet Publishing and Broadcasting and Web Search Portals”). Haiti
Liberté also does not dominate the field of “newspaper publishing” as compared to other
87
international newspaper publishers such as the New York Times. Indeed, Haiti Liberté does not
make a profit.
II. THE COURT HAS JURISDICTION OVER PLAINTIFFS’ CLAIMS
1. As the Court held when it denied Defendants’ motion to dismiss, it has jurisdiction
to adjudicate Plaintiffs’ claims. See Dkt. 96, at 5-11.
2. The TPS statute, 8 U.S.C. § 1254a(b)(5)(A), provides that “[t]here is no judicial
review of any determination of the [Secretary] with respect to the designation, or termination or
extension of a designation, of a foreign state under this subsection.” (emphasis added). There is a strong
presumption, however, that administrative actions are reviewable in federal court. Bowen v. Mich. Acad.
of Family Physicians, 476 U.S. 667, 670 (1986); Sharkey v. Quarantillo, 541 F.3d 75, 84 (2d Cir. 2008)
(citations omitted). There is also a “longstanding principle” of “construing any lingering ambiguities” in
immigration statutes “in favor of the alien.” Sepulveda v. Gonzales, 407 F.3d 59, 62 (2d Cir. 2005)
(Sotomayor, J.) (quoting INS v. St. Cyr, 533 U.S. 289, 298 (2001)) (applying principle to jurisdiction-
stripping provision in INA to hold that the Court had jurisdiction). The presumption in favor of judicial
review may be overcome “only upon a showing of ‘clear and convincing evidence’ of a contrary
legislative intent.” Sharkey, 541 F.3d at 84 (citations omitted).
3. The prohibition on judicial review of the Secretary’s “determination” with respect to the
designation of a country for TPS might prevent the Court from second-guessing factual conclusions as
to the statutorily-prescribed questions, made in good faith by the Secretary based on review of the
relevant evidence. But, as this Court and three other district courts have already held, it does not bar
challenges to the process by which the TPS decision was made. See Ramos v. Nielsen, 321 F. Supp. 3d
1083 (N.D. Cal. Aug. 6, 2018); Centro Presente v. DHS, 332 F. Supp. 3d 393 (D. Mass. July 23, 2018);
CASA de Maryland , Inc. v. Trump, __F.Supp.3d__, 2018 WL 6192367 (D. Md. Nov. 28, 2018).
88
4. Plaintiffs claim that the Secretary violated the statutorily-mandated procedure for
termination of a TPS designation. Indeed, they contend that the Secretary did not make the
“determination” required by the statute at all, but instead carried out a preordained decision to
terminate Haiti’s TPS designation for reasons unrelated to the statutory criteria and then
manufactured support for that outcome. Cf. 8 U.S.C. § 1254a(b)(3)(A) (using the word “determine”
to describe the Secretary’s obligation to “determine whether the conditions for . . . designation under
this subsection continue to be met”). Plaintiffs claim, inter alia, that the review process was a sham
designed to create a pretext for terminating TPS for Haiti; that in violation of the statute the
Secretary improperly excluded from consideration conditions in Haiti that she asserted were not
related to the earthquake and failed to provide a reasoned explanation for this new standard; that
DHS officials intentionally minimized, omitted, or ignored negative information about country
conditions; and that Defendants failed to undertake notice-and-comment rulemaking or to conduct
the required analysis under the Regulatory Flexibility Act. The language of the TPS statute does
not purport to bar review of these claims, and this Court therefore has jurisdiction.
5. Even where Congress provides an agency with the discretion to make an ultimate
determination, the agency must abide by the required “practice or procedure employed in making
decisions.” McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 492 (1991); see Mejia Rodriguez
v. DHS, 562 F.3d 1137, 1143 (11th Cir. 2009) (explaining, in the context of adjudicating an
individual’s application for TPS, that the “several preliminary statutory eligibility decisions are
not ones that involve discretion. Instead, staff at USCIS must apply the facts of the applicant’s
situation to the relevant law when deciding whether the applicant has satisfied these statutory
eligibility requirements.” (emphasis in original)); see also Pinho v. Gonzales, 432 F.3d 193, 203
(3d Cir. 2005) (“To treat all denials of adjustment as discretionary, even when based on eligibility
89
determinations that are plainly matters of law, is to fundamentally misunderstand the relationship
between the executive and the judiciary.”).
6. Both the Second Circuit and this Court have relied on McNary and its progeny to
review a variety of procedural challenges to otherwise unreviewable decisions under the INA. See,
e.g., Abdullah v. INS, 184 F.3d 158, 163 (2d Cir. 1999) (“We find that plaintiffs’ claims are within
the range of ‘challenges to procedures used by [the] INS’ that McNary found subject to review by
the district courts.”); Sharkey v. Quarantillo, 541 F.3d 75, 86–91 (2d Cir. 2008); Makransky v.
Johnson, 176 F. Supp. 3d 217, 225 (E.D.N.Y. 2016) (Seybert, J.) (“Plaintiff is challenging the
USCIS’s decision to apply the [Adam Walsh Act], not the USCIS’s discretionary ‘no risk’
determination.”); see also Wang v. Reno, 862 F. Supp. 801, 809 (E.D.N.Y. 1994) (distinguishing
case from McNary because “Plaintiffs’ claims are simply a challenge to rulings made by the BIA
in individual cases. They are not a challenge to the procedures used, which would prevent the
development of an adequate record, nor are they based on a contention that a statutory or
constitutional right has been violated.”),
7. As in McNary, Plaintiffs here do not challenge the merits of any determination made
by the Secretary; instead they challenge the process employed in terminating Haiti’s TPS. Here,
Defedants did not make a real merits determination but instead issued a pretextual edict. Further, the
Defendants improperly excluded from consideration conditions in Haiti that were not related to
the earthquake in violation of the statute and failed to provide a reasoned explanation for this new
standard. Thus, under McNary, the TPS statute does not bar review here and this Court has jurisdiction.
Further, Plaintiffs are not seeking a substantive declaration from the Court that they are entitled to any
particular TPS determination. Instead, they ask that Secretary Duke’s decision to terminate Haiti’s TPS
decision be enjoined and that Defendants be required to make a new, good faith, evidence-based
90
determination regarding Haiti’s status by applying lawful criteria. See McNary, 498 U.S. at 495;
Centro Presente, 332 F. Supp. 3d. at 408. For this reason, too, the TPS statute does not bar review
of Plaintiffs’ claims and this Court has jurisdiction to adjudicate them.
8. In response to the Court’s questioning during closing argument at trial, Defendants
conceded that the TPS statute could “be violated by the actions of a Secretary of the Department of
Homeland Security,” (Trial Tr. 714:21-24), but incorrectly maintained that there is no judicial
remedy for such a statutory violation. Trial Tr. 714:25-715:4. Defendants maintained, rather, that
there could only be a remedy if Congress amended the TPS statute to eliminate the statutory bar on
judicial review. Trial Tr. 715:5-9. Defendants’ contention that this Court lacks the power to
adjudicate Plaintiffs’ claims—including their claim that Defendants have violated the TPS statute—
is wrong. The TPS statute does not purport to strip the courts of their power to provide a remedy
when federal officials violate the very obligations that the TPS statute imposes. Cf. Marbury v.
Madison, 5 U.S. (1 Cranch) 137, 163 (1803).
9. Moreover, even if Congress had intended as a general matter to preclude review of
process-based claims such as those raised by the Plaintiffs, the Court would have the authority to
review Plaintiffs’ constitutional claims. “[W]here Congress intends to preclude judicial review of
constitutional claims its intent to do so must be clear.” Webster v. Doe, 486 U.S. 592, 603 (1988)
(citations omitted). “[T]his heightened showing is in part to avoid the ‘serious constitutional question’
that would arise if a federal statute were construed to deny any judicial forum for a colorable
constitutional claim.” Id. (citation omitted); accord Henderson v. INS, 157 F.3d 106, 118 (2d Cir.
1998); cf. Battaglia v.General Motors Corp., 169 F.2d 254, 257 (2d Cir.1948) (“[W]hile Congress
has the undoubted power to give, withhold, and restrict the jurisdiction of the courts ..., it must not
91
so exercise that power as to deprive any person of life, liberty, or property without due process of
law”).
10. The TPS statute does not reflect clear evidence of congressional intent to strip the courts
of jurisdiction over Plaintiffs’ constitutional claims. Indeed, as Centro Presente, 332 F. Supp. 3d at 407,
and Ramos, 321 F. Supp. 3d at 1105-06, recognized, the fact that Congress specifically included
constitutional jurisdiction-limiting provisions elsewhere in the INA but did not do so in the TPS statute
strongly suggests that Congress did not intend to eliminate jurisdiction over constitutional claims. See,
e.g., 8 U.S.C. § 1252(b)(9) (“Judicial review of all questions of law and fact, including interpretation and
application of constitutional and statutory provisions, arising from any action taken or proceeding
brought to remove an alien . . . shall be available only in judicial review of a final order under this
section. Except as otherwise provided in this section, no court shall have jurisdiction . . . to review
such an order or such questions of law or fact.” (emphasis added)); INS v. Cardoza-Fonseca, 480
U.S. 421, 433 (1987) (“Where Congress includes particular language in one section of a statute but
omits it in another section . . . it is generally presumed that Congress acts intentionally and purposely in
the disparate inclusion or exclusion.”) (citation omitted)). Any intent on the part of Congress to
insulate claims such as Plaintiffs’ from judicial review is far from clear and does not meet the
heightened standard under Webster.
11. Defendants have argued that individuals who lose TPS protection may be able to
bring their constitutional claims in immigration court once they are ordered to be removed, and
that the heightened Webster standard therefore does not apply. ECF Dkt. 59, PgID 1455.
Defendants are wrong. As the Supreme Court found in McNary, for Plaintiffs to bring their
constitutional claims in removal proceedings, they would have to “voluntarily surrender themselves
for deportation.” 498 U.S. at 496. Such a price is “tantamount to complete denial of judicial review.”
92
Id. at 496-97. Moreover, Plaintiffs would not be able to assert the claims they pursue here in
immigration court because such claims would require record development unavailable in the context
of an individual removal proceeding. See Centro Presente, 332 F. Supp. 3d at 407. Lastly, it would
provide no forum for the organizational plaintiffs, which will never be placed in removal
proceedings.
12. Relying principally on Mississippi v. Johnson, 71 U.S. (4 Wall.) 475 (1867) and
Franklin v. Massachusetts, 505 U.S. 788 (1992), Defendants also contend that this Court does not
have subject matter jurisdiction over Plaintiffs’ claims against the President, who is sued in his
official capacity. ECF Dkt. 59, PgID 1456-57. In Franklin, a plurality of the Supreme Court stated
that a “grant of injunctive relief against the President himself is extraordinary, and should [raise]
judicial eyebrows.” 505 U.S. at 802. However, the Supreme Court has never held that “a court may
never enjoin the President with regard to his official behavior,” only that “there is something
unique about litigation against the President eo nomine that should cause a special judicial
hesitation.” Patricia M. Wald & Jonathan R. Siegel, The D.C. Circuit and the Struggle for Control
of Presidential Information, 90 Geo. L.J. 737, 758 (2002).
13. The factors to consider in determining whether injunctive relief against the President
would be appropriate are whether injunctive relief against a lower official or declaratory relief
would be an adequate remedy and the level of intrusion into the President’s authority. See Intl
Refugee Assistance Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017) (reasoning that the President
was not a proper defendant because “[r]eview of the legality of Presidential action can ordinarily be
obtained in a suit seeking to enjoin the officers who attempt to enforce the President’s directive”)
(citation omitted), vacated and remanded on other grounds sub nom. Trump v. Int’l Refugee
Assistance, 138 S. Ct. 353 (2017); Nixon v. Fitzgerald, 457 U.S. 731, 754 (1982) (“[A] court, before
93
exercising jurisdiction, must balance the constitutional weight of the interest to be served against the
dangers of intrusion on the authority and functions of the Executive Branch.” (citations omitted)); Nixon
v. Sirica, 487 F.2d 700, 709 (D.C. Cir. 1973) (“[C]ourts should normally direct legal process to a lower
Executive official even though the effect of the process is to restrain or compel the President.”).
14. This is one of the rare cases where the extraordinary remedy of injunctive relief against
the President is appropriate. The record contains evidence that the President himself adopted an anti-
immigrant platform focused on denigrating minorities and seeking to limit their immigration to the United
States; that he made derogatory statements about Haitians in particular and expressed his desire to limit
their immigration here; and that senior White House officials put pressure on Secretary Duke to terminate
TPS for Haiti and for other non-White, Latin American countries. An injunction against the President is
thus appropriate to ensure that the Secretary’s new decision on whether to extend or terminate TPS for
Haiti is based on a review of the proper statutory criteria and not prejudicial influence motivated by racial
animus.
III. PLAINTIFFS HAVE ESTABLISHED THEIR APA AND ULTRA VIRES CLAIMS
1. Plaintiffs claim that Defendants’ termination of TPS for Haiti violated the APA
because it was arbitrary and capricious, an abuse of discretion, otherwise not in accordance with
the law, in excess of statutory authority, and was undertaken without observance of the procedure
required by law (Count I); and that the termination was ultra vires under the APA and common
law (Count V). Plaintiffs also contend that Defendants improperly failed to adhere to the APA’s
requirements for notice-and-comment rulemaking and failed to conduct any Regulatory Flexibility
Act (“RFA”) analysis to determine how the termination of TPS for Haiti would affect small
entities, such as Haiti Liberté, in violation of the RFA (Count V). The evidence presented at trial
establishes each of these claims.
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A. Defendants’ Haiti TPS Decision And Their Adoption Of A New Standard
For TPS Review Violated the TPS Statute And Were Arbitrary And
Capricious And Ultra Vires.
2. Under the APA, the reviewing court “shall… hold unlawful and set aside agency
action… found to be… arbitrary, capricious, an abuse of discretion, or otherwise not in accordance
with law;… in excess of statutory jurisdiction, authority, or limitations, or short of statutory
right; … [or] without observance of procedure required by law.” 5 U.S.C. § 706(2)(A).
3. “It is well settled that an agency may only act within the authority granted to it by
statute.” Nat. Res. Def. Council v. NHTSA, 894 F.3d 95, 108 (2d Cir. 2018). Accordingly, the APA
“authorizes reviewing courts ‘to hold unlawful and set aside agency action . . . in excess of statutory
. . . authority.’” Haitian Ctrs. Council, Inc. v. Sale, 823 F. Supp. 1028, 1046 (E.D.N.Y. 1993)
(quoting 5 U.S.C. § 706(2)) (enjoining the government’s “non-statutory system” for processing
Haitian detainees at Guantanamo Bay). “Agency actions that do not fall within the scope of a
statutory delegation of authority are ultra vires and must be invalidated by reviewing courts.” Id.
(citing Transohio Sav. Bank v. Director, Office of Thrift Supervision, 967 F.2d 598, 621
(D.C.Cir.1992); Chrysler Corp. v. Brown, 441 U.S. 281, 302 (1979)). Also, “[c]ourts will
invalidate executive action that is unsupported by express statutory authority.” Id. (citing Jean v.
Nelson, 472 U.S. 846 (1985)).
4. Agency action is arbitrary and capricious where “the agency has relied on factors
which Congress has not intended it to consider, entirely failed to consider an important aspect of
the problem, offered an explanation for its decision that runs counter to the evidence before the
agency, or is so implausible that it could not be ascribed to a difference in view or the product of
agency expertise.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto Ins. Co., 463
U.S. 29, 43 (1983). Because an agency’s decision “is lawful ‘only if it rests on a consideration of
the relevant factors,’” the court “must be ‘satisfied from the record that the agency . . . examine[d]
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the relevant data and articulate[d] a satisfactory explanation for its action.’” Nat. Res. Def. Council
v. EPA, 808 F.3d 556, 569 (2d Cir. 2015) (citations and additional internal quotation marks
omitted).
5. Additionally, “[a]n agency may not . . . depart from a prior policy sub silentio or
simply disregard rules that are still on the books.” FCC v. Fox Television Stations, Inc., 556 U.S.
502, 515 (2009). Where an agency departs from prior agency practice or polices, the APA requires
the agency to provide a “reasoned explanation” for such departure. Id. at 515-16. The Supreme
Court has made clear that an “unexplained inconsistency in agency policy is a reason for holding
an interpretation to be an arbitrary and capricious change from agency practice.” Encino
Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126 (2016) (citation and modifications omitted).
To survive arbitrary and capricious review when changing a policy, an agency must “at least
display awareness that it is changing position,” “show that there are good reasons for the new
policy,” and “be cognizant that longstanding policies may have engendered serious reliance
interests that must be taken into account.” Id. (citation and quotations omitted).
6. “An agency cannot simply disregard contrary or inconvenient factual
determinations that it made in the past, any more than it can ignore inconvenient facts when it
writes on a blank slate.” Fox, 556 U.S. at 537 (Kennedy, J., concurring). “[E]ven when reversing
a policy after an election, an agency may not simply discard prior factual findings without a
reasoned explanation.” Organized Vill. of Kake v. U.S. Dep’t of Agriculture, 795 F.3d 956, 968
(9th Cir. 2015). Agency action may “fail arbitrary and capricious review if the agency . . . fails to
justify departures from past practice (by, for example, failing to persuasively distinguish contrary
precedent).” New York v. U.S. Dep’t of Commerce, 2019 WL 190285, at *90 (S.D.N.Y. Jan. 15,
2019).
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7. Plaintiffs have established that Defendants’ termination of TPS was both in excess
of statutory authority and arbitrary and capricious in violation of the APA. Plaintiffs have proven
that the Secretary did not conduct a good-faith, evidence-based review of all country conditions to
determine whether the conditions for the designation continued to exist and whether it was safe
for Haitian nationals to return. Instead, she succumbed to pressure from White House officials to
terminate TPS for Haiti and then searched for a rationale for the decision, while Trump
Administration appointees at USCIS manipulated the memoranda and factual findings of career
professionals in an effort to provide her with one. Departing from both the statute and well-
established agency practice, Defendants ignored evidence of current country conditions unless
they were directly traceable to the 2010 earthquake. Indeed, to reach their predetermined
conclusion, Defendants ignored country conditions that were directly traceable to the earthquake.
Further, they changed the policy without taking into account the serious reliance interests that their
prior policy had engendered. And they omitted or minimized negative information and focused
exclusively on supposedly “positive” facts that had little if anything to do with whether TPS
holders could safely return to Haiti.
1. Defendants Did Not Follow the Required Procedures For Terminating

