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African Communities Together v. Trump

United States District Court, D. Massachusetts

October 25, 2019

AFRICAN COMMUNITES TOGETHER, a membership organization; UNDOCUBLACK NETWORK, a membership organization; DAVID KROMA; MOMOLU BONGAY; OTHELLO A.S.C. DENNIS; YATTA KIAZOLU; CHRISTINA WILSON; JERRYDEAN SIMPSON; C.B., AL. K., D.D., D.K., AI. K., AD. K. by and through their father and next friend OTHELLO A.S.C. DENNIS; O.S. by and through his mother and next friend JERRYDEAN SIMPSON, Plaintiffs,
DONALD J. TRUMP, President of the United States in his official capacity; UNITED STATES DEPARTMENT OF HOMELAND SECURITY; KEVIN MCALEENAN, Acting Secretary of the Department of Homeland Security in his official capacity, Defendants.



         President Trump announced plans to terminate Deferred Enforced Departure (“DED”) for Liberians effective March 31, 2020. Plaintiffs filed this action seeking to declare unlawful and/or enjoin that termination because they believe President Trump based his decision on racial animus rather than existing conditions in Liberia. Defendants move to dismiss for lack of jurisdiction. (Docket No. 52). While the Court finds that the Plaintiffs have suffered an injury in fact, the Court unfortunately sees no way to redress that injury. In order to renew DED, the President must take affirmative action, and this Court cannot compel the President to take that action under the circumstances of this case. Thus, the Court grants Defendants' motion to dismiss. (Docket No. 52).


         Since the 1980s, Liberia has experienced armed conflicts that have claimed the lives of over 250, 000 civilians and devastated its economy. Four previous Administrations have granted humanitarian relief to Liberians lawfully residing in the United States through Temporary Protected Status (“TPS”) and DED. TPS is a statutory status that the Secretary of the Department of Homeland Security (“DHS”) may extend to foreign nationals who cannot return to their country of origin due to armed conflict, natural disaster, or temporary conditions. See 8 U.S.C. § 1254a(b)(1). DED is a temporary, discretionary stay of removal granted to foreign nationals from designated countries generated by the President. Unlike TPS, DED does not have a statutory basis; it emanates from the President's constitutional authority to conduct foreign relations.

         In 1991, Attorney General[1] Dick Thornburgh first granted TPS to Liberians due to “ongoing armed conflict within Liberia” and the “extraordinary and temporary conditions in Liberia that prevent . . . nationals of Liberia from returning to Liberia in safety.” (Docket No. 46 at 20). In 1999, Attorney General Reno terminated TPS. Shortly thereafter, President Clinton granted Liberian nationals DED, citing fragile conditions and the significant risk that deporting Liberians “would cause other countries in West Africa to repatriate involuntarily many thousands of Liberian refugees, leading to instability in Liberia and potentially threatening peace along the Liberian border.” (Docket No. 53-1 at 2). President George W. Bush continued DED, citing similar concerns. (Docket No. 53-3 at 2).

         In 2002, Attorney General Ashcroft granted TPS to Liberians after the country relapsed into civil war. DHS extended TPS in 2004 and 2005 even though the armed conflict had ended because there were “extraordinary and temporary conditions that prevent the safe return of nationals of Liberia.” (Docket No. 46 at 23).

         In 2006, after assessing conditions in Liberia, DHS terminated TPS. Before TPS expired on October 1, 2007, however, President Bush again granted DED relief to Liberians because “the political and economic situation” continued to justify deferring deportation. (Docket No. 46 at 24).

         On March 23, 2009, President Obama, citing “compelling foreign policy reasons, ” followed the precedent of previous administrations by extending DED for Liberians immediately after President Bush's extension expired. (Docket No. 53-4 at 2). President Obama continued to extend DED relief to Liberians in the United States until 2014 when he granted a 24-month extension. (Docket No. 46 at 24).

         In 2014, the Ebola epidemic hit Liberia. The virus spread rapidly throughout the country and infected over ten-thousand people in two years. In response, DHS again granted TPS for Liberians, noting that the epidemic had overwhelmed Liberia's already weak health care system and that Liberians could not safely return to Liberia. (Docket No. 46 at 25). When the Ebola outbreak was finally contained, DHS terminated TPS. On September 28, 2016, however, President Obama again granted DED to Liberians for 18 months beginning on October 1, 2016. (Docket No. 53-6 at 2-3).

         On March 27, 2018, President Trump announced plans to terminate DED for Liberians effective March 31, 2019. In his memorandum, President Trump noted:

Liberia is no longer experiencing armed conflict and has made significant progress in restoring stability and democratic governance. Liberia has also concluded reconstruction from prior conflicts, which has contributed significantly to an environment that is able to handle adequately the return of its nationals. The 2014 outbreak of Ebola Virus Disease caused a tragic loss of life and economic damage to the country, but Liberia has made tremendous progress in its ability to diagnose and contain future outbreaks of the disease.

(Docket No. 53-7 at 1-2). On March 28, 2018, President Trump extended the wind-down period to March 31, 2020. (Docket No. 53-9 at 2).

         Legal Standard

         When a party moves to dismiss for lack of subject-matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure, “the party asserting jurisdiction has the burden to establish through competent proof that jurisdiction exists.” White v. Comm'r, 899 F.Supp. 767, 771 (D. Mass. 1995). In evaluating whether the party has met its burden of proof, the court “may consider extrinsic materials and, to the extent it engages in jurisdictional factfinding, is free to test the ...

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