Challenges to U.S. Policy Affecting Haitian Immigrants

Center for Human Rights and Constitutional Law

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Practice Advisory Series

Challenges to U.S. Policy Affecting Haitian Immigrants

January 2023

12.16 CHALLENGES TO POLICY PRACTICE ADVISORY - Asylum and Protection from Removal for Hait

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The Center for Human Rights and Constitutional Law is a non-profit, public interest

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The Center has achieved major victories in numerous major cases in the courts of the

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This practice advisory is intended to provide context about the history of anti-Black

racism in the U.S. immigration system, current treatment of Haitian immigrants and asylum

seekers in the U.S., and challenges to immigration law and policy affecting Haitian immigrants.

Manuals prepared by the Center are constantly being examined for improvements and

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Peter Schey

President and Executive Director

Center for Human Rights and

Constitutional Law

TABLE OF CONTENTS

I. U.S. Treatment of Haitian Immigrants and Asylum Seekers.

A. Introduction.

B. Trump era policies.

1. Remain in Mexico.

2. Title 42 expulsions.

C. The Biden Administration and current treatment of Haitian asylum seekers.

1. Remain in Mexico (MPP).

2. Title 42 expulsions.

3. U.S. - Mexico border.

4. Interdiction.

5. TPS

II. Challenges to U.S. immigration law as applied to Haitian immigrants.

A. Cases defining the rights of a person without legal entry documentation at initial entry.

1. Plyler v. Doe, 457 U.S. 202, 215 (1982).

2. Haitian Refugee Ctr. v. Baker, 953 F.2d 1498, 1510 (11th Cir. 1992).

3. Haitian Ctrs. Council v. McNary, 969 F.2d 1326, 1339-40 (2d Cir. 1992) (vacated by Sale v. Haitian Ctrs. Council 509 U.S. 918 (1993))

4. Sale v. Haitian Centers Council, 509 U.S. 155 (1993).

5. The Haitian Centre for Human Rights et al. v. United States, Case 10.675, 10.675, Inter-American Commission on Human Rights (IACHR), 13 March 1997.

6. Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020).

B. Equal protection claims.

Legal standard.

Fact background.

1. Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 514 (S.D. Fla. 1980).

2. Jeanty v. Bulger, 204 F.Supp.2d 1366 (S.D.Fla. 2002).

3. Saget v. Trump, 345 F. Supp. 3d 287, 303 (E.D.N.Y . 2018).

4. Ramos v. Nielsen, 321 F. Supp. 3d 1083 (N.D.Cal. 2018).

5. NAACP v. United States Dep't of Homeland Sec., 364 F. Supp. 3d 568 (D.Md. 2019).

6. Ramos v. Wolf 975 F.3d 872 (9th Cir. 2020)

C. Procedural due process.

Legal standard.

Fact background.

1. Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 514 (S.D. Fla. 1980).

1. Ramos v. Nielsen, 321 F. Supp. 3d 1083 (N.D.Cal. 2018) (2(B)(4)).

D. Fifth Amendment Substantive Due Process.

Legal standard.

Fact background.

1. Doe v. Barr, 2020 U.S.Dist.LEXIS 64459, at *1-2 (N.D.Cal. Apr. 12, 2020).

2. Unknown Parties v. Nielsen 2020 U.S.Dist.LEXIS 27890 (D.Ariz. Feb. 19, 2020).

E. Administrative Procedures Act

Legal Standard.

Fact background.

