As the Wall Consumes Washington, Another Immigrant Drama Unfolds in Brooklyn

Patricia Hurtado
As the Wall Consumes Washington, Another Immigrant Drama Unfolds in Brooklyn

(Bloomberg) -- Six months before the Trump administration announced the end of Temporary Protected Status for Haitians, John Kelly, then secretary of Homeland Security, complained they were “welfare recipients,” a lawyer for Haitian immigrants told a federal judge.

Plaintiffs’ attorney Howard Roin used a raft of emails and notes by government officials to show what he called the administration’s “racial animus” against Haitians, who now face deportation when their TPS expires on July 22. In removing the protection despite dire conditions in Haiti since a massive earthquake struck in 2010, Roin said in closing arguments Thursday, the government illegally ignored renewal criteria set by Congress when it created the TPS statute.

“This is not the world of alternative facts,” Roin told U.S. District Judge William F. Kuntz II, in Brooklyn, New York. “What we are arguing is that the government must engage with the facts.”

As the deadline for extending TPS approached, an official at the Department of Homeland Security hastily reworked a report to make it favor denial of extension, Roin told the judge, citing DHS emails. It was then sent to Elaine Duke, who became acting secretary of Homeland Security after Kelly was tapped as White House chief of staff, Roin said. On Nov. 20, 2017, she issued the announcement ending TPS for Haitians.

More: What Happened in Court Earlier This Week

Duke “was designated by the Trump administration to be the fall guy,” pressed into service to deny that Haiti was still ravaged by cholera as well as the effects of a 2016 hurricane, Roin said. He argued that government officials broke the law by allowing politics to interfere with the independent decision the statute called on Duke to make.

“It was not a decision driven by racial animus,” Assistant U.S. Attorney Joseph Marutollo countered, arguing that Duke had made an independent decision without pressure from the White House. “The evidence is just not there.”

The trial concluded on day 20 of the federal government’s partial shutdown. The president remains in a standoff with Democrats over immigration and the southern-border wall he campaigned on, once referring to Mexicans as “rapists.” His reported racial invective toward Haitians and Africans has figured in separate litigation over the administration’s addition of a citizenship question to the 2020 census. The TPS case was the first to go to trial of several such cases around the country.

In his closing, Roin referred to an email, dated April 7, 2017, from a Kelly assistant at DHS to the director of the U.S. Citizenship and Immigration Service.

Kelly “wants a small briefing on TPS, likely on Monday,” the staffer wrote. “Details on how many are on public and private relief, how many are school-aged kids, and other demographic data, how many have been convicted of crimes of any kind.”

Another DHS staffer’s handwritten notes of a meeting on May 23 of that year have Kelly saying, “Not a bad people, but they are welfare recipients.”

In a memo written a few weeks before Duke made her decision on Haiti, one staffer complained that the office’s draft on conditions in the country was “overwhelmingly weighted for extension which I do not think is the conclusion we are looking for.”

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Kelly ultimately summoned Duke to a Nov. 3, 2017, meeting at the White House with Jeff Sessions, then attorney general, and Stephen Miller, a senior adviser to President Donald Trump and an adherent of his hard-line stance on immigration, Roin told the court. Roin spoke of Trump’s “racial animus” toward people from places such as Haiti, El Salvador and African nations Trump has derided as “shithole countries.” The president has denied using those words.

The Department of Homeland Security and Kelly didn’t immediately respond to an email seeking comment. A spokesman for the U.S. Attorney’s office in Brooklyn, which is defending the government, declined to comment.

“Plaintiffs’ lawyer described Acting Secretary Duke, in my view patronizingly, as ‘Poor Ms. Duke,’” Marutollo told Kuntz late in the afternoon, after almost five hours of closing arguments. “There is no ‘Poor Ms. Duke.’”

Instead, Duke thoroughly researched the issue and came to her own conclusion that Haiti no longer faced the “extraordinary and temporary” conditions that merited TPS, Marutollo said.

“Acting Secretary Duke had a hard decision to make,” he said. “She knew it would not be popular. But as an intelligent, active government employee, she made her decision with respect to the law. Her decision was lawful.”

In a key constitutional question in the case, Marutollo argued that Kuntz doesn’t have the authority to rule on whether the executive branch’s decision was legal. Roin countered that a federal judge does have the authority to determine whether the administration circumvented the process for granting and extending TPS laid out by Congress.

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Kuntz, who presided over a four-day trial without a jury, reserved his decision and asked the lawyers to file arguments by Feb. 15.

The TPS program, signed into law by President George H.W. Bush in 1990, allows citizens of nations hit by natural disasters or war who were already in the U.S. to stay and work legally until it is safe for them to return to their home country. It protects about 300,000 immigrants. The administration has canceled TPS for at least six countries -- Haiti, El Salvador, Honduras, Nicaragua, Nepal and Sudan.

The plaintiffs say more than 50,000 Haitian immigrants have been allowed to remain legally in the U.S. since the program began and that they have more than 20,000 children, born in the U.S. and therefore citizens. Their parents may have to decide whether to seek care for them in America or return with them to Haiti.

The case is Saget v. Trump, 18-cv-1599, U.S. District Court, Eastern District of New York (Brooklyn).

(Updates with memo in 11th paragraph. An earlier version of this story corrected the name of assistant U.S. Attorney in sixth paragraph.)

--With assistance from Justin Sink.

To contact the reporter on this story: Patricia Hurtado in Federal Court in Manhattan at

To contact the editors responsible for this story: David Glovin at, Peter Jeffrey, Joe Schneider

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