Saget v. Trump - Appellee Brief

Case 19-1685, Document 100, 12/19/2019, 2735118, Page1 of 84
19-1685
United States Court of Appeals
for the Second Circuit

PATRICK SAGET, SABINA BADIO FLORIAL, GERALD MICHAUD, BEATRICE

BELIARD, RACHELLE GUIRAND, JEAN CLAUDE MOMPOINT, YOLNICK JEUNE,
GUERLINE FRANCOIS, LEOMA PIERRE, HAITI LIBERTE, FAMILY ACTION
NETWORK MOVEMENT, INC., AND NAISCHA VILME,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, UNITED STATES OF AMERICA, DEPARTMENT OF
HOMELAND SECURITY, KIRSTJEN M. NIELSEN, AND ELAINE C. DUKE,
Defendants-Appellants.
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NEW YORK
BRIEF OF PLAINTIFFS-APPELLEES
Ira J. Kurzban Miriam R. Nemetz

Kevin Gregg MAYER BROWN LLP
KURZBAN, KURZBAN, 1999 K Street, N.W.
TETZELI & PRATT, PA Washington, DC 20006
131 Madeira Ave. Telephone: (202) 263-3000
Coral Gables, FL 33134
Telephone: (305) 444-0060 Michael Rayfield
MAYER BROWN LLP
Sejal Zota 1221 Avenue of the Americas
JUST FUTURES LAW New York, New York 10020
95 Washington Street Telephone:(212) 506-2500
Canton, MA 02021
Telephone: (919) 698-5015 Howard J. Roin
Geoffrey M. Pipoly
Khaled Alrabe MAYER BROWN LLP
NATIONAL IMMIGRATION PROJECT 71 S. Wacker Drive
OF THE NATIONAL LAWYERS GUILD Chicago, IL 60606
89 South St., Suite 603 Telephone: (312) 782-0600
Boston, MA 02111
Telephone: (510) 679-3994 Attorneys for Plaintiffs-Appellees
CORPORATE DISCLOSURE STATEMENT
Neither plaintiff Haiti Liberté nor plaintiff Family Action Network
Movement, Inc., has a parent corporation. No publicly traded corporation
owns more than ten percent of the stock of Haiti Liberté or Family Action
Network Movement, Inc.
i
TABLE OF CONTENTS
INTRODUCTION ...................................................................................... 1
STATEMENT OF THE CASE AND FACTS ............................................ 6
A. The TPS Decisionmaking Process .......................................... 6
B. Haiti’s TPS Designation And Termination .......................... 11
C. This Action And The Hearing ............................................... 26
D. The Decision Below ............................................................... 27
STANDARD OF REVIEW....................................................................... 30
SUMMARY OF ARGUMENT ................................................................. 31
ARGUMENT ............................................................................................ 34
I. THE DISTRICT COURT HAD JURISDICTION.......................... 34
A. There Is A Strong Legal Presumption Of Judicial
Review Over Agency Action. ................................................. 36
B. The Text And Structure Of The TPS Statute Do Not
Overcome The Presumption Of Judicial Review. ................ 38
C. The Supreme Court And Other Courts Of Appeal Have
Routinely Permitted Collateral Challenges In The Face
Of Similar Jurisdictional Provisions. ................................... 41
D. Defendants’ Cases Do Not Support Their Position. ............ 44
II. THE DISTRICT COURT DID NOT ABUSE ITS
DISCRETION IN GRANTING THE PRELIMINARY
INJUNCTION. ............................................................................... 46
A. Plaintiffs Have Shown Serious Questions On The
Merits Of Their APA Claims. ............................................... 47
B. Plaintiffs Have Shown Serious Questions On The
Merits Of Their Equal Protection Claims. ........................... 60
III. THE DISTRICT COURT PROPERLY ENTERED AN
INJUNCTION AGAINST THE PRESIDENT. ............................. 70
IV. THE DISTRICT COURT PROPERLY ENTERED A
NATIONWIDE INJUNCTION. ..................................................... 72
CONCLUSION ........................................................................................ 73
ii
TABLE OF AUTHORITIES
Cases
ACLU v. Clapper,
785 F.3d 787 (2d Cir. 2015) ........................................................... 37, 38
Am. Wild Horse Pres. Campaign v. Perdue,

873 F.3d 914 (D.C. Cir. 2017) .............................................................. 56
Arlington Heights v. Metropolitan Housing Development

Corp.,
429 U.S. 252 (1977) ............................................................ 60, 61, 64, 67
Back v. Hastings on Hudson Union Free Sch. Dist.,

365 F.3d 107 (2d Cir. 2004) ................................................................. 68
Batalla Vidal v. Nielsen,

291 F. Supp. 3d 260 (E.D.N.Y. 2018) .................................................. 68
Bowen v. Mich. Acad. of Family Physicians,

476 U.S. 667 (1986) ........................................................................ 31, 37
Califano v. Yamasaki,
442 U.S. 682 (1979) ........................................................................ 72, 73
CASA de Maryland, Inc. v. Trump,

355 F. Supp. 3d 307 (D. Md. 2018) ................................................ 36, 44
Centro Presente v. U.S. Dep’t of Homeland Sec.,

332 F. Supp. 3d 393 (D. Mass. 2018)........................... 36, 44, 63, 69, 70
Church & Dwight Co. v. SPD Swiss Precision Diagnostics,

843 F.3d 48 (2d Cir. 2016) ................................................................... 72
Citizens Comm. for Hudson Valley v. Volpe,

425 F.2d 97 (2d Cir. 1970) ................................................................... 36
Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) .............................................................................. 53
iii
City of Rialto v. West Coast Loading Corp.,

581 F.3d 865 (9th Cir. 2009) .......................................................... 44, 45
Cowpasture River Pres. Ass’n v. Forest Serv.,

911 F.3d 150 (4th Cir. 2018) .......................................................... 33, 48
DCH Regional Medical Center v. Azar,

925 F.3d 503 (D.C. Cir. 2019) .............................................................. 44
Dep’t of Commerce v. New York,

139 S. Ct. 2551 (2019) .............................................................. 51, 52, 53
Encino Motorcars LLC v. Navarro,

136 S. Ct. 2117 (2016) .......................................................................... 56
FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) ........................................................................ 33, 56
Galvan v. Press,
347 U.S. 522 (1954) .............................................................................. 63
Gebhardt v. Nielsen,
879 F.3d 980 (9th Cir. 2018) .......................................................... 45, 46
Harmon v. Thornburgh,
878 F.2d 484 (D.C. Cir. 1989) .............................................................. 73
Hicks v. Comm’r of Soc. Sec.,

909 F.3d 786 (6th Cir. 2018) ................................................................ 41
Immigration Assistance Project of Los Angeles County

Federation of Labor (AFL-CIO) v. INS,
306 F.3d 842 (9th Cir. 2002) ................................................................ 43
Islander E. Pipeline Co. v. Conn. Dep’t of Env’l Protection,

482 F.3d 79 (2d Cir. 2006) ................................................................... 48
Leman v. Krentler-Arnold Hinge Last Co.,

284 U.S. 448 (1932) .............................................................................. 72
Mach Mining, LLC v. EEOC,

575 U.S. 480 (2015) .............................................................................. 37
iv
Mathews v. Diaz,
426 U.S. 67 (1976) ................................................................................ 63
McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479 (1991) .................................................. 4, 32, 38, 41, 42, 43
N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc.,

883 F.3d 32 (2d Cir. 2018) ............................................................. 31, 47
Nixon v. Fitzgerald,
457 U.S. 731 (1982) .............................................................................. 70
Norton v. Sam’s Club,

145 F.3d 114 (2d Cir. 1998) ................................................................... 8
Oneida Nation of N.Y. v. Cuomo,

645 F.3d 154 (2d Cir. 2011) ....................................................... 8, 30, 54
Poland v. Chertoff,
494 F.3d 1174 (9th Cir. 2007) .............................................................. 68
Pyke v. Cuomo,
567 F.3d 74 (2d Cir. 2009) ............................................................. 61, 69
Rajah v. Mukasey,
544 F.3d 427 (2d Cir. 2008) ................................................................. 62
Ramos v. Nielsen,
321 F. Supp. 3d 1083 (N.D. Cal. 2018) .............................. 35, 44, 63, 70
Regents of the Univ. of Cal. v. DHS,

908 F.3d 476 (9th Cir. 2018) ................................................................ 62
Reno v. Catholic Social Services, Inc.,

509 U.S. 43 (1993) ................................................................................ 43
SEC v. Chenery Corp.,

318 U.S. 80 (1943) ................................................................................ 51
Sharkey v. Quarantillo,
541 F.3d 75 (2d Cir. 2008) ................................................................... 37
v
Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala,

80 F.3d 379 (9th Cir. 1996) ............................................................ 44, 45
Texas v. United States,

809 F.3d 134 (5th Cir. 2015) .......................................................... 72, 73
Town of Orangetown v. Ruckelshaus,

740 F.2d 185 (2d Cir. 1984) ........................................................... 28, 49
Trump v. Hawaii,
138 S. Ct. 2392 (2018) .................................................................... 61, 62
U.S. Dep’t of Interior v. 16.03 Acres of Land,

26 F.3d 349 (2d Cir. 1994) ................................................................... 48
Vasquez v. Empress Ambulance Serv., Inc.,

835 F.3d 267 (2d Cir. 2016) ................................................................. 68
Vermont Yankee Nuclear Power Corp v. NRDC,

435 U.S. 519 (1978) ........................................................................ 50, 51
Webster v. Doe,
486 U.S. 592 (1988) ........................................................................ 34, 36
Zadvydas v. Davis,
533 U.S. 678 (2001) .............................................................................. 62
Statutes
5 U.S.C. § 701 ........................................................................................... 37
5 U.S.C. § 702 ........................................................................................... 36
5 U.S.C. § 706 ......................................................................... 36, 47, 48, 72
6 U.S.C. § 211 ........................................................................................... 39
8 U.S.C. § 1154 ......................................................................................... 39
8 U.S.C. § 1158 ........................................................................................... 8
8 U.S.C. § 1160 ......................................................................................... 41
vi
8 U.S.C. § 1254 ................................................................................. passim
Other Authorities
8 C.F.R. § 244.2 ........................................................................................... 8
65 Fed. Reg. 33,356 (2000) ................................................................. 59, 60
68 Fed. Reg. 3,896 (2003) ......................................................................... 59
79 Fed. Reg. 52,027 (2014) ....................................................................... 58
H.R. Rep. No. 100-627 (1988) ..................................................................... 6
Lynda J. Oswald, Note, Extended Voluntary Departure:

Limiting the Attorney General’s Discretion in Immigration
Matters, 85 MICH. L. REV. 152 (1986) .................................................... 6
National Immigration Forum, Fact Sheet: Temporary

