On Mаrch 1, 2001, after a devastating earthquake that killed 1,100 people and displaced another 1.3 million, the Bush Administration designated El Salvador for "Temporary Protected Status," (TPS), a status that permits eligible nationals living in the United States at the time of the designation to lawfully remain here and work for as long as the designation remains in place.
In January 2018, the Secretary of Homeland Security announced that El Salvador's TPS designation would be terminated. In March 2018, Plaintiffs filed this lawsuit, alleging that the decision to terminate El Salvador's TPS was motivated not by a determination that the country no longer continues to meet the conditions for designation, but by President Donald Trump's anti-Latino immigrant animus. Plaintiffs assert claims pursuant to the Equal Protection Clause as incorporated
I. BACKGROUND
A. The Immigration and Nationality Act
The Immigration and Nationality Act of 1990,
(A) the Attorney General finds that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;
(B) the Attorney General finds that--
(i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial, but temporary, disruption of living conditions in the area affectеd,
(ii) the foreign state is unable, temporarily, to handle adequately the return to the state of aliens who are nationals of the state, and
(iii) the foreign state officially has requested designation under this subparagraph; or
(C) the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.
8 U.S.C. § 1254a(b)(1)(A-C).
The Secretary may determine an initial period of designation ranging from six months to eighteen months,
B. Designation and Termination of El Salvador for TPS
On January 13, 2001, a 7.6 magnitude earthquake struck El Salvаdor, leaving 1,100 dead, around 2,500 missing, and approximately 8,000 injured. ECF No. 1 at ¶ 23.
Between 2002 and 2016, El Salvador's protected status was extended eleven times. ECF No. 1 at ¶ 25. Each of these extensions detailed considerable ongoing structural and social problems in El Salvador. Id . In 2002, more than 75% of road infrastructure needed rebuilding; by 2005, only one-third of the houses destroyed or damaged had been rebuilt or were under construction, and 240 schools needed rebuilding; in 2007, only fifty percent of the homes had been repaired, and only two of the seven main hospitals were undergoing reсonstruction; in 2010, still just fifty percent of the homes had been repaired, and the country was reeling from a tropical storm and a volcanic eruption in 2005, a series of earthquakes in 2006, and a hurricane in 2009; by 2015, El Salvador still faced a housing deficit of 446,000, "a profound deficit for a country of 6.1 million people."
The final extension came on July 8, 2016. Id. ¶ 26. That extension was due to expire on March 9, 2018. Id. The Secretary reported that the housing deficit had risen to 630,000, a regional drought was contributing to food insecurity, a lack of potable water affected ten percent of the population, and one third of the population was underemployed or unable to find full-time work. Id. Since then, conditions have worsened in some ways, as a 7.0 magnitude earthquake struck the country in November 2016, and a 5.1 magnitude earthquake struck in April 2017. Id. ¶ 30. The housing shortage, though down to 360,000 homes, still affects nearly one million families. Id. ¶ 32. The labor market is in similarly bad
Nonetheless, on January 8, 2018, the Secretary announced that El Salvador's TPS designation would be terminated. Id. ¶ 28. The notice of termination published in the Federal Register states that the termination will be effective on September 9, 2019.
C. President Donald J. Trump's Statements About Latino Immigrants
The Complaint details a lengthy list of disparaging statements and actions made by President Donald Trump regarding Latino immigrants. ECF No. 1 at ¶ 66. An incomplete selection is provided here. This pattern began during the announcement of his presidential campaign, when he said, "When Mexico sends its people, they're not sending their best ... They're sending people that have lots of problems, and they're bringing those problems with us. They're bringing drugs. They're bringing crime. They're rapists ... It's coming from more than Mexico. It's coming from all over South and Latin America ..." Id. at ¶ 66a. Months later, Trump refused to condemn two of his supporters who "urinated on a sleeping Latino man and beat him with a metal pole," instead saying only that they were "passionate." Id. at ¶ 66b. During the campaign, Trump told the Wall Street Journal that U.S. District Judge Gonzalo P. Curiel of the Southern District of California could not be fair in prеsiding over a lawsuit against Trump University because Judge Curiel was "of Mexican heritage," "Hispanic," and a member of a Latino Lawyers' Association. Id. at ¶ 66d.
After his election and inauguration, it is alleged that these statements continued. During a speech delivered in Poland, President Trump expressed the need to protect "the West" and "civilization" against forces from "the South or the East." Id. at ¶ 66g. Later, when discussing potential protections for immigrants from El Salvador (as well as immigrants from Haiti and a group of African countries), President Trump allegedly asked, "Why are we having all these people from shithole countries come here?" Id. at ¶ 66h. He then suggested the United States should focus on immigration from countries such as Norway-which has a predominantly white population-instead. Id.
