Lawfare Daily: The TPS Cases at the Supreme Court, with Geoffrey Pipoly and Andrew Tauber

[Intro]

Geoffrey Pipoly: The periodic review, as Andy said, is a review of conditions on the ground in the foreign state. Now, obviously there's some wiggle room and some and discretion baked into how the agency weighs, you know, factor X versus factor Y. And we agree that those are not reviewable by courts. But what you can't do is come in and say, I wanna terminate TPS, fit the facts to that conclusion get me there.

Roger Parloff: It's the Lawfare Podcast. I'm Roger Parloff, senior editor at Lawfare, and I'm with Geoffrey Pipoly and Andrew Tauber, attorneys for Haitian plaintiffs trying to keep their temporary protected status in the United States.

Andrew Tauber: So we have both the presumption that they had meant to adopt the language as it had been interpreted in Bowen, and then the further presumption that they confirmed that understanding by failing to amend it afterwards. So we have both textual support as well as historic support for our reading of what determination means. And it's a much, much more limited reading than the government has

Roger Parloff: Today, we're talking about the Miot case, one of two consolidated TPS cases being argued before the Supreme Court on April 29th.

[Main Podcast]

So you are both from the firm of Brian Cave, and Jeff will be arguing before the Supreme Court in the case of Miot versus Trump at the Supreme Court level, they call it Trump versus Miot, and that's about TPS status for essentially 350,000 Haitians. And that's been consolidated with another case called at the Supreme Court Mullin versus Dahlia Doe, which is about TPS for Syrians. There's about 7,000 Syrians impacted by that. But before getting to Haiti, which is who you all represent, the Haitians­—first, can one of you just explain to the listeners what TPS is temporary protected status, when it was created, and how it works.

Andrew Tauber: Sure. So TPS, temporary protected status, is an immigration status that was created by Congress in 1990. It allows the secretary of homeland security to designate a country for temporary protected status if certain conditions enumerated in the statute are met. So a country may be designated for TPS if there has been some earthquake or other natural disaster.

If there is an ongoing armed conflict or if there are other extraordinary and temporary conditions that prevent nationals of that country currently present in the U.S. from returning to their home country in safety, if a country is designated for TPS, then its nationals who are present in the United States on the date of designation are eligible to apply for TPS.

And so long as they meet the statutory requirements, they will receive temporary protected status. And that protects them against deportation and it also provides them lawful work authorization.

Roger Parloff: And when they apply, they are vetted. Is that—

Andrew Tauber: Yeah,

Roger Parloff: —the case?

Andrew Tauber: Exactly. You have to submit an application and by statute, if you have committed either one felony or two misdemeanors, you are statutorily ineligible for TPS status, and should you be granted TPS status and subsequently commit a crime, you then lose your TPS status as a result of it. So no one with TPS status is a criminal, or at least not for long because they lose their TPS status if that becomes the case.

Roger Parloff: And how long does the designation last?

Andrew Tauber: The initial designation can be anywhere from six to 18 months. Historically, it's been for 18 months. And then under the statute, the secretary is required to periodically review each designation at least 60 days before its scheduled expiration, and then determine after consultation with agencies of other agencies of government, so State Department primarily.

Whether or not the conditions for designation continue to exist, and if the secretary finds that those conditions do continue to exist, the secretary is obligated by law to extend the designation. If the secretary finds that the conditions do not exist, the secretary is obligated by law to terminate the designation and if the secretary takes no action, then the default is that the designation is automatically extended—

And I think that's actually, Jeff can speak to this later, but an important legal aspect of the case that in fact, in Congress's statutory scheme, any TPS designation is indefinitely extended for an indefinite number of times if the secretary does not affirmatively terminate, following the statutorily prescribed process.

Roger Parloff: Okay, now let's turn to Haiti then. And as I understand it, they were designated back in 2010, originally for a very serious earthquake, a 7.0 earthquake. And then a lot of catastrophes have followed since then. And then one of the very first, I think maybe the first. As I understand it Secretary Noem and now Mullin has attempted to terminate every TPS country that has come up for renewal.

13 out of 13, but I think the first two were Haiti and Venezuela back in February. And I don't wanna get too bogged down in the details of that but tell us what Jeff what the basis was for terminating Haiti.

Geoffrey Pipoly: Well, the first thing I think it's important, just a quick clarification. The existing designation of Haiti’s TPS has nothing to do with the earthquake, nothing whatsoever.

It was re-designated in 2021 and then again in 2024 due to a number of different factors most notably the gang violence that is overtaking the country now. I think when most people hear the term gang violence, at least in the United States, they think of ordinary street crime—Bloods and Crips, Latin Kings, that sort of thing.

