Saget V Trump Government S Appellate Brief
Saget V Trump Government S Appellate Brief
Saget V Trump Government S Appellate Brief
No. 19-1685
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
Plaintiffs-Appellees,
v.
Defendants-Appellants.
JOSEPH H. HUNT
Assistant Attorney General
RICHARD P. DONOGHUE
United States Attorney
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
JAMES R. CHO
JOSEPH A. MARUTOLLO
Assistant United States Attorneys
MARK B. STERN
GERARD SINZDAK
Attorneys, Appellate Staff
Civil Division, Room 7242
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0718
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TABLE OF CONTENTS
Page
C. Procedural Background..................................................................................... 8
ARGUMENT ......................................................................................................................... 16
CONCLUSION ..................................................................................................................... 59
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ii
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TABLE OF AUTHORITIES
Cases: Page(s)
Delgado v. Quarantillo,
643 F.3d 52 (2d Cir. 2011) .......................................................................................... 17, 26
Fiallo v. Bell,
430 U.S. 787 (1977) ................................................................................................ 50, 51, 54
Franklin v. Massachusetts,
505 U.S. 788 (1992) ...................................................................................................... 55, 56
iii
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Galvan v. Press,
347 U.S. 522 (1954) .............................................................................................................51
Gebhardt v. Nielsen,
879 F.3d 980 (9th Cir. 2018) ................................................................................. 22, 23, 26
Gill v. Whitford,
138 S. Ct. 1916 (2018) .........................................................................................................57
Harisiades v. Shaughnessy,
342 U.S. 580 (1952) .............................................................................................................54
Kleindienst v. Mandel,
408 U.S. 753 (1972) .............................................................................................................51
Kohli v. Gonzales,
473 F.3d 1061 (9th Cir. 2007) ............................................................................................45
Malkentos v. DeBuono,
102 F.3d 50 (2d Cir. 1996) .................................................................................................16
Martinez v. Napolitano,
704 F.3d 620 (9th Cir. 2012) ..............................................................................................17
Mathews v. Diaz,
426 U.S. 67 (1976) ...............................................................................................................51
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ...............................................................................................................19
iv
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Naranjo-Aguilera v. INS,
30 F.3d 1106 (9th Cir. 1994) ..............................................................................................26
Nixon v. Fitzgerald,
457 U.S. 731 (1982) ...................................................................................................... 46, 57
Rajah v. Mukasey,
544 F.3d 427 (2d Cir. 2008) .................................................................................. 15, 51, 52
Swan v. Clinton,
100 F.3d 973 (D.C. Cir. 1996) ...........................................................................................55
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ...............................................10, 15, 43, 51, 52, 53, 54, 55, 57, 58
v
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Tummino v. Torti,
603 F. Supp. 2d 519 (E.D.N.Y. 2009) ..............................................................................22
Washington v. Trump,
858 F.3d 1168 (9th Cir. 2017) ............................................................................................49
Webster v. Doe,
486 U.S. 592 (1988) .............................................................................................................42
Winter v. NRDC,
555 U.S. 7 (2008) .................................................................................................................41
Statutes:
vi
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8 U.S.C. § 1103........................................................................................................................... 2
Other Authorities:
vii
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viii
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ix
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STATEMENT OF JURISDICTION
§ 1331, raising claims under the Administrative Procedure Act (APA) and the
Constitution. Joint Appendix (JA) 60. The district court entered a preliminary
injunction on April 11, 2019. Special Appendix (SA) 1. The government filed a
timely notice of appeal on June 6, 2019. JA.2290. This Court has jurisdiction under
28 U.S.C. § 1292(a)(1).
1. Whether the district court erred in concluding that plaintiffs were likely to
2. Whether the court erred in concluding that plaintiffs’ equal protection claim
decision to terminate the Temporary Protected Status designation for Haiti. The
government moved to dismiss the suit for lack of jurisdiction and failure to state a
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claim. On December 14, 2018, the district court (Kuntz, J.) denied the government’s
motion. SA.146-69. On April 11, 2019, the court entered a preliminary injunction
enjoining the Secretary from terminating Haiti’s TPS designation. SA.1-145. The
A. Statutory Background
The Immigration Act of 1990 established a program for providing temporary
shelter in the United States on a discretionary basis for aliens from countries
conditions” that prevent the aliens’ safe return. Pub. L. No. 101-649. The program
(A) … 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) … that—
1
The statute originally vested the Attorney General with the power to make
TPS decisions. Congress transferred that power to the Secretary of Homeland
Security. See 8 U.S.C. § 1103; 6 U.S.C. § 557.
2
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(iii) the foreign state officially has requested designation under this
subparagraph; or
(C) … 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 [Secretary] 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).
When the Secretary designates a country for TPS, eligible aliens from that
country who are physically present in the United States on the effective date of the
designation (and continuously thereafter) may not be removed from the United States
and are authorized to work here for the duration of the country’s TPS designation.
The Secretary must consult with appropriate agencies and review each designation
sixty days before the designation period ends to determine whether the conditions for
finds that the foreign state “no longer continues to meet the conditions for
designation,” she “shall terminate the designation” by publishing notice in the Federal
Register of the determination and the basis for the termination. Id. § 1254a(b)(3)(B).
If the Secretary “does not determine” that the foreign state “no longer meets the
conditions for designation,” then “the period of designation of the foreign state is
extended for an additional period of 6 months (or, in the discretion of the [Secretary],
3
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extending a TPS designation, the Secretary may also redesignate a country for TPS,
Redesignation of Liberia Under TPS, 62 Fed. Reg. 16,608, 16,609 (Apr. 7, 1997)
B. Factual Background
countries and the Province of Kosovo for TPS. The government terminated twelve
of those designations before 2017, including three terminations in 2016. See, e.g., Sierra
In 2017 and 2018, Acting Secretary of Homeland Security Elaine Duke and her
successor extended the TPS designations of four countries: Somalia, South Sudan,
Syria, and Yemen. In each case, the Secretary determined that the conditions that
prompted the country’s TPS designation persisted and prevented the safe return of
the country’s nationals, warranting an extension. See Extension of the Designation of South
Sudan, 82 Fed. Reg. 44,205 (Sept. 21, 2017); Extension of the Designation of Syria, 83 Fed.
4
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Reg. 9329 (Mar. 5, 2018); Extension of the Designation of Yemen, 83 Fed. Reg. 40,307
(Aug. 14, 2018); Extension of Designation of Somalia, 83 Fed. Reg. 43,695 (Aug. 27, 2018).
But the Secretaries determined that not all countries with TPS designations
Duke determined that conditions in Haiti no longer met the statutory requirements
for a TPS designation. As required by the TPS statute, she terminated the
designation.
January 2010 due to the “extraordinary and temporary conditions” caused by a 7.0-
magnitude earthquake. See Designation of Haiti for TPS, 75 Fed. Reg. 3476, 3477. In
May 2011, Secretary Napolitano extended Haiti’s designation for 18 months “because
and Redesignation of Haiti, 76 Fed. Reg. 29,000, 29,001. She also redesignated Haiti for
extended Haiti’s TPS designation in October 2012, March 2014, and August 2015. See
Extension of the Designation of Haiti, 80 Fed. Reg. 51,582, 51,583 (Aug. 25, 2015). In
extending Haiti’s TPS status, however, Secretary Johnson noted the Haitian
citizens.” Extension of Haiti Designation, 79 Fed. Reg. at 11,809; 80 Fed. Reg. at 51,584.
