Judge Rakes White House Over Coals for Shift on Haiti

Congresswoman Nydia Velazquez (D-N.Y.) speaks outside federal court in Brooklyn, New York, on Jan. 7, 2019, on behalf of Haitian immigrants facing deportation under the removal of temporary protected status by the Trump administration. (Amanda Ottaway/CNS)

BROOKLYN, N.Y. (CN) – In a 145-page rebuke, a federal judge in Brooklyn blocked the government Thursday from terminating protected immigrant status for Haitian nationals who live and work in the United States.

“A TPS determination should not be a political decision made to carry out political motives,” the order states, using an abbreviation for temporary protected status.

Focusing on the Trump administration’s decision-making process,

rather than the eligibility of Haitians for TPS, U.S. District Judge William Kuntz II said Thursday that evidence “reflected a pre-ordained outcome accomplished by sweeping negative evidence under the rug and disregarding contrary or inconvenient factual determinations made by prior decisionmakers.”

The ruling cites multiple now-infamous comments from President Donald Trump. During a meeting in June 2017, Trump said Haitians “all have AIDS.” And in response to a draft immigration plan by then-Acting Homeland Security Secretary Elaine Duke, he allegedly said: “Why are we having all these people from shithole countries come here?”

Kuntz also quoted a damning 2017 email to former Homeland Security spokesman David Lapan where then-Senior Justice Department official Gene Hamilton wrote: “African countries are toast … Haiti is up next.”

Mayer Brown attorney Howard Roin was among those who brought the underlying suit on behalf 10 individual Haitians and the groups Haiti Liberte and Family Action Network Movement Inc.

“We had a lot of smoking guns,” Roin said in an interview.

Accusing the government of having “reverse-engineered facts,” Kuntz also recalled how then-White House Chief of Staff John Kelly directed staff “to search for criminality and welfare data” that would give the agency basis to terminate TPS for Haiti.

Kuntz said the secretary’s efforts were “largely irrelevant,” however, because people convicted of a felony or two misdemeanors are already ineligible for TPS anyway.

Representatives for the Department of Justice did not immediately comment on the order Thursday.

The top map shows the predicted cholera risk in Haiti based on analysis and satellite data two weeks after Hurricane Matthew hit. Blue color indicates low risk of cholera while red color indicates high risk of cholera. The lower map shows the actual number of cholera cases as of Oct. 10, 2016. Deeper reds indicate a higher number of reported cholera cases. (Credit: Antar Jutla, Department of Civil and Environmental Engineering, West Virginia University)

In addition to a hurricane, Haiti has been rocked by a cholera epidemic started by U.N. peacekeepers responding to the 7.0-magnitude earthquake of 2010. The island nation has made some progress toward regaining its footing, but the plaintiffs told Judge Kuntz that Haiti is not ready to handle an influx of nationals that would occur if the Trump administration’s TPS rescission is allowed to stand. 

Kuntz is still slated to deliver a final verdict, but his injunction today comes three months after a bench trial on post-earthquake conditions in the Caribbean nation. His final ruling will not resolve the TPS designation itself, but it could force a re-evaluation by the administration.

During the January trial, Assistant U.S. Attorney Joseph Marutollo said Haiti suffered from endemic problems like poverty long before the quake. Noting that Haiti has not been redesignated for TPS since 2011, Marutollo argued that the extensions granted in lieu of that mean that 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.

But Kuntz ruled Thursday that “evidence of … political motivations is replete throughout the administrative record.”

He said the evidence is clear the White House “exerted significant influence” over the November 2017 decision by then-Acting Homeland Security Secretary Elaine Duke to terminate TPS for Haiti. 

In addition to calling that decision “arbitrary and capricious,” Kuntz said he had “serious questions” about whether Duke’s decision involved some intentional discrimination.

“Specifically, the evidence suggests the secretary was influenced by the White House and White House policy to ignore statutory guidelines, contort data, and disregard objective reason to reach a predetermined decision to terminate TPS and abate the presence of non-white immigrants in the country,” he wrote.

Kuntz also called it “absurd” for former Homeland Security Secretary Kirstjen Nielsen to argue that she could not take a holistic view of a country’s challenges when designating TPS.

Due to a pending suit in San Francisco by TPS holders from several countries, which awaits a ruling, the Department of Homeland Security in February issued a TPS extension until January 2020 for citizens of El Salvador, Haiti, Nicaragua and Sudan.  

That judge temporarily blocked the government from suspending TPS last October.

The Family Action Network Movement in Florida did not immediately comment following Thursday’s ruling.

Pierrot Mervilier, center rear, hugs a girl that did not wish to be identified, living in the U.S. with Temporary Protected Status after she and her family spoke to members of the media in Miami on May 22, 2017. (AP Photo/Wilfredo Lee)
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