At least that's where my head would naturally go if I start to thinking about gangs. We're really talking more here about armed militias. They have military grade hardware. They are incredibly violent. They do kidnapping for profits. They do extortion. They it's, again, our militias, I think is a better way to think of this.

So, just to be clear, yes, Haiti has had TPS since 2010, but the current conditions for designation have nothing to do with the reasons that it was designated in 2020. And that's legally relevant because of the, you know, the why it was designated cabins, the scope of the secretary's review later on, you're right, that the first two countries that were targeted were Venezuela and Haiti.

They actually weren't initially targeted through the statutory process. They were targeted using a never before used mechanism, I guess you'd say, called partial vac couture, wherein the secretary, instead of saying, I'm going to follow the process, Congress required and attempt to terminate TPS following the periodic review.

Instead, I'm just gonna claim that I have the inherent and statutory authority. To prematurely end a TPS designation by lopping, six months off the end of it. So the first thing Secretary Noem did with both Haiti and Venezuela was saying, I'm partially vacating, and I'm putting that in scare quotes because that's not a thing.

The designations for these countries and such that they end much earlier than they were scheduled to. And at least as to Haiti, Andy and I and our whole team challenged the partial vac couture in the Eastern District of New York won that. Case, which then restored the original end date of TPS, at which point the secretary attempted to terminate again.

Then due to the restoration of the timeline, brought us to the existing termination. So there have been three efforts by the Trump administration to terminate or at least end early Haiti’s TPS designation. And Venezuela's a little bit wonky because there were actually two concurrent designations. So one got completely vacated and affirmed, the other one got terminated.

Roger Parloff: Okay. And so what is she saying? Is she saying it's now safe to be in Haiti?

Geoffrey Pipoly: Yes. There are two bases for the termination. I should clarify, she doesn't actually say it's safe for Haitians to return. She says that parts of Haiti are suitable for return. We're not sure what to make of that, quite frankly, because the statutory language is very clear that the country conditions review is targeted towards a, an assessment of whether nationals of Haiti can return and safety.

So suitability is not the standard. Safety is, so that's reason number one she gives is that parts of Haiti are suitable to return. Notably, she identifies not at all what those parts might be, and the State Department separately says, no part of Haiti is safe. But put that to the side. Her primary reason for terminating is that it is contrary to the national interest to continue Hades TPS designation.

Now she has several reasons for asserting that it's contrary to the national interest.

Roger Parloff: Is national interest a basis for terminating?

Geoffrey Pipoly: It's an interesting question. The answer, our position is no, and the reason our position is no is a couple fold. First, the term national interest appears once in the statute and only when it comes to designations for other extraordinary and temporary conditions.

The language in the other extraordinary and temporary conditions subsection is. That a country can be designated for TPS if it satisfies the statutory requirements, and it is not contrary to the national interest to do so, but that's only for other extraordinary and temporary conditions, war, armed conflict, and natural disaster do not contain that national interest language and the periodic review provision of the statute where she would conduct the review to see if statutory conditions remain satisfied, does not contain that national interest language.

So the rationale from the administration essentially is we're reading in that national interest language from the B(1)(c) designation provision into the termination provision as part of the periodic review process.

So, so whether national interest can be considered at all is a question that the Supreme Court is going to have to answer.

Roger Parloff: Okay, because so if I have that right, national interest is something that can be considered in one aspect of designating a country, but it's not listed as a factor in terms of terminating a designation.

Geoffrey Pipoly: That's right.

Roger Parloff: Okay.

Andrew Tauber: I just wanna interject one thing on the statute. In the periodic review section, the B(3)(a) of the statute, it says that the secretary shall review conditions in the designated state and make a determination whether the conditions for designation continue to exist. And we say that is clear indication that the review is supposed to focus on the conditions in the designated country and U.S. national interest clearly is not a condition in the designated country. So just as a matter of plain statutory interpretation, national interest is not part of the periodic review process, which this whole case turns on.

Roger Parloff: Right. Okay. When they said national interest, what factors did they point to specifically that made it in the national interest to terminate?

Geoffrey Pipoly: I mean, it's sort of a, it's sort of a broader narrative that they have about immigration being bad writ large. But if you break it down into a i into its constituent parts, the first thing she says is that TPS operates as what they call a pull factor for unlawful migration. In other words, Haitians living outside the U.S. will know the existence of this thing called TPS and will and know that it will give them work authorization and deportation protections.

So those Haitians living outside the U.S. will find a way to come here to avail themselves of TPS. That is nonsense for a number of reasons, not the least of which is that the agency did itself didn't even believe that, but we can get into that in a moment. The second reason that they give is alleged criminality that some percentage of Haitian TPS holders are likely to be criminals and therefore, and we don't want criminals in the United States, similar concern over alleged terrorism and things like that. So those are the big, those are the big two reasons is pull factor and criminality.

