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Presente v. United States Department of Homeland Security

United States District Court, D. Massachusetts

July 23, 2018



          Denise J. Casper United States District Judge.

         I. Introduction

         Plaintiffs Centro Presente, Haitian-Americans United, Inc., Juan Carlos Vidal, Anne Christine Nicolas, Chris Jean Baptiste, Mercedes Mata, Carolina Mata, Will Arias, Juan Amaya, Maria Guerra, Josue Dorfeuille, Natacha Dorfeuille, Yesy Patricia Carbajal, Juan Guerrero, Jaime Yanes and Jose Omar Rodriguez Varela (collectively, “Plaintiffs”) have filed this lawsuit against the United States Department of Homeland Security (“DHS”), President Donald J. Trump (“President Trump”) in his official capacity, Secretary Kirstjen Nielsen (“Nielsen”) in her official capacity and Deputy Secretary Elaine Costanzo Duke (“Duke”) in her official capacity (collectively, “Defendants”) regarding Defendants' decisions to terminate the designation of Haiti, El Salvador, and Honduras for temporary protected status (“TPS”). D. 21. Defendants have moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim. D. 24. For the following reasons, the Court ALLOWS Defendants' motion to dismiss with respect to the mandamus claim (Count V) and DENIES Defendants' motion to dismiss in all other respects.

         II. Standard of Review

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, ‘to state a claim to relief that is plausible on its face.'” Coll. Hill Properties, LLC v. City of Worcester, 821 F.3d 193, 195-96 (1st Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “This standard is ‘not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.'” Saldivar v. Racine, 818 F.3d 14, 18 (1st Cir. 2016) (quoting Iqbal, 556 U.S. at 678). “[W]here a complaint pleads facts that are merely consistent with a defendant's liability, it stops short of the line between possibility and plausibility of entitlement to relief.” In re Ariad Pharm., Inc. Sec. Litig., 842 F.3d 744, 756 (1st Cir. 2016) (quoting Iqbal, 556 U.S. at 678). In reviewing a motion to dismiss, the Court “accept[s] as true all well-pled facts alleged in the complaint and draw all reasonable inferences in [the plaintiff's] favor.” Miller v. Town of Wenham, 833 F.3d 46, 51 (1st Cir. 2016) (quoting Evergreen Partnering Grp., Inc. v. Pactiv Corp, 720 F.3d 33, 36 (1st Cir. 2013) (second alteration in original)).

         “Where, as here, a dismissal for want of [subject matter] jurisdiction is based solely on the complaint, we accept ‘the well-pleaded factual averments contained therein and indulg[e] all reasonable inferences in the [plaintiff's] favor.'” Gordo-Gonzalez v. United States, 873 F.3d 32, 35 (1st Cir. 2017) (quoting Muñiz-Rivera v. United States, 326 F.3d 8, 11 (1st Cir. 2003)).

         III. Factual Background

         Unless otherwise noted, the following facts are drawn from the amended complaint, D. 21, and are accepted as true for the purposes of considering the motion to dismiss.

         A. The Parties

         The fourteen individual plaintiffs are each recipients of TPS. D. 21 ¶¶ 26, 29, 31, 33, 38, 41, 44, 47, 51, 54, 59, 62, 65. Of the fourteen, six are immigrants from El Salvador, four are immigrants from Haiti and four are immigrants from Honduras. Id.

         Haitian-Americans United is a non-profit organization founded “to improve the quality of life for Haitians and Haitian-Americans through education, community empowerment, and cultural development.” D. 21 ¶ 18. It has a number of members who are Haitian immigrants with TPS status. D. 21 ¶ 20. Centro Presente is a non-profit organization “dedicated to the self-determination and self-sufficiency of the Latin American immigrant community of Massachusetts.” D. 21 ¶ 12. Centro Presente has a number of members who are immigrants from El Salvador and Honduras with TPS status. D. 21 ¶ 14.

         DHS is the administrative agency charged with administering certain immigration laws and policies, including the TPS program. D. 21 ¶ 70. Nielsen has been the DHS Secretary since December 6, 2017. D. 21 ¶ 71. Duke was the Acting DHS Secretary from July 31, 2017, to December 6, 2017, and thereafter served as Deputy DHS Secretary until her retirement on April 15, 2018. D. 21 ¶ 72. Both have served in the executive branch under President Trump. D. 21 ¶ 69.

         B. The Legislative Framework Regarding Temporary Protected Status

         The Secretary may grant an individual TPS if two conditions are met: first, the individual is a national of a foreign state that has been designated by the DHS Secretary; and second, the individual meets certain eligibility criteria. 8 U.S.C. § 1254a(a)(1).[1] While an individual has TPS, the Secretary may not remove the individual from the United States and must authorize the individual to engage in employment in the United States. Id.