5
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2016 that the United States would resume removals of Haitian non-TPS holders, a
practice the government had suspended following the 2010 earthquake. JA.362.
designation for six months. Extension of the Designation of Haiti, 82 Fed. Reg. 23,830
(May 24, 2017). Although Secretary Kelly determined that the conditions that
made significant progress in addressing issues specific to the earthquake,” that 96% of
people living in displaced-person camps had left those camps, and that security had
improved enough for the United Nations to announce its intention to withdraw its
Haitian TPS beneficiaries that it would be in their “best interest” to “prepare for their
return to Haiti in the event that Haiti’s TPS designation is not extended again.” Id.
In January 2018, Secretary Duke concluded that Haiti had made sufficient
progress recovering from the 2010 earthquake that the conditions giving rise to its
TPS designation and redesignation were no longer met. Termination of the Designation of
Haiti for TPS, 83 Fed. Reg. 2648, 2650. She therefore terminated Haiti’s TPS
designation. Id.
In concluding that the conditions that gave rise to Haiti’s TPS designation no
longer persisted, Secretary Duke noted that Haiti had closed 98% of the displaced-
6
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person sites that were created following the earthquake and that only approximately
38,000 of the estimated two million Haitians who lost their homes in the earthquake
were still living in camps as of June 2017. 83 Fed. Reg. at 2650. Haiti’s recovery was
further evidenced by the fact that the United Nations had withdrawn its peacekeeping
mission in October 2017. Id. The Secretary also noted that Haiti had completed a
presidential election in February 2017, its Supreme Court was again operational, and
the earthquake. Id. Haiti had also experienced continuing GDP growth since the
earthquake and, although Haiti had grappled with a cholera epidemic that began after
the earthquake, cholera was at its lowest level since the earthquake. Id.
JA.362-63, 373-90, 399-400. Based on its review, USCIS concluded that “Haiti has
made significant progress in recovering from the 2010 earthquake, and no longer
continues to meet the condition for designation.” JA.362. Secretary Duke also
JA.358-59, 367-71; see, e.g., JA.367 (“[T]he extraordinary and temporary conditions” in
Haiti that led to its TPS designation have “sufficiently improved such that they no
longer prevent nationals of Haiti from returning in safety”). She additionally received
7
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and considered input from the military, civic leaders, and Haitian government
C. Procedural Background
nonprofit organization. JA.53-59. In May 2018, plaintiffs filed this action challenging
Secretary Duke’s decision to terminate Haiti’s TPS designation. As relevant here, the
complaint alleges that the termination decision was unlawful because (1) the
determination was not made in accordance with the TPS statute and was arbitrary and
capricious in violation of the APA; and (2) the decision was motivated by
The government moved to dismiss, urging that plaintiffs’ suit was precluded by
the statute’s bar on judicial review and that the claims failed as a matter of law.
2. The district court denied the government’s motion. SA.146-69. The court
held that the statutory bar on judicial review of TPS decisions did not apply. The
court acknowledged that the statute precludes review of “any determination … with
concluded that § 1254a(b)(5)(A) did not bar plaintiffs’ APA claims because plaintiffs
determination under the statutory criteria occurred, rather than the content of the
decision.” SA.153. The court further concluded that plaintiffs’ constitutional claim
8
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was not barred because the judicial-review provision did “not reflect clear evidence of
The district court also declined to dismiss the President as a party, speculating
that “this could be one of the rare cases in which the extraordinary remedy of
The court then held that plaintiffs plausibly alleged that Secretary Duke
violated the APA by taking a different approach to TPS determinations than past
court determined that plaintiffs plausibly alleged that prior Secretaries evaluating
continued to exist.” SA.159. The court further concluded that plaintiffs had plausibly
alleged that the Secretary violated the APA by “rel[ying] on factors not contemplated
by the TPS statute” and by “failing to consider relevant reports and data evidencing
that the extraordinary and temporary conditions relevant under the statute persisted.”
SA.160.
With respect to plaintiffs’ equal protection challenge, the court stated that
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977),
provided the relevant standard of review. Under that standard, “government actions
may violate equal protection if a discriminatory purpose was one motivating factor.”
9
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SA.163. The court declined to apply the “deferential” rational-basis review standard
set out in Trump v. Hawaii, 138 S. Ct. 2392, 2419-20 (2018), for courts reviewing
immigration cases.” The court cited two reasons for refusing to apply the rational-
basis standard: (1) the TPS decision did not “implicate[] national security concerns”;
and (2) TPS determinations affect persons residing in the United States, not those
seeking to enter. SA.164. Applying the Arlington Heights standard, the district court
concluded that plaintiffs had plausibly alleged that animus on the part of the President
determination, see Dkt. 45-47, the district court granted plaintiffs’ request for extra-
4. On April 11, 2019, following a four-day hearing, the district court entered a
terminate Haiti’s TPS designation.2 The court concluded that the likelihood of
2
The court’s injunction order was unexpected. Plaintiffs did not move for a
preliminary injunction, and the district court initially described the four-day hearing as
a trial on the merits, before recasting it as an injunction hearing in its April 2019
decision. See SA.59.
10
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irreparable injury, the balance of hardships, and the public interest favored plaintiffs.
SA.136-43.
On the merits, the district court reiterated its conclusion that plaintiffs’ APA
claims were not barred by 8 U.S.C. § 1254a(b)(5)(A) because “Plaintiffs’ claims rely on
process-based deficiencies” and did “not challenge the content of the [termination]
decision.” SA.64. The court also again refused to dismiss the President as a party,
reasoning that it was necessary to “enjoin[] the President to ensure executive officials
The district court next concluded that plaintiffs were likely to succeed on their
APA claims, in two respects. SA.87-115. First, the court held that plaintiffs were
likely to prevail on their claim that the Secretary’s decision did not follow “the dictates
of the [TPS] statute”—i.e., her decision “was not purely evidence-based, as the statute
requires,” but was instead “pretextual” and “made in part due to political influence.”
SA.88. Second, the court concluded that plaintiffs were likely to prevail on their
claims that the termination decision was arbitrary and capricious because it “(1)
departed from both the statute and well-established agency practice; (2) was the
outcome.” SA.101.
Although the court recognized that judicial review under the APA is normally
11
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materials because, in the court’s view, plaintiffs had offered significant evidence that
With respect to plaintiffs’ equal protection claim, the court held that plaintiffs
had raised “serious questions.” SA.123. Although the court found no evidence that
discriminatory motive could be imputed to the Secretary because there was evidence
indicating that “the White House influenced the decisionmaking process to terminate
TPS,” and that “the President and other White House officials harbored animus
Finally, the court declined to limit the scope of its injunction to plaintiffs,
reasoning that a limited injunction “would not adequately protect the interests of all
stakeholders.” SA.144.
SUMMARY OF ARGUMENT
review of TPS determinations and are without merit in any event. Section
1254a(b)(5)(A) provides that there is “no judicial review of any determination of the
designation.” Through their APA claims, plaintiffs seek a declaration and injunction
setting aside the Secretary’s decision to terminate Haiti’s TPS designation on the
grounds that the determination was arbitrary and capricious and in violation of the
12
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TPS statute. Plaintiffs’ APA claims thus clearly challenge a “determination of the
[Secretary] with respect to the … termination” of a TPS designation and are barred.
unambiguous bar on review on the theory that they are not challenging the
determination itself, but rather the Secretary’s approach to the TPS determination.