But again, those are both really nonsense reasons on the facts and on the law because as Andy said, the statute does not allow you to be a criminal and maintain TPS on an individual basis. And in fact, we know from discovery that the DHS’s own statistics showed that about one half of 1% of Haitian TPS holders, remember they all have to register with the government. So the government knows who all of these folks are.

And their own data shows, again, one-half of 1%, something like 350 or 360 out of more than 350,000 had any kind of a, and this is DHS's term public safety record, which I'm assuming, and we have reason to believe, is a much broader definition than even the statutory definition of criminality. So, so put that to the side.

As for poll factor, we filed on the court's Supreme Court's docket, an email that was produced in discovery in which one of the researchers, the career researchers at USCIS, with—and DHS was trying to write this memo for the secretary to say that it's that TPS is a pull factor, and she was sort of throwing up her hands and saying, I wanna follow my supervisor's instructions to do this, but there is no empirical evidence to support that assertion.

She says, I am being forced to include this in the official report. I'm gonna obey the command by my bosses to do that, but I wanna go on record that there's no empirical evidence to support it.

Roger Parloff: Now before I ask you what your basis are for the legal basis are for challenging the termination, I just wanna ask you, allude you, me mentioned in, in, among other things I think you alluded to it and it's in your brief, the State Department advisory regarding visiting Haiti at the time of this termination.

Can you describe that?

Geoffrey Pipoly: Sure. The State Department has what's called a level four travel advisory for Haiti. It says you should not travel there for any reason. And as I alluded to earlier it does not distinguish between some parts of Haiti and other parts of Haiti. It says, do not travel to Haiti.

The State Department also says, and this is in our briefing as well, that if you nonetheless decide to ignore that advice and travel to Haiti anyway, you should get your affairs in order. You should leave dental records and a DNA sample behind quote in case it is necessary to identify your remains.

Roger Parloff: Okay, so let's get to your legal challenges. What are the statutes or constitutional provisions that you cite in saying that the termination was illegal?

Andrew Tauber: So we raised two types of claims. One set of claims we bring under the Administrative Procedure Act, which regulates how agencies conduct their affairs.

And the other claim we bring under the Fifth Amendment Equal Protection Guarantee. And so, with respect to the procedural claims under the APA, we allege that the administration has failed to adhere to the statutory requirements put forth by Congress, and that there are variety of procedural failings because they're aiming to reach a predetermined outcome.

And so they're just gonna do whatever it is they can to reach that outcome, such as ignoring the data or claiming that there's doubt that doesn't exist. So that's one set of claims, procedural claims under the Administrative Procedure Act. And the second claim is that this entire exercise this predetermined outcome.

The desire to remove Haiti's TPS designation is driven by animus towards Haitians in particular and non-white immigrants in general. And we argue that is a violation of the Constitution. So those are the two principle sets of claims that we're bringing.

Geoffrey Pipoly: And if I could just add onto that the, if there's one thing I would a ask your listeners to take away from this is that the nature of the preordained outcome here cannot, like the importance of that cannot be overstated here.

It's very clear when you read the TPS statute that Congress intended for this to be, and this is not exactly how I'd put it in court, but this is how I'll put it here. It's supposed to be bottom up evidence based. The conclusion is supposed to throw flow from the facts. The periodic review, as Andy said, is a review of conditions on the ground in the foreign state.

Now obviously there's some wiggle room and some and discretion baked into how the agency weighs, you know, factor X versus factor Y. And we agree that those are not reviewable by courts, but what you can't do is come in and say, I wanna terminate TPS, fit the facts to that conclusion. Get me there.

Roger Parloff: Right, and let me just on that point, just again, go back to the fact that we've had 13 TPS designations come up for review and all 13 have been terminated by that, I believe is Haiti, Venezuela, Afghanistan, Cameroon, Nepal, Nicaragua, Honduras, Syria, South Sudan, Burma, or Myanmar, Ethiopia, Somalia, and Yemen.

It does not seem like they're carefully determining the country conditions on the ground everywhere. It doesn't seem plausible to assume that everywhere things have gotten so much better that now it's is, it's safe, is that—

Geoffrey Pipoly: That's exactly right. And the district judge in this case made that exact point.

It's just, you would think on the law of large numbers that given that each of these designations is an individualized country specific designation. Right. The reasons that Burma was designated have nothing to do with the reasons Hazy Haiti, which its designated, which have nothing to do with the reasons Afghanistan was designated.