TPS For Haiti.
8. Congress required the DHS Secretary to undertake a non-discretionary procedure
to terminate TPS for a recipient country. See 8 U.S.C. § 1254a(b)(3)(B) (requiring that the DHS
Secretary undertake an analysis pursuant to 8 U.S.C. § 1254a(b)(3)(A) prior to termination of
TPS). The statute provides that the DHS Secretary, “after consultation with appropriate agencies
of the Government, shall review the conditions in the foreign state . . . . for which designations is
in effect under this subsection and shall determine whether the conditions for such designation
under the subsection continue to be met.” 8 U.S.C. § 1254a(b)(3)(A), (emphasis added).
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9. In 2010, the Secretary designated TPS for Haiti under 8 U.S.C. § 1254a(a)(1)(C)
based on a finding by the Secretary that “there exist extraordinary and temporary conditions in the
foreign state that prevent aliens who are nationals of the state from returning to the state in safety.”
PX 332.002. In 2011, the Secretary re-designated TPS for Haiti under the same provision . PX
334. As such, in order to terminate TPS for Haiti, Acting Secretary Duke had the non-discretionary
duty to “review the conditions” in Haiti and determine whether “the conditions for such
designation under [8 U.S.C. § 1254a(b)(1)(C) no longer] continue to be met.” 8 U.S.C.
§ 1254a(b)(3)(A), (B). Defendants agree that the Secretary’s power “is limited… to the language
set forth in the TPS statute.” Trial Tr. 714:19-20. In other words, Duke was obliged to determine
whether it continued to be true that “there exist extraordinary and temporary conditions in the
foreign state that prevent aliens who are nationals of the state from returning to the state in safety.”
PX 332.002. She did not, and therefore failed to undertake the review or to make the determination
required under the statute.
10. Secretary Duke’s termination of TPS violated both the non-discretionary procedure
required under 8 U.S.C. § 1254a, and the well-established USCIS practices that implemented those
non-discretionary procedures, in the following ways.
11. First, the termination was predicated on an explicit and legally erroneous
interpretation of 8 U.S.C. § 1254a(a)(1)(C), first announced by Secretary Kelly (PX 213.070) and
later confirmed by Secretary Nielsen. PX 345.003. Prior to the Trump Administration, when
deciding whether to extend, redesignate, or terminate TPS under 8 U.S.C. § 1254a(b)(3), USCIS
interpreted the term “extraordinary and temporary conditions” (as used at 8 U.S.C.
§ 1254a(b)(1)(C), the subsection under which Haiti received TPS) to require an analysis of
conditions at the “particular point in time when the adjudication is occurring” that “prevent
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nationals from returning to the country in safety, which means significant threat to life or health.”
Trial Tr. 250:11-12; 248:30–249:12 (Rodriguez). This includes “conditions that were not
necessarily caused by,” and conditions “untethered” to, the initial event that led to a TPS
designation. Trial Tr. 251:13-14, 252:6-14 (Rodriguez). It was established practice that
cannUSCIS TPS recommendations considered “a broad range of issues” “including food security,
gender violence, stability of the Government, education [and] healthcare,” regardless of whether
said conditions were related to the initial reasons for a country’s TPS designation. Trial Tr. 255:5-
9 (Rodriguez). For example, in extending Haiti’s TPS designation in May 2017, the Federal
Register notice analyzed a number of recent conditions untethered to the earthquake, including
Hurricane Matthew, and heavy rains in April 2017 that caused flooding and landslides. PX 340.003
(“the damage from Hurricane Matthew and the recent heavy rains are compounding the existing
food insecurity experienced by an estimated 3.2 million people (approximately 30 percent of the
population) in September 2016.”).
12. But in terminating TPS for Haiti as well as other countries, DHS under the Trump
Administration took the position that it could not consider conditions that were not “directly tied
to” the event that originally triggered the TPS designation. PX 114.001 (announcement of Haiti’s
TPS termination referred exclusively to the country’s 2010 earthquake); PX 316.004 (Nicaragua
Director Memo recommending termination because “Nicaragua’s current challenges cannot be
directly tied to destruction stemming from Hurricane Mitch”); PX 136.004 (“Haiti’s current
challenges cannot be directly tied to the 2010 earthquake.”); PX 037.001 (USCIS career “subject
matter expert” explaining the “basic problem” is country conditions were “bad … [with respect
to] all of the standard metrics,” and the “strongest argument for termination” was “just that it is
not bad in a way clearly linked to the initial disasters prompting the designations”); PX 040A.005-
006 (DHS spokesperson stating to the public “But we can’t judge for temporary protected status what the
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conditions were that have nothing to do with the event that created TPS to start with. . . . [T]he statute
provides that TPS is designated and decisions about extended should be based on the conditions that
predicated the designation, not everything else that may point to the fact that those countries have
problems.”); PX 029.003 (then-Secretary Kelly instructing staff to highlight that the “2010 Earthquake is
the only reason for TPS being granted-Not based on hurricane or current economic conditions-Not based
on cholera epidemic.”)..
13. The Trump Administration’s new and novel interpretation of the TPS statute was
also reflected in Director Cissna’s November 3, 2017 memorandum recommending termination of
TPS for Haiti (the “Cissna Memo”), which said that current conditions were considered only if
they were related to the earthquake. See, e.g., PX 136.005 (recommending termination because
“[a]ny current issues in Haiti are unrelated to the 2010 earthquake”); see PX136.003, 004
(reiterating this analysis). The Cissna Memo—which Acting Secretary Duke adopted in the
termination announcement and subsequent FRN—discounted grave conditions such as severe and
widespread food insecurity, gender-based violence, and pervasive lack of personal security which
bear directly on the ability of Haitian nationals “to return to [Haiti] in safety,’ 8 U.S.C. §
1254a(a)(1)(C), because these conditions supposedly were unrelated to the earthquake. See PX
136.003 (“Currently, Haiti’s food insecurity seem related to tropical storms and a drought rather
than lingering effects of the 2010 earthquake.”); PX 136.004 (“Haiti’s current challenges cannot
be directly tied to the 2010 earthquake.”).
14. By expressly ignoring problems material to whether Haitian nationals can safely
return to Haiti because the problems were deemed unrelated to the earthquake, Defendants violated
both the TPS statute and well-established USCIS practices and procedures, both of which required
Acting Secretary Duke to consider all current conditions to determine whether grounds for
designation continued to exist and whether nationals could safely return to Haiti. 8 U.S.C.
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§ 1254a(a)(1)(C); PX 330.006 ¶¶ 23–25; Trial Tr. 269:21–270:2, 15–271:8, 291:24–292:7–
293:21, 295:5-16; 343:22–345:6 (Rodriguez). Duke’s failure to consider all current conditions
relevant to the determination violated the statute’s directive concerning the procedures for
termination of a designation and renders Duke’s decision arbitrary and capricious.
Importantly, moreover, the new standard was not applied in good faith but was simply used to
provide a pretext for termination. There was no basis in the factual record before DHS for its
conclusion that certain current country conditions were unrelated to the 2010 earthquake. For
example, the Cissna Memo acknowledges that, for the 38,000 persons remaining in IDP camps,
“gender-based violence continues to be a serious concern,” and “a lack of personal security is
pervasive,” but asserts baldly that “neither is a post-earthquake phenomenon.” PX 136.003. The
record before the agency reveals no basis in fact or logic for concluding that the violence suffered
by tens of thousands of displaced Haitians living in IDP camps is not related to the earthquake.
Likewise, Secretary Cissna’s memo cites no evidentiary basis for its conclusion that “Haiti’s
lingering food insecurity problems” (PX 136.004) are unrelated to the earthquake. On the
contrary, the RAIO report states that the earthquake “exacerbated Haiti’s historic food insecurity
problems” and explains that subsequent natural disasters and other challenges have impeded
Haiti’s recovery from the earthquake in this area. PX 366.001. Even if the new standard were a
legitimate one, therefore, the Secretary’s decision would be arbitrary and capricious.
15. Second, the review undertaken by Trump appointees was designed not to produce
a good-faith “determination” of whether the “extraordinary and temporary conditions” existed that
“prevent aliens who are nationals of the state from returning to the state in safety” (PX 332.002),
but to justify the pre-determined, desired outcome of termination. Within two months of President
Trump’s inauguration, his appointees began making clear that they wanted TPS to end. Rather
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than making a determination regarding the facts, USCIS officials struggled to justify the
Administration’s preferred result.
16. For example, in March 2017, although Hurricane Matthew had recently devastated
the island and exacerbated the cholera epidemic initially caused by the 2010 earthquake (PX
144.003), DHS Secretary Kelly’s senior counselor Gene Hamilton told career officials within
USCIS “that [Kelly] may wish to terminate” (PX 012.001). The draft Director Memo, which had
been prepared in early March 2017 and recommended an 18-month extension of TPS for Haiti (PX
144.002), was therefore “refashion[ed]” in late March to provide an “option[] …. to terminate”
(PX 012.001). Shortly thereafter, new Trump political appointee Hamilton informed Kathy
Nuebel Kovarik, another new Trump appointee, and others that Kelly wanted to know, among
other things, how many Haitian TPS recipients were “on public and private relief” and “how many
have been convicted of crimes of any kind.” PX 103.001. Career officials were then instructed to
gather criminality and welfare data about Haitian TPS recipients. PX 015.011.
17. Criminality and welfare data of the type sought by Secretary Kelly and his Trump-
appointee subordinates are irrelevant under the statute. For one thing, the statute itself provides
that anyone with a felony conviction or two misdemeanor convictions is ineligible for TPS. 8
U.S.C. § 1254a(c)(2)(B)(ii). In other words, people with criminal records cannot receive TPS.
USCIS Director Rodriguez explained, “if somebody is convicted of a crime while they are on TPS,
ordinarily Immigrations and Customs Enforcement, which is the enforcement agency within the
Department of Homeland Security, would . . . initiate proceedings . . . to terminate their TPS, and
then to potentially place that person in deportation proceedings.” Trial Tr. 257:24-258:5.
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18. Nor are TPS recipients as a general matter eligible for public benefits. As career
USCIS researcher Kathryn Anderson explained to Kovarik when she first asked Anderson for
welfare data, “TPS holders don’t qualify for federal benefits.” PX 015.008.
19. In short, these requests for statutorily-irrelevant data about Haitian TPS recipients
not only demonstrate animus toward Haitian TPS holders, but are strong evidence of a desire by
the Trump Administration to create from whole cloth a basis for terminating TPS.
20. By April 10, 2017, the Director Memo had been revised. Instead of recommending
extension of Haiti’s TPS, it now recommended termination. The change was not based on any new
information; the drafters simply changed the conclusion and insisted that Haiti’s severe continuing
problems were not attributable to the earthquake. See PX 122.003 (“Haiti has made significant
progress in addressing issues specific to the earthquake.”). Political appointees at DHS then
continued to search for a rationale for that predetermined conclusion. On April 28, 2017, for
example, Kovarik emailed USCIS research staff and instructed them to research staff to
“dig for any stories (successful or otherwise) that would show how things
are in Haiti—i.e. rebuilding stories, work of nonprofits, how the U.S. is
helping in certain industries. We should also find any reports of criminal
activity by any individual with TPS. Even though it’s only a snapshot and
not representative of the entire situation, we need more than ‘Haiti is really
poor’ stories.”
PX 212.003.
21. In response, LeRoy Potts—a career civil service USCIS researcher and not a
political appointee—responded that “[u]nfortunately, conditions in Haiti remain difficult.” PX
212.001. He reported to Kovarik that “Haiti has not fully recovered from the 2010 earthquake;”
that “Hurricane Matthew struck Haiti,” causing billions of dollars in damage; that “shelter and
food remain scarce in Haiti’s southern peninsula,” and that just a week earlier, from “April 20 to
24, 2017, heavy rains caused flooding” in Haiti, affecting nearly 350,000 people. PX 212.001.
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22. Despite being told by agency researchers that conditions in Haiti were dire, the
evidence demonstrates that in the Spring of 2017—having rewritten critical memos and sought
criminality and welfare data about TPS recipients in an effort to gin up pretext—political
appointees of the Trump Administration were poised to terminate TPS for Haiti, no matter what
career officials told them the facts on the ground in Haiti warranted.
23. It was only after the press revealed to the world that Trump Administration officials
had been searching for criminality and welfare data on TPS recipients and intended to terminate
Haiti’s TPS that Secretary Kelly did an abrupt about-face and reluctantly announced a short, six
month extension of Haiti’s TPS, while signaling that TPS would then be terminated. PX 160.001.
In the May, 2017 press release, DHS “urge[d] Haitian TPS recipients who do not have another
immigration status to use” the six month extension “to prepare for and arrange their departure from
the United States.” PX 160.001.
24. Thereafter, notwithstanding the facts on the ground, USCIS officials were
instructed explicitly to “begin[] to build a case for not extending” TPS for Haiti. PX 029.003.
RAIO reported again in October 2017 the conditions in Haiti remained extremely difficult and that
Haiti had not recovered from the earthquake. PX 366.018 (“Haiti’s recovery from the 2010
earthquake . . . could be characterized as . . . one step forward, two steps back.” (internal quotation
marks omitted)). After receiving a draft Director Memo that summarized the information in the
RAIO report (PX 127.001-002), Kovarik complained that the facts recounted were too negative,
stating: “The problem is that [the Director Memo] reads as though we’d recommend an extension
b/c we talk so much about how bad it is, but there’s not enough in there about positive steps that
have been taken since its designation.” PX 036.001. A career researcher, Brandon Prelogar,
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responded: “[T]he basic problem is that it IS bad there [with regard to] all of the standard metrics.”
PX 037.001.
25. The political staff then rewrote the memo to support the Administration’s desired
conclusion. After Kovarik’s counselor Robert Law observed that “the draft is overwhelmingly
weighted for extension which I do not think is the conclusion we are looking for” (PX 127.001),
Kovarik encouraged him to edit the memo. Twenty-nine minutes later, Law—who had no expertise
regarding Haiti or in evaluating country conditions—reported that he “made the document fully
support termination and provided comment boxes where additional data should be provided to
back up this decision.” PX 127.001. As Director Rodriguez testified, this email exchange between
Law and Kovarik does “not suggest an impartial adjudication of the issue, but rather a certain
predetermined outcome.” Id. 299:18-20. About a week later, on October 31, 2017, Law emailed
DHS employee Jacob Stubbs and asked him to find “positive data on the current status of Haiti to
bolster the recommendation to terminate TPS . . . Be creative.” PX 086.001.
26. The November 3, 2017 Director Memo (the “Cissna Memo”), which recommended
termination of TPS for Haiti, was similarly the product of this result-oriented approach: It
highlighted the few positive facts in the RAIO report, and either omitted negative information
altogether or deemed it unrelated to the earthquake.
27. For example, the Cissna Memo claimed that Haiti had made “significant progress
in recovering from the 2010 earthquake,” (PX 136.001), even though RAIO found that conditions
in Haiti “prompting the original January, 2010 TPS designation persist.” PX 366.001. The Cissna
Memo made no mention of Hurricane Matthew’s effect on housing, even though RAIO had
extensively analyzed the storm’s impact, concluding that 236,000 homes were impacted and that
90% of homes in areas most affected by the storm were destroyed. PX 366.003. Even though RAIO
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extensively analyzed Haiti’s cholera epidemic—noting that it was “the largest such outbreak in
recent history” (PX 366.004)—the Cissna Memo’s country conditions analysis contains but a
single reference to cholera, which minimized the effect of the disease on Haiti. PX 136.002.
28. And, the Cissna Memo inserted additional information nowhere to be found in
RAIO’s analysis that political staff believed supported their conclusion. For example, the Cissna
Memo references the fact that in September, 2016, then-DHS Secretary Jeh Johnson resumed
removals of non-TPS Haitians to the island following a post-earthquake moratorium on removals.
PX 136.003. The Cissna Memo does not explain how—if at all—the resumption of removals of
Haitians without TPS bears on the analysis under the TPS statute. Nor does the Cissna Memo
account for the fact that three months after Secretary Johnson resumed removals then-Secretary
of State Kerry recommended that Haiti’s TPS be extended, noting that “Haiti lacks capacity to
ensure the safe return” of TPS beneficiaries. DX M at 1. As Director Rodriguez explained: “it is
not uncommon” for the U.S. to grant TPS to nationals of a country and, at the same time, remove
criminals and other nonqualifying individuals to that country. Trial Tr. 215:7-17. “[T]he fact that
one group of nationals of a country is protected both from deportation and the harms that may
result when they return to their country, does not mean that every national of that country is entitled
to that same protection.” Trial Tr.. 288:5-8 (Rodriguez).
29. While USCIS political staff created the paperwork to justify termination, the Trump
Administration put heavy pressure on the Secretary to make the termination decision immediately.
For example, at a meeting at the White House on November 3, 2017 (PX 152.013), Attorney
General Jeff Sessions said that Duke “can’t keep certifying,” that “no one has guts to pull the
trigger,” and that Duke should “just bite the bullet” and decertify. PX 151.001, 003. At the
November 3, 2017, meeting, Duke was told that “gutless fed[eral] bureaucrats have extended”
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TPS, and that the White House would be “extremely disappointed if kick into lap of next
sec[retary].” PX 163.009.28 The pressure from the White House was effective: On November 20,
2017, DHS issued a press release announcing the decision to terminate TPS for Haiti. PX 114.001.
30. Defendants’ politically-motivated decisionmaking violates the TPS statute’s
mandate that TPS shall not be terminated unless the Secretary “determines . . . that a foreign
state . . . no longer continues to meet the conditions for such designation under [the statute],” based
on a factual review of those conditions. 8 U.S.C. § 1254a(b)(3)(B). Further, where agency fact-
finding is influenced by political pressure and by the desire to achieve a particular outcome, as it
was here, it is arbitrary and capricious. See Islander E. Pipeline Co., LLC v. Conn. Dep’t of Envtl.
Protection, 482 F.3d 79, 105 (2d Cir. 2006) (“Any effort by the [agency] to pursue a ‘strategy’ to
justify a foreordained opposition to the pipeline would be incompatible with a reviewing agency’s
mandate to use its expertise to come to a reasoned decision supported by substantial evidence.”);
Sierra Club v. U.S. Army Corps of Eng’rs, 701 F.2d 1011, 1032 (2d Cir. 1983) (agency action was
arbitrary and capricious where it merely “rubber stamp[ed]” a “decision . . . based on so little
information that it could ‘only be explained as resulting from an almost fixed predetermination’”);
Cowpasture River Preservation Ass’n v. Forest Serv., 911 F.3d 150, 179 (4th Cir. 2018) (finding
agency action arbitrary and capricious where “approval of the project ‘was a preordained
decision’” and the agency “‘reverse engineered the [record] to justify this outcome”); Town of
Orangetown v. Ruckleshaus, 740 F.2d 185, 188 (2d Cir. 1984) (“improper political influence on a
federal administrative agency” occurs where “the political pressure was intended to and did cause
the agency’s action to be influenced by factors not relevant under the controlling statute.”);
Tummino v. Torti, 603 F. Supp. 2d 519, 546 (E.D.N.Y. 2009) (agency decision was arbitrary and
28
S_HAITI-00000275-86.
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capricious where administrator “did not make the decision on his own, but was pressured by the
White House” among others).
31. Finally, the review process was distorted by the systematic minimization or
elimination of negative information. As former USCIS Director Rodriguez testified—and as
detailed above— Secretary Cissna’s recommendation to the Secretary failed “to fully discuss all
facts” material to whether nationals can safely return to Haiti, contravening USCIS’s
“longstanding practice.” Trial Tr. 263:17-21 (Rodriguez).
32. The Federal Register Notice (“FRN”) terminating Haiti’s TPS is itself evidence of
the Trump Administration’s removal of evidence that cut against its desired outcome of
termination. For example, whereas RAIO had concluded that Hurricane Matthew had done over
$2.8 billion in damage (equivalent to 1/3 of Haiti’s gross domestic product) (PX 366.014-016) and
the May 2017 FRN extending Haiti’s TPS designation had noted Matthew’s impact (PX 340.003),
the FRN made not a single mention of Hurricane Matthew. See generally PX 341. Similarly, RAIO
had concluded that Haiti’s cholera epidemic “remains ongoing and continues to place strain on
Haiti’s beleaguered public health system,” and that nearly 10,000 people had died from the disease,
(PX 366.004), but the FRN said of cholera simply that the disease “is currently at its lowest level
since the outbreak began. PX 341.003.
33. As compared to the substantial negative information omitted, the supposedly
positive developments cited in the FRN—for example, that the Supreme Court had been
constructed and that a project to rebuild Haiti’s National Palace (PX341)—appear to be of
marginal relevance to the safety of returning citizens. Indeed, as the chart attached as Appendix
A demonstrates, most of these purportedly “positive” facts were cited in the May 2017 FRN
extending TPS for Haiti.. See PX 340.
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34. The chart attached as Appendix B depicts how DHS manipulated the facts in its
internal communications and public announcements. It shows that negative information
(highlighted in yellow) was gradually minimized, omitted, or deemed unrelated to the hurricane
(as shown by green highlighting), while every piece of positive information (highlighted in blue),
however tangential or isolated, became the sole focus and the stated basis for decision.
35. Defendants’ distorted review process violated the TPS statute’s mandate to review
country conditions and to determine whether the statutory criteria for termination were met based
on their review. And when an agency fails to consider information that it previously had identified
as relevant (Cowpasture River Preservation Ass’n, 911 F.3d at 170-73, or “sweep[s] negative
evidence under the rug” (Nat’l Audubon Soc’y v. Dep’t of Navy, 422 F.3d 174, 194 (4th Cir. 2005)),
its action is arbitrary and capricious.
2. The Defendants Adopted Their Arbitrary New Standard Without

