Boston judge rules that lawsuit over Trump’s TPS order can proceed

A federal judge in Boston on Monday denied government requests to throw out a lawsuit by groups representing tens of thousands of Haitians, Guatemalans and Salvadorans that seeks to let them stay in the country for humanitarian reasons rather than be kicked out beginning next year.

US District Court Judge Denise Casper said the groups, which include the Mattapan-based Haitian-Americans United, Inc., presented sufficient evidence that racial hatred was at play to warrant letting them further make their case— and that they could use statements by President Trump to make their case. Government lawyers argued any racist statements he made as either a candidate or as president aren’t proof that his subordinates who actually signed the new policies are themselves animated by racial hatred:

Casper wrote: “This Court finds that the combination of a disparate impact on particular racial groups, statements of animus by people plausibly alleged to be involved in the decision-making process, and an allegedly unreasoned shift in policy sufficient to allege plausibly that a discriminatory purpose was a motivating factor in a decision.”

Casper also rejected a government argument that courts have no jurisdiction over the “temporary protected status” program under which the refugees were allowed into the country, because, unlike with other laws dealing with people allowed into the country, the TPS law does not specifically exclude courts.

And she rejected a government argument that this case is akin to a recent decision in which the Supreme Court upheld a ban on visas for people from specific countries, saying that that case involved national security, and there are no national-security implications in whether earthquake refugees should be allowed to stay here.

Casper also ruled against the government’s argument that all the people who would be kicked out with the expiration of their TPS status next year could just seek to stay in “removal” hearings, saying that such hearings are only for people caught trying to cross the border illegally and that people who face them lose certain rights, such as to have a lawyer. She added that the end of TPS status would mean the people now here under the program would not be able to work legally. Since people with TPS status are here legally, they have “a higher level of due process than foreign nationals seeking admission to the country.”

The plaintiffs can make their case that the purpose of the TPS program is to ensure that if people enrolled in it are sent back to their home countries, that their countries can actually support them, she ruled. It is not enough, she ruled, that the government declare that whatever catastrophe sent these people here - for example, earthquakes and disease - is now at an end.

Prior administrations appear to have taken the position that if the conditions that caused the initial determination persist, then extension is warranted, but that extension may also be warranted if new conditions justify a finding that there has been, for example, a natural disaster rendering a foreign state unable to safely accept returnees, such that a termination decision may require more than a determination of solely whether the conditions causing the initial determination persist.

Plaintiffs have plausibly alleged that the current administration has adopted the policy that extension is only warranted if the conditions that caused the initial determination persist, which is a shift from the prior policy,” she wrote.

Casper did agree with the government on one point: She rejected a request by the groups to order an immediate end to the expiration of the TPS program as they can still appeal.