Protected Status (TPS) ......................................................................... 66
WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1990) ......................... 38
vii
INTRODUCTION
Although you would not know it from reading defendants’ brief, the
outcome of this case will affect the lives and safety of tens of thousands
of people living lawfully in the United States. Plaintiffs challenge the
government’s decision in 2017 to terminate Haiti’s designation for
Temporary Protected Status (“TPS”), which has allowed over 50,000
Haitian nationals to remain here since an earthquake devastated that
country in 2010—destroying its capital city, causing homes to collapse,
and severely damaging critical infrastructure. The district court
preliminarily enjoined that decision, finding that the evidence raised
serious questions about whether the government’s action was based on
an unlawful procedure that deviated from prior agency practice and was
motivated by racial animus. Defendants have not come close to showing
that the district court abused its discretion; its decision was correct.
The TPS statute permits the Secretary of the Department of
Homeland Security (“DHS”) to allow eligible nationals of designated
countries to remain in the United States while “there exist extraordinary
and temporary conditions in the foreign state that prevent” them “from
returning to the state in safety.” 8 U.S.C. § 1254a(b)(1)(C). Once a
1
country is so designated, the Secretary must periodically “review the
conditions” in the country and, “after consultation with appropriate
agencies,” “determine whether the conditions for such designation …
continue to be met.” Id. § 1254a(b)(3)(A). The designation persists until
the Secretary determines that the foreign state “no longer meets the
conditions for designation.” Id. § 1254a(b)(3)(B), (C).
After the 2010 earthquake, DHS designated Haiti for TPS and then
extended the designation several times based on a comprehensive,
evidence-based evaluation of all conditions on the ground. The
Secretaries found that “extraordinary and temporary conditions”
resulting from the earthquake—and later exacerbated by a cholera
outbreak and a multitude of crises in food, housing, healthcare, and
sanitation services—prevented the safe return of Haitian nationals.
After President Trump took office, however, his Administration
fundamentally altered the statutorily required TPS decisionmaking
process. The President’s newly appointed political officials began
searching for a rationale to terminate Haiti’s designation, despite the
persistence of dangerous conditions. As the district court found, the
“events leading up to the decision to terminate Haiti’s TPS” were “a stark
2
departure from ordinary procedure, suggestive of a pre-determined
outcome not anchored in an objective assessment, but instead a
politically motivated agenda.” Political officials delivered unprecedented
directives to “build the case for not extending”: (1) to disregard conditions
in Haiti that could be characterized as not “directly traceable” to the
earthquake—contrary to the well-established practice of considering all
conditions; (2) to seek out criminality and welfare data on Haitian TPS
recipients—despite the irrelevance of such data under the statute; and
(3) to downplay negative information assembled by the agency’s
country-conditions experts while “dig[ging] for any stories” that might be
cited as positive developments in Haiti. Although no one disputed that
conditions in Haiti remained extremely poor, career staff were repeatedly
told to revise drafts of documents to make their conclusions align with
the Administration’s position. Meanwhile, White House officials exerted
extensive pressure on Acting DHS Secretary Elaine Duke to end TPS for
Haiti to advance President Trump’s “America First” agenda.
The district court held a four-day evidentiary hearing and then
issued a 145-page opinion preliminarily enjoining the termination of
Haiti’s TPS. The court held that it had jurisdiction and that plaintiffs had
3
established entitlement to injunctive relief under the Administrative
Procedure Act (“APA”) and the Equal Protection Clause. After
considering extensive, undisputed evidence and making detailed factual
findings, the court found that defendants had “reverse engineered the
TPS review process to achieve a desired political outcome,” departed from
longstanding practices without explanation, and made the determination
based on factors that are “not relevant under the controlling statute,”
including to “abate the presence of non-white immigrants in the country.”
On appeal, defendants principally argue that the district court was
deprived of jurisdiction under a provision of the TPS statute that
precludes “judicial review of any determination of the [Secretary] with
respect to” a designation, extension, or termination of TPS. 8 U.S.C.
§ 1254a(b)(5)(A) (emphasis added). The district court correctly held—in
line with three other district courts—that this provision does not bar
“collateral challenges to the processes underlying TPS determinations.”
The Supreme Court has expressly held that a statute’s “reference to ‘a
determination’ describes a single act rather than … a practice or
procedure employed in making decisions.” McNary v. Haitian Refugee
Ctr., Inc., 498 U.S. 479, 492 (1991) (emphases added). Here, Duke’s
4
decision followed a fundamentally flawed procedure inconsistent with the
good-faith, evidence-based review the TPS statute requires. The agency’s
review process also departed from DHS’s well-established past practices,
without justification or explanation. The TPS statute does not insulate
those procedural failings from judicial review.
Defendants dispute only one prong of injunctive relief: whether
plaintiffs have shown serious questions on the merits of their claims.
They argue that it is irrelevant whether DHS reverse-engineered the
record to justify a predetermined outcome because its final rationale was
“evidence-based”; but such a rationale cannot negate a procedural
challenge to an agency decision. Defendants never explain why they
abandoned their past practices and considered only country conditions
directly tied to the earthquake. Nor do they seriously dispute that the
termination decision was motivated by animus against Haitians and
other non-white immigrants; they merely ask the Court to uphold the
decision using a rational-basis standard that has never been applied in
this situation. In the end, defendants have no response to what President
Trump himself said about Haiti’s TPS designation: “Why do we need
more Haitians?” This Court should affirm.
5
STATEMENT OF THE CASE AND FACTS1
A. The TPS Decisionmaking Process
1. Statutory Procedures
Up until 1990, the executive branch used “extended voluntary
departure” and other similar mechanisms to permit certain nationals to
remain in the United States for humanitarian reasons. See Lynda J.
Oswald, Note, Extended Voluntary Departure: Limiting the Attorney
General’s Discretion in Immigration Matters, 85 MICH. L. REV. 152, 157-
60 (1986). The practice lacked “any specific … criteria,” id. at 178 n.153,
leading to concerns about arbitrariness, H.R. Rep. No. 100-627, at 4
(1988). Accordingly, as part of the Immigration Act of 1990, Pub. L.
101-649, 104 Stat. 4978, Congress enacted the TPS statute to guide and
constrain executive practice. See 8 USC § 1254a(g).
The TPS statute provides that the Secretary of DHS, after
“consultation with appropriate agencies of the Government,” may
1 “SA__” refers to the Special Appendix and “JA__” refers to the Joint
Appendix, both submitted with defendants’ opening brief. “Dkt. __” refers
to documents in the record that are not in the appendix. “DB__” refers to
defendants’ brief.
6
designate a country for TPS “only if” she finds that one of several
enumerated grounds exist, including—as relevant here:
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 [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)(C). The Secretary may designate a country for TPS
for six to eighteen months. Id. § 1254a(b)(2).
The statute specifies the procedures for extending or terminating a
TPS designation. At least sixty days before a TPS designation expires,
and “after consultation with appropriate agencies of the Government,”
the Secretary “shall review the conditions” in the designated country;
“shall determine whether the conditions for such designation … continue
to be met”; and shall “provide … for the publication of notice of each such
determination (including the basis for the determination…) in the
Federal Register.” Id. § 1254a(b)(3)(A). Unless the Secretary
“determine[s]” that the foreign state “no longer meets the conditions for
designation,” the designation period is automatically extended. Id.
7
§ 1254a(b)(3)(C). The statute neither limits successive extensions nor
grants discretion to terminate TPS if conditions warrant extension.
Eligible nationals of the TPS-designated country who are present
in the United States on the date of the designation or re-designation
receive employment authorization and protection from removal. See id.
§§ 1254a(a)(2), (c)(1)(A); 8 C.F.R. § 244.2. People convicted of certain
crimes or who pose a danger to national security are categorically
ineligible. See 8 U.S.C. §§ 1158(b)(2)(A), 1254a(c)(2)(B).
2. DHS’s Past Practices
As the district court found, DHS had developed “well-established
practices … to aid the DHS Secretary in making a well-informed,
evidence-based decision” about whether to terminate or extend a TPS
designation. SA9.2
2 The government does not argue that any of the district court’s
factual findings were clearly erroneous. See Oneida Nation of N.Y. v.
Cuomo, 645 F.3d 154, 164 (2d Cir. 2011) (factual findings underlying a
grant of a preliminary injunction are reviewed “under the clearly
erroneous … standard[]”). This Court should therefore accept those
findings on appeal. See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.
1998) (“Issues not sufficiently argued in the briefs are considered waived
and normally will not be addressed on appeal.”).
8
According to expert witness Leon Rodriguez, former director of the
United States Citizenship and Immigration Services (“USCIS”), DHS has
long interpreted the TPS statute, and particularly 8 U.S.C.
§ 1254a(b)(1)(C), to require “an analysis of conditions at the … ‘time when
the adjudication is occurring’ that ‘prevent nationals of that country from
returning to the country in safety,’” including “conditions ‘not necessarily
caused by’” the event that triggered the designation. SA10-11 (quoting
Rodriguez). Accordingly, “[i]t was established practice that USCIS
recommendations on TPS considered ‘a broad range of issues, including
food security, gender violence, stability of the Government, education,
[and] healthcare.” SA11 (quoting Rodriguez). These issues are relevant
to the “safety” of returning nationals. Trial Tr. 254 (JA887) (Rodriguez).
The process begins in the Refugee Asylum and International
Operations directorate (“RAIO”), a subdivision of USCIS. SA9. RAIO is
staffed by career civil servants specializing in country-conditions
research. Id. RAIO creates a report that describes conditions “relevant to
the ability of nationals of [the designated] country to return” and “the
ability of that country to reabsorb them,” whether or not “directly
9
associated with the original triggering circumstances.” Trial Tr. 229-30
(JA881) (Rodriguez).
USCIS then drafts a decision memorandum, known as a “Director
Memo,” distilling the RAIO report and recommending action. SA10; Trial
Tr. 235-36 (JA882-83). Because the RAIO report “contains the ‘factual
predicate’ for USCIS’s recommendation to the DHS Secretary,” it
ordinarily “plays a crucial role in the Secretary’s decision to extend or
terminate TPS.” SA9; see Trial Tr. 234 (JA882) (Rodriguez). The USCIS
Director sends the memo to the Secretary of DHS, who gives a “high level
of deference” to USCIS. SA10; Trial Tr. 246 (JA885) (Rodriguez).
Under prior practice, both “the USCIS Director and DHS Secretary
have historically considered ‘intervening factors’ arising after a country’s
original TPS designation,” such as subsequent “natural disasters” or
“humanitarian considerations,” “even if those factors lacked any
connection to the event that formed the basis for the original
designation.” SA11.
3. The State Department’s Past Practices
The Secretary of DHS also consults with the Department of State
(“DOS”) in making a TPS determination. Under DOS’s procedures
10
(SA8-9), the U.S. embassy in the designated country reports on the
country’s conditions. SA8. The relevant State Department bureaus
prepare a memorandum for the Secretary of State based on the embassy’s
report. Id. The embassy’s views ordinarily receive deference. Id.
B. Haiti’s TPS Designation And Termination
1. DHS Designates Haiti In 2010 And Extends Its TPS

Four Times
On January 12, 2010, a 7.0 magnitude earthquake struck Haiti.
SA12. Invoking 8 U.S.C. § 1254a(b)(1)(C), DHS Secretary Janet
Napolitano designated Haiti for TPS for 18 months, finding “that there
exist extraordinary and temporary conditions” in Haiti that “prevent[]
[Haitian nationals] from returning to Haiti in safety.” JA1733. The
earthquake had “destroyed most of the capital city,” “concrete homes
[had] collapsed,” “critical infrastructure” had been “severely affected,”
and the death toll was “substantial.” Id.
On May 19, 2011, Secretary Napolitano extended Haiti’s
designation for 18 months and re-designated the country so that
additional people could qualify for TPS. JA1736. The Secretary explained
that the earthquake had “exacerbated Haiti’s position as the
least-developed country in the Western Hemisphere and one of the
11
poorest in the world,” and that a cholera outbreak after the earthquake
further exposed “the vulnerability of the public health sector.” JA1737.
Secretary Napolitano and her successor, Jeh Johnson, announced
three additional 18-month extensions in October 2012, March 2014, and
August 2015. JA1741, JA1747, JA1754. Each announcement outlined
conditions arising from the earthquake and its attendant damage to
infrastructure, public health, agriculture, transportation, and education.
DHS also found that the cholera epidemic and the earthquake’s
exacerbation of pre-existing vulnerabilities, including food and housing
crises, justified the extensions. JA1742, JA1748-49, JA1755-56.
Secretary Johnson’s August 2015 decision extended Haiti’s TPS
designation through July 22, 2017. JA1754. Johnson noted that Haiti
“continues to lack the adequate infrastructure, health and sanitation
services, and emergency response capacity necessary to ensure the
personal safety of Haitian nationals.” JA1756.
On October 4, 2016, Hurricane Matthew struck Haiti. SA14. In
December 2016, RAIO issued a report (JA1624-1631) concluding that
“Haiti’s progress remains fragile and vulnerable, and the country faces
serious challenges, including a housing shortage, a cholera epidemic and
12
limited access to medical care, damage to the economy, political
instability, security risks, food insecurity, and considerable
environmental risks.” JA1631. The report added that “[t]he deleterious
impact of Hurricane Matthew … has further hindered Haiti’s ability to
recover from the 2010 earthquake.” Id.
In December 2016, outgoing Secretary of State John Kerry
recommended that DHS extend Haiti’s TPS designation. SA14.
2. The Trump Administration Targets Haitian