Justification Or Explanation.
36. Defendants also failed to provide a “reasoned explanation” for abandoning the
longstanding agency practice of considering all factors bearing on the ability of a country’s
nationals to return to safety in favor of a policy of considering only country conditions it deemed
directly tethered to the original basis for the TPS designation. See Fox, 556 U.S. at 515.
37. As discussed above, DHS previously and correctly construed the TPS statute to
require the Secretary, before terminating a TPS designation, to review all current country
conditions to determine whether the conditions for the designation continued to exist and whether
it was safe for TPS holders to return to their country.
38. The Trump Administration jettisoned DHS’s well-established interpretation of the
statute. Without evaluating the agency’s longstanding practices, seeking input from experts and
stakeholders, or analyzing the TPS statute’s language and purposes, Secretary Kelly announced
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that TPS was “temporary” and “for a specific event” (PX 213.070); he added that “Haiti had
horrible conditions before the earthquake, and those conditions aren’t much better after the
earthquake,” but “the earthquake was why TPS was – was granted and – and that’s how I have to
look at it.” Id. DHS then adopted a new interpretation of the statute that limited the Secretary’s
review of current country conditions to those traceable to the event that produced the initial
designation. See Findings of Fact Section IV.H, supra. Director Cissna’s recommendation to
Secretary Duke reflected this approach. See Findings of Fact Section IV.HM, supra.
39. In making this change, Defendants failed to “display awareness that [DHS was]
changing [its] position,” to “show that there are good reasons for the new policy,” or to “be
cognizant that longstanding policies may have engendered serious reliance interests that must be
taken into account.” Encino Motorcars,136 S. Ct. at 2126. Plaintiffs and tens of thousands of other
TPS holders and their families have made key life decisions based on an understanding that TPS
would be extended so long as conditions in their home countries remained unsafe. The APA does
not permit Defendants to so profoundly disrupt the lives of thousands of people without an
adequately reasoned explanation. See Fox, 556 U.S. at 515-16 (holding that “a reasoned
explanation is needed for disregarding facts and circumstances that underlay or were engendered
by the prior policy,” and that “[i]t would be arbitrary and capricious to ignore such matters”). The
evidence here thus shows that Defendants decision to terminate TPS for Haiti based on that policy
was arbitrary and capricious.
B. Defendants’ New Standard Violates The APA’s Notice-And-Comment