         The Secretary may designate a foreign state under the statute only if, “after consultation with appropriate agencies of the Government, ” the Secretary finds that at least one of three conditions is met: first, that “there is an ongoing armed conflict within the state, ” such that returning aliens to that state “would pose a serious threat to their personal safety;” second, that “there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affected, ” such that “the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state” and “the foreign state officially has requested designation;” or third, 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, ” and “permitting the aliens to remain temporarily in the United States” would not be “contrary to the national interest of the United States.” 8 U.S.C. § 1254a(b)(1). The effective period of designation “is the period, specified by the [Secretary], of not less than 6 months and not more than 18 months.” Id. § 1254a(b)(2). At least sixty days before the end of the effective period of designation, the Secretary, “after consultation with appropriate agencies of the Government, shall review the conditions in the foreign state” to “determine whether the conditions for such designation . . . continue to be met.” Id. § 1254a(b)(3)(A). The Secretary must publish in the Federal Register “notice of each such determination[, ] including the basis for the determination, ” and the length of any extension. Id. An extension of designation may be for a period of six, twelve, or eighteen months. Id. § 1254a(b)(3)(C). The statute provides that “[t]here is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” Id. § 1254a(b)(5)(A).

         In addition to being a national of a foreign state that has been designated, a foreign national must also meet certain individual criteria to qualify for TPS. Among other criteria, the foreign national must have been “continuously physically present in the United States since the effective date of the most recent designation” of the foreign state, id. § 1254a(c)(1)(A)(i); the foreign national must not have been convicted of certain categories of criminal offenses, id. § 1254a(c)(2)(A)(iii); and the foreign national must not be otherwise inadmissible in certain ways, including being present in the United States without being admitted or paroled into the United States, id. § 1254a(c)(1)(A)(iii); § 1254a(c)(2), § 1182(a)(6), or having been previously removed, id. § 1182(a)(9). The criteria for an individual to qualify for TPS is not at issue in this case as the individual plaintiffs have already received TPS. D. 21 ¶¶ 26, 29, 31, 33, 38, 41, 44, 47, 51, 54, 59, 62, 65. Instead, Plaintiffs' claims concern Defendants' actions to change TPS designations for El Salvador, Haiti and Honduras.

         C. The TPS Designations of El Salvador, Haiti and Honduras

         There are currently approximately 400, 000 TPS recipients residing in the United States, including over 262, 500 from El Salvador, approximately 58, 550 from Haiti, and approximately 86, 000 from Honduras. D. 21 ¶ 7.

         1. El Salvador

         On March 1, 2001, then Attorney General John Ashcroft (“Ashcroft”) gave El Salvador TPS designation. D. 21 ¶ 83. That designation was based upon a determination that, due to three earthquakes earlier in the year that had resulted in the deaths of at least 1, 100 people and the displacement of approximately 1.3 million people, El Salvador would be “unable, temporarily, to handle adequately the return of its nationals.” D. 21 ¶¶ 83-84. On July 11, 2002, Ashcroft extended the designation, finding that the earthquakes had caused substantial damage to the country's infrastructure and that subsequent droughts had left farming families “destitute” and 200, 000 people “threatened by food insecurity.” D. 21 ¶¶ 85-86. On July 16, 2003, then DHS Secretary Tom Ridge (“Ridge”) extended the designation, stating that the “economy of El Salvador [was] not yet stable enough to absorb returnees from the United States.” D. 21 ¶¶ 87-88. Ridge again extended the designation on January 7, 2005, based on a determination that the economy of El Salvador had not yet recovered. D. 21 ¶¶ 89-90. On June 15, 2006, then DHS Secretary Michael Chertoff (“Chertoff”) extended the designation for El Salvador, finding that new natural disasters, including a volcanic eruption and a hurricane that resulted in mudslides and flooding, had slowed rebuilding efforts. D. 21 ¶¶ 91-92. Chertoff again extended the designation on August 21, 2007, and October 1, 2008, citing his determination that El Salvador had “still not completed reconstruction of the infrastructure damaged by several severe 2001 earthquakes” and was therefore still limited in its ability to absorb potential returnees. D. 21 ¶¶ 93-96. On July 9, 2010, then DHS Secretary Janet Napolitano (“Napolitano”) extended the designation, stating that El Salvador continued to “suffer a public security crisis that threaten[ed] to undermine sustained development and confidence in democratic governance” and finding “increasing levels of violent crime.” D. 21 ¶¶ 97-98. On January 11, 2012 and May 30, 2013, Napolitano again extended the designation, based on findings of infrastructural deficiencies and subsequent natural disasters. D. 21 ¶¶ 99-102. On January 7, 2015, then DHS Secretary Jeh Johnson (“Johnson”) extended El Salvador's designation, based on the recent eruption of a volcano and a recent tropical storm. D. 21 ¶¶ 103-104. On July 8, 2016, Johnson again extended El Salvador's designation. D. 21 ¶ 105. The effective period for the extension was September 10, 2016 to March 9, 2018. D. 21 ¶ 105. Johnson cited, in his extension decision, a substantial rise of violence and “an environment of impunity” for corruption, violent crimes, and gang activity. D. 21 ¶ 106.