1. Jeanty v. Bulger 204 F.Supp.2d 1366, (S.D.Fla. 2002).

2. Saget v. Trump 345 F. Supp. 3d 287, (E.D.N.Y . 2018).

3. Ramos v. Nielsen 321 F. Supp. 3d 1083 (N.D.Cal. 2018).

III. Ongoing Litigation 32I. U.S. Treatment of Haitian Immigrants and Asylum Seekers.

A. Introduction.

As the humanitarian crisis in Haiti reaches a fever-pitch, the U.S. continues to turn away

Haitian people seeking refuge in the United States, deporting them to violence, persecution, and life-threatening conditions. In September 2021, images and video of Border Patrol agents on horseback appearing to whip and trample Haitian asylum seekers, pushing them back towards the river they had been crossing, sparked international outrage and resulted in an internal investigation.1 Since then, the situation in Haiti has gotten worse, yet the U.S. has deported more

than 20,000 people back to Haiti.2

Fleeing the gangs that have taken control of major cities in Haiti following the 2021

assassination of President Moise, around 96,000 people have been forced from their homes in the capital.3 This diaspora may cause a rise in asylum in the U.S. Instead of planning to help asylum seekers find homes in the U.S., the White House is weighing whether to incarcerate Haitians seeking safety in Guantanamo Bay or force them to wait in a third party country.4

In October 2022, the U.S. Coast Guard sent a ship to the coast of Port-au-Prince, a city

under gang control, to cooperate with the Haiti Coast Guard in preventing people from fleeing by

boat.5

U.S. treatment of Haitian asylum seekers has its roots in the slave trade, when forced

migration of individuals of African descent into the Carribean and North America allowed

Western nations to profit off of the unpaid labor of enslaved people. These roots propel

anti-Black racism in the U.S. immigration system. Forced migration continues as a result of the impacts of imperialist occupation and interference with local politics, while Black immigrants are disproportionately criminalized, deported, and detained.

B. Trump era policies.

1. Remain in Mexico.

In 2016, the Obama administration implemented metering–intentionally reducing the

number of asylum applications processed at the border and sending many asylum seekers to

Mexico to await processing–in response to a rise in Haitian immigration into the U.S. through

Mexico.6 The senior advisor to Trump, Stephen Miller, expanded this practice across the border in 2018 under the Migrant Protection Protocols (MPP, also known as the Remain in Mexico

Program).

Under Section 235(b)(2)(C) of the Immigration and Nationality Act (INA), “in the case

of an alien . . . who is arriving on land (whether or not at a designated port of arrival) from a

foreign territory contiguous to the U.S.,” the Secretary of Homeland Security “may return the

alien to that territory pending a [removal] proceeding under § 240” of the INA.” Asylum seekers with credible fear were turned away at the border, forcing them to await adjudication of their cases in Mexico. They were forced to stay in overcrowded, dangerous, and under-resourced camps at the border or were immediately deported to their home country.7

Haitian immigrants face particularly high risk of harm in the Mexican border towns

where they are forced to wait. According to a report to the United Nations Committee on the

Elimination of Racial Discrimination (CERD), 61% of Haitian individuals forced to wait in

Mexico reported being the victim of a crime.8 Government actors also target Haitian people; 20% of Haitian asylum seekers waiting in Mexico have reported abuse including beatings, extortions, and threats at the hands of Mexican police officers.9

2. Title 42 expulsions.

During the COVID-19 pandemic, the Trump administration directed Customs and Border

Protection (CBP) to issue an internal memorandum in April 2020 (the “Capio Memo”) under

Public Health Service Act 42 U.S.C. § 265. 53, which allows for the “suspension of entries and imports from designated places to prevent spread of communicable diseases.”10 The memo stated that “all processing [of covered noncitizens under the Title 42 Process] will be done in the field” “[t]o the maximum extent possible.” The Capio Memo allowed Border Patrol to expel covered noncitizens immediately to Mexico, Canada, or their country of origin after a limited period of detention. The pretextual purpose of the Title 42 Process, as described by the Capio Memo, was to protect the country against COVID-19. The Kaiser Family Foundation found that by “March 2022, over 1.6 million single adults, nearly 200,000 individuals in a family unit, and nearly 16,000 unaccompanied minors have been expelled cumulatively under Title 42.”11