The distinction drawn by the district court is without basis. “If a no-review provision
shields particular types of administrative action, a court may not inquire whether a
Inc. v. Smith, 357 F.3d 103, 113 (D.C. Cir. 2004). The criteria and evidence a Secretary
from the decision itself. That is clear from the district court’s analysis, which
purported to conclude that plaintiffs were likely to succeed in demonstrating that the
precluded by § 1254a(b)(5)(A).
court frustrated the fundamental purposes of the judicial-review bar. That provision
prevents judicial second-guessing of sensitive judgments about foreign policy that the
Executive Branch is uniquely suited to handle. And it precludes the inevitable and
13
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Even if they were not barred, plaintiffs’ APA claims would fail on the merits.
concluding that the temporary and extraordinary conditions that gave rise to Haiti’s
TPS designation in 2010 did not persist eight years later. The standard that Secretary
Duke applied in arriving at that decision follows from a natural reading of the TPS
statute. Neither her approach nor her decision-making process differed materially
from those used by past Secretaries. As the Supreme Court recently made clear, a
court may not set aside an agency decision under the APA simply because the
Administration’s priorities.” Department of Commerce v. New York, 139 S. Ct. 2551, 2573
(2019). Only in the “rare” case in which the record reveals an agency’s stated
unstated rationale support setting an agency decision aside. See id. Nothing like that
circumstance exists here, where the Secretary’s decision was fully supported by the
record and there is no reason to doubt that the Secretary believed that the
extraordinary and temporary conditions that gave rise to Haiti’s TPS designation eight
years earlier no longer justified continuing its designation. That Secretary Duke may
have been predisposed towards terminating Haiti’s TPS designation, received input
from the White House, and believed that her decision was consistent with the White
House’s immigration priorities thus provide no bases for setting that decision aside.
14
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2. Plaintiffs are likewise unable to demonstrate that they are likely to succeed
on their equal protection claim, or that such a claim raises serious questions. That is
the case even assuming the claim is reviewable and should be analyzed under the
standard provided by Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.
252 (1977). And it is even more clearly the case if the claim is properly analyzed
under Trump v. Hawaii, 138 S. Ct. 2392 (2018), and Rajah v. Mukasey, 544 F.3d 427 (2d
Cir. 2008), which furnish the relevant rational-basis standard where, as here, a court is
powers” and country “classifications defined in the light of changing political and
immigrants.” On the contrary, the record reflects that the Secretary carefully
considered the TPS termination decision after consulting with relevant government
stakeholders and fully explained her decision to terminate TPS for Haiti. That she
and her successor extended the TPS designations for South Sudan, Syria, Yemen, and
any suggestion that the Secretary’s decision was motivated by discriminatory animus.
Without evidence of animus on the part of the decisionmaker, the district court
animus and then imputed that alleged animus to the Secretary. That approach was
15
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flawed at every level. The court erred as a legal matter in concluding that it could
decision of a Cabinet Secretary acting under an oath to uphold the Constitution. And,
immigration policy that focuses on America’s economic and security interests, not
racial or ethnic animus. This conclusion is even clearer once this Court reviews the
STANDARD OF REVIEW
Court reviews the district court’s legal conclusions de novo. Malkentos v. DeBuono, 102
F.3d 50, 54 (2d Cir. 1996). Otherwise, the district court’s entry of a preliminary
ARGUMENT
The statute thus makes clear that TPS designation, extension, and termination
16
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The district court mistakenly concluded that plaintiffs could evade the statutory
which Secretary Duke arrived at her termination decision. SA.151-53; see also SA.64
(concluding that plaintiffs’ APA claims were not barred because they “rely on process-
based deficiencies” and not “the content of the decision”). But “[i]f a no-review
provision shields particular types of administrative action, a court may not inquire
defective.” Amgen, Inc. v. Smith, 357 F.3d 103, 113 (D.C. Cir. 2004); see Delgado v.
Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011) (preclusion provision barred review of APA
Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (preclusion provision barred APA claim
Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala, 80 F.3d 379, 386 (9th Cir. 1996) (preclusion
individual [unreviewable] decision”); see also DCH Reg’l Med. Ctr. v. Azar, 925 F.3d 503,
505-07 (D.C. Cir. 2019) (holding that a statute precluding review of any “estimate”
those estimates, and observing that a contrary holding “would eviscerate the statutory
17
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bar, for almost any challenge to an estimate could be recast as a challenge to its
underlying methodology”). Thus, any claim that the Haiti TPS determination was
and is barred. Indeed, neither plaintiffs nor the district court cite any cases in which a
court has permitted APA claims like those plaintiffs bring here to proceed in the face
of a judicial-review bar.
determination and the evidence and methodology considered in reaching it. See DCH
Reg. Med. Ctr., 925 F.3d at 507. Section 1254a(b)(5)(A)’s broad language, which bars
challenges to the determination itself is clear from a review of those claims. The first
of plaintiffs’ statutory claims that the district court found meritorious was plaintiffs’
claim that Secretary Duke’s decision was not based “on an objective, inter-agency
assessment [of country conditions that] the TPS statute requires” and was instead
Contrary to the district court’s conclusion, plaintiffs’ claim that Secretary Duke
failed to comply with the TPS statute’s requirements in arriving at her termination
therefore barred by the express language of § 1254a(b)(5)(A). See City of Rialto v. West
18
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Coast Loading Corp., 581 F.3d 865, 876 (9th Cir. 2009) (Whether an agency
see also Proyecto San Pablo v. INS, 189 F.3d 1130, 1139 (9th Cir. 1999) (preclusion
common sense) suggests that Congress intended to permit an alien to obtain review
and evidence a given Secretary finds most significant. That is precisely what the
statute bars. The criteria and evidence a Secretary deems important in arriving at a
particular TPS determination and the weight the Secretary accords to those criteria
cannot be separated from the determination itself. The district court’s conclusion that
Secretary Duke violated the TPS statute was based on its view that Secretary Duke
information, see SA.88, 101. But those are the criteria that guide a court’s review of an
agency determination, not its review of a collateral matter. Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (An agency decision is
19
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aspect of the problem, [or] offered an explanation for its decision that runs counter to
determination. The argument that a decision “was pretextual is no different from [an]
argu[ment] that [the decision] was wrong.” Proyecto San Pablo, 189 F.3d at 1141. It is
thus a challenge to the determination itself. See id.; see also Department of Commerce v.
New York, 139 S. Ct. 2551, 2575 (2019) (the conclusion that the Commerce Secretary
Plaintiffs’ other APA claims are likewise challenges to the Haiti determination
and are therefore barred. For example, the district court concluded that the plaintiffs
were likely to prevail on their claim that the Secretary’s decision was arbitrary and
itself as arbitrary and capricious, as is clear from California Trout v. FERC, 572 F.3d
1003 (9th Cir. 2009), relied on by the district court. In California Trout, the Ninth
Circuit reviewed an agency decision to determine whether the decision was arbitrary
that it did not). The district court quoted language recognizing that a prior policy can
Trout, 572 F.3d at 1023). But California Trout’s reaffirmation of that principle in no
way means that a party can challenge an allegedly unexplained departure from such a
policy despite an express bar on judicial review—which was not present in California
the contrary, the principle that polices can be established and changed either by
“general rule or by individual, ad hoc litigation,” SEC v. Chenery Corp., 332 U.S. 194,
203 (1947), long predates the enactment of § 1254a(b)(5)(A), see id., which confirms
The district court also determined that plaintiffs were likely to show that
Secretary Duke’s TPS determination was arbitrary and capricious because evidence in
the record indicated that “political motivations influenced” the Secretary’s decision.