Rulemaking Procedures (Count IV) And The Regulatory Flexibility Act
(Count V).
40. The APA requires that when an agency undertakes the rulemaking process, “it must
provide public notice of the proposed rule and an opportunity to comment.” Decision and Order
on Motion to Dismiss, ECF No. 96 (Dec. 14, 2018) (citing 5 U.S.C. § 553(b), (c)).
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41. The APA’s notice-and-comment procedures serve critical functions. “‘Notice
requirements are designed (1) to ensure that agency regulations are tested via exposure to diverse
public comment, (2) to ensure fairness to affected parties, and (3) to give affected parties an
opportunity to develop evidence in the record to support their objections to the rule and thereby
enhance the quality of judicial review.’” United States v. Lott, 750 F.3d 214, 219 (2d Cir. 2014
(quoting Int’l Union, United Mine Workers of Am. v. Mine Safety & Health Admin., 407 F.3d 1250,
1259 (D.C. Cir. 2005)).
42. The APA defines “rule” as “the whole or part of an agency statement of general or
particular applicability and future effect designed to implement, interpret, or prescribe law or
policy or describing the organization, procedure, or practice requirements of an agency.” 5 U.S.C.
§ 551(4). The APA’s notice-and-comment requirement applies only to substantive rules, which
create new law, rights, or duties, as opposed to so-called interpretative rules, which do not alter
the rights of parties, though they may change how parties make arguments to an agency. L.M. v.
Johnson, 150 F. Supp. 3d 202, 215 (E.D.N.Y. 2015) (Garaufis, J.). “Generally, notice and
comment is required if the rule makes a substantive impact on the rights and duties of the person
subject to regulation.” Id. (internal quotation marks omitted).
43. To determine whether an agency action is excused from the notice-and-comment
requirement, “the court looks not to labels given by the agency, but rather to the nature of the
impact of the agency action.” Id. (citation omitted). In other words, it is “what the agency does in
fact” that is conclusive. See Lewis-Mota v. Sec’y of Labor, 469 F.2d 478, 481-82 (2d Cir. 1972).
44. Defendants contend that their new standard for TPS review is, at most, an
interpretative rule, to which the APA’s notice-and-comment requirements do not apply. However,
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Defendants’ new standard for TPS review constitutes a substantive policy change, and that
Defendants were therefore required to fulfill the APA’s’ notice-and-comment procedures.
45. The evidence shows that Defendants’ new standard is a substantive rule, as it
materially changes the circumstances under which DHS will extend or terminate TPS. Under the
old standard, the Secretary considered all country conditions relevant to whether extraordinary and
temporary conditions prevented TPS holders from returning safely to their country. Under the
new standard, only conditions DHS political appointees deem directly linked to the originating
event are considered. Therefore, people who would have maintained their TPS prior to the
agency’s new standard will lose that status after the change, even with all other circumstances
remaining the same. In the case of Haiti, over 50,000 people who would have been allowed to
remain in the country lawfully had the old standard been applied will be subject to deportation.
Defendants’ new standard thus “makes a substantive impact on the rights and duties of the person
subject to regulation,” see L.M., 150 F. Supp. 3d at 215, and the APA’s’ notice-and-comment
procedures apply.
46. Morover, Defendants failed to comply with those notice-and-comment
requirements. The APA generally requires that notice of proposed rulemaking be published in the
Federal Register, and that the notice include “(1) a statement of the time, place, and nature of
public rule making proceedings; (2) reference to the legal authority under which the rule is
proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects
and issues involved.” 5 U.S.C. § 553(b). After that notice, the agency is required to “give interested
persons an opportunity to participate in the rule making through submission of written data, views,
or arguments.” Id. § 553(c).
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47. It is undisputed that Defendants did not meet these notice-and-comment
requirements. Although DHS published a notice in the Federal Register on January 18, 2018,
announcing the TPS termination for Haiti, that notice did not contemplate—much less provide
logistical information about—any rule-making proceeding, and did not allow any opportunity for
public comment under the APA. Notably, that notice also provided only minimal information
about what factors Duke reviewed in making the termination decision. Defendants’ failure to use
the APA’s notice-and-comment rulemaking process to promulgate the rule violated APA Section
553.
48. On that same basis, this Court finds that Defendants violated the RFA by failing to
evaluate the TPS termination’s significant economic impact on small-businesses entities.
49. The RFA carries procedural requirements for agency rulemaking, and including the
preparation of a “final regulatory flexibility analysis regarding the effect of the rule on small
businesses.” See U.S. Telecom Ass’n v. FCC, 400 F.3d 29, 42 (D.C. Cir. 2005) (citing 5 U.S.C.
§ 604). That final regulatory analysis “must include an explanation for the rejection of alternatives
designed to minimize significant economic impact on small entities.” Id. (citing § 604(a)(3)).
50. The RFA’s small business analysis requirement applies where, as here, “an agency
promulgates a final rule under section 553 of this title, after being required by that section or any
other law to publish a general notice of proposed rulemaking.” Id. at 42 (quoting 5 U.S.C. § 604).
DHS conducted no analysis of how its rule would impact small businesses like Haiti Liberté, a
Plaintiff in this case.
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IV. THE TERMINATION OF HAITI’S TPS DESIGNATION WAS MOTIVATED BY
DISCRIMINATORY ANIMUS AND THUS VIOLATED THE EQUAL
PROTECTION CLAUSE (COUNT 3).
A. Arlington Heights, And Not Trump v. Hawaii Or Reno v. AADC, Applies In

