Some attorneys and legal observers believe Haiti’s TPS designation will be extended for an additional six months since federal statute says a half-year extension should occur automatically if the secretary of the Department of Homeland Security does not determine that a state no longer meets the conditions of designation.
No one knows for sure what to expect, especially since the U.S. Supreme Court allowed DHS’ decision to end TPS for Venezuelans to take effect in a separate but similar case in California, even though a district judge ruled that the Trump administration illegally terminated the country’s designation.
“My No. 1 concern right now is what happens next,” said Geoffrey Pipoly, a partner with BCLP law firm who was the lead counsel for the Haitian plaintiffs in the District of Columbia case. “But we just don’t have enough information to have a clear picture of what happens next at this stage.”
Recent development
U.S. District Court Judge Ana Reyes on Monday granted a stay that was requested by the plaintiffs in a case in D.C. that challenges the cancellation of TPS for Haiti. The Miot v. Trump case was filed by multiple Haitian TPS holders, including a Springfield resident, after DHS Secretary Kristi Noem announced the termination of Haiti’s designation last year.
Reyes’ order stays the effective date of the TPS cancellation “pending judicial review.”
Pipoly said he thinks Haiti’s TPS designation should be extended for six months, which essentially is the default period of extension under a TPS statute approved by Congress.
The statute says that if the attorney general (now the DHS secretary) does not determine that a foreign state no longer meets the conditions for designation the temporary protected status is extended for six months — or 12 or 18 months, if approved by the DHS secretary.
“The secretary has to affirmatively make findings in order to terminate — or, for that matter, extend or redesignate," Pipoly said. “But if she doesn’t do any of that stuff, then it automatically extends for six months, then again for six months, and again for six months, until she makes an affirmative decision.”
After the ruling, DHS Assistant Secretary for Public Affairs Tricia McLaughlin posted on X (formerly Twitter) that TPS was always meant to be temporary and not a “de facto amnesty program,” and Haiti’s designation was granted 15 years ago following an earthquake. She vowed that DHS will appeal the district court’s ruling.
“Supreme Court, here we come,” she wrote. “Temporary means temporary and the final word will not be from an activist judge legislating from the bench.”
Comparison to Venezuela case
Twice last year, the Supreme Court issued orders through its emergency docket — also known as its “shadow docket” — that stayed decisions in federal district court in California that halted the termination of TPS for Venezuelans. That case also challenged the government’s attempt to vacate an already approved extension for Haiti’s TPS prematurely, and one of the plaintiffs in that case also is a Springfield resident.
The district court judge ruled that DHS’ early termination of Venezuela’s TPS designation violated the law and exceeded Noem’s authority. The judge blocked DHS from cancelling the country’s designation before it was due to expire in October of this year. DHS also was forced to back down from attempting to cancel Haiti’s designation before the Feb. 3 deadline.
But orders granted by the Supreme Court allowed Venezuela’s termination to take immediate effect, while the government appeals the lower court decision.
The Supreme Court’s stay orders — issued without explanation — basically undid the protection provided by the lower court rulings, said Ahilan Arulanantham, faculty co-director at the UCLA Center for Immigration Law & Policy, who argued on behalf of the plaintiffs in the California case.
“They effectively authorized the government to act as though the Venezuela TPS termination was lawful, even though the courts below had ruled it was not,” Arulanantham told this news outlet.
Arulanantham said while it would be unlawful to detain or deport Haitian TPS holders in light of the D.C. district court judge’s ruling, ICE and U.S. Customs and Border Protection officers have consistently broken the law by arresting, detaining and deporting people in the last year.
“Hopefully all the attention the court decision has received will make it harder for them to do that here” in this case, he said.
Arulanantham also said he thinks Haiti’s TPS designation should be extended for six months because effectively there was no lawful decision terminating it.
‘Follow the process’
Attorney Pipoly said one of the reasons it is so hard to predict what will happen next in this case is how fast judicial proceedings and the appeal process have been moving.
The Supreme Court has dramatically expanded the use of its shadow docket, which fast-tracks the decision process, often for requests to the court to temporarily lift lower court orders, says the Brennan Center for Justice at New York University School of Law.
Under normal circumstances, the Supreme Court decides cases based on a thorough briefing and arguments that culminate in written decisions that clearly lay out the majority’s reasoning, the Brennan Center said. “Shadow docket cases usually involve limited briefing, no oral argument and rulings with little or no analysis of the court’s reasoning,” the center said.
Pipoly said the goal is to ensure Haiti’s TPS remains in place for as long as need be, until conditions are safe enough in the Caribbean nation for its citizens to return. He said TPS is not supposed to be permanent, but the government must follow the process approved by Congress to terminate or extend and expand designation.
“Once you are looking to terminate it, you have to follow the process and you have to do it in good faith because hundreds of thousands of people’s lives depend on it,” he said.
Pipoly has a tattoo on his arm of the legal citation for a district court’s opinion in Saget v. Trump. Pipoly was a lead attorney on the Saget case, which challenged the Trump administration’s decision in 2017, during Trump’s first term, to end Haiti’s TPS designation.
A district court judge in New York ruled in favor of the plaintiffs and blocked the termination from taking effect. The federal government appealed, but the case became moot before the appellate court came to a decision because Joe Biden became president in 2020. DHS withdrew its appeal, and Haiti’s designation was extended and expanded.
That case followed a fairly normal timeline for litigation, Pipoly said, adding that more recent TPS cases have been moving at “lightning speed.”
Many of the same legal arguments that were made in the Saget case also came into play in the Miot v. Trump case. In both cases, the federal district judges ruled that the federal government did not follow the law and failed to take the appropriate steps to seek termination of TPS for Haiti.
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