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

The periodic review is a review of conditions that are not in the world.

“The periodic review is a review of conditions that are not in the world.”

The periodic review is a review of conditions that are not in the world. The periodic review is a review of conditions that are not in the world. The periodic review is a review of conditions that are not in the world. The periodic review is a review of conditions that are not in the world. 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 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 want to terminate TPS, fit the facts to that conclusion. Get me there." It's the Law Fair Podcast.

“I'm Roger Parloff, Senior Editor at Law Fair, and I'm with Jeffrey Pipoli,”

and Andrew Tauber, attorneys for Haitian plaintiffs, trying to keep their temporary protected status in the United States. So we have both the presumption that they meant to adopt the language as it had been interpreted and then the further presumption that they confirmed that understanding by failing to amend it afterwards. Both textual support as well as historic support for our reading of what termination means.

It's a much, much more limited reading than the government has. Today, we're talking about the meal case. One of two consolidated TPS cases being argued before the Supreme Court on April 29th. So you are both from the firm of Brian Cave, and Jeff will be arguing before the Supreme Court in the case of meal versus Trump at the Supreme Court level.

They call it Trump versus meal. And that's about TPS status for essentially 350,000 Haitians. And that's been consolidated with another case called at the Supreme Court Mullen vs. 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 to 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? Sure. So TPS, temporary protected status, is 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 US from returning to their home country in safety. If a country is designated for TPS, then it's 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. And when they apply, they are vetted yet the case.

“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 a case. And how long does the designation last? 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 the scheduled expiration, and then determine after consultation with agencies of other agencies of governments, 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,

and if the secretary takes no action, then the default is that the designation is automatically extended.

“And I think that's actually a difficult to speak to this later, but an important legal aspect of the case that, in fact,”

and 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 statutory prescribed process. 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, a secretary known and now, Mullen,

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 want to get too bogged down in the details of that, but tell us what Jeff, what the basis was for terminating Haiti. 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 redesignated 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 from profits. They do extortion.

It's, again, armed 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 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 vacatur,

where in 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 going to claim that I have the inherent and statutory authority to prematurely end a TPS designation by lapping six months off the end of it. So the first thing Secretary Num did with both Haiti and Venezuela was saying,

I'm partially vacating and I'm putting that in scaric quotes because it's not a thing. The designations for these countries, such that they end much earlier than they were scheduled to. And at least as to Haiti, and in our whole team, challenge the partial vacatur in the Eastern District of New York, one 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 is a little bit wonky because they were actually two concurrent designations. So one got completely vacated and affirmed the other one got terminated.

“Okay, and so what is she saying is she saying it's now safe to be in Haiti?”

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 an assessment of whether nationals of Haiti can, quote, return in safety, close quote.

So suitability is not the standard safety is. So that's reason number one she gives is that parts of Haiti are suitable for return.

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, quote, contrary to the national interest, close quote,”

to continue Haiti's TPS designation. Now she has several reasons for asserting that it's contrary to the national interest. It's national interest of basis for terminating. 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 contemporary 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 contemporary 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

on the B1C 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 way to have to answer. 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.

That's right. Okay, I just want to interject one thing on the statute. In the periodic review section, the B3A 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 that is clear indication that the review is supposed to focus on the conditions in the designated country

and US 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. Right. Okay.

“But when they said national interest, what factors did they point to specifically that made it in the national interest to terminate?”

I mean, it's sort of a broader narrative that they have about immigration being bad writ large, if you break it down 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 US 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 US 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 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 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 1/2 of 1% of Haitian TPS holders.

“Remember, they all at the register with the government, so the government knows who all of these folks are.”

And their own data shows, again, 1/2 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 put that to the side, as for pull 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 within DHS, was trying to write this memo for the secretary to say that that TPS is a pull factor.

And she was sort of throwing up her hands and saying, "I want to follow my supervisors instructions to do this,

She says, "I am being forced to include this in the official report.

I'm going to obey the command by my bosses to do that, but I want to go on record that there's no empirical evidence to support it." Now, before I ask you what your bases are for, the legal bases are for challenging the termination, I just want to ask, you mentioned 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? 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. 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? 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 alleged that the administration has failed to adhere to the statutory requirements put forth by Congress and that their variety of procedural failings, because they're aiming to reach a pre-determined outcome, and so they're just going to do whatever it is they can to reach that outcome, such as ignoring the data or claim 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 is predetermined outcome, the desire to remove Haiti's TPS designation is driven by animist 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 principal sets of claims that we're bringing in. And if I could just add on to that, the if there's one thing I would ask your listeners to take away from this is that the nature of the pre-ordained 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 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 indiscretion 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 want to terminate TPS, fit the facts to that conclusion, get me there.