So the mere fact that you've got across the board terminations is itself evidence of this preordained outcome and a pattern and practice of terminating TPS in a way that Congress didn't intended, which itself is an APA violation. The other thing I'll add on this is that for some of these countries, for some of these terminations, they didn't even purport to do the country conditions analysis, it was all about national interest. Venezuela's an example of that.

Indeed, the, remember I said there were three attempts to terminate, or one to vacate, and two to terminate for Haiti, that first Haiti termination did not have. Any country conditions assessment, the one that is now at issue before the court had that weak assessment about suitability or parts of the country are suitable.

So, you know, it's this repeated attempt to terminate and just trying to adapt the rationale to what they think is gonna fit the needs of the day and the nature of the, across the board termination period that we think give a strong suggestion that this was all just pre-baked. It was a, it was—

It was set up from the beginning, terminate, and then everything in the termination notice is really just pretextual backfill to accomplish that preordained goal.

Roger Parloff: Andrew mentioned that the statute says you're supposed to consult with appropriate agencies. What agencies did they consult with? What was, what evidence did they offer that they had consulted with appropriate agencies?

Andrew Tauber: They claim to have consulted with the State Department, which is indeed historically the agency that the Secretary of Homeland Security would consult with. The question really though is did they actually consult and we maintain that what they purport to be consultation is so perfunctory is to be tantamount to no consultation at all in the current record.

The government has conceded that the full extent of the consultation was one email exchange between a staffer at DHS and a staffer at State in which the staffer. And the who the staffers are is an interesting issue too, and we'll come back to that in a second. But the staffer at DHS sent an email to the staffer at State saying, Hey, we're re-reviewing Haiti's country conditions and connection with TPS. What are state's views?

Less than an hour later, the State Department staff responds in a one sentence email, State has no this is not a direct quote, but the paraphrase state has no. foreign policy concerns with the end of designation for Haiti. That was it. One line email response within less than an hour.

Contrast that to the consistent practice of every prior administration, including the first Trump administration, mind you, where the periodic review was based on a series of closely vetted State Department memoranda that went up the chain, starting with the country experts and the regional experts and the other relevant areas of expertise that state could bring to bear.

Vetted memos would finally go to the Secretary of State for their final approval before it would get sent to DHS. Contrast that with the one sentence email we have here, and it's clear that there was no real consultation. Again, as Jeff says, this is just a sham going to a predetermined outcome. And what's interesting amongst the, in, in addition to the paucity of the consultation is who the two characters were on either end of this consultation between DHS and State.

On the one hand, on the DHS side, you have a guy named Robert Law. Who was involved during Trump version one in the termination of Haiti’s attempted termination of Haiti's TPS designation back then and in federal litigation court, the case that Jeff was handling called Sesay in the Eastern District of New York.

The court found that person, Robert Law, had manipulated the data to reach. The desired outcome of the Trump first Trump administration, namely to terminate Haiti’s TPS designation. Now that same person is involved again, manipulating data. And then the second person involved in this email exchange on the state side was a man named Spencer Chretien.

So the got the staffer, the State Department end, this man named Spencer Chretien. I don't know his background, but what we do know is that when the Trump administration instituted the new resettlement policy for Afrikaners, who they believe are being persecuted somehow, there was a question from a consular officer in South Africa back to state in D.C. asking, is this program for all Afrikaans-speaking people?

And Spencer Chretien said, no, it is only for whites. Those are the people who are consultants.

Geoffrey Pipoly: And just to add to that, everything Andy said is absolutely true. Robert Law during Trump 1.0 was a staffer at USCISA researcher. He had previously worked for the Federation for American Immigration Reform, a very immigration restrictionist nonprofit here in D.C.

He was brought on to look. And he looked at a country conditions memo for Haiti, and he wrote that, and it was a neutrally written country conditions memo, but it listed accurately what was going on in Haiti. They had severe housing insecurity, they still hadn't gotten over the earthquake, et cetera, et cetera.

And his reaction to that memo was, this looks weighted to extension, which I do not think is the conclusion we are looking for.

Roger Parloff: Well, that—

Geoffrey Pipoly: That's pretty and again, preor—it's giving away the game. It is confirming that this is a preordained outcome, not based on the facts. Now, again, he's back in the building and he got smarter about not writing stuff down like that, but it, it seems to strain credulity to suggest that somebody who did that the first time and is now back in the building and we know once again, editing these official documents because we've seen that his editing marks have been on them, that you're not trying to accomplish the same goal.

I cannot emphasize to you enough the departure from past practice, 35 years of past practice with respect to the State Department stuff as Andy said. It would make sense to do it the way that it was done for 35 years. You know, the people in Washington need to know what it's really like in these foreign countries.

