Suit Over Protected Status for Haitians Put to Judge

Haitian activists and immigrants protest on City Hall Plaza in Boston on Jan. 26, 2018. Haitian community leaders complained last week that the Trump administration’s delays in re-registering those living in the U.S. legally through the Temporary Protected Status program would lead to job losses, travel problems and other issues for Haitians. (AP Photo/Charles Krupa)

BROOKLYN, N.Y. (CN) – A federal judge overseeing the trial of Haitians who lost protected immigrant status warned attorneys Thursday that sympathy for the challengers is not enough for them to prevail.

“I have to either decide that I have the power to do it, and do it; that I have the power to do it, and not do it; or that I lack the power to do it,” U.S. District Judge William Kuntz said as closing arguments got underway.

The United States granted temporary protected status, or TPS, to Haitians residing in the U.S. after their country was devastated in 2010 by a 7.0-magnitude earthquake. In addition to killing tens of thousands of people, the quake reduced the capital city of Port au Prince to rubble and spawned a cholera epidemic considered at the time to be the worst in recent history.

But defense attorneys for the Trump administration argued at trial this week that Haiti suffers from a number of systemic instability issues, such as corruption and food insecurity, which were problematic long before the quake. 

Defending the decision to end Haiti’s protected designation in 2017, the government emphasized that, by its name, TPS relief was meant to be temporary. 

Though government lawyers highlighted how life in Haiti has improved since 2010 — the country has held elections and cholera diagnoses have slowed down — the plaintiffs painted a starker picture with expert testimony.

“The [Haitian] president’s running the country from tents and prefabs,” Brian Concannon, executive director of the Institute for Justice & Democracy in Haiti, told the court Wednesday.

Kuntz, who is presiding over the trial without a jury, will not make the TPS decision himself but rather could order the administration to redo the TPS determination process for Haiti.

The plaintiffs have sought throughout the trial to prove that the Trump administration officials skipped, ignored or otherwise bypassed standard procedure in terminating Haiti’s TPS designation.

While the secretary of homeland security has sole decision-making power when it comes to TPS, witnesses testified this week that decision should be informed by heavily researched input from the State Department, embassies on the ground, and U.S. Citizenship and Immigration Services.

Leon Rodriguez, who served as director of USCIS following an appointment by former President Barack Obama, had harsh words on the stand for his successor.

Rodriguez testified that it is his belief that USCIS Director Lee Francis Cissna and former Acting Homeland Security Secretary Elaine Duke violated “longstanding practice” and the law on TPS by “very clearly exclud[ing] from consideration a number of factors” in making the decision on Haiti.

The plaintiffs also produced internal government emails and memos that they said represent an attempt by the Trump administration to curate the facts about Haiti into a preordained decision to cut off the country’s status.  

One memo said: “We have to reconcile the decision to terminate TPS in Haiti with recently released information that suggests it should not have been terminated.”

The plaintiffs say that, after the recent devastation from Hurricane Matthew, it is not safe for Haiti to repatriate the 59,000 nationals estimated to be in the U.S. Ending TPS is also expected to affect about 27,000 U.S.-born children.

Kenneth Ives, an editor at the newspaper Haiti Liberte, took the stand Tuesday to say one of the paper’s best writers, Jackson Rateau, is a TPS designee.

In addition to contending that the paper would suffer if Rateau were deported, Ives said about 10 percent of the paper’s U.S. readership would likely be forced to return to Haiti if the TPS cancellation holds.

Five federal lawsuits have been filed nationwide over the Trump’s administration’s TPS designation changes, which also affect immigrants from several other countries.

The Haiti case is the first to go to trial, but a verdict is unlikely to put the matter to rest. During proceedings this week, Judge Kuntz has made multiple references to his “friends on the 17th floor,” referring to the Manhattan courtroom where the U.S. Court of Appeals for the Second Circuit meets.

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