On August 26, 2020, a legal services provider and seven individuals with Temporary Protected Status (TPS) filed this lawsuit in the U.S. District Court for the District of Columbia against U.S. Citizenship and Immigration Services (USCIS) and the Department of Homeland Security (DHS). The individual plaintiffs, along with the Central American Resource Center (CARECEN), challenged a new “policy alert” from the government (“the Policy”) that dismantled TPS beneficiaries’ means of obtaining lawful permanent residency (LPR). Represented by Democracy Forward Foundation, the Catholic Legal Immigration Network (CLINIC), and Debevoise & Plimpton LLP, the plaintiffs alleged that the Policy violated the Immigration and Nationality Act (INA) (8 U.S.C. §§ 1101 et seq.), the Administrative Procedure Act (APA) (5 U.S.C. §§ 551 et seq.), equal protection under the Fifth Amendment, the Federal Vacancies Reform Act, and the Appointments Clause. The plaintiffs sought declaratory and injunctive relief, vacatur of the Policy, and fees under the APA and INA. The case was assigned to Judge Reggie B. Walton.

The complaint explained that immigrants with TPS are protected from deportation so long as their home countries are afflicted by armed conflict, natural disaster, or epidemic. However, so long as immigrants with TPS remain in the U.S., they are under an “awaiting deportation” status. This prevents them from becoming lawful permanent residents, and once their home country is deemed safe, they will be deported.

The plaintiffs claimed that, since the Immigration Act of 1990 amended the INS, immigrants with TPS have been able to circumvent the “awaiting deportation” status by leaving the country and coming back through lawful channels. This is based on the wording of the statute, which states that any immigrant “ordered deported or removed … who has left the United States, shall be considered to have been deported or removed in pursuance of law.” 8 U.S.C. § 1101(g) (emphasis added).

According to the complaint, on December 20, 2019, the Office of the Director of USCIS issued the Policy, purporting to clarify the status of TPS beneficiaries who left the country. It determined that lawful return to the U.S. removes awaiting deportation status, thereby eliminating the method by which TPS beneficiaries could become eligible for LPR. The plaintiffs argued that the government neither provided any reasoning for the “clarification,” nor acknowledged that this shift would depart from decades of practice and literal interpretation of statute.

The Policy, the plaintiffs said, was particularly devastating because TPS status was removed from several countries that were still afflicted by substantial instability, including Sudan, Nicaragua, Nepal, Honduras, Haiti, and El Salvador (though as of November 13, 2020, their TPS status was nonetheless being maintained by a preliminary injunction issued in another case challenging DHS's TPS rules. See Ramos v. Nielsen). Lacking a means to LPR, immigrants from these countries who previously had TPS, and who would face great danger if forced to return, would have no legal recourse to allow them to stay in the U.S. should the injunction expire.

Plaintiffs argued that the Policy facially violated the previously mentioned clause of the INS (8 U.S.C. § 1101(g)). The complaint further averred that it violated the APA because no notice was given and the Policy was “arbitrary, capricious, [or] an abuse of discretion.” It also stated that the Policy was driven by “animus against immigrants of color” in violation of equal protection. Moreover, the plaintiffs pointed out that the Policy was issued under the supervision of USCIS's Acting Director, who they alleged was serving in violation of the Federal Vacancies Reform Act (FVRA) and appointments clause, both because he was unqualified and because he was appointed by someone who lacked authority to appoint him. See L.M.-M. v. Cuccinelli, another challenge to the validity of the Acting Director's appointment, for more information.

On October 21, 2020, Plaintiffs filed a motion for a preliminary injunction or, in the alternative, expedited partial summary judgment. The motion was orally denied without prejudice on November 12, 2020.

As of November 13, 2020, the court is awaiting the defendant’s answer to the complaint, which is due by December 4, 2020. The case is ongoing.

Jack Kanarek - 11/13/2020


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