Gov’t Seeks To Nix Suit Over Salvadorans’ Protected Status
Gov’t Seeks To Nix Suit Over Salvadorans’ Protected Status
Law360 (June 5, 2018, 7:39 PM EDT)
The federal government urged a Maryland federal court Monday to toss a case challenging the U.S. Department of Homeland Security’s recent decision to terminate a temporary protected status program for approximately 200,000 Salvadorans in September 2019, saying the decision is not legally reviewable.
When Congress authorized the DHS to administer the program for countries facing natural disasters and other dangerous conditions, it statutorily barred judicial review of the department's decisions, as they involve “important and delicate” foreign policy questions, according to a memorandum attached to the government’s motion to dismiss in the District of Maryland.
“Because review of a challenge to the secretary’s programmatic exercise of discretion is precluded outside of those proceedings, this entire action should be dismissed for lack of subject matter jurisdiction in this court,” the government said.
Should the court determine that it actually has jurisdiction to consider the legal challenge to the DHS’ decision to terminate TPS for El Salvador, the court should still toss it, as the plaintiffs in the case — immigrant advocacy group CASA de Maryland Inc. and several individual Salvadorans — have failed to establish that DHS Secretary Kirstjen Nielsen’s decision was “arbitrary or capricious,” the federal government argued.
“Secretary Nielsen’s decision, based on input from appropriate government agencies, was reasonable in light of the statutory mandate to terminate a country’s TPS designation when the conditions that justify that designation cease to exist,” the government said.
According to the plaintiffs' March complaint, terminating TPS for El Salvador would endanger the lives of the Salvadorans forced to return to a country struggling to deal with natural disasters and rampant crime. They characterized the decision as part of an “anti-immigrant agenda” perpetuated by the Trump administration.
Salvadorans with TPS will need to re-register for the program and apply for employment authorization documents to be able to continue to legally work in the U.S. until Sept. 9, 2019, according to a January announcement by the DHS.
Short of a legislative fix or the adjustment of their legal status through another avenue, the Central American natives would be unauthorized to remain in the country after that date.
The TPS program provides relief to people from countries deemed to be unsafe because of natural disaster, civil war and other conditions. Holders of the status — which in recent years have also included natives of countries such as Haiti, Nicaragua and Honduras — are eligible for work permits and travel authorizations and are not exposed to deportation.
Salvadorans are by far the largest group of participants in the TPS program, accounting for nearly two-thirds of the expected 317,660 re-registrants in the program, according to data released in October by the Congressional Research Service.
Originally receiving the designation in March 2001, following a series of earthquakes, El Salvador received 10 subsequent TPS extensions from the Bush and Obama administrations. In 2016, the nation received an extension based on rationale such as existing poverty, gang violence and drought.
Counsel for the parties could not be reached for comment Tuesday.
CASA de Maryland is represented by Steven Schulman, Stephanie A. Webster, Caroline L. Wolverton and Jillie B. Richards of Akin Gump Strauss Hauer & Feld LLP.
The individual immigrants are represented by Dennis A. Corkery and Tiffany S. Yang of Washington Lawyers’ Committee for Civil Rights and Urban Affairs and Nicholas C. Katz of CASA de Maryland.
The federal government is represented by Chad A. Readler, John R. Tyler and Joseph C. Dugan of the U.S. Department of Justice.
The case is CASA de Maryland Inc. et al. v. Trump et al., case number 8:18-cv-00845, in the U.S. District Court for the District of Maryland.
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