II. LEGAL STANDARDS
A. Rule 12(b)(1)
Defendants move to dismiss the Complaint pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure, arguing
B. Rule 12(b)(6)
Defendants also move to dismiss the Complaint pursuant to Rule 12(b)(6), asserting that Plaintiffs fail to state a claim upon which relief can be granted. On a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6), the Court "must accept the factual allegations of the complaint as true and construe them in the light most favorable to the nonmoving party." Rockville Cars, LLC v. City of Rockville, Md. ,
III. DISCUSSION
Plaintiffs are three Salvadoran nationals who have been TPS beneficiaries since 2001
Plaintiffs first allege that the termination of El Salvador's TPS was motivated by discriminatory intent in violation of the Equal Protection Clause as incorporated by the Fifth Amendment. Id. at ¶ 81. Next, they allege that, because the termination was motivated by discriminatоry intent, it also violates the substantive protection against arbitrary action found in the Due Process Clause of the Fifth Amendment. Id. at ¶ 84. Third, Plaintiffs argue that, because the INA does not authorize the Administration to terminate a country's TPS designation on the basis of disfavoring the race of persons protected under the statute, the Administration's action is
A. Subject-Matter Jurisdiction
As an initial matter, the court must determine whether § 1254a(b)(5)(A) of the TPS statute bars Plaintiffs' constitutional, APA, and/or INA claims. The statute reads: "There is no judicial review of any determination of the [Secretary] with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection." 8 U.S.C. § 1254a(b)(5)(A). Plaintiffs contend that this jurisdiction-stripping statute does not apply to actions that are challenged as unconstitutional or are based on considerations outside of the agency's statutory authority. ECF No. 33 at 10.
A federal court must have subject-matter jurisdiction to decide a matter before it. Lightfoot v. Cendant Mortg. Corp. , --- U.S. ----,
The presumption in favor of judicial review is particularly important in regards to constitutional claims. Webster v. Doe ,
Courts have consistently construed jurisdiction-stripping provisions narrowly. For instance, in McNary v. Haitian Refugee Center , the Supreme Court considered
The Court held that Section 210(e)(1) did not preclude the federal district court from hearing the claims. McNary ,
Furthermore, the Court explained that limiting review of the issues raised to individual deportation proceedings would mean the plaintiffs could "ensure themselves review in courts of appeals only if they voluntarily surrender themselves for deportation. Quite obviously, that price is tantamount to a complete denial of judicial review for most undocumented aliens."
In contrast, courts have enforced jurisdiction-stripping provisions where a plaintiff seeks to challenge the merits of an agency's justification for an action that is squarely covered by the provision, particularly where other judicial rеcourse remains available. In Lee v. USCIS ,
Notwithstanding any other provision of law (statutory or nonstatutory), ... except as provided in sub paragraph (D), and regardless of whether the judgment, decision, or action is made in removal proceedings, no court shall have jurisdiction to review-
(i) any judgment regarding the granting of relief under section 1182(h), 1182(i), 1229b, 1229c, or 1255 of this title, or
(ii) any other decision ... specified under this subchapter to be in the discretion of the Attorney General or the Secretary of Homeland Security, other than thе granting of relief under section 1158(a) of this title.
The court recognized that plaintiff's action was an allegation that USCIS "made a faulty eligibility determination" pursuant to § 1255. USCIS ,
The Supreme Court's reasoning in Cuozzo is similarly helpful. There, the Court considered whether a provision of the Leahy-Smith America Invents Act barred judicial review of the Patent Office's determination to institute an inter partes review of a previously allowed patent claim. Id. at 2137. That provision states that "[t]he determinаtion by the Director [of the Patent Office] whether to institute an inter partes review under this section shall be final and nonappealable."
Even still, the Court stressed that its holding did not constitute an absolute bar on judicial review. The Court explicitly excluded appeals that implicate constitutional questions, that implicate due process problems, or that allege an agency has acted outside its statutory limits, noting that the Administrative Procedure Act allows courts to " 'set aside agency action' that is 'contrary to constitutional right,' 'in excess of statutory jurisdiction,' or 'arbitrary [and] capricious.' "
Turning to the matter at hand, there are three reasons why the language here does not support the conclusion that Congress intended § 1254a(b)(5)(A) to bar the court's consideration of Plaintiff's constitutional or APA claims. First, the text does not use the unambiguous and comprehensive language used in statutes courts have interpreted as broadly precluding judicial review. Second, the statutory scheme does not demand preclusion of the types of claims brought by Plaintiffs. Third, just as in McNary , the alternative methods of review of Plaintiffs' claims offered by the Department do not constitute meaningful review.