Immigrants Based On Racial Animus
On January 20, 2017, President Trump took office, with well-known
attitudes toward immigration. As the district court found, “[n]umerous
public statements made by the President both when he was a presidential
candidate and during his time in office reflect animus against non-white
immigrants,” including Haitians. SA131; see JA1465, JA1466,
JA1478-79, JA1491, JA1521, JA1524, JA1525.
During a June 2017 meeting on immigration with DHS Secretary
Kelly and Secretary of State Rex Tillerson, President Trump stated that
Haitian nationals “all have AIDS.” SA131. At a January 11, 2018
meeting, President Trump disparaged an immigration plan benefiting
people from Haiti, El Salvador, and some African countries, asking: “Why
13
are we having all these people from shithole countries come here?”
SA132. He asked, “[w]hy do we need more Haitians?” and “insisted they
be removed from an immigration deal.” SA166.
As the district court found, “other White House officials” also
“made disparaging comments regarding Haitians.” SA132. Then-DHS
Senior Counsel Gene Hamilton commented that “African countries are
toast,” and “Haiti is up next.” SA132. Kelly described Haitians as
“welfare recipients.” Id. The administration relied upon a years-old
report to terminate Haiti’s participation in the H-2A and H-2B visa
programs, which allow foreign nationals to apply for temporary work
visas. JA1617-20, JA1621-23.
3. Haiti’s TPS Designation Is Extended In May 2017,

But The Push For Termination Begins
In February 2017, RAIO published an addendum to its December
2016 country-conditions report, explaining that Hurricane Matthew had
“exacerbated” conditions in Haiti and that it would “likely take Haiti
years to recover.” JA1034-35. In March 2017, USCIS officials drafted a
Director Memo recommending an extension. JA1039.
“Beginning in March 2017,” however, political appointees within
DHS and USCIS “began to cultivate a record they believed would weigh
14
in favor of termination.” SA19. In a departure from prior practice, they
began “suggest[ing] the USCIS memorandum could disregard changes
not directly traceable to the 2010 earthquake.” Id. USCIS staff were
directed to “refashion[]” the draft Director Memo to include an option to
terminate Haiti’s designation. JA1042. On April 3, 2017, the career staff
circulated a new draft that included termination as an option but still
recommended an eighteen-month extension. SA20, JA1037, JA1250-54.
One week later, however, USCIS circulated a revised draft
recommending termination. JA1205-10.
Meanwhile, DHS officials sought criminality and welfare data on
Haitian TPS recipients. Kelly emailed DHS Chief of Staff Kirstjen
Nielsen and directed her to collect, “[s]pecific to Haiti, details on how
many are on public and private relief,” and “how many [are] convicted of
crimes of any kind.” SA23. Hamilton—formerly an advisor on
immigration issues on the Presidential Transition Team (Hamilton Dep.
42:6-13)—relayed Kelly’s directive to Kathy Kovarik, the new Chief of the
USCIS Office of Policy and Strategy. JA1193. Career USCIS officials
responded that DHS did not maintain the data Kelly had requested.
15
JA1044-54. Dissatisfied, Kovarik instructed the career staff to “figure out
a way to squeeze more data out of our systems.” JA1348.
Kovarik also asked staffers to “dig for any stories … that would
show how things are in Haiti—i.e., rebuilding stories, work of nonprofits,
how the U.S. is helping in certain industries.” JA1347. A career USCIS
official responded: “Unfortunately, conditions in Haiti remain difficult.”
JA1345. He pointed to news reports that “[m]ore than 46,000 quake
victims continue to live in tents and under tarps” and that some Haitians
were “living in caves and eating poisonous plants to survive.” Id.
In early May, news media reported on the impending termination
of Haiti’s TPS, suggesting that it was linked to Kelly’s request for
criminality and welfare data about Haitians. JA1212-17. DHS hurriedly
shifted course: “USCIS [was] told to redraft the Haiti TPS notice once
again, this time to announce a 6-month extension” and “to suggest … that
it is likely to be terminated in 6 months.” SA29. Career staff wondered
“how [the Secretary] could find Haiti to meet TPS conditions now but find
in just a few months from now that it no longer does.” Id. Then-Deputy
DHS Secretary Elaine Duke said that there was “[e]very expectation”
that Haiti’s designation would not be renewed. JA1109.
16
On May 22, 2017, DHS announced that Kelly would extend Haiti’s
TPS for six months, but stressed that TPS beneficiaries should begin to
“arrange for their ultimate departure from the United States.” JA1314.
In the Federal Register Notice, Kelly explained why the extension was
warranted: “over 55,000 Haitians who lost their homes in the earthquake
are still living in 31 camps”; “[s]ome people who were displaced by the
earthquake, although no longer in camps, have moved back to unsafe
homes”; damage from Hurricane Matthew and heavy rains were
“compounding the existing food insecurity” experienced by
“approximately 30 percent of the population”; and the “ongoing cholera
epidemic” was straining “Haiti’s weak public health system.” JA1763.
Nevertheless, the notice “encouraged” TPS holders “to prepare for their
return to Haiti.” JA1761.
4. USCIS Recommends Terminating Haiti’s TPS
The government then rapidly abandoned the analysis in the May
2017 notice. As the district court found, the “events leading up to the
decision to terminate Haiti’s TPS w[ere] a stark departure from ordinary
procedure, suggestive of a pre-determined outcome not anchored in an
objective assessment, but instead a politically motivated agenda.” SA133.
17
DHS officials told the press that the Trump Administration had
“concerns about the TPS program as a whole,” and planned to look at TPS
with “fresh eyes.” JA1099 (emphasis added). Kelly told DHS staff that
Congress had “no moral courage” because it failed to include a “sunset
clause” for TPS. JA1104.
On June 6, 2017, Kelly testified about Haiti’s designation before a
Senate committee. JA1427-29. Although DHS had not designated TPS
for Haiti based on an “environmental disaster,” 8 U.S.C. § 1254a(b)(1)(B),
Kelly contended that TPS “is for a specific event”—in Haiti, “the
earthquake”—and that the key “word [in the statute] is ‘temporary.’”
JA1428-29. “Yes,” he said, “Haiti had horrible conditions before the
earthquake, and those conditions aren’t much better after the
earthquake. But the earthquake was why TPS … was granted and …
that’s how I have to look at it.” JA1428; see also SA110 (similar testimony
in April 2018 from Nielsen).
The next day, Kelly’s office instructed USCIS staff that “letters on
Haiti TPS” should “begin[] to build the case for not extending.” JA1067.
The staff were directed to “[h]ighlight [the] temporary nature” of TPS and
to stress that the “2010 Earthquake is the only reason for TPS being
18
granted”—not the “hurricane,” “current economic conditions,” or the
“cholera epidemic.” Id. In July 2017, Kelly was named White House Chief
of Staff, and Duke became Acting Secretary of Homeland Security.
In October 2017, the country conditions experts at RAIO issued an
updated report, explaining that “Haiti’s recovery from the 2010
earthquake could be characterized as … ‘one step forward, two steps
back.’” JA2210. RAIO reported that “Haiti’s recovery ha[d] been hindered
by subsequent natural disasters and various political, social, health,
security and economic conditions,” leaving it “unable to adequately
respond to a wide range of persistent humanitarian needs.” Id.
The career USCIS officials drafted another Director Memo, and
Kovarik told them that it needed “revision”: “The problem is that [it]
reads as though we’d recommend an extension b/c we talk so much about
how bad [Haiti] is.” JA1072. One career official responded that “the basic
problem is that it IS bad there [under] all of the standard metrics.”
JA1079 (emphasis in original). While he offered to attempt to further
disconnect the conditions in Haiti from the earthquake, and to “comb
through the country conditions … for positive gems,” he stressed that “the
conditions are what they are.” Id.
19
On October 22, 2017, Kovarik forwarded the draft Director Memo
to newly appointed USCIS official Robert Law. JA1226. Law lamented
that “[t]he draft is overwhelmingly weighted for extension which I do not
think is the conclusion we are looking for.” Id. (emphasis added). Kovarik
replied: “Edit away!” Id. A mere 29 minutes later, Law responded: “Edits
attached. I made the document fully support termination and provided
comment boxes where additional data should be provided to back up this
decision.” Id. On October 31, 2017, Law emailed a DHS employee: “I need
positive data on the current status of Haiti to bolster the recommendation
to terminate TPS. Look back to Sec. Kelly’s … extension for language
citing ‘improvements’ or the like that I can plug in.” JA1151. “Be
creative,” he added. Id.
Three days later, USCIS issued a Director Memo recommending
termination of Haiti’s TPS. JA1230-36. Deviating from USCIS’s past
practice of basing the recommendation on all issues relevant to safety
(see pp. 8-10 supra; Trial Tr. 270 (JA891 (Rodriguez)), the memo
embraced the new practice of considering only conditions directly
attributable to the 2010 earthquake. JA1233. For example, the memo
concluded that Haiti’s “deteriorat[ing]” conditions relating to “food
20
security” “seem related to tropical storms and a drought rather than from
lingering effects of the 2010 earthquake.” Id.
5. The State Department Recommends An Extension

By “Mistake” And Then Falls Into Its “Lane”
Meanwhile, DOS was conducting its own periodic review of Haiti’s
TPS designation. On May 31, 2017—around the time Kelly was
expressing concerns with TPS more generally—Tillerson sent a letter to
Kelly recommending that Haitian TPS be extended to July 22, 2018.
JA1458. The letter explained that “Haiti still lacks the capacity to fully
ensure a safe return of the 59,000 TPS beneficiaries residing in the
United States.” Id.
DHS officials met to discuss whether they could “support keeping
State in their lane.” JA1111. Nielsen said that Tillerson’s letter was “a
mistake,” and that DOS would “be pulling this back shortly.” SA37.
On August 3, 2017, the U.S. Embassy in Haiti sent a cable
recommending an extension, explaining that the Haitian government
was “not capable of facilitating the reabsorption of the 59,000 Haitians
currently holding TPS in the United States,” and noting the “[l]ingering
issues from the 2010 earthquake, additional effects of the cholera
epidemic, and the aftermath of Hurricane Matthew.” JA2233.
21
Nonetheless, DOS’s regional bureau for Haiti—the Bureau of
Western Hemisphere Affairs (“WHA”)—recommended termination.
JA2234-38. WHA acknowledged that “lingering effects of the earthquake
remain in the areas of infrastructure, health, sanitation services, and
emergency response capacity.” Id. And it found 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.” JA2234.
But the WHA then essentially reversed itself mid-report, concluding
without elaboration 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.” Id. Notably, the report did
not present “the embassy’s perspective,” which one former DOS official
testified was “highly unusual.” Trial Tr. 126 (JA848); see SA100.3
DOS ultimately produced a memo recommending termination and
adopting WHA’s rationale. JA367-71. Conforming to USCIS’s new
interpretation of the TPS statute, the memo “carefully distinguished
3 DOS’s Bureau of Population and Refugee Management disagreed

with the WHA and recommended a six-month extension. JA1449.
22
conditions it considered related to the earthquake from those it classified
as ‘subsequent conditions.’” SA41.
On October 31, 2017, Tillerson sent a letter to Duke recommending
the termination of TPS for Haiti, El Salvador, Honduras, and Nicaragua.
SA42. Apart from attaching the country-conditions report, the letter did
not describe any conditions in Haiti warranting termination. Id.4
6. DHS Terminates Haiti’s TPS
As the district court found, the evidence shows that “Duke
terminated TPS for Haiti for reasons unrelated to the conditions in
Haiti.” SA115. Addressing El Salvador, Honduras, and Nicaragua,
Duke’s contemporaneous notes state: “The TPS program must end for
these countries soon …. This conclusion is the result of an America first
view of the TPS decision.” JA1341. But “Duke’s notes also demonstrate
she could not yet rationalize terminating Haiti’s TPS by early
November.” SA50. She said that she “need[ed] to rationalize conflicting
info,” but “all agree[d]” that TPS “must end.” JA1330-31.
4 Around this time, DOS issued travel advisories warning potential