SA.113. But, again, the claim that Secretary Duke considered improper or irrelevant
factors in arriving at her decision is a challenge to the substantive decision itself, as the
cases relied on by the district court make clear. SA.111; see Town of Orangetown v.
Ruckelshaus, 740 F.2d 185, 188 (2d Cir. 1984) (plaintiff challenged agency decision to
remove a grant restriction on the ground that the decision was politically motivated);
21
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Tummino v. Torti, 603 F. Supp. 2d 519, 544 (E.D.N.Y. 2009) (same with respect to
FDA decision).
The Ninth Circuit’s decision in Gebhardt v. Nielsen, 879 F.3d 980, 987 (9th Cir.
2018), exemplifies the principles outlined above and further demonstrates that the
TPS statute bars plaintiffs’ APA claims. Gebhardt involved INA provisions that barred
review of any “decision or action” relating to “no risk” determinations made by the
Secretary of Homeland Security. Id. at 984. Plaintiff, who was the subject of an
adverse “no risk” determination, asserted that the judicial-review bar did not apply to
his statutory claims challenging the “standard” the Secretary applied in making “no
risk” determinations and the process through which the Secretary adopted that
The Ninth Circuit rejected the plaintiff’s attempt to circumvent the judicial-
review bar. Gebhardt, 879 F.3d at 987. In so doing, it stressed that “[t]he standards by
which the Secretary reaches a decision within his or her ‘sole and unreviewable
discretion’—and the methods by which the Secretary adopts those standards—are just
plaintiff in Gebhardt, plaintiffs here challenge the standard the Secretaries used in
22
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making their TPS determinations and the manner in which they adopted that
Neither McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991), nor Reno v.
Catholic Social Services, Inc., 509 U.S. 43 (1993) (CSS), supports the district court’s
removal proceedings barred the district court from considering plaintiffs’ challenge to
program.” 498 U.S. at 483. The Supreme Court held that district court jurisdiction
could lie over such an action because the channeling provision applied to review of
observed that plaintiffs did “not seek review on the merits of a denial of a particular
application.” Id. at 494. Rather, they sought review of genuinely “collateral” matters
related to the administration of the SAW program, including whether SAW applicants
3
The district court erroneously attempted to distinguish Gebhardt on the
ground that the statute at issue in Gebhardt committed “no risk” determination to the
“sole and unreviewable discretion” of the Secretary. SA.65. That distinction is
unavailing. The preclusion provision in Gebhardt was no different in substance from
§ 1254a(b)(5)(A). See Gebhardt, 879 F.3d at 984. And, critically, the court in Gebhardt
assumed that a genuinely collateral challenge to an agency pattern or practice would
be reviewable (just as plaintiffs argue here), but that plaintiffs’ claims did not qualify as
collateral challenges. Id. at 987.
23
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Secretary’s substantive determination and seek declaratory and injunctive relief setting
the termination decision aside, and thus their claim is squarely covered by the review
bar. See City of Rialto, 581 F.3d at 877 (concluding that McNary-type rationale was
inapplicable to a “pattern and practice” claim that sought “the very same [relief] that
unreviewable agency decision); Skagit, 80 F.3d at 386 (9th Cir. 1996) (rejecting reliance
court cited no case (until this litigation) in which any court has undertaken review
In concluding that plaintiffs’ APA claims were analogous to the claims of the
plaintiffs in McNary, the district court erroneously found it significant that the
Secretary could reach the same TPS determination on remand after applying the
[unreviewable] decision.” Skagit, 80 F.3d at 386; Amgen, 357 F.3d at 113. That is true
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even though requiring an agency to apply a different procedure on remand would not
dictate a determination in the plaintiffs’ favor. And, indeed, the vast majority of
agency. The district court’s reasoning would thus permit APA review of the
addressed the question whether a district court had jurisdiction to review a regulation
issued by INS. The Court rejected the contention that a provision withholding
status” “precludes district court jurisdiction over an action challenging the legality of a
509 U.S. at 56. Critically, however, the Court declined to review the plaintiffs’
challenge to the regulation because the claim was unripe, as the plaintiffs had not yet
applied for an adjustment of status. Id. at 59. The Court further emphasized that,
once plaintiffs applied for adjustment and had their application denied (thus rendering
their challenge to the regulation ripe), that challenge would be covered by the judicial
review provision, because the challenge would arise in the context of “a denial of an
Plaintiffs here seek declaratory and injunctive relief that would set aside a
Secretary Duke relied on in making the Haiti TPS determination, and thus “refe[r] to
25
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[and] rel[y] on,” CSS, 509 U.S. at 56, a specific determination. Moreover, the
Secretary has made the relevant determination in this case. Thus, even if plaintiffs
were, like the plaintiffs in CSS, challenging an agency regulation, that challenge would
arise out of an individual termination determination and would therefore fall within
§ 1254a(b)(5)(A)’s ambit.
underscores the errors in the court’s analysis. SA.66. The court cited no authority for
immigration context. To the contrary, courts have frequently concluded that such
provisions bar review of claims implicating immigration status. See, e.g., Delgado, 643
F.3d at 55-56; Gebhardt, 879 F.3d at 987; Naranjo-Aguilera v. INS, 30 F.3d 1106, 1113-
14 (9th Cir. 1994). And, indeed, Congress routinely includes preclusion provisions in
immigration statutes, in part to avoid the protracted litigation and delays that
thinly veiled challenge to the determinations themselves would run counter to the
very purpose of the bar. In enacting the TPS statute, Congress recognized that TPS
designations will involve sensitive and uncertain foreign-policy judgments (about, for
abroad and a foreign government’s response, and the ability of foreign nations to
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interests of national security and foreign affairs” and based on an “evaluation of the
[ever-changing] facts,” are within the province of the Executive Branch, not the
courts. Holder v. Humanitarian Law Project, 561 U.S. 1, 33–34 (2010). Congress thus
judicial second-guessing.
Moreover, Congress was aware that TPS designations would affect thousands
extended indefinitely. It thus would not have been difficult for Congress to predict
that litigation over the termination of TPS designations, under the APA or otherwise,
temporary) in litigation for years and undermine the discretionary nature of the
designations. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 490
(1999) (noting that delay “is often the principal object of resistance to a deportation
proceeding”). Congress may also have concluded that Secretaries would be less likely
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Assuming that judicial review were available, plaintiffs’ APA claims would fail
on the merits. The district court concluded that plaintiffs were likely to succeed on
their APA claims for three interrelated reasons: (1) plaintiffs were likely to succeed in
establishing that Secretary Duke did not conduct a “purely evidence-based” review of
Haiti’s TPS designation, as the statute purportedly requires, but instead reached a
decision that was “preordained and pretextual,” SA.88; (2) plaintiffs were likely to
succeed in showing that the decision was arbitrary and capricious because it was
influenced by the White House, SA.101; and (3) plaintiffs were likely to succeed in
showing that the decision was arbitrary and capricious because the Secretary departed
from past agency practice without explanation, id. None of the district court’s
periodically “the conditions in the foreign state” for which a TPS designation is in
agencies” in conducting her review, and, if she determines that a country’s TPS
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notice in the Federal Register of th[at] determination.” Id. § 1254a(b)(3)(A), (B). The
Secretary Duke satisfied each of those criteria here. She conducted a thorough
agencies,” including the State Department, USCIS, and the military. See supra pp. 7-8.