The people best situated to answer that question are the State Department officials that are, have boots on the ground in those countries. So that's how it would work. It would start with a memo from the embassy that would then be signed off on by an ambassador. It would then go to the regional desk in Washington, D.C. where it would have additional facts and up the chain.

And up the chain. So we went from a mountain of paper that would be on the secretary's desk from the State Department down to a one sentence email. And the reasonable conclusion you can draw from that is that this was nothing more than a box checking exercise so that they can get a, give a head fake.

Towards satisfying the statutory requirements. And the other thing I'll note about this is that this is like a script in all of these cases. There is a version of the Law-Chretien email in every one of these terminations that I've seen anyway. I don't think the administrative record's been produced for all 13 yet, but for the ones that I've seen, it's like a script.

We're re-reviewing country conditions. Any concerns? No. It's the same in every case, which again is evidence of be it being contrary to the statute. Why? Because you're supposed to do this good faith country conditions review, and you're supposed to have that on its case-by-case basis. A one size fits all consultation, quote unquote, is not what Congress had in mind either.

Roger Parloff: And this might be a good time for me to ask you about. The named plaintiffs in your suit? 'cause I was in the briefs below. I was quite moved about the situ—I mean, some of the people, you know, like I said, the, this designation goes back sometime and you have people that grew up here and don't speak Creole and don't speak French.

Geoffrey Pipoly: Yep.

Roger Parloff: And you're going to send them. Can you just say something briefly about your named plaintiffs?

Geoffrey Pipoly: Yeah. We have five named plaintiffs. They're all really wonderful people. Fritz, Marlene, and Vilbrun are the three that I'll highlight. They're all of our plaintiffs and all of the TPS community are really wonderful people.

Everyone that I've met has been anyway. But these three in particular, I think deserve some recognition. Fritz is a PhD candidate in neuroscience at a university in California. He's studying the connection between blood pressure rates and Alzheimer's. And he is coming to Washington, D.C. to watch the argument because I think that these clients have every right to look to justices in, you know, to be in the room with the justices as their fate is decided.

But Fritz will be there. Wonderful guy. And again, contributing directly. He, you know, he speaks Creole and, you know, he's very culturally American in my experience. He sort of got one foot in both worlds.

Marlene, however, has no foot in the in, in Haiti really at all. She was brought here, she was abandoned by her biological parents on a door or on a church doorstep in Haiti. And she had, I nobody knows why. Best guess is that it's because she was born with some medical spinal conditions that needed medical treatment. She couldn't get in Haiti and her parents or biological parents in all likelihood just couldn't afford, we don't really know why she was abandoned for adoption, but she was flown to the United States by a Christian faith-based adoption agency where she was then adopted by, as a toddler, by U.S. citizen parents.

Well, the parents doing the adoption, and your listeners may be very surprised to learn that this is common enough to the tune that there are about 200,000 people like her in the United States who were international adoptees. The parents did not understand that you need to adjust her citizenship as part of the adoption.

They think, and it's not an unreasonable thing to, to think, I assume, is that well, you know, you're in a courtroom and a judge bangs a gavel and says, congratulations, you're a family now, but that's a state law matter. Right. And it wasn't until Marlene was over the age of 18 that she realized for the first time, and what I can only imagine was a, you know, life shattering discovery.

That she is technically not an American citizen. She's kind of stateless, right? And TPS is therefore the only thing that allows her to work in the United States. She doesn't speak Creole at all. She has no people in Haiti. The only people that she has are the ones that, for whatever reason, had to give her up.

She has no idea who her biological family is. And you know, she's every bit as culturally American as you or me. You know.

And then there's Vilbrun who is, I would say he hasn't been, he has been here of the three that I've mentioned the least amount of time. So his Creole's very good. His French is very good. He is a medical doctor who due to licensure transfer issues between countries was working in. The now sort of infamous city of Springfield, Ohio as a nurse. But he's a medical professional. There's a picture that he has on his Facebook page 'cause I'm friends with him on social media where he is holding up his stethoscope and he says, this is the only thing I brought with me from Haiti, because that's how proud I am to be a doctor.

Really all just wonderful people. This entire community is full of folks that. I'm frankly glad that we have in this country. And I don't understand, I just genuinely don't understand and never have why anybody is sad that or has an aversion to these folks being in our country. 'cause I think they're great

Roger Parloff: And I think that it's painful. But I'm gonna mention here that you reference in your brief that, the danger to people that are being sent back there,

Geoffrey Pipoly: It's no joke.

Roger Parloff: Yeah. You have a, where you reference an incident a newspaper article from February, about four people who had been deported from the U.S. and were found decapitated in a river.