This Case.
51. Plaintiffs bring their Equal Protection claim under Arlington Heights v.
Metropolitan Housing Development Corporation, 429 U.S. 252 (1977). Under Arlington Heights,
government actions may violate Equal Protection if a discriminatory purpose was one motivating
factor, id. at 265-66, and Plaintiffs “need not plead or show the disparate treatment of other
similarly situated individuals,” Pyke v. Cuomo, 258 F.3d 107 109 (2d Cir. 2001). Plaintiffs are not
required to show that the decision to terminate TPS was “motivated solely by” racial animus, nor
that animus “was the ‘dominant’ or ‘primary’ purpose.” Arlington Heights, 429 U.S. at 265. They
need only prove discriminatory intent through direct or circumstantial evidence. See Arce v.
Douglas, 793 F.3d 968, 977-78 (9th Cir. 2015).
52. Defendants argue that rational basis review applies here, relying heavily on Trump
v. Hawaii, 138 S. Ct. 2392 (2018), the Supreme Court’s recent decision applying rational basis
review in an Establishment Clause challenge to an executive order restricting entry of foreign
nationals of particular countries. Id. at 2627. In Trump v. Hawaii, two factors informed the standard
of review: (1) “plaintiffs [sought] to invalidate a national security directive regulating the entry of
aliens abroad”; and (2) the executive order was “facially neutral toward religion” and this required
“prob[ing] the sincerity of the stated justifications for the policy by reference to extrinsic
statements—many of which were made before the President took the oath of office.” 138 S. Ct. at
2418 (emphasis added).
53. These factors are not present in this case. First, Defendants here do not contend that
the determination in this case implicates national security concerns, a factor the Supreme Court
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stressed was critical in finding the rational basis standard applied to review of the travel ban. Id. at
2419-20. Second, the foreign nationals at issue in Hawaii were not in the United States. Id. at 2419.
Here, every TPS holder was in the United States at the time Haiti’s TPS status was designated or
redesignated. 8 U.S.C. § 1254a(c)(1)(A)(i). Foreign nationals lawfully present in the United States
are accorded greater Constitutional protections than those outside the United States. Zadvydas v.
Davis, 533 U.S. 678, 693 (2001) (“The distinction between an alien who has effected an entry into the
United States and one who has never entered runs throughout immigration law.” (collecting cases)).
Thus, this Court agrees with the courts in Ramos and Centro Presente—Trump v. Hawaii’s deferential
standard does not affect the analysis of Plaintiffs’ constitutional challenges to Haiti’s TPS termination.
See Ramos, 321 F. Supp. 3d at 1130 (“Trump did not address the standard of review to be applied under
the equal protection doctrine when steps are taken to withdraw an immigration status or benefit from
aliens lawfully present and admitted into the United States for reasons unrelated to national security or
foreign affairs.”); Centro Presente, 332 F. Supp. 3d at 410.
54. Defendants also argue that Reno v. Am. Arab Anti-Discrimination, 525 U.S. 471
(1999) (“AADC”) requires Plaintiffs to adduce “clear evidence” that the TPS termination was
based on “outrageous” discrimination. But AADC does not require such a showing here. In that
case, the plaintiffs alleged that the Attorney General had unconstitutionally selected them for
deportation “because of their affiliation with a politically unpopular group.” AADC, 525 U.S. at 472.
The Court applied a “particularly demanding” standard because the plaintiffs’ claims “invade[d] a
special province of the Executive—its prosecutorial discretion” to choose to deport some people but not
others. Id. at 489. The Supreme Court explained, “[a]s a general matter . . . an alien unlawfully in this
country has no constitutional right to assert selective enforcement as a defense against his deportation.”
Id. at 488 (footnote omitted). However, the Court did not “rule out the possibility of a rare case in which
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the alleged basis of discrimination is so outrageous that the foregoing considerations can be overcome.”
Id. at 491. This case, on the other hand, concerns termination of Haiti’s TPS status as a whole, not a
specific removal decision. Thus, this case does snot implicate prosecutorial discretion and AADC ‘s
“outrageous” standard does not apply.
B. The Evidence Establishes A Violation Of Equal Protection Under Arlington