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.

“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, it's safe. Exactly. That's exactly right. And the district judge in this case made that exact point is 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 Haiti would be 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 pre-ordained 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.

That first Haiti termination did not have any country conditions assessment.

The one that is now an issue before the court had that weak assessment about suitability or parts of the country you're suitable. So it's this repeated attempt to terminate and just trying to adapt to the rationale to what they think is going to 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 set up from the beginning, terminate and then everything in the termination notice is really just pre-textual backfill to accomplish that pre-ordained goal.

Andrew mentioned that the statute says you're supposed to consult with appropriate agencies.

“What agencies did they consult with? What evidence did they offer that they had consulted with appropriate agencies?”

They claimed 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 report 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 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 to TPS." What are state's views? Less than an hour later, the State Department's staffer 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, is just a sham going to a pre-determined outcome. And what's interesting amongst the, in addition to the positive of the consultation is who the two characters were on either end of this so-called 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 DPS designation back then. In federal litigation, the case that Jeff was handling, called Sajay and the Eastern District of New York, the court found that that person, Robert Law, had manipulated the data to reach the desired outcome of the Trump's first Trump administration, namely to terminate Haiti's DPS designation.

That same person is involved again, again, manipulating data. And then the second person involved in this email exchange on the State side was a man named Spencer Cretien.

So they got the staff from the State Department and this man named Spencer Cretien. 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 Afrikaners speaking people?" And Spencer Cretien said, "No, it is only for whites." Those are the people who are consulted.

And just to add to that, everything Andy said is absolutely true. Robert Law during Trump 1.0 was a staffer at USCIS, a researcher.

He was brought on to look and he looked at a country conditions memo for Haiti, and he wrote, 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.

Again, it's giving away the game. It is confirming that this is a pre-ordained 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 seems the strain crudulity 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 this 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 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, would then go to the regional desk in Washington, D.C.”

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 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 criterion email in every one of these terminations that I've seen anyway. I don't think the administrative records have 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 it's the same in every case, which again is is evidence of being a being contrary to this statute. Why?

“Because you're supposed to do this good faith country conditions review and you're supposed to have that on a case by case basis. A one size fits all consultation quote unquote is not what Congress had in mind either.”

And this might be a good time for me to ask you about the name plaintiffs in your suit because I would like to say this is a good time for me to ask you about the name plaintiffs in your suit. Because I was in the briefs below I was quite moved about the situation. I mean, some of the people, you know, like I said, this designation goes back some time and you have people that grew up here and don't speak Creole and don't speak French and you're going to send them. Can you just say something briefly about your named plaintiffs? Yeah, we have five named plaintiffs. They're all really wonderful people.

Fritz Marlene and Billbrun 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 the University in California. He's studying the connection between blood pressure rates and Alzheimer's. And he is coming to Washington and you see to watch the argument because I think that these clients have every right to look the justices in, you know, to be in the room with the justices as their fate is decided.

But Fritz will be there. Wonderful, wonderful guy. And again, contributing directly, you know, he speaks Creole and you know, he's he's he's very culturally American in my experience. He sort of got one foot in both worlds. Lene, however, has no foot in the 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 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.

Parents doing the adoption and your listeners may be very surprised to learn that this is common enough to the tune that they're about 200,000 people like her in the United States who were international adoptees. 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 think, I assume, is that, you know, you're in a courtroom and a judge bangs a gavel and says congratulations you're a family now. 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 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 Bill Brun, 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 because 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 or has an aversion to these folks being in our country because I think they're great.

“And I think that it's painful, but I'm going to mention here that you reference in your brief that a danger to people that are being sent back there.”

It's no joke.

Yeah, you have a, you reference and into a newspaper article from February about four people who had been deported from the US and were found decapitated in a river.

Yeah, I mean, that's, 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 weren't for me. 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.

But two thirds of the way through 2021 and they just have gotten increasingly worse since he says, 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 out of 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 going to land and they'll just go, hey, he'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 it's a country. It's it's a much more intimate environment than us. 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 there for 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.

And 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 you can't pay, they will promptly kill you.

That's just all there is to it.

I want to 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. 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 set was the Saturday case in the Eastern District of New York. It was an issue there just like it's an issue now.

Haitians for whatever reason seemed to have a special occupy a special part of his obsession. I can't answer why, but he reserved some of his most aggressive in effective for for Haitian folks.