C. The Biden Administration and current treatment of Haitian asylum seekers.

1. Remain in Mexico (MPP).

The Biden administration attempted to terminate the practice of returning all asylum

seekers to Mexico in November 2021. The administration was enjoined from implementing

rescission of the MPP after the rescission was challenged in court. On June 30, 2022, the US Supreme Court found that the program could be terminated.12 Although MPP is not currently enrolling new asylum seekers, metering targeting Haitian immigrants, which started before Trump implemented the MPP, could continue.13

2. Title 42 expulsions.

On April 1, 2022, Biden moved to end Title 42 expulsions and the CDC terminated the

August 2021 Order extending Title 42 expulsions, with an implementation date of May 23,

2022.14 Texas and Louisiana immediately brought challenges to the change to Title 42 policy, achieving an injunction that prevented the practice from discontinuing in May 2022.15 Since rescission of the procedure was blocked, Biden has continued to use Title 42 to deport

individuals at the border without providing them any opportunity to access the asylum process. Title 42 expulsions have disproportionately targeted Haitian asylum seekers.

One district court found that Trump’s and the CDC’s implementation of Title 42

deportations violated the APA, while another found that the rescission of the program violated the APA.16 Litigation challenging the continuation and rescission of Title 42 deportations continues and the policy continues to disproportionately impact Black and Haitian immigrants.

A Shadow Report to the UN Commission on Ending Racism found glaring disparity

between treatment of white Ukrainian refugees and Haitian refugees: “Between March and May 2022, DHS processed more than 98.9 % of the more than 23,000 Ukrainians who arrived at the southern US border at ports of entry - nearly all were granted parole and not placed in removal proceedings and only 0.6% subjected to Title 42. In comparison, with ports of entry largely blocked to other asylum seekers, only 23.5% of the 18,000 Haitians encountered along the southern border in that same period were able to present at ports of entry and 26.3% were subjected to Title 42, a rate more than 40 times higher than Ukrainians.”17

3. U.S. - Mexico border.

When some COVID-19 restrictions began being lifted and Biden took office, promising

to end some of Trump’s cruel immigration policies, nearly 15,000 Haitian people came to the

U.S. - Mexico border seeking asylum in the U.S.18 Instead of asylum, they were met with Border Patrol agents and forced into a squalid camp at the edge of the Rio Grande, without adequate access to medical care, food, or water.19

Soon afterward, most were taken to immigration detention centers, quickly processed

without the opportunity to seek asylum, then flown back to Haiti, often in chains and shackles.20 By February of 2022, the Biden administration had deported 20,000 Haitian people on 198 flights back to Haiti under the Title 42 procedures he had recently attempted to rescind.21

4. Interdiction.

Many Haitian immigrants arrive by boats at the U.S. border after harrowing journeys. By

the 70s, the U.S. was practicing interdiction, the practice of turning asylum seekers away before they can reach the border so that they do not have the opportunity to seek asylum, and this practice continues as more people flee Haiti seeking safety.

Between October 2021 and August 2022, “Border Patrol has stopped 6,534 Haitians

trying to reach South Florida. [This] number [is] higher than the last five years combined.”22

Since Oct. 1, 2022, Coast Guard crews have interdicted 585 Haitian migrants. In fiscal year

2022, the Coast Guard interdicted 7,175 Haitian asylum seekers, as compared to 1,527 in Fiscal Year 2021, 418 in Fiscal Year 2020, 932 in Fiscal Year 2019, 609 in Fiscal Year 2018, and 419 in Fiscal Year 2017.23

These thousands of people risking this perilous journey were interdicted and sent back to Haiti without the opportunity to show that they would be persecuted there.

5. TPS

After months of advocacy by community organizations, political leaders, and advocates,

on December 5, 2022, DHS Secretary Mayorkas extended and redesignated temporary protected status for Haiti for 18 months.