visitors about the dangers of travel to Haiti. JA2244-47.
23
When “Duke met with White House officials” about the issue, they
“exerted significant pressure on her to terminate.” SA115. On November
3, 2017, the White House called a meeting with Duke, Attorney General
Jeff Sessions, senior advisor Stephen Miller, and others to “coordinate
the conditions and process for terminating [TPS] for aliens from El
Salvador, Honduras, Nicaragua, and Haiti.” JA1298. The meeting’s
briefing materials recommended that Duke “[t]erminate” TPS for all four
countries. JA1300. Sessions told Duke at the meeting that she “can’t keep
certifying,” that “no one has guts to pull the trigger,” and that Duke
should “just bite the bullet” and terminate. JA435-37.
Two days later, White House officials told Duke that “conditions in
[the] 4 countries no longer exist,” that “gutless fed[eral] bureaucrats”
were responsible for past extensions, and that the White House would be
“extremely disappointed” if she “kick[ed]” the decision “into” the next
Secretary’s “lap.” JA1324.
On November 6, 2017, Duke emailed Kelly that she intended to
terminate TPS for Nicaragua and to make “no decision” on Honduras:
“These decisions along with the public statements will send a clear signal
24
that TPS in general is coming to a close,” which Duke deemed “consistent
with the President’s position on immigration.” JA1334.
On November 20, 2017, DHS announced Duke’s decision to
terminate Haiti’s TPS designation as of July 22, 2019. JA1202. Two
months later, DHS published notice of the termination in the Federal
Register. JA1769. The entirety of its rationale is as follows:
[T]he conditions for Haiti’s designation for TPS—

on the basis of “extraordinary and temporary
conditions” relating to the 2010 earthquake that
prevented Haitian nationals from returning in
safety—are no longer met.
Haiti has made progress recovering from the 2010

earthquake and subsequent effects that formed
the basis for its designation. For example, the
number of internally displaced persons (IDP) from
the earthquake has continued to decline—98
[percent] of IDP sites have closed, and only
approximately 38,000 of the estimated 2 million
Haitians who lost their homes in the earthquake
were still living in camps as of June 2017. In
October 2017, the United Nations withdrew its
peacekeeping mission, noting the mission had
achieved its goals. The peacekeeping mission has
been replaced by a successor operation that is a
police-only force focused on strengthening rule of
law, promoting human rights and supporting the
Haitian National Police.
Haiti successfully completed its presidential

election in February 2017. The 2010 earthquake
destroyed key government infrastructure,
25
including dozens of primary federal buildings,

which the Haitian government is working to
rebuild. The Supreme Court is already
reconstructed and operational, and, in April 2017,
President Moïse announced a project to rebuild
Haiti’s National Palace. A Palace spokesperson
announced on January 8 that a project to
reconstruct the Palace would commence on
January 12, 2018.
Haiti’s economy continues to recover from the 2010

earthquake. Annual GDP growth has been
generally positive since 2010, averaging 1.7
percent over the period (2010-2016). 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.
JA1771. The Notice makes no mention of food insecurity, the weakness
of Haiti’s public health system, or the impact of Hurricane Matthew,
which were discussed in the May 2017 Federal Register Notice and in the
most recent RAIO report.
C. This Action And The Hearing
In 2018, plaintiffs filed this action seeking an order enjoining the
TPS termination and directing defendants to comply with the procedures
in the TPS statute. Dkt. 1 ¶¶ 31-32. The operative complaint challenges
the procedures and criteria that defendants used to terminate TPS for
Haiti. Dkt. 21 ¶¶ 5, 7, 42, 124, 126, 128-29; see, e.g., id. ¶ 5 (defendants
26
“end[ed] current TPS designations … without due regard to the relevant
conditions on the ground or the procedures and policies of the statute
protecting persons granted TPS”); id. ¶ 126 (defendants “terminated
Haiti’s TPS based solely on an overly narrow consideration of the
conditions on which the country’s original designation were based,
without any consideration of the extraordinary conditions that currently
prevent Haitian immigrants from safely returning to Haiti”).
The district court denied defendants’ motion to dismiss. Dkt. 96. In
January 2019, it held a four-day hearing to determine the propriety of a
preliminary injunction, and heard live testimony from eight plaintiffs’
witnesses. The court received deposition testimony of eight current and
former government officials and hundreds of exhibits. The court also
reviewed in camera documents withheld as privileged by defendants,
later citing some of the documents in its opinion.
D. The Decision Below
On April 11, 2019, the district court preliminarily enjoined the
termination of Haiti’s TPS. SA1-145.
The court first held that it had subject-matter jurisdiction. It
explained that the TPS statute’s jurisdictional provision “proscribes only
27
direct review of individual TPS determinations,” and not “collateral
challenges to the processes underlying TPS determinations.” SA62-63.
The district court then addressed the requirements for injunctive
relief. It held that plaintiffs had shown serious questions on the merits of
their APA claims for two main reasons. SA87. First, “Plaintiffs are likely
to succeed in their claim Acting Secretary Duke’s decision was ‘not in
accordance with law,’ because … she did not conduct the periodic review
in accordance with the dictates of the [TPS] statute.” SA88. Instead, the
evidence showed that defendants “reverse engineered the TPS review
process to achieve a desired political outcome.” SA91. Duke’s decision
also resulted from improper “political influence.” SA113. Such pressure
“‘was intended to and did cause [Duke’s] action to be influenced by factors
not relevant under the controlling statute.’” SA111 (quoting Town of
Orangetown v. Ruckelshaus, 740 F.2d 185, 188 (2d Cir. 1984)).
Second, the district court held, “Plaintiffs are likely to succeed in
showing Secretary Duke’s decision was arbitrary and capricious due to a
departure in agency practice.” SA111. DHS had “departed from its
longstanding practice of considering all country conditions and instead
only considered conditions directly related to the originating condition
28
(i.e., the 2010 earthquake).” SA116. “It did so without acknowledgment
and without explaining its rationale,” which is “impermissible.” SA111.
The district court held next that there were “serious questions going
to the merits of Plaintiffs’ equal protection claim.” SA123. “[T]he evidence
suggests [Duke] was influenced by the White House … to ignore statutory
guidelines, contort data, and disregard objective reason to … abate the
presence of non-white immigrants in the country.” SA127.
Addressing the remaining prongs of the standard for a preliminary
injunction, the district court determined that “[a]bsent injunctive relief,
Plaintiffs, as well as 50,000 to 60,000 Haitian TPS beneficiaries and their
30,000 U.S-citizen children,” will face “imminent and irreparable harm,”
including “removal from their homes, jobs, and communities.” SA137,
139. “[T]hose with U.S.-citizen children will confront the impossible
choice of either leaving their children behind or taking their children with
them to a country [where] they may not be safe.” SA138. The “balance of
hardships tip[ped] decidedly in Plaintiffs’ favor”; indeed, “[n]othing in the
record suggests the continued presence of Haitian TPS beneficiaries
… would cause any concrete harm to the United States,” and “[t]he
29
Government [did] not dispute these individuals make valuable
contributions to their state and local communities.” SA142-43.
The district court therefore “enjoin[ed] the termination of Haiti’s
TPS on a nationwide basis.” SA143. It also found that “injunctive relief
against the President is proper,” 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.” SA68.
STANDARD OF REVIEW
This Court “review[s] a district court’s decision to grant or deny a
preliminary injunction for abuse of discretion.” Oneida Nation of N.Y. v.
Cuomo, 645 F.3d 154, 164 (2d Cir. 2011). “Under abuse of discretion
review, the factual findings and legal conclusions underlying the district
court’s decision are evaluated under the clearly erroneous and de novo
standards, respectively.” Id.
“A party seeking a preliminary injunction must show
(1) irreparable harm; (2) either a likelihood of success on the merits or
both serious questions on the merits and a balance of hardships decidedly
favoring the moving party; and (3) that a preliminary injunction is in the
30
public interest.” N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc.,
883 F.3d 32, 37 (2d Cir. 2018) (emphasis added).
SUMMARY OF ARGUMENT
Defendants argue that the TPS statute deprived the district court
of jurisdiction. The statute provides: “There is no judicial review of any
determination of the [Secretary] with respect to” a designation, extension,
or termination of TPS. 8 U.S.C. § 1254a(b)(5)(A) (emphasis added). The
district court correctly held—in line with three other district courts—that
this provision “proscribes only direct review of individual TPS
determinations,” not “collateral challenges to the processes underlying
TPS determinations.” This conclusion is compelled by the “strong
presumption that Congress intends judicial review of administrative
action.” Bowen v. Mich. Acad. of Family Physicians, 476 U.S. 667, 670
(1986). It is compelled by the structure of the TPS statute, which
expressly distinguishes between a “determination” and the review
leading to a determination. And it is compelled by Supreme Court cases
holding that a statute’s “reference to ‘a determination’ describes a single
31
act rather than … a practice or procedure employed in making decisions.”
McNary, 498 U.S. at 492 (emphases added).
Defendants barely dispute these points. Instead, they principally
argue that plaintiffs have raised substantive challenges to Duke’s
“determination,” including her weighing of the evidence. But that simply
mischaracterizes plaintiffs’ claim: that Duke’s decision flowed from a
flawed review procedure that departed—without acknowledgement or
explanation—both from (1) the TPS statute’s requirement to conduct a
good-faith and evidence-based “review” of “the conditions in” Haiti; and
(2) well-established practices that DHS previously followed when
conducting such reviews.
II
The district court did not abuse its discretion in granting the
preliminary injunction. Defendants challenge only one requirement of
injunctive relief: whether plaintiffs have shown “serious questions on the
merits.” Plaintiffs have more than satisfied that standard.
a. The district court held that the termination decision likely
violated the APA for two reasons. First, defendants violated the TPS
statute because, rather than conducting a good-faith review of the
32
conditions in Haiti, they “reverse engineered the [record] to justify” a
“preordained decision.” Cowpasture River Pres. Ass’n v. Forest Serv., 911
F.3d 150, 179 (4th Cir. 2018). Defendants insist that this is irrelevant
because the ultimate rationale Duke gave was “purely evidence-based.”
But that argument cannot defeat a procedural challenge—and
defendants have offered no authority that it can.
Second, defendants violated the APA by changing DHS prior
practice of considering all country conditions when reviewing TPS
designations, without even acknowledging or explaining the change. This
violated the well-established rule that “[a]n agency may not … depart
from a prior policy” without a “reasoned explanation.” FCC v. Fox
Television Stations, Inc., 556 U.S. 502, 515 (2009). Defendants have never
attempted to explain why they veered from prior practice and ignored all
country conditions except those directly arising from the earthquake.
b. Plaintiffs have raised serious questions on the merits of their
Equal Protection claim. There is ample evidence that defendants’ conduct
was motivated by racial animus against non-white immigrants generally
and Haitian immigrants specifically. The termination decision had
33
nothing to do with the conditions in Haiti, and everything to do with the
Administration’s perceptions of Haitian nationals.
The Court should affirm the injunction, including the decision to
give it nationwide effect and to apply it to the President.
ARGUMENT
I. THE DISTRICT COURT HAD JURISDICTION.
The district court correctly held that it had subject-matter
jurisdiction over plaintiffs’ claims.
To begin, defendants do not seriously dispute that the district court
had jurisdiction over plaintiffs’ constitutional claims. They assert that
the “court wrongly concluded that [the TPS statute’s] clear bar on judicial
review could be circumvented by a constitutional challenge” (DB42), but
cite no authority for this proposition. And defendants’ contention is
incorrect. As the district court explained (SA153-154), “where Congress
intends to preclude judicial review of constitutional claims its intent to
do so must be clear,” in part because of the “serious constitutional
question that would arise if a federal statute were construed to deny any
judicial forum for a colorable constitutional claim.” Webster v. Doe, 486
34
U.S. 592, 603 (1988) (quotation marks omitted). The TPS statute evinces
no such intent. SA153.
Defendants argue that plaintiffs’ APA claims are barred by this
provision: “There 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.” 8 U.S.C.
§ 1254a(b)(5)(A). Plaintiffs, however, do not challenge the merits of
Duke’s “determination”: they do not contend that Duke erred in
concluding that the “extraordinary and temporary conditions” that
prompted Haiti’s TPS designation “no longer exist.” Instead, as the
district court held, plaintiffs raise “process-based deficiencies”—
contending that defendants failed to conduct the mandated review in
good faith and departed without explanation from past agency practice
regarding the review’s scope. They seek to have the Secretary “make a
new, good faith, fact- and evidence-based determination regarding Haiti’s
status by applying lawful criteria.” SA64. As both the court below and
three other district courts have held—relying on McNary—collateral
challenges to the procedures and general criteria used in arriving at a
determination are outside Section 1254a(b)(5). Ramos v. Nielsen, 321 F.
35
Supp. 3d 1083, 1102 (N.D. Cal. 2018); CASA de Maryland, Inc. v. Trump,
355 F. Supp. 3d 307, 320 (D. Md. 2018); Centro Presente v. U.S. Dep’t of
Homeland Sec., 332 F. Supp. 3d 393, 409 (D. Mass. 2018).
This conclusion finds support in (a) the strong legal presumption
favoring judicial review of agency action; (b) the text and structure of the
TPS statute; and (c) well-settled authority permitting similar collateral
challenges in the face of similar statutory provisions. Defendants’ cited
authorities are inapposite.
A. There Is A Strong Legal Presumption Of Judicial