Geoffrey Pipoly: Yeah. I mean, that's the gang violence, right? I mean, it's. There's a friend of mine who's a lawyer in Chicago that I know pretty well, who's the past president of the Haitian American Lawyers Association of Chicago. And I was speaking with him and I said, when was the last time you were back in Haiti?

And he said, I went back in early 2021. He was born here, but his parents were from Haiti. And I said, so you haven't really been back since, for lack of a better term, things really popped off because things really popped off with the gang violence. About two thirds of the way through 2021, and they just have gotten increasingly worse since he said, no, I haven't been back since then.

I said to him, well, what would happen if you went back now? And he said, I wouldn't make it 10 minutes outta the airport. He said the gangs will either extort or bribe the airport workers to get the flight manifests of the flight coming in ahead of time, so they know who's gonna land and they'll just go, Haiti's not a big country it's an island nation.

I don't say it's a country of about 11, 12 million people. So not everybody knows everybody, but you know, it's a country. It's a much more intimate environment than the U.S.. So folks know when they're coming off the plane, oh, that family name, let's grab that person. Plus, there's this generalized perception that if you've spent any time in the United States, you have money and you're therefore a kidnapping target.

Because even if you spend time in the United States working as a cab driver or cleaning bathrooms or in the case of one woman I know pushing people on their wheelchairs between airport gates, you know, those sorts of jobs, those might not pay a lot by American standards, but by Haiti standards, that's a lot of money.

And so they will simply kidnap you, attempt to ransom you. And if they, if the, if you can't pay, they will promptly kill you. That's just all there is to it.

Roger Parloff: I wanna try to cover quickly two other things in the time that we have. One is give us an overview of the equal protection argument and the evidence.

You have there.

Geoffrey Pipoly: No, I mean this is certainly sort of the elephant in the room for this case. And I mean, and as Andy said, I've been at this for eight years now. Our first case with the SD was the Sesay case in the Eastern District of New York. It was an issue there. Just like it's an issue. Now, the bottom line is that for reasons I can't answer, the president simply does not like Haitian people.

Now, it's true that he, you know, has expressed negative sentiments sometimes in very blunt terms about any number of groups of immigrants. The Hait— Haitians, for whatever reason seem to have a special occupy, a special part of his obsession. I can't answer why. But he reserves some of his most aggressive in invective for Haitian folks, some of his most notorious statements about immigrants generally are not just about Haitians generally, but about Haitian TPS holders.

Specifically when he said in 2017, why are we having all these people from shithole countries come here? I would rather have people from Norway, he was talking, he in response to a proposal to extend Haiti’s TPS specifically. When he says they're eating the dogs and cats in Springfield, whether he knew it or not, he was talking about Haitian TPS holders specifically, and that is at a high level, the nature of our equal protection claim.

It also dovetails with the pretext arguments that we've been discussing, right? As Andy said at the very beginning, we think the process wasn't followed for any of these countries. And including for Haiti. Well, why wasn't it followed? What are you know, what was the real motivation, if not to follow the statutory the statutory process?

Well, you know, and I know this is uncomfortable and awkward to think that, you know, the president's president of the United States is animus, is really sort of what's driving the boat here. But we think there's strong evidence that there is, and we think that the pretext, like you're jumping through all of these hoops to try to give a, a facially legitimate justification when we have very strong reasons to believe that the facial justifications are not the real justifications.

You have to ask why, and I don't think you can turn away from the president's public statements about these folks. There are a lot more specific and a lot less attenuated than other cases in which the president's public statements have been at issue, most notably the travel ban case, sometimes called the Muslim ban case, Trump v. Hawaii or the DACA case, sometimes known as the Regents of the University of California case. In those cases, you had these sort of general anti-Muslim or general anti-immigrant sentiments.

These statements are about our clients specifically and I have to hope certainly that at some point that has to play into the analysis. It's not so easy to brush it off as the court has done in the past when it's about our plaintiffs specifically. The other thing I'll mention about this is although we do think and we think we can show, and we think that the evidence shows that the president's statements are racial.

And that the termination of TPS, not just for Haiti, but across the board, was a racial classification within the meaning of the due process guarantee. The court doesn't have to go there in order to rule for us, as people learn this in con law one, or maybe con law two, depending on your, how your law school does it that there's these, this line of rational basis cases that says that when a government policy is motivated by bare dislike for an unpopular or weak, you know, politically weak group, that is, that can't be rationally related to a legitimate government interest. And so, you know, either way you slice it, I think you have an equal protection problem here.

Roger Parloff: Thank you for that. I the last topic I wanna cover is a huge one 'cause it's it may be the biggest obstacle of all, it's that there is this jurisdiction limiting or stripping provision in the TPS statute and it's a, at 8 U.S.C. 1254(a)(B)(5)(a).

