The Trump administration wants the Supreme Court to help it end deportation protections for Haitian immigrants, even as the federal government warns against traveling to Haiti due to “kidnapping, crime, terrorist activity, civil unrest, and limited health care.”
Opposing the administration’s latest urgent high court appeal, Haitian holders of those temporary protections, called “TPS” for short, told the justices Monday that deporting them “would place TPS holders in mortal danger.”
Among other things, they cited the State Department’s warning that people shouldn’t go to Haiti for any reason, but that, if they do travel to such a high-risk area, they should leave DNA samples with their medical providers and dental records with their families “in case it is necessary for your family to access them to identify your remains.”
The opposition filing responded to an application filed last week by Solicitor General John Sauer. It was the fourth such government filing in a TPS case, after two appeals regarding Venezuela, which the court granted in the government’s favor, and a third regarding Syria, which is pending and the justices could rule on at any time.
In his Haiti appeal, Sauer asked the justices to not only side with the government in a one-off order like they did in the Venezuela cases, but to also grant full review of the Haiti and Syria cases before the appellate courts have ruled — an unusual procedural move called “certiorari before judgment.” Sauer wants the justices to issue definitive rulings on the subject to stop lower courts from blocking the administration’s attempts to end TPS for various countries.
Sauer complained to the justices that lower courts have been unlawfully second-guessing the decisions to terminate protections made by Kristi Noem when she was the head of the Department of Homeland Security.
Monday’s opposition filing from Haitians said TPS designations have come up for periodic review for 13 majority-nonwhite countries during President Donald Trump’s second term, and the administration has moved to terminate designations for all of them: Yemen, Somalia, Ethiopia, Haiti, Myanmar, South Sudan, Syria, Venezuela, Honduras, Nicaragua, Nepal, Cameroon and Afghanistan.
In the Haiti litigation, U.S. District Judge Ana Reyes, a Biden appointee, ruled against the administration in February. She wrote that Noem “has a First Amendment right to call immigrants killers, leeches, entitlement junkies, and any other inapt name she wants,” but that, as DHS secretary, she was “constrained by both our Constitution and the APA [Administrative Procedure Act] to apply faithfully the facts to the law in implementing the TPS program. The record to-date shows she has yet to do that.”
Reyes noted that the president “has made — freely, at times even boastfully — several derogatory statements about Haitians and other nonwhite foreigners.” Among other things, she recounted that he called Haiti a “s—hole country,” suggested Haitians “probably have AIDS” and complained that their immigration to the United States is “like a death wish for our country.”
A divided federal appeals court panel in Washington declined the administration’s request to lift the district court order while the litigation continues. The two Democratic appointees in the majority said the government couldn’t show why it needed instant relief, whereas Haitians face “substantial and well-documented harms” if they lose protections, including “risk of detention and deportation, separation from family members, and loss of work authorization.” Trump appointee Justin Walker dissented, arguing that the government is irreparably harmed by courts intruding into executive policy. He also emphasized the “temporary” nature of TPS.
Opposing the administration at the Supreme Court, Haiti TPS holders argued Monday that there’s no urgent reason for the justices to intervene.
“The government will suffer no irreparable harm if the district court’s order remains in effect pending the government’s appeal of it,” they wrote. “Haiti has been designated for Temporary Protected Status since 2010. Since then, hundreds of thousands of Haitian TPS holders have lived in and contributed to American communities across the country. The government identifies no emergency requiring their immediate expulsion.”
The administration can file a final reply brief, after which the justices can decide at any time how they’re going to handle the application, including whether to simultaneously act on the Syria application if they don’t first decide that one separately.
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