Review Over Agency Action.
The APA provides that “[a] person … aggrieved by agency action
within the meaning of a relevant statute[] is entitled to judicial review
thereof.” 5 U.S.C. § 702. The reviewing court “shall . . . hold unlawful and
set aside agency action” that is “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law,” and action “without
observance of procedure required by law.” Id. § 706(2)(A), (D).
This Court has long recognized that “Congress intended by the
[APA] to assure comprehensive review of a broad spectrum of
administrative actions.” Citizens Comm. for Hudson Valley v. Volpe, 425
F.2d 97, 102 (2d Cir. 1970); see generally Webster, 486 U.S. at 599
36
(describing the APA’s “comprehensive provisions”). A statute may
prohibit APA review, see 5 U.S.C. § 701(a)(1), but “Congress rarely
intends to prevent courts from enforcing its directives to federal
agencies,” Mach Mining, LLC v. EEOC, 575 U.S. 480, 486 (2015).
The Supreme Court has accordingly held that there is a “strong
presumption that Congress intends judicial review of administrative
action.” Bowen, 476 U.S. at 670. The presumption is overcome only “when
a statute’s language or structure demonstrates that Congress wanted an
agency to police its own conduct.” Mach Mining, 575 U.S. at 486. The
agency “bears a heavy burden in attempting to show that Congress
prohibited all judicial review of the agency’s compliance with a legislative
mandate.” Id. (alteration and quotation marks omitted). “[W]here
substantial doubt about the congressional intent exists, the general
presumption favoring judicial review of administrative action is
controlling.” ACLU v. Clapper, 785 F.3d 787, 803 (2d Cir. 2015). And the
presumption applies with particular force when “the statutory scheme
provides no alternative mechanism for judicial review.” Sharkey v.
Quarantillo, 541 F.3d 75, 91 (2d Cir. 2008).
37
B. The Text And Structure Of The TPS Statute Do Not

Overcome The Presumption Of Judicial Review.
The TPS statute’s text and structure do not remove “substantial
doubt” (Clapper, 785 F.3d at 803) that Congress sought to foreclosure the
procedural claims raised by plaintiffs—just the contrary. If Congress had
wanted to preclude all review, it could have barred “all causes arising”
under the TPS statute, or “all questions of law and fact” in such suits, but
it did not. See McNary, 498 U.S. at 494. Instead, Congress prohibited
judicial review only of the Secretary’s “determination.”
The dictionary defines that term (in relevant part) as “the resolving
of a question by argument or reasoning” or “the act of deciding
definitively and firmly.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY
(1990) (emphases added). Plaintiffs do not seek judicial review of Duke’s
substantive resolution of the question before her, nor are plaintiffs
challenging Duke’s “argument or reasoning.” Plaintiffs challenge the
process that preceded Duke’s determination and the general criteria that
she employed. Plaintiffs contend principally that Duke and DHS “did not
conduct the periodic review in accordance with the dictates of the statute”
(SA88) and that the agency, without sufficient explanation, departed
38
from its well-established practice of considering all conditions bearing on
whether it was safe for TPS holders to return home (SA105-11).
The structure of the statute confirms that Congress did not intend
to preclude challenges of this nature. First, unlike other statutes that
give agencies unfettered discretion with respect to decisions,5 Congress
imposed specific provisions requiring the Secretary to consider particular
criteria before a TPS designation may be terminated (or made in the first
instance). 8 U.S.C. § 1254a(b)(1); pp. 6-8 supra. These careful provisions
invite judicial review to assess whether the procedural requirements
cabining the Secretary’s discretion have been followed.
Second, the statute distinguishes between the required processes
and the ultimate “determination.” With respect to the periodic review,
Section 1254a(b)(3)(A) provides that the Secretary, “after consultation
with appropriate agencies of the Government, shall review the conditions
in the foreign state … and shall determine whether the conditions for
5 See, e.g., 6 U.S.C. § 211(k)(3) (granting agency “sole and

unreviewable discretion” to “determine[]” that certain otherwise required
notifications shall be withheld because they would “impair national
security, law enforcement, or other operational interests”); 8 U.S.C.
§ 1154(a)(1)(A)(viii) (granting Secretary of DHS “sole and unreviewable
discretion” to “determine[]” that citizens pose no risk to aliens).
39
such designation … continue to be met.” (Emphases added.) Thus, the
ultimate “determination” by the Secretary comes “after” two distinct
events: (a) the “consultation with appropriate agencies” and (b) the
“review” of the conditions.
Defendants make no attempt to grapple with the statutory
structure. Instead, they emphasize that the jurisdictional provision “bars
review of ‘any determination with respect to’” TPS designations,
extensions, and terminations. DB18. The italicized language, however,
sheds no light on what constitutes a “determination.” Contrary to
defendants’ contention, the statute itself—by separating the “review”
from the “determination”—distinguishes between “[t]he criteria and
evidence a Secretary deems important in arriving at a particular TPS
determination and … the determination itself.” DB19.
Defendants next suggest that plaintiffs have raised substantive
challenges to Duke’s “determination.” Id. Not so. Plaintiffs’ challenge is
to the agency’s process: that DHS and USCIS (and ultimately Duke)
(1) did not conduct the required “review” of “the conditions in” Haiti in
good faith, but manipulated the process to justify terminating Haiti’s
TPS for other reasons; and (2) abandoned longstanding practices about
40
the conditions to be considered without acknowledgment or explanation.
See Part II.A infra. The government “cannot reframe plaintiffs’ complaint
to evade responsibility for failing to abide by the APA’s requirements.”
Hicks v. Comm’r of Soc. Sec., 909 F.3d 786, 806 (6th Cir. 2018).
C. The Supreme Court And Other Courts Of Appeal Have

Routinely Permitted Collateral Challenges In The Face
Of Similar Jurisdictional Provisions.
The Supreme Court and other courts have long emphasized the
jurisdictionally significant distinction between a determination made
under a statute and the process of arriving at that determination in good
faith. The courts have commonly permitted similar collateral challenges
in the face of similar jurisdictional provisions.
The most closely analogous Supreme Court precedent is McNary.
There, the Court considered a statute much like the one at hand, barring
“judicial review of a determination respecting an application for
adjustment of status” under the Special Agricultural Worker (SAW)
program. 8 U.S.C. §§ 1160(e)(1), (3)(A) (emphasis added). A class of
plaintiffs claimed that the immigration agency conducted interviews of
SAW applicants in an arbitrary and capricious manner, in violation of
the statute and constitutional due process. McNary, 498 U.S. at 487-88.
41
The Supreme Court held that those claims were not precluded
because, “[s]ignificantly, the reference to ‘a determination’ describes a
single act rather than … a practice or procedure employed in making
decisions.” Id. at 492 (emphases added). The jurisdictional bar applied to
“direct review of individual denials of SAW status,” not “general
collateral challenges to unconstitutional practices and policies used by
the agency in processing applications.” Id. Because the plaintiffs “[did]
not seek review on the merits of a denial,” and “[did] not seek a
substantive declaration that they are entitled to SAW status,” the bar did
not apply. Id. at 494-95.
Defendants do not dispute that McNary distinguishes between
substantive and procedural or collateral challenges. But they argue that
“[u]nlike the collateral challenges” in that case, “plaintiffs here challenge
the Secretary’s substantive determination” and seek to “[set] the
termination decision aside.” DB24. Again, that mischaracterizes
plaintiffs’ claim. See pp. 40-41 supra. Plaintiffs do not challenge the
Secretary’s “substantive determination” or her application of the
statutory criteria to Haiti; they claim that she short-circuited the
required procedures and deviated from past practices to reach a
42
predetermined result. That plaintiffs seek to “set[] the termination
decision aside” is immaterial. A procedural APA challenge always seeks
to nullify the ultimate decision; the McNary injunction, for example,
“requir[ed] the INS to vacate large categories of denials.” 498 U.S. at 489.
What matters is that if plaintiffs prevail, the Secretary would be required
only to make a new TPS determination under the proper criteria, not to
reach any particular outcome.
Other cases have reached similar conclusions. In Reno v. Catholic
Social Services, Inc., 509 U.S. 43 (1993), the Supreme Court permitted a
collateral challenge in the face of a statutory jurisdictional bar to an
agency “determination.” Id. at 55-58. In Immigration Assistance Project
of Los Angeles County Federation of Labor (AFL-CIO) v. INS, 306 F.3d
842 (9th Cir. 2002), the Ninth Circuit held that the district court had
jurisdiction despite a statute providing that “[t]here shall be no …
judicial review of a determination respecting an application for
adjustment of status” with certain exceptions, because “plaintiffs’
challenges [were] procedural rather than substantive.” Id. at 862
(emphases in original). And as noted above, three district courts have
43
applied this principle to the TPS statute. Ramos, 321 F. Supp. 3d at 1102;
CASA, 355 F. Supp. 3d at 320; Centro Presente, 332 F. Supp. 3d at 409.
D. Defendants’ Cases Do Not Support Their Position.
Defendants rely on a handful of out-of-circuit cases that are either
easily distinguishable or affirmatively support plaintiffs’ position.
In DCH Regional Medical Center v. Azar, 925 F.3d 503 (D.C. Cir.
2019), the court held that a provision barring review of “any estimate” by
an agency used to determine certain Medicare payments to hospitals
encompassed claims that the agency used incorrect data to make its
estimate. Id. at 508. The court expressly distinguished McNary, both
because (1) the McNary statute used the term “determination” rather
than “estimate”; and (2) the challenge to the data in DCH Regional would
have “the practical effect of also deciding the claims for benefits on the
merits”—which is not the case here. Id.
City of Rialto v. West Coast Loading Corp., 581 F.3d 865 (9th Cir.
2009), supports plaintiffs’ position. There, the Ninth Circuit described
“the distinction between precluded judicial review … and [permissible]
judicial review of ‘methods’ and other collateral issues.” Id. at 875
(quoting Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala, 80 F.3d 379, 386
44
(9th Cir. 1996)). When a claim is not “based on the merits of the plaintiff’s
individual situation,” but rather on “a broad challenge to allegedly
[unlawful] agency practices,” McNary governs. Id. (alterations omitted).
Defendants invoke City of Rialto by asserting, again, that “plaintiffs’
claim that Secretary Duke failed to comply with the TPS statute’s
requirements … is self-evidently a challenge to the substantive
determination.” DB18. Calling this “self-evident[]” doesn’t make it so.
Skagit is similarly distinguishable. A hospital challenged its
geographic reclassification under the Medicare statute, claiming that the
agency used improper procedures. 80 F.3d at 385. The court found that
the hospital’s challenges were not in fact collateral; it sought a decision
that would also “reclassify” the hospital and award it the “appropriate
share of Medicare reimbursement.” Id. at 386 (emphasis added). The
hospital sought a different outcome, not just a different process.
In Gebhardt v. Nielsen, 879 F.3d 980 (9th Cir. 2018), the plaintiff
challenged DHS’s denial of a visa petition filed on behalf of his family
members. Id. at 983-84. The relevant statute gave the Secretary of DHS
“sole and unreviewable discretion” to determine whether the petitioner
“posed ‘no risk’ to the beneficiaries of the petition,” and the plaintiff
45
claimed that the Secretary based this decision on improper standards. Id.
at 983-84, 987. The Ninth Circuit held that it lacked jurisdiction over
those claims because “[t]he standards by which the Secretary reaches a
decision within his or her ‘sole and unreviewable discretion’ … are just
as unreviewable as the Secretary’s ultimate decisions themselves.” Id. at
987. This decision only underscores the type of unequivocal language
(“sole and unreviewable discretion”) that Congress uses when it wants to
broadly preclude judicial review over agency decisions. See n. 5 supra. It
did not use such language here.
Defendants close with a pure policy argument: “TPS designations
… involve sensitive and uncertain foreign-policy judgments” that are
“within the province of the Executive Branch, not the courts.” DB27. In
other words, defendants’ position is that courts should have no role in
ensuring that TPS decisions are based on lawful criteria. But that is not
the statute Congress wrote, and plaintiffs seek no review of
“foreign-policy judgments.” The district court had jurisdiction.
II. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION

IN GRANTING THE PRELIMINARY INJUNCTION.
Defendants do not challenge the court’s holdings on two of the three
requirements for an injunction, conceding that injunctive relief was
46
proper if there are “serious questions on the merits.” N. Am. Soccer
League, 883 F.3d at 37. Plaintiffs have shown, at minimum, serious
questions on both their APA and constitutional claims. And defendants
have come far from showing that the district court abused its discretion
in so holding.
A. Plaintiffs Have Shown Serious Questions On The

Merits Of Their APA Claims.
The district court correctly held that the termination decision likely
violated the APA for two reasons: (1) defendants failed to conduct a
good-faith, evidence-based review of the conditions in Haiti, as required
by the TPS statute and the APA; (2) the decisionmaking process involved
an unexplained departure from past practice.
1. The Termination Of Haiti’s TPS Was Not Based On

A Good-Faith, Evidence-Based Review Of The
Conditions In Haiti.
Under the APA, an agency action must be “in accordance with law”
(5 U.S.C. § 706(2)(A))—here, with the TPS statute. The statute provides
that the Secretary “shall review the conditions” in the designated country
and “shall determine whether the conditions for” the designation
“continue to be met” (8 U.S.C. § 1254a(b)(3)(A), (B) (emphases added))—
here, whether “there exist extraordinary and temporary conditions in the
47
foreign state that prevent [Haitian nationals] from returning to the state
in safety” (JA1733). As the district court explained, these provisions
require a review “grounded in fact” and undertaken “in good faith.” SA89;
see U.S. Dep’t of Interior v. 16.03 Acres of Land, 26 F.3d 349, 357 (2d Cir.
1994) (where statute required Secretary of Interior to negotiate with
landowner, court must consider whether Secretary “negotiated in such
bad faith that he effectively failed to satisfy the negotiation condition”).
The APA also forbids arbitrary and capricious agency actions.
5 U.S.C. § 706(2)(A). An agency action is arbitrary and capricious where
the agency makes “a preordained decision” and then “reverse engineer[s]
the [record] to justify this outcome.” Cowpasture 911 F.3d at 179; see
Islander E. Pipeline Co. v. Conn. Dep’t of Env’l Protection, 482 F.3d 79,
105 (2d Cir. 2006) (“Any effort by the [agency] to pursue a ‘strategy’ to
justify a foreordained [decision] would be incompatible with a reviewing
agency’s mandate to use its expertise to come to a reasoned decision
supported by substantial evidence.”). In making such an inquiry, it is
important whether the agency decision was affected by “improper
political influence”—that is, if “political pressure was intended to and did
48
cause the agency’s action to be influenced by factors not relevant under
the controlling statute.” Town of Orangetown, 740 F.2d at 188.
The district court found that Secretary Duke “did not conduct the
periodic review in accordance with the dictates of the statute.” SA88.
There was “significant evidence” showing that the agencies “reverse
engineered the TPS review process to achieve … the termination of
Haiti’s TPS.” SA91. Rather than following the normal practice of relying
on the detailed factual reporting of USCIS’s country-conditions
specialists, political appointees searched for “positive gems” about Haiti’s
recovery and negative information about Haitian TPS holders. See pp.
15-16, 19-20 supra. Rather than following the normal practice of
presenting all information relevant to the safety of returning nationals
in the Director Memo, they edited the memo to make it support
termination and downplay the country conditions. See pp. 19-21 supra.
And—for the explicit purpose of justifying termination—they embraced
a new practice of considering only conditions directly tied to the
earthquake rather than all conditions relevant to safety. See pp. 18-21,
25-26 supra.
49
Defendants do not dispute that the TPS statute requires a
good-faith, evidence-based review of conditions in Haiti.6 But they argue
that there are no serious questions as to whether defendants violated
that rule. They make four main points, each of which is meritless.
“Contemporaneous explanation.” Defendants contend that the
district court was “limited to evaluating the ‘contemporaneous
explanation of the Secretary’s decision,’” and that the Federal Register
notice terminating Haiti’s TPS recited “purely evidence-based” reasons.
DB 30 (quoting Vermont Yankee Nuclear Power Corp v. NRDC, 435 U.S.
519, 549 (1978)). In other words, defendants believe that the Secretary’s
review process is immune from scrutiny because the ultimate written
decision paid lip service to the statutory requirements. That is wrong.
First, Vermont Yankee’s “contemporaneous explanation” rule
applies only to direct review of an agency’s decision, in which the court
considers “whether [a] challenged [agency action] finds sufficient
6 Defendants contend that the district court incorrectly concluded

that the statute requires a “purely evidence-based” decision because the
Secretary may terminate a TPS designation if she concludes “that
allowing the aliens to stay would be contrary to the national interest.”
DB30 (emphasis added). As defendants concede, however, this argument
is “beside the point.” Id. Duke did not invoke that statutory ground.
50
justification in the administrative proceedings that it should be upheld.”
435 U.S. at 549. In that context, when “there is a contemporaneous
explanation of the agency decision, the validity of that action must stand
or fall on the propriety of that finding.” Id.; see also SEC v. Chenery Corp.,
318 U.S. 80, 93-94 (1943) (agency’s action “must be measured by what
the [agency] did, not by what it might have done”). This rule does not
apply here, because plaintiffs do not seek direct review of whether Duke’s
putative findings are supported by the record (such review would be
jurisdictionally barred). Again, plaintiffs’ claim is that the process
leading to Duke’s decision was unlawful. See pp. 40-41 supra.
Second, as defendants concede, a reviewing court may look beyond
an agency’s “stated rationale” when it appears “‘contrived’ and unworthy
of credence.” DB14 (quoting Dep’t of Commerce v. New York, 139 S. Ct.
2551, 2573 (2019)). In Department of Commerce, the Supreme Court held
that the district court appropriately set aside the Secretary of
Commerce’s decision to reinstate a citizenship question on the 2020
census. Id. The Court held that the district court was justified in looking
beyond the Secretary’s stated rationale because it appeared pretextual—
there was “a significant mismatch between the decision the Secretary
51
made and the rationale he provided.” Id. at 2575. He “began taking steps
to reinstate the question about a week into his tenure,” while his staff
began trying “find the best rationale” for doing so. Id.
This case is similar. As soon as then-DHS Secretary Kelly took
office, he “began taking steps” to terminate Haiti’s TPS, while political
officials tried to “find the best rationale” for doing so. See pp. 14-16,
18-19 supra. Career officials consistently informed them that “the basic
problem is that it IS bad [in Haiti under] all of the standard metrics.”
JA1079; p. 19 supra. But the “principal aim [was] ‘getting to no.’” SA84.
For example, “DHS officials pushed back on drafts ‘weighted for
extension’ because extension ‘was not the conclusion [they were] looking
for’” (id.); they “directed USCIS officials to ‘[b]e creative’ in finding
‘positive data on the current status of Haiti to bolster the
recommendation to terminate TPS’” (id.); they “direct[ed] USCIS career
staffers to look for criminality data and welfare data regarding Haitian
TPS recipients” (id.); and they repeatedly expressed “concerns about the
TPS program as a whole,” including that Congress had “no moral
courage” because it failed to include a “sunset clause” for TPS (JA1099;
52
JA1104) (emphasis added)), and that TPS “must end for these countries
soon” as a result of an “America first view” (JA1341).
As in Department of Commerce, “the evidence tells a story that does
not match the explanation the Secretary gave for h[er] decision.” 139
S. Ct. at 2575. “Duke made her decision with a closed mind and for
reasons other than those articulated in the Federal Register” and “the
conditions in Haiti.” SA114-15. That is a violation of the TPS statute.
Evidence outside the administrative record. Defendants argue
next that the district court erred by “rel[ying] on evidence outside the
administrative record.” DB30; see DB40. The district court made clear
that this evidence was not necessary to its findings; plaintiffs were likely
to succeed based “on evidence contained within the administrative
record.” SA86. But the court was not limited to that record.
As defendants concede, “a district court [may] consider information
beyond the administrative record” “where the plaintiffs have made a
‘strong showing of bad faith or improper behavior.’” DB40 (quoting
Citizens to Pres. Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971));
see also Department of Commerce, 139 S. Ct. at 2574. The district court
expressly found that plaintiffs had made that showing. SA83. Defendants
53
baldly assert that the record fails “to establish[] that [Duke’s] stated
rationale was provided in bad faith” (DB40), but they do not attempt to
demonstrate that the district court’s finding of bad faith was clearly
erroneous. See Oneida Nation, 645 F.3d at 164.
The White House’s views. Defendants assert that the fact “[t]hat
the Secretary purportedly took account of the views of certain White
House officials who favored termination [ ] does not provide a ground for
invalidating her decision.” DB31. “It is neither unusual nor improper,”
they argue, “for White House officials to convey their views on a
significant policy decision with a relevant agency decisionmaker.” DB32.
For one thing, a TPS determination is not supposed to be a “policy
decision”; it is supposed to be a neutral factual evaluation of the country
conditions. But in any event, defendants’ argument is a straw man. The
district court never suggested that it was impermissible for White House
officials to express their views. On the contrary, it noted that “some
contact with executive officials is to be expected.” SA93. The court instead
found that the “extensive pressure” the White House brought to bear on
Duke “impeded” her performance of her “statutory obligation[] to conduct
an interagency, fact-based review process.” SA92 (emphasis added). The
54
evidence showed that Duke was persuaded to “terminate TPS for Haiti
for the sake of ‘agenda adherence’ to the ‘America First’ platform, without
regard to her consideration of country conditions under the TPS statute.”
SA84; see JA1341 (“The TPS program must end for these countries soon
… [as a] result of an America First view of the TPS decision.”).
Political vs. career employees. Defendants also contend that the
district court “erred in finding it significant that political appointees
within DHS overruled recommendations from career employees and had
those career employees redraft memoranda to support the decision to
terminate TPS.” DB33. They argue that this evidence reflected mere
disagreements about “how to weigh the different factors.” Id.
Defendants do not, however, cite a single piece of evidence of any
genuine disagreement within DHS about the conditions in Haiti.
Whenever the career officials would relay their views about those
conditions, they were told simply that the conclusion had to change and
that the evidence should be altered to fit a different conclusion. See pp.
19-20 supra; SA95. That is a classic APA violation.
55
2. Defendants Departed From Past Practice Without