Heights.
55. In Arlington Heights, the Supreme Court reviewed plaintiffs’ claims that the city’s
denial of a rezoning request was motivated by racial animus in violation of the Equal Protection
Clause of the Fourteenth Amendment. 429 U.S. at 258-59. The Court stated that most facially
neutral decisions by legislators and administrators, including those that “result[ ] in a racially
disproportionate impact,” are subject only to judicial review to determine if the decision was
“arbitrar[y] or irrational[ ]”—that is, rational basis review—“because legislators and administrators are
properly concerned with balancing numerous competing considerations.” Id. at 264-65. The
Supreme Court explained, however, that “racial discrimination is not just another competing
consideration,” so “[w]hen there is a proof that a discriminatory purpose has been a motivating
factor in the decision, this judicial deference is no longer justified.” Id. at 265-66.
56. Under Arlington Heights, the Court may look beyond the stated reasons for the
government action to determine “whether invidious discriminatory purpose was a motivating
factor.” Id. at 266. Such examination “demands a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available,” including: “the impact of the official action;” “[t]he
historical background of the decision . . . particularly if it reveals a series of official actions taken for
invidious purposes;” “[t]he specific sequence of events leading up to the challenged decision;” any
“[d]epartures from the normal procedural sequence;” any “[s]ubstantive departures . . . particularly
if the factors usually considered important by the decisionmaker strongly favor a decision contrary
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to the one reached;” the “legislative or administrative history,” including “contemporary statements
by members of the decisionmaking body, minutes of its meetings, or reports;” and finally, in
“extraordinary instances,” testimony “concerning the purpose of the official action.” Id. at 266-68.
57. Plaintiffs have proven their Equal Protection claim under the Arlington Heights
standard. Plaintiffs introduced admissible evidence that President Trump, both on the campaign trial
and while in office, made numerous derogatory comments about non-white immigrants. See Findings
of Fact Section III, supra. For example, he insisted that immigrants crossing the southern border
were “[d]ruggies, drug dealers, rapists and killers” (PX 262.001); said that the U.S. has become a
“dumping ground” for Mexico and “many other parts of the world” (PX 266.002); and warned that
immigrants would “infest our Country” (PX 298.001).
58. President Trump also made comments reflecting particular animus toward Haitians
and immigration from Haiti. For instance, upon learning 15,000 Haitians had received visas in 2017,
President Trump stated, “they all have AIDS.” PX369.001; PX361 at ¶ 61; PX360 at ¶ 61. One week
before the Federal Register Notice ending TPS for Haiti was published, President Trump asked aloud
in a meeting with several U.S. Senators about a draft immigration plan regarding Haiti, among other
countries in Latin America and Africa, “Why are we having all these people from shithole countries
come here?” PX351, at ¶ 62; PX350, at ¶ 62; PX372. The President also asked specifically, “Why
do we need more Haitians?” and insisted they be removed from an immigration deal. Id. In this same
meeting, the president allegedly expressed his preference for more immigrants from places like
Norway. Id.
59. At the same time, President Trump’s Administration, in a stark departure from
ordinary practice, began targeting Haitian TPS holders for termination. Within months of the
inauguration, DHS officials began seeking information on Haitian TPS holders’ use of public
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benefits and criminality—data that is irrelevant to TPS designation and had never been collected
by DHS. Invoking false and discriminatory racial stereotypes, DHS Secretary Kelly stated that
Haitians were “welfare recipients.” The Administration’s political appointees requested
modification of DHS internal and external recommendations and communications to support
termination of TPS for Haitians. See Findings of Fact Section IV.D, supra. Without explanation
or reasoning, they adopted a new standard contrary to the TPS statute and past practice for the
Secretary’s review of TPS designations that was engineered to provide a pretext for termination.
See Findings of Fact Section IV.H, supra. Even more, the Trump Administration targeted Haiti in
connection with the H-2A and H-2B visa programs. Although Haiti had previously been included
in the program, on the basis of outdated data the Trump Administration terminated Haiti’s
participation around the time it terminated Haiti’s TPS designation. PX319; PX320; Tr. 308:7-
309:4 (testimony by Leon Rodriguez that the Trump Administration made a “striking” and
“concern[ing] decision to terminate Haiti’s inclusion in the H-2A/H-2B nonimmigrant visa
program by citing to outdated data). This evidence is more than sufficient to support a plausible
inference of the President’s animus based on race and/or national origin/ethnicity against non-
white immigrants in general and Haitians in particular. “Although the use of racial slurs, epithets, or
other racially charged language does not violate equal protection per se, it can be evidence that official
action was motivated by unlawful discriminatory purposes. Batalla Vidal v. Nielsen, 291 F. Supp. 3d
260, 277 (E.D.N.Y. 2018) (Garaufis, J.) (collecting cases). “The court is aware of no authority holding
that this rule does not apply simply because the speaker is, or is running to be, the President of the United
States.” Id.
60. Plaintiffs are not required to show that Acting Secretary Duke personally harbored
discriminatory animus. As recently explained in another case in this district in the context of the decision
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to rescind Deferred Action for Childhood Arrivals (DACA), “[o]ur Constitution vests ‘executive Power’
in the President, not in the Secretary of DHS, who reports to the President and is removable by him at
will.” Batalla Vidal, 291 F. Supp. 3d at 279 (Garaufis, J.) (citing U.S. Const., art. II, § 1, cl. 1). “[L]iability
for discrimination will lie when a biased individual manipulates a non-biased decision-maker into taking
discrimination action.” Id. (collecting cases). Furthermore, Arlington Heights analysis considers not only
the “contemporary statements by members of the decisionmaking body” but also more broadly “[t]he
historical background of the decision” and “[t]he specific sequence of events leading up to the challenged
decision.” Arlington Heights, 429 U.S. at 267.
61. Under the factors prescribed by Arlington Heights, including the combination of
statements of animus by people allegedly involved in the decision-making process here and an allegedly
unreasoned shift in policy, Plaintiffs have shown that a discriminatory purpose was motivating factor
behind the decision to terminate TPS for Haiti, and therefore have proven their Equal Protection claim.
V. DEFENDANTS’ ACTIONS VIOLATED THE PLAINTIFFS’ PROCEDURAL DUE