II. Challenges to U.S. immigration law as applied to Haitian immigrants.

A. Cases defining the rights of a person without legal entry documentation at initial entry.

1. Plyler v. Doe, 457 U.S. 202, 215 (1982).

In 1982, the Supreme Court affirmed that undocument immigrants have constitutional

protections inside the U.S.: “Use of the phrase ‘within its jurisdiction’ thus does not detract from, but rather confirms, the understanding that the protection of the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State's territory. That a person's initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State's territorial perimeter.”24

Following Plyler, several cases contended with the question of whether non-citizens have rights at initial entry, what rights they have outside or near the border, and what geographical reasons and circumstances are encompassed in the meaning of initial entry.

2. Haitian Refugee Ctr. v. Baker, 953 F.2d 1498, 1510 (11th Cir. 1992).

Under Reagan’s interdiction program, an agreement with Haiti provided that Haiti would

accept deported Haitian people into Haiti without prosecuting them for illegal departure and that the U.S. would not deport Haitian people who qualified as refugees. Pursuant to this agreement, the U.S. Coast Guard conducted cursory pre-screening interviews with individuals interdicted on route to the U.S. Haitian asylum seekers were interdicted, taken to Guantanamo Bay where they were detained, and either “screened in” (found to have credible fear) or “screened out” and deported to Haiti. Those who were screened in were taken to the U.S. to pursue asylum.

In 1991, the democratically elected government of Haiti was overthrown by a military

coup and reports of human rights violations increased, but the U.S. continued repatriations. The Haitian Refugee Center filed a complaint asserting claims under the Executive Order,

international law, the United Nations Protocol Relating to the Status of Refugees, United States immigration statutes and the fifth amendment, later adding first amendment and Administrative Procedure Act (APA) claims.25 The district court ruled that (1) the refugees have the right under the APA to be properly interviewed, and (2) HRC has a First Amendment right of access in accordance with reasonable time, place, and manner limitations. The Eleventh Circuit ultimately overturned on appeal, instructing the district court to dismiss the suit for failure to state a claim because “The plaintiffs in this case have been interdicted on the high seas and have not yet reached ‘a land border’ or a ‘port of entry.’ Therefore, their claims under the INA must fail.” 26

3. Haitian Ctrs. Council v. McNary, 969 F.2d 1326, 1339-40 (2d Cir. 1992) (vacated by Sale v. Haitian Ctrs. Council 509 U.S. 918 (1993))

Following the Baker case, the INA changed its policy, directing INS officers to provide a

second interview to “screened in” Haitian asylum seekers who had been determined to have a communicable disease. The second interview would require interviewees to meet the higher asylum standard, allowing the U.S. to repatriate Haitian asylum seekers with credible fear without providing them access to representation or the formal asylum process.

Haitian Centers Council filed a lawsuit, again alleging that the repatriations of Haitian

asylum seekers violated the fifth amendment rights of impacted Haitians and their immediate

family members and that the U.S. actions preventing legal advocates from accessing asylum

seekers detained in Guantanamo Bay violated the organization’s first amendment rights. The

Second Circuit dismissed some claims but found that individuals “interdicted on the high seas by the United States Coast Guard, who have been found by the government's representatives to have a ‘credible’ fear of persecution on account of ‘membership in a particular social group[] or political opinion,’ and are then forcibly detained by United States governmental authorities on property that is under the exclusive control of the United States government, may avail themselves of the due process clause of the fifth amendment.”27

4. Sale v. Haitian Centers Council, 509 U.S. 155 (1993).

In 1981, President Reagan announced that "the ongoing migration of persons to the

United States in violation of our laws is a serious national problem detrimental to the interests of the United States” and introduced Executive Order 12,324, the Haitian Migrant Interdiction Program, which allowed Coast Guards to repatriate all interdicted individuals indiscriminately, without allowing them an asylum hearing.

This practice of turning individuals away outside the border was held up by the U.S.

Supreme Court, which ruled that international law was not binding and that U.S. immigration

protections for asylum seekers and refugees did not apply to individuals who were

geographically outside the U.S., and that the president had the discretionary power to interdict anyone.28

The Supreme Court concluded that undocumented immigrants outside the United States do not have a right to due process and that the president has discretion to turn undocumented immigrants away outside the border even without determining their eligibility for asylum: “neither § 243(h) [ 8 U.S.C.S. § 1253] nor Article 33 of the United Nations Protocol Relating to the Status of Refugees applies to action taken by the Coast Guard on the high seas.”29

5. The Haitian Centre for Human Rights et al. v. United States, Case 10.675, 10.675,

Inter-American Commission on Human Rights (IACHR), 13 March 1997.