Acknowledgment Or Explanation.
Independently, defendants violated the APA by changing DHS’s
practices with respect to TPS without explanation. SA103-11.
“An agency may not … depart from a prior policy sub silentio.” Fox
Television, 556 U.S. at 515. It must provide a “reasoned explanation” and
“show that there are good reasons for the new policy.” Id. This includes
all agency practices, not just its formal rules. Am. Wild Horse Pres.
Campaign v. Perdue, 873 F.3d 914, 927 (D.C. Cir. 2017). An “unexplained
inconsistency in agency policy” violates the APA. Encino Motorcars LLC
v. Navarro, 136 S. Ct. 2117, 2126 (2016).
Reviewing a “wealth of evidence,” including testimony from former
USCIS Director Leon Rodriguez, the district court found that “in the
past,” when reviewing a TPS designation under 8 U.S.C. § 1254(b)(1)(C),
the Secretary and USCIS “considered all ‘extraordinary and temporary
conditions in the foreign state that prevent aliens who are nationals of
the state from returning to the state in safety.’” SA105, SA107. Critically,
this included “conditions untethered to the originating event resulting in
the initial TPS designation.” SA105 (emphasis added). In terminating
TPS for Haiti, however, defendants “depart[ed]” from that practice,
56
reading the statute “to require DHS to consider only the conditions
resulting from the originating event.” Id. see pp. 18, 20-21 supra. The
agency did not acknowledge or explain this arbitrary departure—much
less provide a basis in the statute for its new approach.
Confronted with the extensive evidence, defendants argue that the
district court’s review should have been confined to the administrative
record absent a showing of bad faith. DB40. As discussed above (at 47-
50), plaintiffs made such a showing. But the district court did not rely
exclusively on Director Rodriguez’s testimony. It also found that the
change in practice was apparent from the administrative record,
including “[t]he two TPS extensions preceding Duke’s decisions,” which
“highlighted subsequent conditions preventing TPS recipients from
returning to Haiti.” SA106. For example, while the Federal Register
notice “listed as the basis of her determination only considerations
relating the 2010 earthquake,” the previous notices “extensively detailed”
the “destruction wrought by intervening events such as Hurricanes
Matthew and Irma and the 2017 heavy rains.” SA106-07. The court also
pointed to the November 2017 Director Memo, in which Director Cissna
57
took care to distinguish “issues specific to the earthquake” from
“post-earthquake phenomen[a].” SA108.
Defendants concede that Duke “declined to consider conditions
untethered to the 2010 earthquake.” DB37. But they insist that her
approach “was consistent with the approach employed by past
Secretaries,” who supposedly “considered intervening conditions only to
the extent that they could be linked to or impeded recovery from the event
underlying the initial designation.” DB37-38.
This argument is doubly flawed. First, even the Federal Register
notices that defendants cite (DB38-39) contain no such limitation. For
example, the notice extending TPS for Sudan discussed intervening
events relevant to Sudan’s designation for “armed conflicts” without
analyzing whether current conflicts were causally related to the one that
had triggered TPS 17 years earlier. See 79 Fed. Reg. 52,027-29 (2014).
Second, Duke declined to consider subsequent developments even
when they were linked to, or impeded recovery from, the earthquake. For
example, the October 2017 RAIO report explained that the earthquake
had “exacerbated Haiti’s historic food security challenges” and that these
problems had grown more serious due to the effects of storms, droughts,
58
and Hurricane Matthew. JA2203. The report also explained more broadly
that “Haiti’s recovery from the 2010 earthquake” “ha[d] been hindered by
subsequent natural disasters and various political, social, health,
security and economic conditions.” JA2210. Similarly, the May 2017
Federal Register notice found that “damage from Hurricane Matthew
and recent heavy rains are compounding the existing food insecurity”
caused by the earthquake. JA1763 (emphasis added). By contrast, the
January 2017 notice said nothing about Hurricane Matthew or food
insecurity (JA1769-75)—they were deemed irrelevant.
Defendants argue next—citing the examples of Angola and
Kosovo—that “TPS designations have … been terminated in the past
despite significant ongoing problems in the relevant countries.” DB39.
That is certainly true, but it in no way undermines the district court’s
decision. The decisions on Angola and Kosovo were not confined to
conditions caused by the events precipitating the original designations.
In each case, the decisionmaker reviewed all current conditions and
found that they no longer supported that country’s TPS designation. See
65 Fed. Reg. 33,356, 33,356 (2000); 68 Fed. Reg. 3,896, 3,896 (2003). For
example, in terminating TPS for the Kosovo, the Attorney General found
59
that “the situation in Kosovo cannot now be classified as ‘ongoing internal
conflict’” and that the additional statutory requirements for that
designation were no longer met because “[t]he United High
Commissioner for Refugees ha[d] determined that … the majority of the
Kosovo population[] can now return to Kosovo in safety.” 65 Fed. Reg.
33,356, 33,356 (2000) (emphasis added). Duke made no finding that the
more than 50,000 Haitian TPS holders could safely return.
The district court did not abuse its discretion in concluding that the
stark, unexplained, and unjustified change in DHS’s approach raises
serious questions on the merits of plaintiffs’ APA claim.
B. Plaintiffs Have Shown Serious Questions On The

Merits Of Their Equal Protection Claims.
The district court correctly held that plaintiffs have raised serious
questions on the merits of their Equal Protection claims. Defendants’
conduct is subject to strict scrutiny. And under either rational-basis
review or strict scrutiny, plaintiffs have a meritorious claim.
1. Plaintiffs’ Claims Are Subject To Strict Scrutiny.
a. Arlington Heights Governs.
In Arlington Heights v. Metropolitan Housing Development Corp.,
429 U.S. 252 (1977), the Supreme Court held that when a racial
60
classification does not appear on the face of a governmental decision, that
decision receives strict scrutiny when “there is proof that a
discriminatory purpose has been a motivating factor in the decision.” Id.
at 265-66. “[T]o satisfy strict scrutiny, a classification must further a
compelling state interest and be narrowly tailored to accomplish the
purpose.” Pyke v. Cuomo, 567 F.3d 74, 77 (2d Cir. 2009). Arlington
Heights sets forth several factors for determining whether a decision was
motivated by discriminatory intent. 429 U.S. at 268-70.
Defendants contend, however, that this case is automatically
governed by rational-basis review—which considers whether the decision
is “plausibly related to the Government’s stated objective”—under the
Supreme Court’s decision in Trump v. Hawaii, 138 S. Ct. 2392, 2420
(2018); see DB50-55. Hawaii applied that test because the “plaintiffs
[sought] to invalidate [1] a national security directive [2] regulating the
entry of aliens abroad.” 138 S. Ct. at 2418 (emphases added). Neither of
these factors is present here.
First, although defendants assert that TPS decisions generally
“‘implicate relations with foreign powers’ and ‘involve classifications
defined in the light of changing political and economic circumstances’”
61
(DB53 (quoting Hawaii, 138 S. Ct. at 2418)), they never contend that
Duke’s TPS decision was grounded in concerns about national security,
or even how the government’s cited circumstances are implicated by that
decision. That makes this case distinguishable from both Hawaii and
Rajah v. Mukasey, 544 F.3d 427 (2d Cir. 2008) (cited at DB51-54), which
applied rational-basis review to a post-9/11 program that “was designed
to monitor more closely aliens from certain countries selected on the basis
of national security criteria.” Id. at 438-39.
Second, unlike the foreign nationals in Hawaii, plaintiffs are
lawfully present in the United States and are therefore accorded greater
constitutional protection than foreign nationals seeking entry. Compare
138 S. Ct. at 2419 (“[F]oreign nationals seeking admission have no
constitutional right to entry.”), with 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.”). See also Regents of the Univ. of Cal. v. DHS, 908 F.3d
476, 519 (9th Cir. 2018) (distinguishing cases where the plaintiffs were
“making an equal protection argument … to avoid [their] own
deportation”). That principle also distinguishes this case from Fiallo v.
62
Bell, 430 U.S. 787 (1977), and Kleindienst v. Mandel, 408 U.S. 753 (1972)
(cited at DB50-51); the plaintiffs there were also seeking admission.7
For these reasons, two other district courts have applied Arlington
Heights to the termination of Haiti’s TPS designation. See Ramos, 336 F.
Supp. 3d at 1107 (“The justification for a kind of super deference
advocated by the government in this case is not warranted.”); Centro
Presente, 332 F. Supp. 3d at 411 (Hawaii’s “decision to apply rational
basis review was based on two considerations not at issue here: first, the
limited due process rights afforded to foreign nationals seeking entry into
the United States … and the particular deference accorded to the
executive in making national security determinations.”). The Court
should do the same here.
b. The Arlington Heights Factors Show A

Discriminatory Intent.
To decide whether a decision was motivated by discriminatory
intent, this Court must weigh several factors: (1) “[t]he impact of the
official action”—“whether it bears more heavily on one race than
7 Defendants also cite Mathews v. Diaz, 426 U.S. 67 (1976), and

Galvan v. Press, 347 U.S. 522 (1954), but neither case involved an
equal-protection challenge or race discrimination.
63
another”; (2) “[t]he legislative or administrative history,” including
“contemporary statements by members of the decisionmaking body”;
(3) “[t]he historical background of the decision”; (4) “[t]he specific
sequence of events leading up to the challenged decision”;
(5) “[d]epartures from the normal procedural sequence”; and
(6) “[s]ubstantive departures,” “particularly if the factors usually
considered important by the decisionmaker strongly favor a decision
contrary to the one reached.” Arlington Heights, 429 U.S. at 266-68
(quotation marks omitted). The district court correctly held that
“consideration of the Arlington Heights factors raises, at the very least,
serious questions as to whether a discriminatory purpose was a
motivating factor in Secretary Duke’s decision.” SA127.8
Impact. The impact of Haiti’s TPS termination clearly “bears more
heavily on one race than another.” Arlington Heights, 429 U.S. at 266.
Nearly all Haitian TPS recipients are of African descent, and most TPS
recipients from other countries are not white.
8 We have grouped these factors more simply under the categories of

“impact,” “history,” and “departures.”
64
History. During the period leading up to the termination, the
President and other White House officials repeatedly disparaged
Haitians and other non-white immigrants. See pp. 13-14 supra. Trump
said that immigrants crossing the southern border were “[d]ruggies, drug
dealers, rapists and killers” (JA1466), that the United States has become
a “dumping ground” for “many other parts of the world” (JA1491), and
that immigrants would “infest our Country” (JA1524). He said that
Haitians “all have AIDS.” SA131. Shortly after the decision to terminate
Haiti’s TPS was announced, he described Haitians as people from a
“shithole country” while simultaneously expressing a preference for
immigrants from places like Norway, where the population is
overwhelmingly white. SA132, SA166. “Why do we need more Haitians?”
he asked. SA166.
Unsurprisingly in light of these perceptions, the Trump
Administration quickly targeted Haiti for TPS termination. Within
months of the inauguration, DHS officials began seeking entirely
irrelevant information on Haitian TPS holders’ criminal history and use
of public benefits—the latter to bolster Secretary Kelly’s view that
Haitians are “welfare recipients.” SA31.
65
Defendants counter that DHS did extend TPS for South Sudan,
Syria, Yemen, and Somalia. DB44, 48. But of course, the protection of
certain non-white TPS beneficiaries—less than 5% of people with TPS9—
does not negate the plain animus the Administration showed against
Haitians. Defendants cite no case for their assertion that it does.
Defendants argue next that “[a]ny statement about ‘shithole
countries’ and about Haitians having AIDS should be understood as a
denigrating reference to the conditions and problems in the country,
rather than a commentary on the race or ethnicity of the country’s
inhabitants.” DB49. But the animus behind these statements is plain on
their face. And the irony of defendants’ argument cannot be lost on them,
given their attempt to downplay the gravity of the “conditions and
problems” in Haiti throughout the TPS review process and this case.
Defendants then argue that DHS’s search for criminal data was
consistent with the TPS statute’s requirement to evaluate whether
extending TPS would be “contrary to the country’s national interest.”
DB47. But the statute bars people with criminal records from receiving
9 National Immigration Forum, Fact Sheet: Temporary Protected

Status (TPS), available at https://immigrationforum.org/article/fact-
sheet-temporary-protected-status/.
66
TPS to begin with. See 8 U.S.C. § 1254a(c)(2)(B)(ii). As Director Rodriguez
explained, there was no reason for TPS decisionmakers to consider crime
rates because, “by definition, you do not qualify to receive TPS in the first
place if you are a convicted criminal.” Trial Tr. 255-56 (JA887-88). And
“if somebody is convicted of a crime while they are on TPS, ordinarily
Immigrations and Customs Enforcement” would “initiate proceedings” to
terminate TPS for that individual (Trial Tr. 257-58 (JA888)), not to
aggregate this data in an effort to terminate the entire country’s TPS.
Departures. As described above (pp. 14-21 supra), the record
shows many “procedural” and “substantive departures” with respect to
the Haiti’s TPS, Arlington Heights, 429 U.S. at 266-68—for example, the
decision to limit the consideration of Haiti’s conditions to those connected
to the 2010 earthquake, and to discount evidence that officials had found
to justify TPS extensions for Haiti in the past. Defendants largely ignore
these changes in their constitutional analysis. The Arlington Heights
factors show discriminatory intent.
c. Plaintiffs Need Not Demonstrate That Duke