PROCESS RIGHTS
1. The Fifth Amendment provides that no person shall be deprived of life, liberty, or
property without due process of law. U.S.C.A. Const. Amend. 5. At its core, the Constitution’s
due process guarantee “protects against arbitrary government action that deprives individuals of a
protected interest.” Padberg v. McGrath-McKechnie, 203 F. Supp. 2d 261, 277 (E.D.N.Y. 2002).
2. This Court concludes that Plaintiffs have protectable property and liberty interests
in ensuring that the agency’s TPS status termination complied with the process mandated in the
TPS Statute. As previously set forth, that statute requires that the Secretary “review the
conditions” and “determine whether the conditions for such designation under this subsection
continue to be met.” 8 U.S.C. § 1254a(b)(3)(A) (emphases added).
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3. “In order to establish a property interest giving rise to a procedural due process
claim, a plaintiff must demonstrate ‘a legitimate claim of entitlement’ to the property at issue.”
Cancel v. N.Y.C. Human Resources Admin./Dep’t of Social Servs., 527 Fed. App’x 42, 44 (2d Cir.
2013) (quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972)). “In determining whether a given
benefits regime creates a property interest protected by the Due Process Clause, [courts] look to
the statutes and regulations governing the distribution of benefits.” Kapps v. Wing, 404 F.3d 105,
113 (2d Cir. 20015). “Where those statutes or regulations meaningfully channel official discretion
by mandating a defined administrative outcome, a property interest will be found to exist.” Id.
(internal quotation marks omitted).
4. Plaintiffs have a protectable property interest here. As another district court
correctly recognized in Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1121 (N.D. Cal. 2018), the TPS
Statute does meaningfully channel official discretion with respect to extensions and terminations
of TPS status. The statute mandates that the Secretary “shall” terminate that status only if he or
she “determines . . . that a foreign state. . . no longer continues to meet the conditions for
designation under paragraph (1).” 8 U.S.C. § 1254a(b)(3)(B); see also Ramos, 321 F. Supp. 3d at
1121. Though courts generally will not review the Secretary’s factual evaluation of a country’s
conditions, a due process violation lies if the determination is “unlawful for other reasons,” as the
deprivation of a protectable property interest cannot be justified by an unlawful government
interest. See Ramos, 321 F. Supp. 3d at 1121.
5. Because this Court finds that the Secretary’s determination was unlawful because
it violated the APA, and because it violated the Equal Protection clause, it follows that the
determination violated Plaintiffs’ procedural due process rights in this protectable property
interest. See Decision and Order on Motion to Dismiss, ECF No. 96 (Dec. 14, 2018) (recognizing
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that “to the extent the decision violated the APA and/or equal protection guarantee, it did not
involve pursuit of a legitimate governmental interest”); see also Ramos, 321 F. Supp. 3d at 1122
(recognizing that plaintiffs had a plausible due process claim that was “co-extensive with their
ability to prove that Defendants violated the APA or equal protection guarantee”).
6. Plaintiffs have a protectable liberty interest here as well, in that the TPS statute
allows them to live and work in the United States. See Bridges v. Wixon, 326 U.S. 135, 154 (1945)
(deportation “visits a great hardship on the individual and deprives him of the right to stay and live
and work in this land of freedom”); see also Ramos, 321 F. Supp. 3d at 1122 (quoting same).
Again, because the Secretary’s determination violated the APA and the Equal Protection Clause,
it also violated Plaintiffs’ process rights in this additional protectable interest.
7. In short, this Court finds that Defendants have deprived Plaintiffs of their property
and liberty interests in violation of Procedural Due Process by terminating their TPS without
complying with the requirements of the TPS statute. Because Plaintiffs have established that
Defendants violated the APA and their rights under the Equal Protection Clause, they have also
established that Defendants violated their Procedural Due Process rights.
VI. PLAINTIFFS’ EVIDENCE IS ADMISSIBLE
8. Before the trial, the Court granted Plaintiffs’ motion in limine to admit into
evidence their trial exhibits and the reports of their experts. See Order 1/4/19; Order 1/6/19. The
Court reiterated those rulings during the trial and accepted the exhibits and deposition testimony
proffered by Plaintiffs into evidence. Following the trial, the Court has carefully reviewed the
evidence and has concluded that Plaintiffs’ evidence shall be admitted.
9. Plaintiffs moved to admit the expert reports of the four expert witnesses who
testified at trial: Ellie Happel, an expert on country conditions in Haiti, Michael Posner, an expert
on State Department practice and procedure, Leon Rodriguez, an expert on USCIS practice and
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procedure, and Brian Concannon, an expert on country conditions in Haiti (ECF Dkt. No. 125).
PX328, 329, 330, and 331. The reports were prepared by the witnesses who testified and were
subject to cross-examination at trial. The reports are relevant and aided the Court’s evaluation of
the witnesses’ expertise and their testimony. The expert reports are not duplicative, cumulative, or
a waste of time, as the Government contended. ECF Dkt. 114. To the contrary, “[h]aving available
an expert’s comprehensive report may help [the factfinder] to more fully understand and evaluate
that expert’s testimony and conclusions and their impact on the case.” NAACP v. A.A. Arms, Inc.,
2003 WL 2003750, at *1 (E.D.N.Y. 2003) (“the admission of written expert reports into evidence
when the expert has testified orally at trial is not redundant”).
10. The reports are not hearsay and are admissible under the residual exception to the
hearsay rule. Fed. R. of Evid. 807(a); see Televisa, S.A. de C.V. v. Univision Commcn’s, Inc., 635
F. Supp. 2d 1106, 1109-10 (C.D. Cal. 2009) (admitting expert report under Fed. R. Evid. 807
because “classic hearsay risks” did not pertain to report by designated expert witness who had been
cross-examined at sworn deposition); cf. Blue Cross & Blue Shield United of Wis. v. Marshfield
Clinic, 152 F.3d 588, 595 (7th Cir. 1998) (“the reports could come into evidence directly under
the catch-all exception to the hearsay rule”). Even if the reports were hearsay, they would still be
admissible because in a bench trial “hearsay need not be as strenuously guarded.” Floyd v. City of
N.Y., 2013 WL 1955683, at *2 (S.D.N.Y. 2013) (expert report would be admissible at bench trial);
see Minebea Co., Ltd. v. Papst, 231 F.R.D. 3, 12 (D.D.C. 2005) (same).
11. Defendants have repeatedly objected to the admission of “extra-record” documents
outside the administrative record in this case, and the Court has repeatedly overruled these
objections. It does so again. The Court may properly consider documents outside the
administrative record upon a showing of “bad faith or improper behavior” by an agency or when
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the agency’s decision cannot be adequately explained by the record provided. Id.; see also Sierra
Club v. U.S. Army Corps of Engineers, 614 F. Supp. 1475, 1516 (S.D.N.Y. 1985) (“[T]he court is
empowered to go outside the record where it . . . substantial questions arise which cannot be
resolved by the administrative record.”); Amfac Resorts, L.L.C. v. U.S. Dep’t of the Interior, 143
F. Supp. 2d 7, 11 (D.D.C. 2001). “[E]vidence of unalterably closed minds” is evidence of improper
behavior. Comm. of 100 on the Fed. City v. Foxx, 140 F. Supp. 3d 54, 59 (D.D.C. 2015).
12. Plaintiffs alleged specific facts showing that the Government 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. At issue in this case is not only the
propriety of the Agency’s decision, but also whether the Agency’s stated rationale—and the record
provided supporting that rationale—for that decision is fulsome and accurate. “Especially in cases
like this, where the chief allegation plaintiffs raise is the inadequacy of the record itself, [the Court]
cannot and will not become ‘merely the judicial echo’ of a decision reached at the administrative
level.” Puerto Rico Conservation Found. v. Larson, 797 F. Supp. 1074, 1077 (D.P.R. 1992). The
Government’s bad faith and improper behavior permit the Court to rely on documents beyond the
prextextual, papered-over administrative record.
13. Moreover, these exhibits are highly relevant. For example, they include, among
other things, internal DHS emails showing Defendants’ search for grounds justifying the decision
to terminate Haiti’s TPS. E.g., PX 037.001, (internal USCIS email; “We can . . . comb through the
country conditions we have again looking for positive gems, but the conditions are what they are”);
PX 123.001, (quoting then-Secretary Kelly’s request for data concerning TPS recipients that is
irrelevant under the TPS Statute including “(1) How many current Haitian TPS folks were illegal
pre-TPS designation? (2) Since designation, how many have committed crimes? (3) Since
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designation, how many are on public assistance? Out of work? (4) Can we describe what has
changed in Haiti warranting the recommended change…”). They include DHS and State
Department materials showing that country conditions could not conceivably have warranted
termination under the TPS Statute. E.g., PX 336.001 (October 2017 RAIO Report; “conditions
prompting the original January 2010 TPS designation persist”); PX 145.002 (Feb. 2017 State
Department recommendation; “Haiti lacks capacity to ensure the safe return of the 59,000 TPS
beneficiaries”). They reveal White House involvement in Secretary Duke’s decisionmaking. E.g.,
PX 184.001 (White House chief of staff’s phone call with Secretary Duke was for purpose of
“ensur[ing] agenda adherence”). And they include the DHS press release which clearly articulates
the changed standard that DHS purportedly employed to terminate Haiti’s TPS. PX 114.001. (“The
decision to terminate TPS for Haiti was made after a review of the conditions on which the
country’s original designation were based . . . . Acting Secretary Duke determined that those
extraordinary but temporary conditions caused by the 2010 earthquake no longer exist.”)
(emphasis added). These exhibits outside the administrative record are properly admitted into
evidence.
14. The Court also admitted a subset of Plaintiffs’ trial exhibits over the Government’s
objection that they are irrelevant because they do not concern Acting Secretary Duke’s decision to
terminate TPS for Haiti. See Order 1/6/19. The Court overruled this objection and finds these
documents highly relevant. These exhibits include documents related to Duke’s decisionmaking
concerning “TPS in general” (PX 169.001), which necessarily have implications for Haiti’s TPS
in particular. Moreover, these documents are relevant because they show that terminating TPS for
Haiti not based on a review of country conditions but on the White House’s America First
immigration policy. See, e.g. PX96, 179.
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15. Similarly, the Court admitted documents related to termination of TPS for Haiti
that pre-date or post-date Acting Secretary Duke’s termination decision over the Government’s
objection that these documents are irrelevant. See Order 1/6/19. Some of these documents relate
to Secretary Kelly’s May 2017 extension of TPS for Haiti (PX 253-258), others post-date the
November 2017 termination announcement, but nevertheless discuss the need “to reconcile the
decision to terminate TPS in Haiti with recently released information that suggests it should not
have been terminated.” PX113. These documents are plainly relevant to November 2017 decision
to terminate TPS and they are admitted.
16. Plaintiffs’ trial exhibits also include statements by President Trump from June 16,
2015 to October 26, 2018, containing a laundry list of racist and xenophobic comments about
immigrants. PX261-302. The Court admitted these exhibits over the Government’s objection that
they are irrelevant because they are not related to the decision to terminate TPS for Haiti. See Order
1/6/19. These statements are plainly relevant. They reflect the President’s discriminatory animus
toward immigrants of color and are properly admitted.
17. Finally, the Court admitted the handwritten notes of Kathryn Anderson over the
Government’s hearsay objection.29 See Order 1/6/19. These exhibits contain Anderson’s
contemporaneous notes from meetings related to Haiti’s TPS, which she identified during her
deposition. Even if they were hearsay, these exhibits are still admissible under the hearsay
exceptions for opposing-party statements and for business records. Fed. R. Evid. 801(d)(2)(D)
(hearsay does not include statement offered against opposing party that “was made by the party’s
agent or employee on a matter within the scope of that relationship and while it existed”); United
States v. Santos, 372 F.2d 177, 180 (2d Cir. 1967) (in contrast to criminal cases, “out-of-court
29
PX 50, 51, 52, 53.
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statements of a government agent” are “binding upon [the] agent’s principal in civil cases”);
accord, e.g., Murrey v. United States 73 F.3d 1448, 1455 (7th Cir. 1996); Fed. R. Evid. 803(6);
United States v. Kaiser, 609 F.3d 556, 574 (2d Cir. 2010) (“Rule 803(6) favors the admission of
evidence rather than its exclusion if it has any probative value at all”) (internal quotation marks
omitted). Moreover, the notes reflect the “motive[s], intent[s], and plan[s]” of meeting attendees
for the TPS program and for Haiti’s TPS. These fall within the hearsay exception for “statement[s]
of the declarant’s then-existing state of mind.” Fed. R. Evid. 803(3). Anderson’s notes are properly
admitted into evidence.
VII. PLAINTIFFS ARE ENTITLED TO PERMANENT INJUNCTIVE RELIEF