“Some of his most notorious statements about immigrants generally are not just about Haitians generally, but about Haitian TPS holders specifically.”

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.

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, including for Haiti. Well, why wasn't it followed? What was the real motivation if not to follow the statutory process? Well, you know, and I know this is uncomfortable and awkward to think that the president's president of the United States's 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 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 books.”

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. Oye, 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 water, maybe con law too, depending on your eye or law school does it. That there's these, this line of rational basis cases that says that when a government policy is motivated by bear dislike for an unpopular or weak 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.”

Thank you for that. The last topic I want to cover is a huge one because 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 at 8 USC 1254A B5A. We don't call it the jurisdiction stripping provision, we just call it B5A. Okay. Okay. So, and this might be what the case is all about. 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 out of court, and what's your response?

In that provision, B3A, 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.

If you, determine whether the conditions meet the statutory criteria for designation and then for published an explanation for her determination in the federal register.

Accurately read B5A, all that provision does is prevent courts from reviewing the determination. So, then, in other words, the secretary substantive conclusion as to the existence or non-existence of the statutory criteria for designation.

“That's what it says. It says, the 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.”

Then there has to be a review of the relevant evidence and has the district court pointed out the conclusion that the secretary reached is diametrically opposed to every 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.

They say that those are pretextual, but the government tries to expand the word determination, which is what's used in B5A, 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 every day's 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 a little deep dive here in 1988, the Supreme Court decided a case called Bowen, which looked at similar provision, and reporting to bar judicial review of certain determinations by a different agency, and the court held that the provision, which bar judicial review of determinations, bar 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 and 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 determinations limited to the substantive conclusion, not the procedures surrounding it.

Two years after that, 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, McNary, the court 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 to hand, 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 said, "Okay, the language that we used in Bowen, the language that we used in McNary was not sufficient to bar judicial review of practices and policies, so we will be more clear to satisfy the court."

So we have both the presumption that they'd 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. And by the way, just real quick, the language in McNary at the issue, which was 1160E, which had to do with a program called Special Agricultural Workers, was virtually identical to the language in B5A of the TPS statute.

The government there in McNary argued that the phrase A determination with respect to bar judicial review, they lost, and they said no, it doesn't bar collateral process based challenges, which is all we're bringing. The language in B5A is any, no judicial review with respect to any determination, right, with respect to a designation termination. So it's A determination with respect to, or we're expecting, 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 decental from BumaTay, and then there's the Ramos case from back then, but the overwhelming majority of courts have said no, McNary solves this.”

If there was judicial review in McNary, there's judicial review here, because the language is identical.

If you ask you this, if you lose on that B5A, say, say, your administrative procedure acclaims are barred, would it also bar your equal protection claim? I mean, a constitutional claim? No.

“The government conceives that it wouldn't.”

Okay, so that part is going to, that part is going to survive, I guess, you could have a split decision.

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, little fuzzy. But in their merit brief, they didn't challenge the equal protection claim under B5A, and in their reply brief, which was just filed on Monday, they come flat out and say it, that B5A does not bar the equal protection claim. I mean, it's not to say that they accept our equal protection claim. They may not know, but they argue that it fails on the merits, they just admit that there's jurisdiction for the court to consider it.

Exactly. Sure.

“And then I just want to say, because I don't have the lawyers representing the Syrians here, they also filed a very fine brief, and the leader of that, I believe, the one who's going to argue, I think is,”

he's on our U-Lum-Num-Thum, 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, a TPS cases, the Venezuelan 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 they're finally hearing more or less on the merits, but is it a bad omen and does it have any weight against you? It certainly has no presidential or preclusive effect because those orders, 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, 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 Venezuelas 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 vacator, it could have been because of some country condition, 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.

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 did grant cert, but it did not stay the lower court orders, and there were no dissents for many of those from many of that. So, you know, as with most things with the Supreme Court's emergency orders, there's a lot of tea leaf reading and 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 freeing an argument.”

You know, we aren't such a preliminary posture in this case. I can't even tell you. I mean, it's been under six months between from what we went for filing complaint to a merits case on 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 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 an appellate court document in an ongoing case, let alone one of the United States Supreme Court.

That in and of itself is remarkable. So, you know, I certainly think there's enough there there at this point for even skeptical folks to reasonably raise and, 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 an approach along those lines. Well, I'm afraid we're going to 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.

Thanks very much for having us and on a personal level. I absolutely love law fair. I reach you guys all the time. So, thank you. Thank you very much.

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