The Inter-American Commission on Human Rights disagreed.30 The Commission found that the interdiction program violated Article I, Article II, Article XVIII, and Article XXVII of the American Declaration of the Rights and Duties of Man. The Commission found that “the United States Government's act of interdicting Haitians on the high seas, placing them in vessels under their jurisdiction, returning them to Haiti, and leaving them exposed to acts of brutality by the Haitian military and its supporters constitutes a breach of the right to security of the Haitian refugees,” of due process, of access to the courts, and of the right to non-refoulement (the right to seek refuge from dangers in one’s country). The Commission found that there were no geographical limitations to the right to non-refoulment. Finally, the Commission found that “the racial and national origin discrimination practiced by the United States Government is plain.”31

6. Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959 (2020).

Under the 2020 Thuraissigiam ruling, an asylum seeker apprehended approximately 25

yards from the U.S. - Mexico border. He was detained for expedited removal, an asylum officer found he did not have credible fear, a supervisor affirmed the finding, and an immigration judge again affirmed. He then filed a petition for habeas, raising new grounds for asylum. The Ninth Circuit allowed the habeas action to continue, finding that 8 U.S.C. §1252(e)(2), which limits habeas for non-citizens, as applied here violated due process.

The Supreme Court found that the Suspension Clause protects habeas from detention but not deportation. The Supreme Court also found that simply making it onto U.S. soil did not avail an immigrant of constitutional protections, concluding that for a non-citizen “seeking to enter the country…the decisions of executive or administrative officers, acting within powers expressly conferred by Congress, are due process of law.”32

This ruling does not preclude all constitutional claims near or outside the border. Courts

have found that Thuraissigiam was narrow and did not create a legal fiction that within an

arbitrary geographic space, noncitizens were not entitled to any constitutional protections: “If the Supreme Court had intended to overturn more than a century of precedent, it would have said so. It did not...The Supreme Court did not intend to allow for the parade of horribles that stems from expanding the zone of constitutional inapplicability beyond the 25 yards in Thuraissigiam.”33

B. Equal protection claims.

Legal standard.

An equal protection claim can be made two ways: (1) disparate treatment of similarly

situated individuals or (2) a “discriminatory purpose” was “a motivating factor” in the

government’s conduct. Arlington provides a non-exhaustive list of factors that can establish such a claim.34

The similarly situated standard creates a higher bar in the immigration context because

courts have found that the government can differentiate by nationality in immigration decisions without violating equal protection, and doing so is a large part of the immigration system.35 Arguing that a group is similarly situated is also difficult because country conditions, manner of entry, circumstances of entry, and other factors are not likely to be close enough.

Under Arlington Heights, the plaintiff must show discriminatory animus but need not

establish disparate treatment.36 The Arlington Heights factors include: “(1) whether the impact of the official action ‘bears more heavily on one race than another’; (2) ‘[t]he historical background of the decision’; (3) ‘[t]he specific sequence of events leading up to the challenged decision,’ including whether the defendant departed from the ‘normal procedural sequence’; (4) ‘[s]ubstantive departures’ from factors normally considered in reaching a decision; and (5) the administrative history of a decision.’”37 Especially relevant are “contemporary statements by members of the decision-making body.”38

After a non-citizen arrives in the United States and begins establishing ties to the country, certain constitutional protections extend to them, even if their presence is "unlawful, involuntary, or transitory."39 The Equal Protection Clause of the Fifth and Fourteenth Amendments protects any person who is physically present in the United States.40 Protections weaken when the individual is seeking entry, and the executive branch has significant discretion to discriminate in decisions about who can enter the U.S., especially when national security is implicated.