After concluding that the temporary and extraordinary conditions that gave rise to
Haiti’s initial TPS designation no longer persisted, the Secretary published notice of
her decision to terminate Haiti’s TPS designation in the Federal Register and
explained her reasons for doing so. See supra pp. 6-8. She stated that Haiti’s recovery
from the conditions that gave rise to its TPS designation was evidenced by
decline in the cholera epidemic that began after the earthquake. See id. The
Secretary’s findings are fully supported by the administrative record, and, indeed, the
district court purported to acknowledge that the “content of the decision” and the
determination violated the TPS statute because her decision was not “purely evidence-
based,” as the TPS statue purportedly requires. SA.88. It is not clear what the court
Secretary could satisfy that requirement. In reviewing agency action under the APA, a
decision.” Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549 (1978).
Here, Secretary Duke gave “purely evidence-based” reasons for terminating Haiti’s
designation, thus satisfying any requirement that the bases for the decision be “purely
evidence-based.”
Although beside the point, the district court’s conclusion that the TPS statute
assessment of the conditions in a foreign state was wrong. The statutory provision
“permitting the aliens [from the relevant country] to remain temporarily in the United
concludes that allowing the aliens to stay would be contrary to the national interest,
she must terminate the TPS designation, regardless of the conditions in the relevant
country.
The district court rested its conclusion that Secretary Duke did not comply
with the TPS statute on its determination that her decision to terminate Haiti’s TPS
turn, based on evidence purportedly showing that the Secretary and other
that she was under pressure from the White House to terminate TPS, that the White
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House influenced her decision, and that political appointees disagreed with career
determination. SA.91-99. To the extent the district court relied on evidence outside
the administrative record, that was alone an abuse of discretion. See infra p. 40.
The evidence would not, in any event, provide a basis for setting the Secretary’s
towards terminating Haiti’s TPS designation, that fact would not render her otherwise
rational and fully supported decision invalid under the APA. “[A] court may not
reject an agency’s stated reasons for acting simply because the agency might also have
had other unstated reasons.” Department of Commerce, 139 S. Ct. at 2573; see also Jagers v.
Federal Crop Ins. Corp., 758 F.3d 1179, 1185-86 (10th Cir. 2014) (rejecting argument
that “the agency’s subjective desire to reach a particular result must necessarily
invalidate the result, regardless of the objective evidence supporting the agency’s
That the Secretary purportedly took account of the views of certain White
House officials who favored termination likewise does not provide a ground for
invalidating her decision. “[A] court may not set aside an agency’s policymaking
2573. It is neither unusual nor improper for White House officials to convey their
See id. (Policy “decisions are routinely informed by unstated considerations of politics,
the legislative process, public relations, interest group relations, foreign relations, and
national security concerns (among others).”). “Our form of government simply could
not function effectively or rationally if key executive policymakers were isolated from
each other and from the Chief Executive.” Sierra Club v. Costle, 657 F.2d 298, 406
(D.C. Cir. 1981). The Constitution vests the Executive Power in the President. See
Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010). An interpretation of the APA
that prohibited the President from sharing his views with a Cabinet Secretary on an
Moreover, the record indicates that White House officials favored terminating
TPS for Haiti because they believed that the conditions warranting its designation no
longer persisted—i.e., for the very “evidence-based” reasons that the district court
believed the statute demanded. For example, the Principals Committee memorandum
cited by the district court, see SA.92, recommended terminating Haiti’s TPS
designation because “the temporary conditions that arose out of natural disasters and
supported [Haiti’s] TPS designation[] have long ceased to exist.” See JA.451.
Similarly, then-Secretary Kelly “foreshadowed the end of TPS for Haiti” in 2017,
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SA.93, because he believed conditions in Haiti had significantly improved since the
The district court likewise erred in finding it significant that political appointees
within DHS overruled recommendations from career employees and had those career
City of New York, 517 U.S. 1, 23 (1996) (“[T]he mere fact that the Secretary’s decision
judicial review of his decision.”); Free Enter. Fund, 561 U.S. at 499 (“One can have a
that benefits from expertise without being ruled by experts.”). It is evidence only of
disagreements about policy—here, how to weigh the different factors that go into
Supreme Court found supported a conclusion that the reasons the Secretary of
Commerce gave for reinstating a citizenship question on the 2020 Census were
pretextual and in violation of the APA. Department of Commerce, 139 S. Ct. at 2575-76.
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There, the Commerce Secretary stated that he was reinstating a citizenship question in
response to a request from the Department of Justice for more granular citizenship
data to aid the Justice Department’s enforcement of the Voting Rights Act. Id. In the
Court’s view, however, the record indicated that this rationale was “contrived.” Id.
The Court noted that the record indicated that “the Secretary began taking steps to
reinstate a citizenship question” long before the Department of Justice’s request and
with “no hint that he was considering VRA enforcement in connection” with the
decision to reinstate the question. Id. Moreover, the Justice Department initially
purposes only after Commerce staff proposed and developed the idea and the
Commerce Secretary contacted the Attorney General directly. Id. The Department of
Justice’s letter requesting reinstatement of the citizenship question also “drew heavily
on contributions from Commerce staff and advisors” and went beyond “what one
might expect of a typical request from another agency.” Id. These facts indicated to
the Court that the Department of Justice’s “interest was directed more to helping the
Commerce Department than to securing the data,” and that the Commerce
Secretary’s “sole stated reason” for reinstating the question was “incongruent with
what the record reveals about the agency’s priorities and decisionmaking process.” Id.
Commerce, the record here provides no basis for concluding that Secretary Duke did
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not believe her stated reason for terminating Haiti’s designation—i.e., that the
temporary and extraordinary conditions in Haiti that gave rise to its TPS designation
eight years previously no longer supported that temporary designation—or that it was
contrived to reach a preordained result. That she extended TPS for South Sudan
underscores that her decision was based on an assessment of the conditions in each
country and terminated TPS for Haiti because she believed the circumstances
warranted it.
The district court also erred in concluding that the Secretary’s decision was
arbitrary and capricious because “the White House exerted significant influence over
Secretary Duke when she made her TPS decision.” SA.112-13. As explained supra
pp. 32-33, there is nothing unusual or improper about the White House sharing its
views on the Haiti TPS determination or the Secretary’s belief that her decision was
the TPS statute required the Secretary to consider whether extending Haiti’s
designation was in the “national interest” (regardless of the conditions in country) and
to consult with the appropriate government officials, such as the White House, with
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Contrary to the district court’s conclusion, Secretary Duke did not depart from
past agency standards when she evaluated whether an extension of Haiti’s TPS
designation was warranted. According to the court, Secretary Duke broke from past
agency practice when she interpreted the TPS statute as requiring her “to consider
only those conditions resulting from the originating event—i.e., the 2010
explained below, Secretary Duke applied a process and legal standard that is materially
similar to those used by past Secretaries when evaluating TPS termination decisions.