Personally Harbored Animus.
Defendants suggest that the Court should dismiss the evidence of
racial animus on the part of Trump and other top officials because
67
plaintiffs were required to show that Duke personally “harbored animus
in making the termination decision at issue.” DB43. That is wrong.
This Court has held that a biased superior is liable for
discrimination when he “manipulates” a subordinate into taking
discriminatory action. Vasquez v. Empress Ambulance Serv., Inc., 835
F.3d 267, 272 (2d Cir. 2016). Although this principle originated in the
employment context, this Court and others have applied it to government
actors, see, e.g., Back v. Hastings on Hudson Union Free Sch. Dist., 365
F.3d 107, 126 (2d Cir. 2004) (school employees); Poland v. Chertoff, 494
F.3d 1174, 1182 (9th Cir. 2007) (DHS Customs Service), including the
President, see Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279
(E.D.N.Y. 2018). 10 Duke was an official subordinate to the President,
appointed and removable at will. And there is substantial evidence (see
pp. 23-25 supra) that White House officials influenced Duke’s decision.
Defendants assert that plaintiffs’ position “would invite judicial
second-guessing of one government official’s actions based on mere
10 Thus, contrary to defendants’ assertion, courts have already

“import[ed] from the employment discrimination context the so-called
‘cat’s paw’ theory of animus.” DB45.
68
allegations of discriminatory motive on the part of a different government
official who played some role in the decision-making process.” DB46. But
this case doesn’t involve “mere allegations”; the evidence of animus is
extensive and undisputed, involving the President himself. And the
President and White House played more than “some role” in the
decisionmaking process; as the district court found, “the White House
was not only involved in but was influential in producing the decision to
terminate TPS for Haiti.” SA129.
2. The Termination Of Haiti’s TPS Does Not Satisfy

Strict Scrutiny Or Even Rational-Basis Review.
Plaintiffs have raised a more than serious question as to whether
the termination decision satisfies strict scrutiny—and, for that matter,
rational-basis review. Defendants do not argue that there was a
“compelling state interest” justifying the decision. Pyke, 567 F.3d at 77.
They repeat Duke’s conclusion that “the conditions giving rise to the
country’s TPS designation no longer persisted.” DB55. But that assertion
is belied by the record. See pp. 17-21 supra. And as in Centro Presente,
“there is no justification, explicit or otherwise, for Defendants’ switch to
focusing on whether the conditions that caused the initial designation
had abated rather than a fuller evaluation of whether the country would
69
be able to safely accept returnees.” 332 F. Supp. 3d at 416; see also
Ramos, 336 F. Supp. 3d at 1108 (finding “serious questions as to whether
the terminations of TPS designations” satisfies rational-basis review).
Because plaintiffs have raised serious questions under both the
APA and the Equal Protection Clause, the district court did not abuse its
discretion in granting the injunction.
III. THE DISTRICT COURT PROPERLY ENTERED AN

INJUNCTION AGAINST THE PRESIDENT.
After “balancing the weight of the interests to be served by
injunctive relief against the intrusion into Executive affairs,” the district
court held that “enjoining the President to ensure executive officials
operate in accordance with the law is appropriate in this case.” SA69. As
discussed above (see pp. 13-14 supra), the President has publicly and
repeatedly proclaimed his racial animus toward immigrants of color in
general and Haitian immigrants in particular. Enjoining him was proper.
In the district court, defendants argued that the President may
never be enjoined. Dkt. 59 at 16. As plaintiffs pointed out, courts may
enjoin the President when injunctive relief against a subordinate official
would be inadequate and when there is minimal danger of intrusion on
the function of the Executive Branch. See Nixon v. Fitzgerald, 457 U.S.
70
731, 754 (1982). Perhaps recognizing that their prior position was
untenable, defendants now argue that an injunction against the
President is unnecessary here because “there is no evidence in the record”
that “enjoining [Duke] would not afford complete relief.” DB56 (quoting
SA69). There is indeed: As discussed above (pp. 13-14 supra), the White
House placed enormous improper pressure on Duke to terminate TPS for
Haiti. JA1324; see also JA1284, JA1288-1303. The district court’s
injunction is necessary to ensure that this does not happen again.
Defendants find it “breathtaking” that the district court viewed the
injunction as “a ‘minimal’ intrusion on the Executive,” arguing that “[a]n
injunction requiring the President to refrain from advising a cabinet
Secretary on a matter implicating foreign relations is the quintessential
example of a court interfering with the President’s execution of his
constitutional responsibilities.” DB56. The injunction does no such thing;
it simply directs the President “to abide by the mandates of the … TPS
statute[] and the Constitution.” SA69. It is telling that defendants
consider this a major imposition.
71
IV. THE DISTRICT COURT PROPERLY ENTERED A

NATIONWIDE INJUNCTION.
Finally, defendants briefly argue that the district court erred in
entering a nationwide injunction. DB57-58. That relief was well within
the district court’s authority, and it was appropriate here.
It is well established that courts may issue injunctions that apply
nationwide to all similarly situated plaintiffs. Leman v. Krentler-Arnold
Hinge Last Co., 284 U.S. 448, 451 (1932); Texas v. United States, 809 F.3d
134, 188 (5th Cir. 2015), aff’d by equally divided court, 136 S. Ct. 2271
(2016) (“It is not beyond the power of a court, in appropriate
circumstances, to issue a nationwide injunction.”). While a preliminary
injunction should be “no broader than necessary to cure the effects of the
harm caused by the violation,” Church & Dwight Co. v. SPD Swiss
Precision Diagnostics, 843 F.3d 48, 72 (2d Cir. 2016), the scope of relief
“is dictated by the extent of the violation established,” Califano v.
Yamasaki, 442 U.S. 682, 702 (1979) (nationwide class actions).
The APA provides, moreover, that a court will “set aside” agency
actions or findings that it deems invalid. 5 U.S.C. § 706(2). Indeed,
“[w]hen a reviewing court determines that agency regulations are
unlawful, the ordinary result is that the rules are vacated—not that their
72
application to the individual petitioners is proscribed.” Harmon v.
Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (emphasis added).
And a nationwide injunction is particularly appropriate where, as here,
the legal issues affecting the validity of an executive determination do
not differ from one affected party to the next, and the nationally uniform
system of immigration regulation is at issue. See Texas, 809 F.3d at 188.
As the district court concluded, “[l]imiting a preliminary injunction
to the parties would not adequately protect the interests of all
stakeholders.” SA144. Defendants do not dispute that the reasoning of
the district court applies equally to all Haitian TPS-holders. Instead,
they object to nationwide injunctions more generally, arguing that they
prevent issues from “percolating through the federal courts.” DB58. The
Supreme Court has rejected similar arguments in the class action
context. See 442 U.S. at 702-03 (1979). And contrary to defendants’
assertion, the district court’s analysis would not “permit nationwide
injunctions as a routine matter.” DB58. This is an extraordinary case
that warrants comprehensive relief.
CONCLUSION
The Court should affirm.
73
Dated: December 19, 2019 Respectfully submitted,
s/ Miriam R. Nemetz
Ira J. Kurzban Miriam R. Nemetz
Kevin Gregg MAYER BROWN LLP
KURZBAN, KURZBAN, 1999 K Street, N.W.
TETZELI & PRATT, PA Washington, DC 20006
131 Madeira Ave. Telephone: (202) 263-3000
Coral Gables, FL 33134
Telephone: (305) 444-0060 Michael Rayfield
MAYER BROWN LLP
Sejal Zota 1221 Avenue of the Americas
JUST FUTURES LAW New York, New York 10020
95 Washington Street Telephone:(212) 506-2500
Canton, MA 02021
Telephone: (919) 698-5015 Howard J. Roin
Geoffrey M. Pipoly
Khaled Alrabe
MAYER BROWN LLP
NATIONAL IMMIGRATION PROJECT
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OF THE NATIONAL LAWYERS GUILD
Chicago, IL 60606
89 South St., Suite 603
Telephone: (312) 782-0600
Boston, MA 02111
Telephone: (510) 679-3994
74
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Second
Circuit using the appellate CM/ECF system on December 19, 2019.
I certify that all participants in the case are registered CM/ECF
users and that service will be accomplished by the appellate CM/ECF
system.
s/ Miriam R. Nemetz
Miriam R. Nemetz
Mayer Brown LLP
1999 K Street, N.W.
Washington, DC 20006
(202) 263-3000
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limitation of Fed. R. App.
P. 32(a)(7)(B) because it contains 13,897 words, excluding the parts of the
brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Fed. R. App.
P. 32(a)(5) and the type-style requirement of Fed. R. App. P. 32(a)(6)
because it was prepared in a proportionately spaced typeface using
Microsoft Word in Century Schoolbook 14-point type for text and
footnotes.
Dated: December 19, 2019
s/ Miriam R. Nemetz
Miriam R. Nemetz
Mayer Brown LLP
1999 K Street, N.W.
Washington, DC 20006
(202) 263-3000

Saget v. Trump - Appellee Brief

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Case 19-1685, Document 100, 12/19/2019, 2735118, Page1 of 84

PATRICK SAGET, SABINA BADIO FLORIAL, GERALD MICHAUD, BEATRICE

Ira J. Kurzban Miriam R. Nemetz

CORPORATE DISCLOSURE STATEMENT

Neither plaintiff Haiti Liberté nor plaintiff Family Action Network

Movement, Inc., has a parent corporation. No publicly traded corporation

Network Movement, Inc.

Am. Wild Horse Pres. Campaign v. Perdue,

Arlington Heights v. Metropolitan Housing Development

Back v. Hastings on Hudson Union Free Sch. Dist.,

Batalla Vidal v. Nielsen,

Bowen v. Mich. Acad. of Family Physicians,

CASA de Maryland, Inc. v. Trump,

Centro Presente v. U.S. Dep’t of Homeland Sec.,

Church & Dwight Co. v. SPD Swiss Precision Diagnostics,

Citizens Comm. for Hudson Valley v. Volpe,

Citizens to Pres. Overton Park, Inc. v. Volpe,

City of Rialto v. West Coast Loading Corp.,

Cowpasture River Pres. Ass’n v. Forest Serv.,

DCH Regional Medical Center v. Azar,

Dep’t of Commerce v. New York,

Encino Motorcars LLC v. Navarro,

FCC v. Fox Television Stations, Inc.,

Hicks v. Comm’r of Soc. Sec.,

Immigration Assistance Project of Los Angeles County

Islander E. Pipeline Co. v. Conn. Dep’t of Env’l Protection,

Leman v. Krentler-Arnold Hinge Last Co.,

Mach Mining, LLC v. EEOC,

McNary v. Haitian Refugee Ctr., Inc.,

N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc.,

Norton v. Sam’s Club,

Oneida Nation of N.Y. v. Cuomo,

Regents of the Univ. of Cal. v. DHS,

Reno v. Catholic Social Services, Inc.,

SEC v. Chenery Corp.,

Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala,

Texas v. United States,

Town of Orangetown v. Ruckelshaus,

U.S. Dep’t of Interior v. 16.03 Acres of Land,

Vasquez v. Empress Ambulance Serv., Inc.,

Vermont Yankee Nuclear Power Corp v. NRDC,

5 U.S.C. § 701 ........................................................................................... 37

5 U.S.C. § 702 ........................................................................................... 36

5 U.S.C. § 706 ......................................................................... 36, 47, 48, 72

6 U.S.C. § 211 ........................................................................................... 39

8 U.S.C. § 1154 ......................................................................................... 39

8 U.S.C. § 1158 ........................................................................................... 8

8 U.S.C. § 1160 ......................................................................................... 41

8 U.S.C. § 1254 ................................................................................. passim

8 C.F.R. § 244.2 ........................................................................................... 8

65 Fed. Reg. 33,356 (2000) ................................................................. 59, 60

68 Fed. Reg. 3,896 (2003) ......................................................................... 59

79 Fed. Reg. 52,027 (2014) ....................................................................... 58

H.R. Rep. No. 100-627 (1988) ..................................................................... 6

Lynda J. Oswald, Note, Extended Voluntary Departure:

National Immigration Forum, Fact Sheet: Temporary

WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY (1990) ......................... 38

of people living lawfully in the United States. Plaintiffs challenge the

government’s decision in 2017 to terminate Haiti’s designation for

Temporary Protected Status (“TPS”), which has allowed over 50,000

Haitian nationals to remain here since an earthquake devastated that

country in 2010—destroying its capital city, causing homes to collapse,

and severely damaging critical infrastructure. The district court