Fact background.

The U.S. has a long history of singling out Haitian immigrants for discrimination.

Following a prediction of increasing diaspora from Haiti, the Biden administration is considering responding by detaining Haitian asylum seekers in Guantanamo Bay and expulsion without access to the asylum process (this may require a FOIA).41

A Shadow Report to the UN Commission on Ending Racism found disparities between

treatment of white Ukrainian refugees and Haitian refugees: “Between March and May 2022,

DHS processed more than 98.9 % of the more than 23,000 Ukrainians who arrived at the

southern US border at ports of entry - nearly all were granted parole and not placed in removal proceedings and only 0.6% subjected to Title 42. In comparison, with ports of entry largely blocked to other asylum seekers, only 23.5% of the 18,000 Haitians encountered along the southern border in that same period were able to present at ports of entry and 26.3% were subjected to Title 42, a rate more than 40 times higher than Ukrainians.”42

Asylum officers disproportionately find that Black and Haitian immigrants do not have

credible fear. While Haitian immigrants received a positive finding of credible fear only 44% of

the time in 2021, asylum seekers from other nationalities received positive findings 69% of the time.43

Haitians also face discrimination in court proceedings. There is often no Creole/Kreyole

translation available and Haitian immigrants frequently do not have access to counsel. Despite the crisis in Haiti, adjudicators are often biased against granting asylum to Haitian individuals.44 Between FY 2001 and FY 2021, Haitian asylum seekers (alongside Honduran asylum seekers) had the second highest asylum denial rate of any nationality at 82%.45

Black asylum seekers are more likely to have their petitions rejected; Black individuals

incarcerated in immigration detention centers are more likely to be placed in solitary confinement; Black immigrants are at higher risk of deportation; bond is set, on average, 54% higher for Black Haitian immigrants; and in 2020, 44% of the people living in ICE detention were Haitian immigrants.46

The U.S. has implemented several plans designed to detain, deter, and deport Haitian individuals. Many of them have been challenged, and courts have responded inconsistently.

1. Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 514 (S.D. Fla. 1980).

In 1978, the U.S. initiated the “Haitian Program,” under which then INS Deputy

Commissioner Noto directed immigration to deter Haitian immigration. Among the deterrence

methods were expediting the asylum process to allow officials to deport Haitian asylum seekers within fewer than 10 days, denying new and rescinding existing employment authorization, immediately detaining Haitian asylum seekers, and summarily expelling Haitian immigrants.47 This program was struck down by Haitian Refugee Center v. Civiletti, which found the policies violated due process and unlawfully discriminated against Haitian individuals.48 Because the process was set up “for the sole purpose of…expelling Haitians from the United States…by its very nature and intent, that process was prejudicial and discriminatory.”49

The court noted that there was no legitimate purpose aside from animus towards Haitians: “Sava's first two suggestions-incarceration and unemployment-appear intended to treat Haitians as poorly as permissible during their stay in the United States so that others would be deterred from immigrating…There is no indication that Sava's interpretation of "asylum claims" had ever been used before, or that it had ever been applied to another nationality or racial group. No consideration was given to its due process ramifications. The desire to deter further immigration apparently prevailed over such considerations.”50

The court cited contemporaneous statements confirming that animus drove the decision

to detain and deny employment authorization to Haitian asylum seekers: Sava’s statements “also indicates the purpose of the Haitian program and its expedited processing: ‘I believe the best most practical deterrent to this problem is expulsion…. We will get the cases moved to hearings swiftly and keep things moving.’”51

The Civiletti court found that policies and procedures that singled out Haitian asylum

seekers for disparate treatment along with contemporaneous statements justifying such treatment as a means to indiscriminately deport Haitian asylum seekers established an equal protection violation.