That she reached a different conclusion than recent Secretaries regarding whether
To the extent the district court suggested that Secretary Duke ignored
inspection of the Federal Register notice announcing the termination of TPS for
Haiti. In that notice, the Secretary expressly considered the country’s current
conditions, including its housing situation, its political climate, its current GDP, its
infrastructure, and the current state of its cholera epidemic. See supra pp. 6-8. The
whether intervening events hampered the country’s recovery from the earthquake that
36
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resulted in its initial TPS designation. That the statute required the Secretaries to
consider whether aliens can safely return to their countries (for reasons related to the
Secretary Duke indeed focused her analysis on whether the conditions that
gave rise to Haiti’s TPS designation persisted and declined to consider conditions
untethered to the 2010 earthquake that led to Haiti’s designation. But that approach
was consistent with the approach employed by past Secretaries. Indeed, Secretary
Duke’s approach follows from a natural reading of the statute. The statute ties a
The statute emphasizes that the conditions that give rise to the TPS designation must
be “temporary” and “extraordinary.” See id. § 1254a(b)(1)(C). Thus, when the statute
mandates that the Secretary periodically evaluate whether “the conditions for such
event that gave rise to the TPS designation continue to exist. Nothing in the statute
entirely unrelated intervening events and conditions, some of which may have
That the statute contemplates that the Secretary will focus her decision to
that the Secretary, when reviewing a country’s TPS status, may redesignate a country
for TPS, as opposed to extending the country’s existing TPS designation. See supra p.
from the events that gave rise to the initial designation continue to exist (thus
extension or termination decisions on whether the event and conditions that led to
the original designation persisted and considered intervening conditions only to the
extent that they could be linked to or impeded recovery from the event underlying the
initial designation. See, e.g., Extension of Designation for Haiti, 82 Fed. Reg. 23,830,
23,831 (May 24, 2017) (extending Haiti’s TPS designation because the conditions
Designation, 81 Fed. Reg. 66,064 (Sept. 26, 2016) (“the extraordinary and temporary
Extension of the Designation of El Salvador, 81 Fed. Reg. 44,645 (July 8, 2016) (“Recovery
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from the [2001] earthquakes has been slow and encumbered by subsequent natural
Reg. 51,582 (Aug. 25, 2015) (“Haiti’s ability to recover [from the 2010 earthquake] has
79 Fed. Reg. 52,027 (Sept. 2, 2014) (“[A]n 18-month extension is warranted because
the armed conflict [in Sudan] is ongoing and the extraordinary and temporary
conditions that prompted the May 2013 extension and redesignation continue to
exist.”); Termination of the Designation of Burundi, 72 Fed. Reg. 61,172 (Oct. 29, 2007)
(“[C]onditions that warranted the initial designation of TPS [for Burundi] in 1997 and
the re-designation in 1999 no longer continue to be met.”); see also, e.g., Extension of the
Designation of Nicaragua, 68 Fed. Reg. 23,748 (May 5, 2003) (“Each decision to extend
the TPS designation was made on the determination that the conditions that
TPS designations have also been terminated in the past despite significant
ongoing problems in the relevant countries. See, e.g., Termination of Designation of Angola,
68 Fed. Reg. 3896 (Jan. 27, 2003) (terminating Angola’s TPS designation despite the
and ongoing “concern that Angola lacks housing, medical services, water systems, and
the Province of Kosovo, 65 Fed. Reg. 33,356 (May 23, 2000) (terminating Kosovo’s
internal conflict”).
The district court’s erroneous conclusion that past Secretaries extended TPS
designations based on intervening events and conditions unrelated to the event giving
rise to the TPS designation was based largely on evidence outside the administrative
record. Specifically, the court looked primarily to the testimony of a former USCIS
“regardless of whether those intervening factors had any connection to the event that
formed the basis for the original designation or to the country’s recovery from that
The district court erred in relying on such evidence outside the administrative
record and in allowing discovery. See Florida Power & Light Co. v. Lorion, 470 U.S. 729,
743 (1985) (“The focal point for judicial review [of agency action] should be the
administrative record already in existence, not some new record made initially in the
reviewing court.”). Only in the rare case where the plaintiffs have made a “strong
showing of bad faith or improper behavior” may a district court consider information
beyond the administrative record. See Citizens to Pres. Overton Park, Inc. v. Volpe, 401
U.S. 402, 420 (1971). Here, the Secretary provided a reasoned explanation for her
decision to terminate Haiti’s TPS designation, and nothing in the record comes close
Rodriguez’s testimony and the other extra-record evidence relied on by the district
court as allegedly establishing a past agency practice is not consistent with prior TPS
determinations, which, as noted, focused on the initial conditions that gave rise to a
country’s TPS designation and cite intervening events only where those events related
and because those claims fail in any event, plaintiffs cannot establish that they have “a
likelihood of success on the merits” of those claims or even that the claims raise
“serious questions,” North American Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883
F.3d 32, 37 (2d Cir. 2018). The district court abused its discretion in entering a
4
Because prior determinations considered intervening events only to the extent
they related to the originating condition, the district court’s “wealth of evidence”
indicating that the determination here likewise follows that practice, SA.107-110, is of
no moment, even if it could be properly considered.
5
The district court applied this Court’s standard under which a plaintiff seeking
a preliminary injunction need only show that there are “serious questions on the
merits”—a lesser showing than likelihood of success on the merits—if the “balance
of hardships decidedly favor[s] the moving party.” NASL, 883 F.3d at 37. Although
binding on the panel, the government respectfully submits that the standard is
inconsistent with the Supreme Court’s decision in Winter v. NRDC 555 U.S. 7, 20
(2008).
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that the country no longer met the qualifications for TPS because the “extraordinary
and temporary” conditions that gave rise to its TPS designation following a 2010
determinations, see 8 U.S.C. § 1254a(b)(5)(A), and the district court wrongly concluded
challenge that—in any event—is flatly at odds with the reasoning of the challenged
district court likewise erred in concluding that, even if the constitutional claim were
that claim, because the APA and its record-review limits also govern such challenges
to agency action. See 5 U.S.C. § 706(2)(B) (providing cause of action to “set aside
agency action” “contrary to constitutional right”); FCC v. Fox Television Stations, Inc.,
In any event, plaintiffs’ equal protection claim would not raise “serious
questions” even if it were reviewable. That is the case, even assuming that the district
court correctly held that plaintiffs’ equal protection claim should be reviewed under
6
Section 1254a(b)(5)(A) provides a far clearer bar on review than the statutory
provision at issue in Webster v. Doe, 486 U.S. 592, 603-04 (1988).
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the standard set forth in Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252 (1977), which requires plaintiffs to establish that “a discriminatory
purpose has been a motivating factor in the [government’s] decision,” id. at 265-266.
But to be clear, to the extent review is permitted in the face of the express statutory
bar, the appropriate standard is that set forth in Trump v. Hawaii, 138 S. Ct. 2392
policies are to be judged under a rational-basis standard and affirmed so long as they
are “plausibly related” to the objective of the policy. Id. at 2420. Ultimately, though,
because plaintiffs cannot establish that animus towards “non-white immigrants” was a
motivating factor in the Secretary’s decision, their equal protection claim fails under
any standard.
Haiti’s TPS designation, and that decision would properly be sustained under normal
principles of APA review, if Congress had not explicitly precluded such review. The
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The record demonstrates that the Secretary carefully considered the conditions
in Haiti and made an independent determination, amply supported by the record, that
conditions in the country had improved enough that the initial TPS designation was
no longer sustainable. See supra pp. 6-8. The record (which includes extensive
materials documenting Secretary Duke’s deliberations) makes clear that she received
input from a number of sources, both within and outside DHS, see id., that she
carefully considered how Haiti differed from other TPS countries, see, e.g., JA.465-6,
641, and that she worked assiduously to understand and reconcile the sometimes
conflicting information she received, JA.641-42. The Federal Register notice sets
forth the Secretary’s ultimate conclusion to terminate Haiti’s designation and her
because Secretary Duke and her immediate successor extended TPS designations for
South Sudan, Syria, Yemen, and Somalia. See supra pp. 4-5. That the Secretaries
their TPS decisions were driven by a reasoned analysis of the existing conditions in
The district court acknowledged that plaintiffs have failed to produce any
evidence of animus on the part of Secretary Duke. SA.127; see also SA.167.
