Citing ‘Sh*thole Countries’ Remark, Federal Judge Extends ‘Tempoary’ Protected Status Indefinitely

A federal judge in California sided Wednesday with the American Civil Liberties Union (ACLU) to block the Trump administration’s decision to end “Temporary” Protected Status (TPS) for certain otherwise illegal aliens, some of whom have had their administrative shield from deportation extended continually for nearly 20 years.

Judge Edward Chen of the U.S. District Court for the Northern District of California, a President Barack Obama appointee and a former ACLU staff attorney, granted the TPS recipients represented by the ACLU and two left-wing labor unions a preliminary injunction, judicially extending TPS indefinitely nationwide for up to 300,00 otherwise illegal or soon-to-be illegal aliens while the case makes its way through the court.

Justice Department Spokesman Devin O’Malley wrote in a statement responding to the decision:

The Court’s decision usurps the role of the executive branch in our constitutional order. The Court contends that the duly elected President of the United States cannot be involved in matters deciding the safety and security of our nation’s citizens or in the enforcement of our immigration laws. The Justice Department completely rejects the notion that the White House or the Department of Homeland Security did anything improper. We will continue to fight for the integrity of our immigration laws and our national security.

TPS is an extraordinary measure created under the Immigration and Nationality Act of 1990 (INA) to prevent the deportation of otherwise illegal aliens to countries in the gripes of famine, war, or natural disasters for six to 18 months. In practice, since the late years of the Clinton administration, it has been transformed into a de facto amnesty program. The discretion to extend the program every six to 18 months lies with the Secretary of Homeland Security and, in past administrations, TPS for the countries the plaintiffs in this case come from was extended again and again for decades.

Sudanese were granted TPS in 1997 for a civil war that ended in 2005 and extended for the various other conflicts in the war-torn African country. Hondurans and Nicaraguans received TPS for 1999’s Hurricane Mitch, El Salvadorans for 2001’s earthquake, and Haitians for a quake in 2010. All had been granted extension after extension of their TPS despite these conditions long since abating until the Trump administration, under acting DHS Secretary Elaine Duke and her permanent successor Kirstjen Nielsen, finally refused to renew these protections in successive decisions. The ACLU and other open-borders groups sued to prevent up to 300,000 TPS recipients from losing that status.

Judge Chen acknowledges near the top of his 43-page opinion that, under the INA, “[t]here is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection.” (The statute refers to the attorney general rather than the Homeland Security secretary because it was written before the creation of the Department of Homeland Security in 2002).

Chen, however, did not feel this barred him from ruling the ALCU and their fellow organizations had a likelihood of success on the merits of their claims under the Administrative Procedure Act (APA) and the Equal Protection Clause of the U.S. Constitution.

The latter claim is the most radical of those raised by the ACLU. In essence, the argument goes that President Donald Trump has said things on the campaign trail and in the White House that demonstrate “racial animus.” Therefore, if Trump had any effect on DHS’s decision not to renew TPS, it too may have been motivated by racial animus and is illegal. TPS then must be renewed by the courts, over the will of executive branch.

Judge Chen accepted this argument wholeheartedly, even though he could have avoided reaching the constitutional issue and still issued his injunction. The opinion relies on an extremely broad reading of 1977 Supreme Court case, Arlington Heights v. Metropolitan Housing Dev. Corp., which held an executive action is invalid only with proof intent or purpose to discriminate against protected classes like race. (Emphasis added).

“President Trump has expressed animus against non-white, non-European immigrants,” Chen wrote, citing a litany of comments Trump has made or is alleged to have made, most prominently his supposed question at a conference: “Why are we having all these people from shithole countries come here?”

Other unacceptable behavior that could render Trump’s immigration decisions invalid include, in Judge Chen’s eyes that:

President Trump told European leaders that “they ‘better watch themselves’ because a wave of immigration of ‘changing the culture’ of their countries,’” which he characterized as being “‘a very negative thing for Europe.’”

And that:

President Trump gave a speech at the annual Conservative Political Action Conference where he used MS-13 – a gang with many members having ties to Mexico and Central America – to disparage immigrants, indicating that that they are criminals and comparing them to snakes.

Chen calls this “direct evidence of animus,” and writes that, along with the end of TPS having a disproportionate impact on non-white people, this is enough for the court to infer ending TPS violates the Equal Protection Clause.

As with other efforts to extend TPS protections even longer, the court also uses the very fact that TPS recipients have been given continual extensions as an argument they cannot now stop being given extensions. Judge Chen writes:

The declarants are TPS beneficiaries who have lived in the United States for a significant number of years, some as many as twenty. Without a preliminary injunction, the declarants risk being removed. At the hearing, the government conceded that there are approximately 300,000 TPS beneficiaries registered as such and that they are likely to be subject to removal. TPS beneficiaries thus risk being uprooted from their homes, jobs, careers, and communities. They face removal to countries to which their children and family members may have little or no ties and which may not be safe. Those with U.S.-citizen children will be confronted with the dilemma of either bringing their children with them, giving up their children’s lives in the United States (for many, the only lives they know), or being separated from their children. Understandably, this prospect is a source of great emotional distress, fear, and anxiety.

Chen then goes on to quote from no fewer than five TPS recipients’ declarations about the hardship they would face if their Temporary Protective Status is not further extended. “[S]ince the announcement of Sudan’s termination, Ms. Abdalla has suffered bouts of uncontrollable crying and serious migraines. She has also found it difficult to eat and to leave the house,” he says of one soon-to-be illegal alien who, without Judge Chen’s injunction, would have to vacate the United States by next month.

James Nealon, a former DHS official Breitbart News uncovered last year working to undermine the administration’s efforts to end TPS, is frequently cited in the opinion. Both his deposition for this case and in his DHS memos — originally made public in a report by Breitbart News’s Amanda House — advocating the use of criteria not in the INA to keep extending TPS, are used to support the notion of impropriety in the administration’s decision-making.

The Justice Department will likely appeal to the U.S. Court of Appeals for the Ninth Circuit, and the case may eventually wind up before the Supreme Court.