The court wrote a description of the case then that remains true: “This case involves

thousands of [B]lack Haitian nationals, the brutality of their government, and the prejudice of

ours.”52

2. Jeanty v. Bulger, 204 F.Supp.2d 1366 (S.D.Fla. 2002).

Plaintiffs challenged a policy directing immigration to detain all Haitian asylum seekers,

granting parole only in cases of unusual hardship. The Acting Deputy Commissioner Becraft

“instructed the INS Office of Field Operations that ‘no Haitian should be paroled without the

approval of INS Headquarters.’"53 Becraft advanced a number of justifications for the policy,

noting “a sharp increase in maritime departures from Haiti;” the possibility of “mass migration” from Haiti; that the U.S. “should take steps to discourage Haitians from” traveling to the U.S. by boat; the dangers of maritime departures; and that “other Haitians who might arrive in a similar fashion in South Florida, are less likely to appear for their immigration proceedings or for removal, if they ultimately received final orders of removal, given their demonstrated desperation to depart Haiti.”54

Because the case involved entry into the U.S. (the court cited "entry fiction,” the legal

fiction that individuals apprehended at the border and detained in the U.S. who were never

granted entry were not legally in the U.S.), the court concluded that it “must only ascertain

whether the Government has advanced a facially legitimate and bona fide reason supporting the decision.”55 The court found that the stated reasons were facially legitimate and bona fide. The court did “not speculate as to whether the same goal could be achieved through alternative

means.”56

The court essentially found that because the plaintiffs had not legally entered the U.S.,

even clear discrimination against them, because it had a plausible neutral justification, did not establish an equal protection violation.

3. Saget v. Trump, 345 F. Supp. 3d 287, 303 (E.D.N.Y . 2018).

In 2018, DHS terminated Temporary Protected Status for Haitians despite dangerous

conditions in the country. A district court enjoined the policy, finding that it was likely “based on race and/or national origin/ethnicity against non-white immigrants in general and Haitians in particular.”57

Plaintiffs successfully relied on several instances of anti-Haitian made by President

Trump, including that “upon learning 15,000 Haitians had received visas in 2017, President

Trump allegedly stated, ‘they all have AIDS’...[and] ‘Why are we having all these people from

shithole countries come here?’ The President also allegedly asked specifically, ‘Why do we need more Haitians?’ and insisted they be removed from an immigration deal…These allegations are more than sufficient to support a plausible inference of the President's animus based on race and/or national origin/ethnicity against non-white immigrants in general and Haitians in particular.”58

Analyzing the policy under the factors prescribed by Arlington Heights, the court found

that “there is both direct and circumstantial evidence a discriminatory purpose of removing

non-white immigrants from the United States was a motivating factor behind the decision to

terminate TPS for Haiti.”59

4. Ramos v. Nielsen, 321 F. Supp. 3d 1083 (N.D.Cal. 2018).

Plaintiffs challenged the termination of TPS for Haiti, Sudan, Nicaragua, and El Salvador based on equal protection, among other claims. Plaintiffs pointed to Trump’s racist statements.

Defendants did not deny that the statements evidenced racial animus; rather, they argued that his statements were irrelevant because the Secretary of Homeland Security, not the President, terminated TPS. The court found that “even if Acting Secretary Duke and Secretary Nielsen do not personally harbor animus towards TPS-beneficiaries from Haiti, El Salvador, Nicaragua, and Sudan, their actions may violate the equal protection guarantee if President Trump's alleged animus influenced or manipulated their decisionmaking process.”60

Defendants attempted to argue that an equal protection claim requires a showing that a

similarly situated group was treated better. The court disagreed, concluding that “Under

Arlington Heights, government action may violate equal protection if a discriminatory purpose was one motivating factor.”61

Finally, Defendants argued that even if the plaintiffs were not required to allege the

existence of a similarly situated group, the Secretary's decision to terminate TPS was subject

only to a highly deferential form of rational basis review, rather than strict scrutiny.62 The court

found that, unlike in Trump v. Hawaii, where national security was implicated and plaintiffs were seeking entry, the plaintiffs in this case did not pose a national security threat and were living inside the U.S., affording them greater constitutional rights.63