         2. Haiti

         On January 21, 2010, Napolitano gave Haiti TPS designation, finding that a recent earthquake there had “destroyed most of the capital city” and affected “one-third of Haiti's population.” D. 21 ¶¶ 107-108. Napolitano re-designated Haiti with TPS on May 19, 2011, based on the earthquake's lasting damage to Haiti's infrastructure, the high numbers of displaced persons following the earthquake, the outbreak of a cholera epidemic and a rise in gender-based violence.[2]D. 21 ¶ 109-110. Napolitano extended the designation on October 1, 2012, based on similar findings. D. 21 ¶ 111-12. On March 3, 2014, Johnson extended the designation, citing the slow pace of the economic recovery and new natural disasters, including Hurricane Sandy, which had caused additional displacement, damage and death. D. 21 ¶¶ 113-14. On August 25, 2015, Johnson again extended the designation. D. 21 ¶ 115. The effective period for the extension was January 23, 2016 to July 22, 2017. D. 21 ¶ 115. The extension was based on continued infrastructural damage, high rates of food insecurity, the lack of emergency services and the lack of a “functioning legislative branch or duly elected local authorities.” D. 21 ¶ 116.

         3. Honduras

         On January 5, 1999, then Attorney General Janet Reno designated Honduras for TPS based on findings that Hurricane Mitch had rendered Honduras temporarily unable to handle the return of Honduran nationals. D. 21 ¶¶ 117-18. On May 11, 2000, Reno extended the designation for Honduras, determining that Honduras had made “little progress” in recovering from Hurricane Mitch and that the reconstruction had “not sufficiently countered the devastation” caused by the hurricane. D. 21 ¶¶ 119-120. On May 8, 2001, Ashcroft extended Honduras' designation based on findings that only a fraction of the necessary housing units had yet been constructed and that many Hondurans remained in shelters, notwithstanding some progress in the recovery efforts. D. 21 ¶¶ 122-23. On May 3, 2002, Ashcroft again extended Honduras' designation, noting that “[a]lthough there are strong indications of progress in recovery efforts, recent droughts as well as flooding from Hurricane Michelle in 2001 have added to the humanitarian, economic, and social problems initially brought on by Hurricane Mitch in 1998.” D. 21 ¶¶ 123-24. On May 5, 2003, Ridge extended the designation, determining that prolonged drought and flooding after Hurricane Michelle had compromised food security and disrupted reconstruction efforts. D. 21 ¶¶ 125-26. On November 3, 2004, Ridge again extended the designation, finding that Honduras was still recovering from damage to its water and power supplies. D. 21 ¶¶ 127-28. On March 31, 2006, Chertoff extended Honduras' designation, citing both continuing vulnerability after Hurricane Mitch and serious storms in 2005. D. 21 ¶¶ 129-130. On May 29, 2007, Chertoff again extended the designation, determining that there was continued social and economic stress caused by Hurricane Mitch, with ongoing challenges in the areas of health, infrastructure, and employment. D. 21 ¶¶ 131-32. On October 1, 2008, Chertoff extended the designation for a third time, based on findings that much of the newly built housing lacked electricity and water, that more than 600, 000 Hondurans lived in flood-prone areas and that much of the drinking water remained contaminated. D. 21 ¶¶ 133-34. On May 5, 2010, Napolitano extended Honduras' TPS designation, noting that “Honduras continue[d] to rely heavily on international assistance” and that recovery from Hurricane Mitch and subsequent disasters remained incomplete. D. 21 ¶¶ 135-36. On November 4, 2011, Napolitano again extended the designation, based on a recent series of natural disasters in Honduras and the determination that Honduras' security situation was “critical, ” negatively affecting its ability to re-assimilate returning Hondurans. D. 21 ¶¶ 137-38. On April 3, 2013, Napolitano extended Honduras' designation a third time, citing a drought in 2012 and a tropical storm in 2011 that had contributed to ongoing problems with water, infrastructure, and sanitation. D. 21 ¶¶ 139-140. On October 16, 2014, Johnson extended the designation, finding that Honduras suffered from both food insecurity caused by a drought in 2014 and ongoing problems stemming from Hurricane Mitch and subsequent natural disasters. D. 21 ¶¶141-142. On May 16, 2016, Johnson again extended Honduras' designation. D. 21 ¶ 143. The effective period for the extension was July 5, 2016 to January 5, 2018. D. 21 ¶¶ 143. Johnson based the extension on findings that Honduras still had a housing deficit of 1.1 million homes; that Honduras was one of the poorest countries in the Western Hemisphere; that Honduras suffered damage caused by Tropical Storm Hanna in 2014; and that Honduras experienced an increase in mosquito-borne disease in 2014 and 2015. D. 21 ¶ 144.