First, the statute states that "[t]here is no judicial review of any determination" of the Secretary. This language closely resembles the language found in McNary and Reno not to constitute an absolute bar on judicial review, but instead to bar review of the merits of an individual determination. See
Additionally, unlike certain other statutes, § 1254a does not address constitutional challenges. See
Second, Plaintiffs' constitutional and APA claims do not threaten the "agency's primacy over its core statutory function." In USCIS , to allow the plaintiff's claims would have permitted judicial review of the merits of every allegedly faulty eligibility determination by a USCIS District Director-precisely the outcome Congress sought to prevent.
Third, Defendants' argument that removal proceedings pursuant to Section 1254a(b)(5)(B) offer a forum for Plaintiffs' constitutional claims is not persuasive. To pursue these claims, individual plaintiffs would have to lose their protected status and then wait until they face removal before they may bring claims. Such a choice is "tantamount to a complete denial of judicial review." McNary ,
Thus, the Court holds that § 1254a(b)(5)(A) does not bar review of Plaintiffs' Equal Protection, Substantive Due Process, or Administrative Procedure Act claims. See also Ramos v. Nielsen ,
Plaintiffs' claim that the Secretary's determination violates the INA, ECF No. 1 ¶¶ 87-89, fares differently. To evaluate the plausibility of Plaintiffs' constitutional and APA claims, the Court need only determine whether a reasonable factfinder could determine that discriminatory intent infected the Secretary's process for terminating El Salvador's TPS. But the Secretary's actions are not, as Plaintiffs' suggest, ultra vires if her decision to terminate El Salvador's TPS was appropriately based on statutory factors. Plaintiffs' claims that the decision violated the INA would thus necessarily force the Court to evaluate the sufficiency of the Secretary's dеtermination.
B. Equal Protection Clause
Plaintiffs contend that the termination of TPS for El Salvador violates the Equal Protection Clause as incorporated by the Fifth Amendment because discriminatory intent or purpose on the basis of race is a motivating factor. See Arlington Heights ,
1. Level of Deference
Defendants contend that Trump v. Hawaii provides the appropriate analysis. There, the plaintiffs brought an Establishment Clause challenge to an Executive Order that placed entry restrictions on the nationals of eight foreign states, alleging that the primary purpose of the Order was to discriminate against Muslims. Id. at 2403. On an appeal from the grant of a preliminary injunction, the Supreme Court held that rational-basis review would be applied to the Establishment Clause claim, as it concerned the entry of foreign nationals. Id. at 2420. The Court emphasized that the claim sought to "invalidate a national security directive regulating the entry of aliens abroad." Id. at 2418. Explaining that "the admission and exclusion of foreign nationals is a 'fundamental sovereign attribute exercised ... largely immune from judicial control,' " the Court determined that it should not interfere with "relations with foreign powers" or "classifications defined in the light of changing political and economic circumstances." Id. (quoting Fiallo v. Bell ,
Plaintiffs counter that Arlington Heights provides the proper analysis. There, the plaintiffs argued that local zoning restrictions were motivated, at least in part, by racial discrimination.
For two key reasons, Hawaii does not apply to this case. First, Hawaii dealt with aliens seeking admission to the United States for the first time, while this case deals with residents who have lived in
Repeatedly, courts have applied this principle to ensure that lawfully present aliens are not subject to removal processes that violate the Constitution.
That these cases apply the Due Process Clause rather than the Equal Protection Clause is of no matter; "each aspect of the Fourteenth Amendment reflects an elementary limitation on state power," and both clauses thus apply with equal weight to resident aliens. Plyler v. Doe ,
Second, none of the national security or foreign policy concerns implicated in Hawaii are present here. There, the Executive Order at issue was facially designed "to diminish the risk that dangerous individuals
Hawaii relies on a line of cases applying rational-basis review to immigration decisions that involved the admission of aliens, but not national security implications, see Fiallo v. Bell ,
Defendants also contend that a series of other cases involving immigration classifications establishes that rational-basis is the proper standard of review. See Malik v. Gonzales ,
2. Plaintiffs Plausibly Allege Sufficient Facts to Establish a Violation of the Equal Protection Clause
The government violates the Equal Protection Clause when a "facially neutral" state action is motivated by "invidious racial discrimination." McCrory ,
Defendants do not suggest that President Trump's alleged statements are not evidence of discriminatory motive on his part, nor could they. One could hardly find more direct evidence of discriminatory intent towards Latino immigrants. He has broadly painted Latino immigrants as drug-users, criminals, and rapists. ECF No. 1 ¶ 66a. He spoke publicly about the need to protect "the West" and "civilization" from forces from "the South or the East."
