By Naeisha Rose
Deliberations for the Saget et al v Trump court case came to a close in Brooklyn federal court on Thursday, as lawyers fighting for the Temporary Protected Status (TPS) of Haitian immigrants and those representing the government both summarized their positions and made their closing arguments for the extension or for the termination of the program.
TPS allows immigrants from countries that are war torn, under political strife, facing extraordinary conditions or that have been struck by severe natural disasters to live and work in the United States, but the program is set to be terminated for Haitian nationals on July 22.
On Jan. 10, Howard Roin, a lawyer from the practice of Mayer Brown, which is representing the plaintiffs, presented some key pieces of evidence such as memos, emails and notes by former Department of Homeland Security (DHS) Secretary Elaine Duke that helped to shed a light on her decision to announce the termination of TPS for Haitians before Nov. 20, 2017.
According to Roin, Duke, who officially stepped into the role of secretary at DHS from July 31, 2017 to Dec. 6, 2017 after White House Chief of Staff John Kelly left that role to serve Trump, was fed conflicting and sometimes improper information about the realities of conditions in Haiti, and as she tried to delay or pass on the decision of ending TPS for Haitians to her successor Kirstjen Nielsen, she was ultimately pressured to terminate the program not based on facts, but an “America First” agenda.
On Nov. 3, 2017, in a meeting in the Situation Room at the White House about TPS for Central American countries Nicaragua, El Salvador and Honduras, as well as Haiti, a plan was outlined to “coordinate conditions and a process for terminating TPS,” according to evidence read by Roin. Matters regarding TPS were to be redirected into “discussions about immigration reform.”
Attorney General Jeff Sessions, Trump’s senior advisor Stephen Miller, former Homeland Security Advisor Tom Bossert, and Gene Hamiltion, a former aide to Sessions, were some of the key players at the meeting, according to Roin.
During the meeting, which later spilt over the next three days into emails, Duke was told by Sessions that she ” can’t keep certifying” TPS and should just “‘bite the bullet’” on terminating the program, according to Roin. At another point she is told not to be “gutless” like the “federal bureaucrats” who have “extended” TPS.
On Nov. 6, 2017, Duke was emailed by Kelly to make statements that “will send a clear signal” that TPS overall is coming to an end.
On Nov. 10, Duke was “informed” by Bossert of a “decision” she “was not aware of,” and the former Secretary and Miller are later emailed by Kelly to be “assuring agenda adherence,” according to Roin.
By Nov. 20, 2017, a press release by Duke’s office was issued.
“The decision to terminate TPS for Haiti was made after a review of the conditions upon which the country’s original designation were based and whether those extraordinary but temporary conditions prevented Haiti from adequately handling the return of their nationals, as required by statute,” according to the release. “Haiti is able to safely receive traditional levels of returned citizens.”
“We think the government cheated,” said Roin. “They gamed the facts and just applied a political edict.”
Factors that were ignored included proper housing in Haiti, food insecurity, cholera, health care, the capacity it has to accept more people and the impact United Nations peacekeepers had after leaving the island, according to Roin.
A U.S. Citizenship and Immigration Services (USCIS) memo, which included both the negative and positive aspects of Haiti’s level of improvement by its own fact finding team was watered down by USCIS to include only the best parts of the Caribbean island’s recovery efforts, according to Roin.
“How can the State Department say conditions in Haiti has improved,” said Roin. “At the same time they issue a travel warning to American travelers.”
According to Roin, USCIS once determined that the “traditional levels” for the island to reabsorb nationals was 1,000 people over the course of three years, and that Haiti is not in the state to reabsorb approximately 59,000 people and their more than 20,000 dependents or relatives.
“Stress on the government of Haiti and its social services will overwhelm a fragile government system and infrastructure,” said Roin.
Lawyers for Trump used their summation and closing arguments to question the quality of experts brought in by Roin and other lawyers from different law firms representing the plaintiffs. They also blamed Haiti’s “chronic” issues on the islanders and said the problems persisted long before TPS, and concluded it was therefore not their problem.
“A verdict should be in favor of the government,” Ast. U.S. Attorney Joseph Marutollo said. “The fact remains that [Haiti] does not meet the statute.”
According to Marutullo, “the rules weren’t changed” to get Haiti off of TPS, its that different “administrations have different emphasis on the process” of TPS, said the U.S. attorney representing Trump.
When Federal Court Judge William F. Kuntz posed hypothetical questions about whether a U.S. Secretary’s power was “unlimited” or if they were to be punished by a federal judge for “violating” a statute, Marutollo admitted that a federal officer’s power was not “unlimited,” and he became flummoxed as he fell short on answering the second question clearly leaving the judge visibly upset.
“Are you trying to say that in the U.S. of America, that if a federal officer violates the law that a federal judge cannot reprimand that officer?” said Kuntz.
Marutullo said “no,” and that the “U.S. Congress” should have that power, but failed to give a current example of how Congress would reprimand a federal officer violating a statute or law.
Roin rebutted that “facts aren’t discretionary,” and that we are not here to deal with “alternative facts,” but “proper legal standards.”
“That is what this case is about,” said Roin.
On Feb. 15, both sides will get to provide a written version of their conclusions, and on March 1 they will be able to judge each other’s conclusion. Once that occurs, the Kuntz will make a decision about Haiti’s TPS.