Ending Protected Status for Haitians Was Discriminatory: NAACP

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By Laura D. Francis

Ending protected status for Haitians in the U.S. was racially discriminatory and part of a broader Trump administration agenda to reduce the number of immigrants of color in the U.S., according to the National Association for the Advancement of Colored People.

The civil rights organization filed a lawsuit Jan. 24 in federal district court in Maryland, citing President Donald Trump’s reported comment that Haiti and African nations are “shithole countries,” as well as an earlier reported statement that Haitians “all have AIDS.”

The Homeland Security Department’s departure from previous analyses of country conditions also indicates that the reasons given for the termination of temporary protected status were a cover for racial bias, the NAACP said.

“The decision by the Department of Homeland Security to rescind TPS status for Haitian immigrants was infected by racial discrimination,” NAACP Legal Defense and Educational Fund President and Director-Counsel Sherrilyn Ifill said in a Jan. 25 statement. “Every step taken by the Department to reach this decision reveals that far from a rational and fact-based determination, this decision was driven by calculated, determined and intentional discrimination against Haitian immigrants,” she said.

DHS spokeswoman Katie Waldman declined to comment on the lawsuit Jan. 25.

Ten Countries Have TPS

Temporary protected status provides foreign nationals with the opportunity to live and work in the U.S. because of poor conditions in their home country, such as those caused by a natural disaster, disease epidemic, or civil war.

Ten countries are currently designated for TPS, including Haiti, which won’t lose the status until July 2019. El Salvador, Nicaragua, and Sudan also will see TPS terminated next year.

Numerous lawmakers, immigration advocates, businesses, and organizations have urged the Trump administration to continue TPS for these countries, but the DHS has been ending TPS for various countries, starting with Sudan in September 2017. Haiti’s TPS originally was extended for six months in May 2017 but then terminated in November.

Haitians have few options for remaining in the U.S., as the country recently was removed from a list of those eligible for two low-skilled, temporary visa programs.

And even if TPS recipients are eligible for some other immigration status, processing times make it unlikely they would receive that status by the time TPS runs out in July 2019, American Immigration Council senior staff attorney Mary Kenney told Bloomberg Law Jan. 25.

Getting a family-based green card, for example, “could take ages,” but an employment-based visa “can take even longer,” said Kenney, whose organization advocates in favor of immigrants and immigration. That’s because employment visas first require that the Labor Department certify that U.S. workers won’t be displaced, she said.

‘Publicity Stunt’

“I think it’s a publicity stunt more than anything else,” Christopher Hajec, director of Litigation for the Immigration Reform Law Institute, said of the NAACP’s lawsuit.

“No court is going to find that the president of the United States is a racist based on comments reported by anonymous sources, especially where those comments are ambiguous,” said Hajec, whose organization serves as the legal arm of the Federation for American Immigration Reform. FAIR advocates for lower immigration levels.

But Kenney said that the NAACP’s complaint is “a very compelling statement of the evidence supporting the animus” the organization claims is there.

Both Hajec and Kenney saw parallels with the lawsuits filed against the president’s travel bans, which claim in part that the bans are motivated by bias against Muslims. The U.S. Supreme Court recently agreed to hear the lawsuit over the latest version of the ban.

But unlike the travel ban cases, which also rely on other arguments, the NAACP’s only argument against the TPS decision is that it’s race-based, Hajec told Bloomberg Law Jan. 25.

“This may be a precursor” to other lawsuits that claim TPS termination decisions are racist, he said. But courts have said in other immigration cases that the administration’s decision must be judged based on the reason given, not potential motives, he said.

Although unlikely, the administration can legally reverse course and reinstitute TPS for Haitians, Kenney said. The DHS could say that the effects of the 2010 earthquake are still being felt such that it’s not feasible for them to “be safely and humanely reintegrated” into their home country, she said.

The case is Nat’l Ass’n for the Advancement of Colored People v. Dep’t of Homeland Sec., D. Md., No. 1:18-cv-00239, complaint filed 1/24/18.

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