Nonetheless, the court declared that plaintiffs’ claim presented “serious questions”
immigrants” and his alleged animus could be imputed to the Secretary. SA.127, 131.
for questioning the good faith of Secretary Duke, who is “entitled to a presumption
that [she] act[ed] properly and according to law.” Kohli v. Gonzales, 473 F.3d 1061,
1068 (9th Cir. 2007). The district court was wrong to assume that it could import
from the employment discrimination context the so-called “cat’s paw” theory of
foreign-policy and national-security context. See SA.127 (concluding that “liability for
maker into taking discriminatory action”). This Court should not blithely extend the
oath to uphold the Constitution. As the Supreme Court explained in Staub v. Proctor
Hospital, 562 U.S. 411 (2011), “general principles of … agency law” “suggest[] that the
malicious mental state of one agent cannot generally be combined with the harmful
action of another agent to hold the principal liable for a tort that requires both.” Id. at
418. Although the Court was nevertheless willing to hold an employer liable by
supervisor if the former’s discriminatory acts were the intended and proximate cause
of the latter’s adverse action, id. at 418-20, extending that sort of imputation to the
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record already in existence,” Florida Power & Light, 470 U.S. at 743, absent a “strong
regularity, Overton Park, 401 U.S. at 420, the “cat’s paw” approach would invite judicial
discriminatory motive on the part of a different government official who played some
privileged Executive Branch deliberations, see United States v. Nixon, 418 U.S. 683, 708
(1974), and United States v. Morgan, 304 U.S. 1, 18 (1938), and potential litigant-driven
discovery that would disrupt the execution of the laws, see Nixon v. Fitzgerald, 457 U.S.
terminating TPS for Haiti that are supported by the record, and no one has accused
President’s alleged bias, or to require the Secretary to show that such bias was not a
The district court sought to bridge the gap from alleged presidential statements
House was not only involved in but was influential in producing the decision to
terminate TPS for Haiti.” SA.129. The court’s analysis necessarily assumes that the
various White House officials at issue who communicated with the Secretary (or her
staff) about TPS were motivated by discriminatory animus. There is no basis for that
extraordinary assumption.
The district court wrongly suggested that evidence of animus on the part of
White House officials could be inferred from Chief of Staff John Kelly’s request for
information on how many Haitian TPS recipients “are on public and private relief,
how many school aged kids [are] in school, how many [are] convicted of crimes of any
kind, how often they travel back and forth to the island, remittances, etc.” SA.23-24,
132, 134-35. The district court’s reliance on Kelly’s request as evidence of racial
animus ignored a crucial aspect of Haiti’s TPS designation. Haiti was designated
from extending a country’s TPS status if the Secretary “finds that permitting the aliens
to remain temporarily in the United States is contrary to the national interest of the
United States.” Id. Thus, Secretary Duke was required to evaluate whether allowing
Haitian TPS recipients to remain temporarily in the United States was contrary to the
country’s national interest and to consult with appropriate officials about that
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resources, and remove dollars from the U.S. economy is in keeping with that statutory
obligation.
The only other purported evidence of animus on the part of White House
officials that the district court cited was a statement from a DHS adviser to the White
House that, with respect to their TPS designations, “African countries are toast,” and
“Haiti is up next.” SA.132. But that perhaps impolitic description of the Secretary’s
decision to terminate TPS for certain countries hardly qualifies as a “racial slur[],
epithet[], or other racially charged language,” as the district court concluded. SA.132.
And, indeed, Secretary Duke and her successor extended TPS for Somalia and South
Sudan (as well as Syria and Yemen), negating any suggestion that they or White House
The district court likewise erred in concluding that there was evidence of
animus in the fact that certain White House officials favored termination of Haiti’s
TPS designation and shared that view with the Secretary. See SA.129-30. As
explained supra pp. 32-33, there was nothing improper about the White House
Nor was there anything untoward about Secretary Duke considering those views in
Plaintiffs also have failed to support their claim that the Secretary’s decision to
terminate TPS for Haiti was motivated by racial or ethnic animus on the part of the
Secretaries. See Washington v. Trump, 858 F.3d 1168, 1173 & n.4 (9th Cir. 2017)
(Kozinski, J., dissenting from denial of rehearing en banc). But even taking the
purported statements on their own terms, such statements do not establish racial or
ethnic animus.
rather than aliens, and not unconstitutional bias. Any statement about “shithole
reference to the conditions and problems in the country, rather than a commentary on
to which the President is entitled as the head of a coordinate branch. In any event,
given the respect that is owed to a coordinate branch of government and the lack of
this Court need not wade into the question of what can or cannot be inferred from
those statements.
ethnic animus in the Secretary’s termination decision likewise misses the mark. As
discussed supra pp. 36-41, Secretary Duke followed the same practices and applied the
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same legal standard as past Secretaries. And the fact that political appointees at DHS
that the determination was the product of discriminatory animus. See supra p. 33.
Duke’s terminating Haiti’s TPS designation only six months after former Secretary
Kelly extended it. See SA.134. In extending Haiti’s designation, Secretary Kelly
emphasized that conditions in Haiti had improved significantly and that Haitian TPS
Congress set the default extension period at six months. 8 U.S.C. § 1254a(b)(3)(C).
Congress itself thus believed that the “temporary” conditions giving rise to a TPS
designation were likely to improve within a short period, necessitating frequent review
of those conditions.
1. Although plaintiffs’ equal protection claim fails under any standard, the
district court erred at the threshold in failing to limit its review to whether a rational
basis existed for the termination decision. The Supreme Court “ha[s] long recognized
the Government’s political departments largely immune from judicial control.” Fiallo
v. Bell, 430 U.S. 787, 792 (1977). Because decisions in these matters implicate
“relations with foreign powers” and involve “classifications … defined in the light of
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Diaz, 426 U.S. 67, 81 (1976); see also Galvan v. Press, 347 U.S. 522, 531 (1954).
The Supreme Court has accordingly made clear that decisions by the political
branches about which classes of aliens to exclude or expel will generally be upheld
Hawaii, 138 S. Ct. at 2420; see also Kleindienst v. Mandel, 408 U.S. 753, 766-70 (1972)
(judicial review of “[p]olicies pertaining to the entry of aliens and their right to remain
here” is limited to whether the Executive gave a “facially legitimate and bona fide”
reason for its action); Mathews, 426 U.S. at 82-83; Fiallo, 430 U.S. at 795, 799.
The Supreme Court explained in Hawaii that the rational-basis standard applies
“across different contexts and constitutional claims.” 138 S. Ct. at 2419. In support
of that proposition, the Supreme Court cited this Court’s decision in Rajah v. Mukasey,
544 F.3d 427, 438 (2d Cir. 2008), a case which, like this one, involved an equal
review standard in this case. See Rajah, 544 F.3d at 438. Rajah involved a regulatory
program, enacted in the wake of the September 11 attacks, which, among other
things, required alien males from certain Muslim-majority countries (and North
Korea) who were residing in the United States to appear at an INS facility for
51
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registration and a review of their immigration status. Id. at 433. After the plaintiffs in
Rajah appeared, they were ordered removed. Id. at 434. The plaintiffs subsequently
challenged the removal orders, arguing that the new registration program violated
their equal protection rights because it discriminated against them based on their
emphasized that “the most exacting level of scrutiny that [this Court] will impose on
immigration legislation is rational basis review.” Rajah, 544 F.3d at 438. This Court
then concluded that there was a “plainly rational” basis for the program: it sought to
counter “the lax enforcement of immigration laws” that facilitated the September 11
attacks by “monitor[ing] more closely aliens from certain countries selected on the
Like the policies at issue in Hawaii and Rajah, TPS termination decisions
foreign powers” and “involve classifications defined in the light of changing political
and economic circumstances,” Hawaii, 138 S. Ct. at 2418, precisely the situation in
which the Supreme Court and this Court have repeatedly applied rational-basis
review. The TPS statute requires the Secretary to determine whether a foreign state is
able “to handle adequately the return” of its nationals and whether conditions in the
country prevent the country’s nationals “from returning to the state in safety.”
