Case 1:18-cv-01599-WFK-ST Document 22 Filed 06/14/18 Page 1 of 4 PageID #: 404

U.S. Department of Justice

United States Attorney

Eastern District of New York
271 Cadman Plaza East
Brooklyn, New York 11201

June 14, 2018

By ECF
Honorable William F. Kuntz, II
United States District Court
Eastern District of New York
225 Cadman Plaza East
Brooklyn, New York 11201

Re: Saget, et al., v. Trump, et al., CV-18-1599 (Kuntz, J.) (Tiscione, M.J.)

Dear Judge Kuntz:

In this action, plaintiffs challenge then-Acting Secretary of Homeland Security Elaine C.

Duke’s termination of Temporary Protected Status (“TPS”) for Haiti, effective July 22, 2019. As
demonstrated below, defendants United States of America, President Donald Trump, Department
of Homeland Security (“DHS”), DHS Secretary Kirstjen Nielsen, and DHS Acting Deputy
Secretary Claire M. Grady 1 (collectively, “defendants”) respectfully inform the Court of their
intention to move to dismiss this matter for lack of subject matter jurisdiction pursuant to Fed. R.
Civ. P. 12(b)(1), or, in the alternative, for failure to state a claim pursuant to Fed. R. Civ. P.
12(b)(6). Pursuant to Rule III.B of Your Honor’s Individual Motion Practices, defendants
respectfully request a pre-motion conference.

I. Background

Through TPS, Congress created a specific statutory structure for providing temporary relief
to individuals who might not qualify for asylum, but who would still face dangers in returning to
their home countries due to certain temporary conditions within those countries. 8 U.S.C. §
1254a(b). In the statute, Congress authorized the Secretary of Homeland Security to designate a
country for TPS and provide the nationals of a designated country who are currently residing in
the United States temporary relief from removal, as well as work authorization, during the recovery
period. 2 Id. § 1254a(a). But the statute also requires the Secretary to conduct periodic reviews to
determine whether the designated country’s conditions still warrant a TPS designation. See id. §
1254a(b)(3)(A) (limiting any extension for TPS to no more than 18 months at a time).

On January 21, 2010, then-DHS Secretary Janet Napolitano designated Haiti for TPS for a
period of 18 months, as “extraordinary and temporary conditions” arising from a January 12, 2010
earthquake prevented Haitians “from returning to Haiti in safety.” See Designation of Haiti for

1
Under Fed. R. Civ. P. 25(d), Acting Deputy Secretary Grady is substituted for former Deputy Secretary
Elaine C. Duke. We respectfully ask the Court to direct the Clerk of the Court to update the caption accordingly.
2
Persons without nationality who last habitually resided in a designated country may also qualify for such
relief and work authorization. 8 U.S.C. § 1254a(a).
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Temporary Protected Status, 75 Fed. Reg. 3476-02 (Jan. 21, 2010). On November 20, 2017,
Acting Secretary Duke decided to terminate the TPS designation in Haiti, with the termination to
take effect on July 22, 2019. Acting Secretary Duke subsequently explained the basis for her
decision in the Federal Register. See Termination of the Designation of Haiti for Temporary
Protected Status, 83 Fed. Reg. 2648-01, 2650 (Jan. 18, 2018) (finding Haiti had “made progress
recovering” from the 2010 earthquake, including the closure of 98% of the internally displaced
persons sites, the October 2017 withdrawal of the U.N. peacekeeping mission, the successful
completion of a presidential election in February 2017, a plan to rebuild Haiti’s National Palace
beginning in January 2018, a continuing recovery of Haiti’s economy, and the lowest levels of
cholera in Haiti since the outbreak began). Plaintiffs now challenge Acting Secretary Duke’s
assessment that Haiti had sufficiently recovered from the 2010 earthquake and that “extraordinary
and temporary conditions” no longer prevent Haitian nationals residing in the United States from
safely returning to Haiti.

II. Bases For Defendants’ Anticipated Motion To Dismiss

First, this Court does not have jurisdiction over any of plaintiffs’ claims, whether asserting
violations of the Constitution, the Administrative Procedure Act, 5 U.S.C. § 551 et seq. (“APA”),
Regulatory Flexibility Act (“RFA”), or the Immigration and Nationality Act (“INA”). See Webster
v. Doe, 486 U.S. 592, 603 (1988) (suggesting that Congress may preclude even constitutional
claims where its intent to do so is clear). Congress has explicitly barred TPS determinations from
judicial review. See 8 U.S.C. § 1254a(b)(5)(A) (“[t]here 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” for TPS relief); see, e.g., H.R. Rep. No. 101-245, at 14 (“none of the [Secretary’s]
decisions with regard to granting, extending, or terminating TPS will be subject to judicial review”
(emphasis added)); 5 U.S.C. § 701(a)(1) (precluding review under the APA “to the extent” that
other “statutes preclude judicial review.”). 3 While plaintiffs disagree with Acting Secretary
Duke’s decision to terminate TPS, that decision—like the decision to designate Haiti for TPS in
the first instance—is not subject to judicial review in this action. 4

Additionally, the Court does not have subject matter jurisdiction over plaintiffs’ claims
against the President, who is sued in his official capacity. Plaintiffs may not obtain—and the Court
may not order—equitable relief directly against the President for his official conduct. As the
Supreme Court recognized over 150 years ago in Mississippi v. Johnson, 71 U.S. (4 Wall.) 475,
501 (1866), federal courts lack jurisdiction to “enjoin the President in the performance of his
official duties.” See Franklin v. Massachusetts, 505 U.S. 788 (1992).

