BROOKLYN, N.Y. (CN) – The first trial challenging the Trump administration’s termination of temporary protected status for certain groups of immigrants kicked off Monday, as lawyers for a group of Haitian plaintiffs argued their home country is not safe for their return.
After a 7.0-magnitude earthquake devastated Haiti in 2010, it has been rocked by a cholera epidemic started by U.N. peacekeepers as well as a hurricane. While the island nation has made some progress in regaining its footing, the plaintiffs say Haiti is not ready to handle an influx of nationals.
Two plaintiffs themselves testified Monday about the lives they had built in the U.S. since the quake and their fear of returning.
“Things are worse than like it was before,” said Haitian national and TPS holder Rachelle Guirand, 40, who fought back tears during her testimony and once had to pause to wipe them on her sweater. “Everything is – it’s chaotic over there, economically, politically.”
Five federal lawsuits have been filed nationwide over the new TPS designations, which also affect immigrants from several other countries, but this is the first to hit the next step. It will likely face more hurdles: U.S. District Judge William Kuntz, who’s presiding over the Brooklyn bench trial, spoke of his “friends on the 17th floor,” referring to the courtroom location at the Second Circuit Court of Appeals in Manhattan.
The plaintiffs filed their complaint in March 2018, claiming the Trump administration had violated the Constitution, the Administrative Procedure Act and other laws when it ended TPS status for Haitians in November 2017. Kuntz will not make the TPS decision himself, but his written ruling after the conclusion of the trial could force the administration to go back to the drawing board on its determination of whether Haitians should be eligible for the status.
On July 22, 2019, temporary protected status is set to expire for 59,000 Haitian nationals living in the U.S. Some experts estimate about 27,000 U.S.-born children of these immigrants will also be affected.
“The Trump administration did not make any real factual determination,” said plaintiffs’ lawyer Howard Roin of Mayer Brown in his opening statement Monday, arguing it had based its decision based on “racial animus” and “hostility to immigration by nonwhite people” as well as “to the entire idea of TPS.”
“The Trump administration made a political – not factual – a political decision to terminate Haiti’s TPS status regardless of the facts,” he said.
Roin also rather delicately attempted to avoid saying the word “shithole” during his openings, instead saying “s-hole,” a topic the judge addressed head-on: this trial would be uncensored.
“We’re in grown-up land here,” Kuntz said, later adding, “Let’s use the words that were used.”
In a meeting last year, President Trump infamously wondered aloud why the U.S. should allow the entry of immigrants from “shithole countries” like Haiti and African nations.
In opening arguments for the government, Assistant U.S. Attorney Joseph Marutollo said Haiti suffered from endemic problems like poverty long before the quake, and noted that TPS had not actually been redesignated to the country since 2011. It has only been extended, meaning no new Haitian nationals can acquire the status. He also maintained the TPS statute bars judicial review of any decision made by the Secretary of Homeland Security.
In addition to the plaintiffs, the court heard testimony from two expert witnesses: lawyer Ellie Happel, who testified as an expert on in-country conditions; and Michael Posner, former Assistant Secretary of State for Democracy, Human Rights and Labor.
Happel, a staff attorney at New York University’s Global Justice Clinic, was definitive.
“Haiti is not capable of safely receiving its nationals,” she said.
She testified that in making its designation, the Trump administration had ignored the facts on the ground, for example a housing crisis, a lack of waste management and food insecurity.
Posner, too, indicated the administration had not taken the facts on the ground into account. He testified that the administration seemed to have given a “lack of deference” to recommendations from the U.S. Embassy in Haiti when it made its designation, calling embassies “the eyes and ears of our government.”
Both Guirand and Naischa Vilme, the other plaintiff who testified, said they did not know what they would do if they were sent back to Haiti. Vilme wants to get her Ph.D in clinical psychology but said mental health is a “taboo” subject in Haiti.
“Everything in Haiti is a luxury,” said Guirand – the right to work, the right to healthcare. “Everybody’s on their own.”
Congresswoman Nydia Velazquez spoke at a press conference outside the courthouse before the trial began Monday. She and fellow New York Democrat, Sen. Kirsten Gillibrand, have pushed the administration on its TPS rulings.