         D. Allegations Regarding Defendants' Bias

         Plaintiffs allege that President Trump, the head of the Executive Branch in which the DHS Secretary serves, has personally made “numerous statements reflecting bias and prejudice against immigrants of color, particularly Latino and Haitian immigrants.” D. 21 ¶ 148. In support of this allegation, Plaintiffs cite several, alleged statements by President Trump. On or about June 16, 2015, while then-candidate Trump announced his presidential campaign, he stated that “[w]hen Mexico sends its people, they're not sending their best. . . . They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists. And some, I assume, are good people . . . It's coming from more than Mexico. It's coming from all over South and Latin America.” D. 21 ¶ 149. A few months later, on or about August 6, 2015, then-candidate Trump declared during a debate that the Mexican government was “send[ing] the bad ones over, because they don't want to pay for them, they don't want to take care of them.” D. 21 ¶ 150. On or about August 21, 2015, then-candidate Trump was asked about an incident in which two men beat and urinated on a sleeping Latino man and one, after his arrest, stated that “Donald Trump was right; all these illegals need to be deported.” D. 21 ¶ 151. He allegedly responded by stating that “[i]t would be a shame . . . I will say that the people who are following me are very passionate. They love this country and they want this country to be great again. They are passionate.” D. 21 ¶ 151. During a presidential debate in October 2016, then-candidate Trump responded to a question on immigration policy by stating that “[w]e have some bad hombres here and we're going to get them out.” D. 21 ¶ 152. In December 2016, after having been elected President, in referring to an article about a crime wave on Long Island, President-elect Trump said, as alleged, “[t]hey come from Central America. They're tougher than any people you've ever met. They're killing and raping everybody out there. They're illegal. And they are finished.” D. 21 ¶ 153.

         Plaintiffs also rely on certain actions and statements made by President Trump since he assumed office. On August 25, 2017, the President pardoned former Maricopa County Sheriff Joe Arpaio, who was to be sentenced for criminal contempt for failing to comply with a federal court order to stop racially profiling Latinos. D. 21 ¶ 154. During a meeting in the Oval Office in June 2017, President Trump reportedly reacted to a report that 15, 000 Haitians had received visas to enter the United States in 2017 by stating that Haitian immigrants “all have AIDS.” D. 21 ¶ 155. In January 2018, during a discussion at the White House of a legislative proposal to reallocate visas from other groups of foreign nationals to TPS recipients, President Trump allegedly said about TPS recipients “[w]hy are we having all these people from shithole countries come here?” D. 21 ¶¶ 157-160. President Trump also allegedly asked “[w]hy do we need more Haitians?” and demanded that the Senators with whom he was meeting “[t]ake them out” of the plan. D. 21 ¶ 161. President Trump then reportedly stated that policies should encourage immigration from countries like Norway, a predominantly white country, D. 21 ¶¶ 161, while, as Plaintiffs note, El Salvador and Honduras are predominately Latino countries and Haiti is a predominately black country. D. 21 ¶ 165. President Trump later denied having made such comments, D. 21 ¶ 163, but others present at the meeting dispute this denial, D. 21 ¶ 162.

         Plaintiffs also allege actions taken by DHS as evidence of bias on the part of Defendants. First, they allege that in April 2017, DHS officials sought evidence regarding criminal records and welfare use by Haitians living in the United States, which they allegedly sought to use to support a decision to rescind TPS status. D. 21 ¶ 167. Second, on February 14, 2018, DHS issued a press release regarding a legislative proposal on immigration with the headline “[t]he McCain-Coons Proposal Would Increase Illegal Immigration, Surge Chain Migration, Continue Catch and Release, and Give a Pathway to Citizenship to Convicted Alien Felons.” D. 21 ¶ 171. The release also characterized the legislative proposal as a “[m]ass [l]egalization [b]ill.” D. 21 ¶ 171. Third, on February 15, 2018, DHS characterized a proposal to provide conditional permanent resident status for TPS recipients as part of “a [m]ass [a]mnesty [b]ill for [i]llegal [a]liens of [a]ll [a]ges.” D. 21 ¶ 172.

         E. Termination of TPS Designations for El Salvador, Haiti and Honduras

         1. ...

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