Defendants contend that the Secretary was the decision-maker, not the President, and that the Secretary's decision did not involve classification of a group of foreign nationals on the basis of their individual characteristics, but rather the classification of a foreign state. As to the first of these contentions, there can be no doubt that if, as alleged, the President influenced the decision to terminate El Salvador's TPS, the discriminatory motivation cannot be laundered through the Secretary. Staub v. Proctor Hospital ,
C. Due Process Clause
Plaintiffs allege that because the termination is motivated by discriminatory animus, it is a violation of the Fifth Amendment's guarantee of substantive due process as an "arbitrary" action. See City of Sacramento v. Lewis ,
Courts considering a claim for a substantive due process violation must first be " 'reluctant to expand the concept of substantive due process because guideposts for responsible decision-making in this uncharted area are scarce and open-ended.' "
Plaintiffs do not ask the Court to "break new ground" and recognize any new rights protected by substantive due process. Substantive due process has long encompassed racial discrimination, and it is no surprise; one can hardly think of a more arbitrary motivation for executive action than racial discrimination. See, e.g., Loving v. Virginia ,
D. Administrative Procedure Act
Under the APA, courts must set aside any final agency action that is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law," § 706(2)(A) ; "contrary tо constitutional right, power, privilege or immunity," § 706(2)(B) ; "in excess of statutory jurisdiction, authority, or limitations, or short of statutory right," § 706(2)(C) ; or "without observance of procedure required by law," § 706(2)(D). However, aggrieved persons are not entitled to judicial review of final agency action "to the extent that (1) statutes preclude judicial review; or (2) agency action is committed to agency discretion by law." § 701(a). The parties do not dispute that the termination of TPS is final agency action.
To satisfy the arbitrary and capricious standard, an agency must "examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made." Sierra Club v. Dep't of the Interior ,
Second, Plaintiffs allege the termination is arbitrary and capricious because DHS failed to conduct an objective assessment of the conditions in El Salvador. Id. at ¶ 93. In its opposition brief, they clarify the allegation that the Administration "abruptly and without explanation departed from [earlier] practice by considering only whether the conditions that led to the original 2001 TPS designation continue to be met and ignoring the other statutory criteria the INA provides for TPS designation." ECF No. 33 at 31. Defendants ask the Court not to consider this argument, because it was not well-develоped in the Complaint. But the Complaint need not detail every single theory Plaintiffs may advance, as long as the factual allegations are "sufficient to support a meritorious legal claim." Arar v. Ashcroft ,
Third, Plaintiffs allege that the termination is arbitrary and capricious because DHS failed to consider the reliance interests of persons with protected status. This alleged reliance interest is rooted in thе United States government's prior extensions of El Salvador's TPS while conditions in the country remained troubling. ECF No. 1 ¶ 94. Even if such interests could be established-and the explicitly temporary nature of the program suggests they could not-nothing in the TPS statute requires the Secretary to consider any such interests in her determination. See § 1254a(b)(1). To accept this theory would require the Court to substitute its judgment for Congress' determination of the considerations the Secretary must take into account when designating or terminating a country for TPS. The Court declines to do so, and thus will not entertain this theory.
E. The President as Defendant
Finally, Defendants contend the President is not a proper Defendant due to the separation of powers concerns that would arise from a court enjoining the President. "In general, 'this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties.' " Franklin v. Mass. ,
IV. CONCLUSION
For the foregoing reasons, the Court grants Defendants' Motion to Dismiss, ECF No. 28, with respect only to Plaintiffs' INA claim (Count III), and denies Defendants' motion in all other respects. A separate Order shall issue.
Notes
Unless noted otherwise, the facts are taken from the Complaint, ECF No. 1, and assumed to be true.
Though the Equal Protection Clause of the Fourteenth Amendment applies only to the states, courts have consistently applied similar substantive protections to the federal government through the Fifth Amendment. See, e.g., Obergefell v. Hodges , --- U.S. ----,
The Court recognizes that "many consider 'using the term 'alien' to refer to other human beings' to be 'offensive and demeaning.' [The Court uses] the term 'only where necessary to be consistent with the statutory language' that Congress has chosen and 'to avoid any confusion in replacing a legal term of art with a more appropriate term.' " See Trump v. Hawaii , --- U.S. ----,
Pin cites to documents filed on the Court's electronic filing system (CM/ECF) refer to the page numbers generated by that system.
Individual named Plaintiffs are: Jose E. Guevara, Juan Rodriguez, and Luis Andrade.
Additionally, as Defendants argue, to adopt Plaintiff's argument here would allow any potential plaintiff to сlaim an act was ultra vires anytime they are unhappy with a result by claiming the wrong factors were considered. To the extent Plaintiffs claim that Defendants considered factors that violated the Constitution, those assertions are best addressed as part of their Constitutional claims.
Defendants very briefly argue that the lack of identified comparators should defeat the equal protection claim, citing Morrison v. Garraghty ,
Defendants' suggestion that claims challenging the constitutionality of removal of legally present aliens should be accorded rational-basis review thus threatens this entire body of law. This Court does not read Hawaii so expansively.