Geoffrey Pipoly: We don't call it the jurisdiction stripping provision. We just call it B-5-a.

Roger Parloff: Okay. Okay. So, and this might be what the case is all about. I'll read it. There is no judicial review of any determination of the Attorney General and the attorney general here has delegated her responsibility to the secretary of DHS. There is no judicial review of any determination of the secretary with respect to the designation or termination or extension of a designation of a foreign state under this subsection. So the government says, okay, you're outta court, and what's your response?

Andrew Tauber: We have multiple responses.

The first level response is simply a statutory textual analysis. This entire case arises under 1254(a). That's the CPS statute, B(3)(a), which is the periodic review provision of the temporary protected status statute and that provision, B(3)(a), the periodic review provision requires the secretary at least 60 days before the end of the designated period to first consult with other agencies of government.

Then review the evidence with respect to conditions in the designated country. Three, determine whether the conditions meet the statutory criteria for designation. And then four, publish an explanation for her determination in the federal register as you accurately read B(5)(a). All that provision does is prevent courts from reviewing the determination so that, in other words, the secretary's substantive conclusion as to the existence or non-existence of the statutory criteria for designation. It is by its own term. That's what it says.

It says no judicial review of any determination. Well, the periodic review process makes clear that determination is only one constituent part of the periodic review process. First, there has to be the consultation, and we alleged there was not adequate consultation. Then there has to be review of the relevant evidence and as the district court pointed out the conclusion that the secretary reached is diametrically opposed to every piece of evidence in the administrative record. Then she has to make her determination. We acknowledge that there's no judicial review of her determination.

Then she has to explain the basis for her determination. And we say that those are pretextual, but the government tries to expand the word determination, which is what's used in B(5)(a) to encompass not only what is actually determination within the meaning of the statute, but everything related to the decision.

What they like to do is substitute the word decision for determination and then rely on the broader, everyday meaning of decision to say, oh, they're equivalent, therefore a congressman to preclude review of everything. And to that we say, no, that's just not a faithful to the statutory text. And then the understanding that we have of the statutory text is confirmed by legislative history.

So little deep dive here, in 1988 the Supreme Court decided a case called Bowen, which looked at a similar provision purporting to bar judicial review of certain determinations by a different agency, and the court held that the provision, which barred judicial review of determinations, barred judicial review only of the substantive conclusion reached by the agency not.

Review of the procedures or policies that animated the agency's actions. Two years after Bowen was decided in 1998, the TPS statute was written by Congress in 1990, and Congress adopted the very same language in the TPS statute that it had adopted for the statute at issue in Bowen, and there's a general presumption in the law that when Congress uses language that has already been interpreted by the courts and specifically by the Supreme Court, it is assumed to adopt the meaning that has been given to that language by the court.

So here, when Congress acts in 1990, it is presumed to have adopted the understanding that determination is limited to the substantive conclusion, not the procedure surrounding it. Two years after that, if my, or three years after that, I guess, the Supreme Court decided a case called McNary, which in the immigration context was looking at a different provision that purported to bar judicial review of certain determinations, and once again, as in Bowen held that such a provision bars review only of the substantive conclusions, not as to the practices and policies employed in reaching those conclusions.

In that decision in McNary, the court sort of hinted to Congress or told it outright. If you want to accomplish what you thought you were accomplishing, you have to use different words and be more explicit and taking the court at its word, taking the hint Congress three years later in the major 1996 immigration reform package, amended and added provisions in the Immigration Nationality Act that did exactly that.

It took what the court had said in McNary and said, okay, the language that we used in be, and the language that we used in McNary was not sufficient to barge judicial review of practices and policies. So we will be more clear to satisfy the court.

But what's really remarkable is that at the same time, they responded to Bowen and McNary in amending other portions of the Immigration Nationality Act. They did not amend the TPS statute. So we have both the presumption that they meant to adopt the language as it had been interpreted in Bowen, and then the further presumption that they confirmed that understanding by failing to amend it afterwards.

So we have both textual support as well as historic support for our reading of what determination means. And it's a much, much more limited reading than the government has.

Geoffrey Pipoly: And by the way, just real quick on that the language in McNary at issue, which was 1160(e), which had to do with a program called Special Agricultural Workers, was virtually identical to the language in B(5)(a) of the TPS statute.

The government there in McNary argued that the phrase, a determination with respect to bar judicial review, they lost. They said, no, it doesn't. Bar collateral process based challenges, which is all we're bringing, and the language in B(5)(a)  is any no judicial review with respect to any determination with respect to a designation termination. So it's a determination with respect to, or respecting, and any determination with respect to, I mean, there is no daylight really between those two phrases. So, you know, and this is, this by the way, is why every district court to consider this. And the Ninth Circuit jurisprudence on this is a mess.