AGAINST DEFENDANTS
1. As explained above, Plaintiffs have demonstrated that Defendants violated
Plaintiffs’ constitutional and statutory rights. Plaintiffs are entitled to an injunction restraining
Defendants, their agents, servants, employees, and attorneys from implementing or enforcing the
decision to terminate Haiti’s TPS and from taking any other action to terminate Haiti’s TPS that
is not in compliance with applicable law.
2. Plaintiffs seeking a permanent injunction must show “(1) that [they have] suffered
an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate
to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted; and (4) that the public interest would not be
disserved by a permanent injunction.” Energy Nuclear Vt. Yankee, LLC v. Shumlin, 733 F.3d 393,
422 (2d Cir. 2013) (quoting Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 156 (2010)).
Each of these factors is satisfied here.
3. As to the first factor, Plaintiffs have demonstrated that Defendants violated their
rights to Equal Protection of the laws and due process. “[A] constitutional deprivation constitutes
126
per se irreparable harm.” Scelsa v. City Univ. of N.Y., 806 F. Supp. 1126, 1135 (S.D.N.Y. 1992)
(citing Covino v. Patrissi, 967 F.2d 73, 77 (2d Cir. 1992)); State of New York v. DOJ, __F.
Supp.3d__, 2018 WL 6257693 *19 (S.D.N.Y Nov. 30, 2018). A party may also “experience[]
actionable harm when ‘depriv[ed] of a procedural protection to which he is entitled’ under the
APA.” N. Mariana Islands v. United States, 686 F. Supp.2d 7, 17 (D.D.C. 2009) (quoting Sugar
Cane Growers Coop. of Fla. v. Veneman, 289 F.3d 89, 94-95 (D.C. Cir. 2002)).
4. Plaintiffs and their families will also indisputably suffer irreparable harm as
described in the factual findings in Section V. Under the TPS designation, close to 60,000 TPS
beneficiaries have been allowed to stay and work in the United States because of unsafe conditions
in Haiti. Absent injunctive relief, TPS beneficiaries who have lived, worked, and raised families
in the United States will be subject to removal. Trial Tr. 177:21-23, 178:1, 190:3-8. See Richards
v. Napolitano, 642 F. Supp. 2d 118, 134 (E.D.N.Y. 2009) (finding that deportation qualifies as
“irreparable injury”); Padilla v. Kentucky, 559 U.S. 356, 373 (2010) (describing “[t]he severity of
deportation” as “the equivalent of banishment or exile”) (citation omitted). TPS beneficiaries, such
as Ms. Guirand and Ms. Vilme, thus risk being uprooted from their homes, jobs, careers, and
communities. Trial Tr. 169:11-14, 181:12-15, 182:8-25, 405:18-20. They face removal to Haiti to
which their children and family members may have little or no ties and which the administrative
record in this case establishes is extremely unsafe. Those with U.S.-citizen children, such as Ms.
Guirand, will be confronted with the Hobson’s choice of either bringing their children with them
and giving up their children’s lives in the United States (for many, the only lives they know), or
being separated from their children. Trial Tr. 185:15-20, 188:3-7, 189:23-25, See Ramos v.
Nielsen, 336 F. Supp. 3d 1075, 1085 (N.D. Cal. 2018) (finding irreparable harm shown by TPS
beneficiaries with U.S.-born children who faced dilemma of bringing their children with them to
127
an unsafe country or splitting their families apart). The termination of the designation will
additionally cause severe psychological and economic harms to beneficiaries and their families.
Trial Tr. 409:22-25, 410:1, 409:2-14, 190:3-11, 414:25, 415:1-6.
5. As to the second factor, the factual findings in Section IV demonstrate that
Plaintiffs have no adequate remedy apart from the Court’s enjoining Defendants from
implementing Haiti’s TPS termination. Plaintiffs cannot be adequately compensated by monetary
damages as the Defendants’ unlawful and discriminatory actions have denied them the Equal
Protection of the laws and due process. See States of New York v. DOJ, __F. Supp. 3d__, 2018 WL
6257693 *19 (S.D.N.Y Nov. 30, 2018); Abdi v. Duke, 280 F. Supp. 3d 373, 406 (W.D.N.Y. 2017)
(where the harm is denial of fair process, it is the kind of harm that cannot be remedied through
monetary relief). Further, a monetary award cannot adequately compensate the harm of deportation
resulting from an APA violation. Richards v. Napolitano, 642 F. Supp. 2d 118, 134 (E.D.N.Y.
2009) (Sifton, J.). Moreover, an injunction enjoining the termination is necessary, as DHS could
otherwise theoretically reinstate the termination by simply re-issuing its decision to terminate on
a later date. An injunction is thus necessary to prevent the Trump Administration from arriving at
the same decision without curing the errors identified in this Court’s opinion. Second, and related,
an injunction will make it easier for Plaintiffs to seek immediate recourse from this Court in the
event that Defendants seek to do anything inconsistent with the Court’s opinion.
6. With respect to the third factor, Defendants have not offered and could not offer
any evidence or argument showing that Plaintiffs’ harms would be outweighed by the costs to the
Government of maintaining their TPS status. Defendants cannot argue in good faith that the
continued presence of Haitian TPS beneficiaries in the country pending a new review of Haiti’s
TPS designation causes concrete harm to the United States. See Ramos v. Nielsen, 336 F. Supp. 3d
128
1075, 1088 (N.D. Cal. 2018). By and large, Haitian TPS beneficiaries have been in the United
States for a significant number of years, and there is nothing in the record suggesting their
continued presence during a new review threatens the national interest. PX 158.003 (finding that
“permitting Haitian[] [TPS beneficiaries] to remain temporarily in the United States would not be
contrary to the U.S. national interest”).30 Rather, as the findings of fact underscore, TPS
beneficiaries are contributors to their local communities. Trial Tr. 169:11-14, 181:12-15, 182:8-
25, 405:18-20. In contrast, if the Court were to deny an injunction, Plaintiffs stand to suffer
substantial irreparable injury.
7. As to the last factor, “[t]here is generally no public interest in the perpetuation of
unlawful agency action. To the contrary, there is a substantial public interest in having
governmental agencies abide by the federal laws that govern their existence and operations.” New
York v. U.S. Dept. of Commerce, __F. Supp. 3d__, 2019 WL 190285, *122 (S.D.N.Y. Jan. 15,
2019) (quoting League of Women Voters of U.S. v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016) (internal
quotation marks and citation omitted). By enjoining the unlawful termination of Haiti’s TPS, the
Court thus serves the public interest by restricting the Trump Administration’s authority to
disregard and misinterpret the TPS statute as enacted by Congress. Accordingly, Plaintiffs are
entitled to a permanent injunction.
Dated: February 15, 2019
Respectfully Submitted,
/s/ Howard Roin
/s/ Ira J. Kurzban
/s/ Sejal Zota

30
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Saget v. Trump: Plaintiffs' Proposed Findings and Conclusions

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Saget v. Trump: Plaintiffs' Proposed Findings and Conclusions

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UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

Attorneys for Plaintiffs

2. Plaintiffs challenge then-Acting Secretary of Homeland Security Elaine C. Duke’s

the Immigration and Nationality Act (“INA”).

explaining its ruling. Dkt. 96.

Pub. L. 108-7, 117 Stat. 11, 526–32 (Feb. 20, 2003).

2. After “consultation with the appropriate agencies of the Government,” the

1254a(b)(1)(C); 8 U.S.C. § 1254a(b)(3)(A)-(B).

I. LIST OF RELEVANT GOVERNMENT EMPLOYEES

1. The following is a list of Government and Trump Administration employees within

• Elaine Duke: Acting Secretary of Homeland Security, July 31, 2017—December 6,

• Gene Hamilton: Senior Advisor to Secretary Kelly; later, counselor to Attorney

• Stephen Miller: Immigration advisor to President Trump. Prior to Trump

• L. Francis Cissna: Director of United States Citizenship and Immigration Services

• James McCament: Acting Director of USCIS, April, 2017—October, 2017; Deputy

• Robert Law: Senior Advisor, Department of Homeland Security, October, 2017—

• Brandon Prelogar: Career researcher/subject matter expert within USCIS Office of

• Kathryn Anderson: Career researcher/subject matter expert within USCIS Office of

Federal Register notice:

was effective through July 22, 2011. PX 332.001.

Haiti,” to obtain TPS. PX 334.001-002.

hospitalizations and 3,927 deaths. PX 334.002.

9. Secretary Johnson explained that:

“The January 12, 2010 earthquake caused extensive damage to the

600,000 people were facing severe food insecurity.” PX 339.002.

the Western Hemisphere.” PX 339.002.

physical health infrastructure.” PX 339.002.

“[t]he January 2010 earthquake had an immediate impact on governance

necessary to ensure the personal safety of Haitian nationals.” PX 339.003.

III. WHILE CAMPAIGNING FOR THE PRESIDENCY AND WHILE IN OFFICE,

countries occurred in a climate infected by President Trump’s “America First” approach to

immigration, including numerous derogatory and animus-inflected statements by the President

and Central American immigrants:

smart and stop this travesty?” PX 262.001.1

his statements, stating:

PX 264.011-012. On July 6, 2015, candidate Trump released a written statement in which he

other parts of the world.” PX 266.002.

18. President Trump’s expressions of animus toward non-white immigrants continued

to invade our Country.” PX 299.001.

people from Norway. PX 352 (video exhibit, at time index 1:39-2:55).

of outdated reports regarding visa overstays. PX 319.001-004; PX 320.001-003; Tr. 308:7-309:4

entertaining such a decision”).

IV. AFTER PRESIDENT TRUMP TOOK OFFICE, HIS POLITICAL APPOINTEES

whether to extend or terminate TPS. Trial Tr. 233:9-14 (Rodriguez).

while” before he became USCIS Director. Trial Tr. 244:21-245:22.

B. In December, 2016 and February, 2017—Before Trump Administration

Haiti. The Report found that although Haiti

continues to make progress in a variety of fields, the pace and scope of

could tumble again.”).

of closing camps.” PX 326.002 (internal quotation marks omitted).

buildings in Port-au-Prince, Haiti’s capital, including hospitals, schools, physical infrastructure

and transportation facilities.” PX 326.004.

government infrastructure.” PX 326.004.

damage done in those areas had not remediated since. PX 326.005-006.

vulnerable” and continued to “face[] serious challenges”:

With the support of the international community, Haiti continues to rebuild

impact of Hurricane Matthew.” PX 009.001.

C. In the Spring of 2017, President Trump’s Political Appointees—at the

meant “welfare.” Hamilton Dep. Tr. 253:3-5.

based on that conviction.” Trial Tr. 255:25-256:6.

and things start leaking out.” PX 103.001.

in Kelly’s directive. Compare PX 103.001 with PX 015.011.

308:11; Prelogar Dep. Tr. 110:22–118:20.

49. Later on April 7, 2017, Prelogar replied to Kovarik’s instructions. As to the

holders don’t qualify for federal benefits.” PX 015.008.