Even assuming, arguendo, that this Court has jurisdiction here, plaintiffs’ claims fail on

3
An alien subject to removal following the termination of TPS may later be able to raise constitutional
challenges to that termination in his or her removal proceedings. See 8 U.S.C. § 1252(a)(2)(D).
4
In Demore v. Kim, 538 U.S. 510 (2003), the Supreme Court found that a preclusion provision barring
judicial review of the “Attorney General’s discretionary judgment regarding the application” of a statute did not bar
the Court’s review of the plaintiff’s challenge to the statutory framework itself. Id. at 516-17 (citation omitted). Here,
by contrast, plaintiffs do not challenge the TPS framework; rather, they challenge a specific determination by the
Acting Secretary of Homeland Security in administering the statute—precisely what the plain terms of the statute
foreclose.

2
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the merits. Acting Secretary Duke terminated Haiti’s TPS designation based on her conclusion
that Haiti’s conditions had sufficiently improved and that there are no longer “extraordinary and
temporary conditions” in Haiti “that prevent [Haitians] from returning to [Haiti] in safety,” 8
U.S.C. § 1254a(b)(1)(C). In both the current and prior Administrations, there has been a
recognition over the last several years of improving conditions in Haiti. In September 2016, for
the first time since the earthquake struck, DHS resumed regular removals to Haiti for those without
TPS after then–Secretary Jeh Johnson found that the “situation in Haiti ha[d] improved
sufficiently.” 5 When Acting Secretary Duke concluded more than a year later that improvements
in Haiti warranted terminating Haiti’s TPS designation, she still nevertheless recognized that there
should be an “orderly transition” and delayed the effective date by 18 months until July 22, 2019.
See 83 Fed. Reg. 2648-01 at 2650. Acting Secretary Duke’s decision, based on input from
appropriate government agencies, was reasonable in light of the statutory mandate to terminate a
country’s TPS designation when the conditions that justify that designation cease to exist. Thus,
plaintiffs cannot show that Acting Secretary Duke’s decision was not rationally related to a
legitimate government interest, nor can they show that her decision was arbitrary and capricious,
in excess of statutory jurisdiction, or without observance of procedure required by law.

Moreover, plaintiffs cannot meet the “particularly demanding” standard established by the
Supreme Court for demonstrating discriminatory animus in this context for purposes of
maintaining a claim under the Equal Protection Clause. See Reno v. Am.-Arab Anti-Discrimination
Comm., 525 U.S. 471, 488-491 (1999) (recognizing the complex considerations, including foreign
policy implications, involved in the application of immigration laws). Plaintiffs fail under this
standard—especially in light of Congress’s express preclusion of judicial review—to set forth
“clear evidence” demonstrating that Acting Secretary Duke’s decision to terminate Haiti’s TPS
designation was based on “outrageous” discrimination. See id. at 489, 491. In addition to Acting
Secretary Duke’s sound basis for concluding that Haiti’s conditions had sufficiently improved,
which by itself defeats plaintiffs’ equal protection claim, plaintiffs fail even to allege that Acting
Secretary Duke exhibited any animus. Plaintiffs’ equal protection claim must therefore fail.

Plaintiffs’ remaining claims are also subject to dismissal. Plaintiffs’ notice-and-comment

claim fails, as the decision to terminate TPS is not a “rule” within the meaning of the APA and
therefore is not subject to notice-and-comment. To the extent plaintiffs attempt to argue that the
decision reflects some kind of shift in policy or interpretation by DHS, such matters are likewise
exempt from notice and comment, see 5 U.S.C. § 553(b)(3)(A); cf. Perez v. Mortg. Bankers Ass’n,
––– U.S. ––––, 135 S. Ct. 1199, 1206 (2015) (“Because an agency is not required to use notice-
and-comment procedures to issue an initial interpretive rule, it is also not required to use those
procedures when it amends or repeals that interpretive rule.”). Plaintiffs’ RFA claim fails for the
same reason, as the RFA applies only where notice and comment is required. Finally, plaintiffs’
allegations do not support their claim that defendants acted ultra vires by terminating TPS pursuant
to 8 U.S.C. § 1254a(b)(1).

Accordingly, Defendants respectfully request a pre-motion conference for their anticipated

motion.

5
See Statement by Secretary Johnson Concerning His Directive to Resume Regular Removals to Haiti (Sept.
22, 2016) https://www.dhs.gov/news/2016/09/22/statement-secretary-johnson-concerning-his-directive-resume-
regular-removals-haiti.

3
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Defendants thank the Court for its consideration of this matter.

Respectfully submitted,

RICHARD P. DONOGHUE
United States Attorney

By: /s/ Joseph A. Marutollo

Joseph A. Marutollo
Assistant U.S. Attorney
718-254-6288
Joseph.marutollo@usdoj.gov

cc: BY E.C.F.
Counsel of Record