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considerations inherent in any TPS termination decision. For example, the record
shows that, before arriving at her decision, Secretary Duke consulted with the State
foreign policy, and political interests at play” in the TPS decision. See JA.358. In
discussing the potential termination of TPS for Haiti and other counties, the State
backlash from the governments themselves,” who may view the termination as
States. Id. The record also includes correspondence from foreign government
officials, who urged the Secretary to extend Haiti’s TPS designation. See, e.g., JA.326-
28 (letter from Haiti’s ambassador to the United States). The military also weighed in.
See JA.323.
Neither of the two reasons the district court gave for refusing to apply the
rational-basis standard withstands scrutiny. First, the court declined to apply rational-
basis review because TPS decisions purportedly do not implicate “national security
concerns.” Id. But TPS decisions plainly “implicate relations with foreign powers”
and “involve classifications defined in the light of changing political and economic
circumstances,” Hawaii, 138 S. Ct. at 2418, the twin rationales the Supreme Court has
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repeatedly cited as necessitating deferential review. See id.; see also, e.g., Fiallo, 430 U.S.
at 799; Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (Deferential review
applies to “any policy toward aliens” because such policies are “vitally and intricately
The district court likewise erred in concluding that rational-basis review was
inappropriate because this case involves foreign nationals who are present in the
United States. SA.164. That conclusion cannot be squared with this Court’s decision
in Rajah, which likewise involved aliens residing in the country, with the Supreme
Court’s reliance on Rajah in Hawaii, 138 S. Ct. at 2419, and with the Supreme Court’s
provide “temporary” relief to aliens who cannot safely return to their home countries
objectives of the TPS program. Hawaii, 138 S. Ct. at 2420. After consulting with
other appropriate governmental agencies, the Secretary determined that the temporary
conditions that gave rise to Haiti’s TPS designation no longer existed. That is fully
consistent with Congress’s goal of providing temporary, interim relief to aliens until
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Moreover, the Secretary set forth her reasons for concluding that conditions in
Haiti had improved to such an extent that the TPS designation was no longer
warranted. See supra pp. 6-8. The Secretary’s explanations included an analysis of
such factors as the country’s current economic condition, its ability to provide basic
services to its citizens, its political climate, and its recovery efforts since the
earthquake that gave rise to its TPS designation. The termination decision thus
with other Cabinet officials and their agencies, the upshot of which was that the
conditions giving rise to the country’s TPS designation no longer persisted. There is
Ct. at 2420.
The district court erred in refusing to dismiss the President as a party. See
SA.67-70. The Supreme Court has made clear that, in general, federal courts have “no
jurisdiction of a bill to enjoin the President in the performance of his official duties.”
Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992). And the Court has explained
injunction directed at another government official. Id. at 803; see also Swan v. Clinton,
100 F.3d 973, 979-81 (D.C. Cir. 1996) (declining to enjoin the President where
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plaintiffs’] injury,” even while “recognizing that the President has the power, if he so
chose, to undercut th[at] relief”). Here, the Secretary of Homeland Security is the
terminate Haiti’s TPS designation and requiring the current Secretary to take action in
accordance with the district court’s orders would thus fully redress plaintiffs’ injuries.
Although the district court stated that “enjoining the Secretary alone would not afford
complete relief,” SA.69, there is no evidence in the record supporting that conclusion
or the view that the Secretary would disregard a court order. And, contrary to the
and requiring the President not to interfere with the Secretary’s implementation of the
TPS statute is far more than a “minimal” intrusion on the Executive. An injunction
the President’s execution of his constitutional responsibilities. See Free Enter. Fund,
561 U.S. at 492-95 (discussing the importance of the President’s ability to oversee
executive officers).
to enjoin the President, the Supreme Court has twice squarely held that a clear
to extend to the President for his official conduct. See Franklin, 505 U.S. at 800-01
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(concluding that the APA lacks the required “express statement” necessary to subject
the President’s actions to APA review); Fitzgerald, 457 U.S. at 748 n.27 (holding that
Bivens and implied statutory damages claims are inapplicable to the President given
APA relief against the President, and Fitzgerald forecloses any implied cause of action
in equity against the President, see Armstrong v. Exceptional Child Ctr., 135 S. Ct. 1378,
1384 (2015); id. at 1385 (“The power of federal courts of equity to enjoin unlawful
executive action is subject to express and implied statutory limitations.”). Given that
plaintiffs cannot identify an express cause of action against the President, their claims
Even if the Court were to conclude that the district court could properly enter
an injunction, the district court plainly erred insofar as it extended relief to parties not
before it.
Article III requires that injunctive relief “must be tailored to redress the
plaintiff’s particular injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). Principles
provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., 512 U.S. 753,
765 (1994); see Hawaii, 138 S. Ct. at 2426 (Thomas, J., concurring) (universal
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preventing legal questions from percolating through the federal courts, encouraging
forum shopping, and making every case a national emergency for the courts and for
the Executive Branch.” Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring). They
also create an inequitable one-way-ratchet under which any prevailing party obtains
relief on behalf of all others, but a victory by the government does not preclude other
potential plaintiffs from seeking relief from another court, as plaintiffs have done with
respect to Secretary’s Duke’s decision. See Ramos v. Nielsen, No. 18-16981 (9th Cir.).
The district court’s reasons for believing a nationwide injunction was warranted
are unavailing. See SA.144. The court noted that plaintiffs include “not only” New
York residents, “but also individuals and a nonprofit entity based in Florida.” Id. But
the court nowhere explained why it could not limit the scope of its injunction to the
plaintiffs (wherever they live) in order to afford them complete relief. The court also
concluded that a nationwide injunction was justified because TPS determinations have
“a nationwide effect.” Id. But the same is true of many government policies, and
matter. But see Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 392-94 (4th Cir.
2001).
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CONCLUSION
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
RICHARD P. DONOGHUE
United States Attorney
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
JAMES R. CHO
JOSEPH A. MARUTOLLO
Assistant United States Attorneys
MARK B. STERN
/s/ Gerard Sinzdak
GERARD SINZDAK
Attorneys, Appellate Staff
Civil Division, Room 7242
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0718
[email protected]
September 2019
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CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limit of Federal Rule of Appellate
Procedure 32(a)(7)(B) because it contains 13,998 words. This brief also complies with
32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14-
s/ Gerard Sinzdak
Gerard Sinzdak
Case 19-1685, Document 52, 09/19/2019, 2659711, Page71 of 71
CERTIFICATE OF SERVICE
I hereby certify that on September 19, 2019, I electronically filed the foregoing
brief with the Clerk of the Court for the United States Court of Appeals for the
Second Circuit by using the appellate CM/ECF system. Participants in the case are
CM/ECF system.
s/ Gerard Sinzdak
Gerard Sinzdak