I think there's a dissent from Boome and then there's the Ramos case from back then. But the overwhelming majority of courts have said, no, McNary solves this. Mc, if there was judicial review in McNary, there's judicial review here because the language is identical.

Roger Parloff: And let me ask you this if you lose on that B(5)(a)—say, say your administrative procedure act claims are barred. Would it also bar your equal protection claim? I mean a constitutional claim?

Geoffrey Pipoly: No. No. The government concedes that it wouldn't.

Roger Parloff: Okay. So that part is gonna. That part is gonna survive. I think yes. You could have a split decision.

Geoffrey Pipoly: Yeah. We weren't really sure what the government's position on that was until we got their merits brief. Quite frankly, it was a little fuzzy. But in their merit brief they didn't challenge the equal protection claim under B(5)(a) and in their reply brief, which was just filed on Monday they come flat out and say it, that B(5)(a) does not bar the equal protection claim.

Roger Parloff: Okay.

Andrew Tauber: I mean, it's not to say that they accept our equal protection claim. They mean they, no,

Roger Parloff: No.

Andrew Tauber: They argue that it fails on the merits. They just admit that there's jurisdiction for the court to consider it.

Geoffrey Pipoly: Exactly.

Roger Parloff: Sure. And then I just wanna say, 'cause you know, I don't have the lawyers representing the Syrians here.

It's they also filed a very fine brief.

Geoffrey Pipoly: Yep.

Roger Parloff: And the leader of that, I believe the one who's gonna argue, I think is Ahilan Arulanantham of the Center for Immigration Law and Policy at UCLA. You've also got a bunch of other public interest groups including the ACLU on that. Then, just before I let you go, obviously, you know, TPS cases the Venezuela case came up twice in the shadow docket.

The Supreme Court, in essence, ruled against the TPS holders in each case. Granted a stay of the relief they were getting. A lot of people take that as a bad omen. I assume it has no direct relevance here where you're, they're finally hearing more or less on the merits. But is it a bad omen and does it have any, weight against you.

Geoffrey Pipoly: It certainly has no presidential or preclusive effect because those orders, you know, obviously there's been a lot of ink spilled over the past year about the degree to which an emergency docket, interim docket, shadow docket, whatever your preferred nomenclature is order, you know, what effect that has on similar cases.

And the rule distilled to its essence is that if the Supreme Court gives any sort of rationale for its ruling in an emergency or interim docket order, that rationale is what binds other similar cases. Neither of the two Venezuela stay orders contained any rationale whatsoever. So I don't know that you can read into those orders.

 It could have been because the nature of the vac couture, it could have been because of some country conditions, country specific thing, like the government wants them to be all about jurisdiction. They very well may be, I have no idea. Right. Nobody can really say for sure. What we do know is that when the Supreme Court granted cert in Miot and in Dahlia Doe, it did not stay the lower court orders.

It did not, because the government sought relief in both manners, the government said, stay the lower court order and grant cert. And the Supreme Court, not only it did grant cert, but it did not stay the lower court orders. And there were no dissents from any of those, from any of that. So, you know, a, as with most things, with the Supreme Court's emergency orders there's a lot of tea leaf reading and, you know, different minds can come to different conclusions about what it means.

But you know, that's one reason why it's really important for the Supreme Court to take cases on the merits and give the benefit of full briefing and argument. You know, I, we are in such a preliminary posture in this case, I can't even tell you. I mean, it, we went from. It's been under six months between from when we went from filing a complaint to the, to a merits case in the Supreme Court.

Now, presumably that's because this is a big important program that, you know, when you take all the countries together, affects about 1.3 million people. That has to be one of the reasons I would imagine. But, you know, I think it's very important for the court to bear in mind the early posture we're in these cases.

And going back to those documents that I mentioned that we filed on the Supreme Court. I mean, I've never been in a situation where I'm filing discovery documents on the, on an appellate court docu docket in an ongoing case, let alone one at the United States Supreme Court. That in and of itself is remarkable.

So, you know, who know I certainly think there's enough there at this point. For even skeptical folks to reasonably raise an, you know, to raise even a skeptical person's eyebrow about whether the process was really followed here and whether the real stated reason, whether the stated reasons were the real reasons.

And certainly we wouldn't be upset if the court, you know, took a, an approach along those lines.

Roger Parloff: Well, I'm afraid we're gonna have to leave it there, but I really appreciate you both making, giving me all this time on it. It's a really important issue.

Geoffrey Pipoly: Thanks very much for having us. And on a personal level I absolutely love Lawfare.

I read you guys all the time, so thank you.

Roger Parloff: Thank you very much.

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