The court ruled that “plaintiffs have plausibly pled that President Trump's racial and

national-origin/ethnic animus was a motivating factor in DHS's TPS termination decisions and thus have plausibly stated an equal protection claim” and denied defendants’ motion to dismiss.64

5. NAACP v. United States Dep't of Homeland Sec., 364 F. Supp. 3d 568 (D.Md. 2019).

Plaintiffs challenged termination of temporary protected status for Haiti, alleging, among

other claims, violation of equal protection. Defendants argued that the proper level of scrutiny

for the claim was rational basis review under the precedent of Trump v. Hawaii, 138 S.Ct. 2392 (2018). The court found that strict scrutiny applied because the TPS termination was not based on national security concerns and because the plaintiffs in this case were living in the U.S., unlike the plaintiffs in Hawaii, who were seeking entry to the U.S.65

The court analyzed the claim under the Arlington factors. Unlike in Ramos (below), the

court found that “Even if it cannot be proven that Acting Secretary Duke or Secretary Nielsen

personally harbor animus towards TPS-beneficiaries from Haiti, their actions may violate the

equal protection guarantee if President Trump's alleged animus influenced or manipulated the decision-making process.”66

Unlike in Ramos (II.B.5), the court accepted the cat’s paw theory, finding that to do

otherwise would “thwart the very purposes of the [anti-discrimination] acts by allowing

employers to insulate themselves from liability simply by hiding behind the blind approvals,

albeit non-biased, of formal decisionmakers.”67 The court noted “There is no logical reason why this principle should not apply with equal force when the superior entity or authority (here, the President) influences a subordinate (here, a cabinet member) to perform an action charged to the latter.”68

6. Ramos v. Wolf 975 F.3d 872 (9th Cir. 2020)

The plaintiffs in Ramos challenged termination of TPS for Haiti, Sudan, Nicaragua, and

El Salvador, arguing that the termination was a violation of the APA in that it diverged from

previous policy, was a violation of the APA in that it conflicted with the TPS statutory

guidelines, and was a violation of equal protection because it was motivated by racial animus. “Plaintiffs need only show that racial discrimination was at least a motivating factor for the challenged TPS terminations in order to prevail on their equal protection claim.”69

The split Ninth Circuit court found that the plaintiffs’ “EPC claim fails predominantly

due to the glaring lack of evidence tying the President's alleged discriminatory intent to the

specific TPS.”70 The court rejected the “cat’s paw” theory, which imputes the discriminatory

statements of one government official (in this case, then-president Trump) to the acts of another arm of the executive branch (the Homeland Security Secretary), despite finding that the president had exerted influence over the Secretary to pressure him to terminate TPS. The court found that most of the president’s racist statements were not directly related to TPS and were therefore not contemporaneous, with the exception of one meeting about TPS, which the split court found did not influence the termination decision, despite internal communications including the statement “this decision is really just a difference in strategy to get to the President's objectives."

Analyzing the claim under the Arlington factors, the court found that the termination did

not “bear more heavily” on non-white immigrants because other countries that were redesignated for TPS were also predominantly non-white. The court also found that the historical background of the decision did not reveal, as the district court held, “a series of official actions taken for invidious purposes."71

Plaintiffs showed that in June 2017, then-President Trump stated that "15,000 recent

immigrants from Haiti 'all have AIDS' and that 40,000 Nigerians, once seeing the United States, would never 'go back to their huts' in Africa,” and asked, "'Why are we having all these people from shithole countries come here?” He then suggested that the United States should instead “bring more people from countries such as Norway,” which has a predominantly white population. He also told lawmakers that immigrants from Haiti "must be left out of any deal."72

The district court found that the specific sequence of events leading up to the TPS

terminations were "irregular and suggestive of a predetermined outcome not based on an

objective assessment," yet the Ninth Circuit court inexplicably found that “even accepting that

the agency made its decisions with a predetermined objective to terminate TPS, there is still no evidentiary support for the conclusion that this overarching goal was motivated by racial animus. Instead, the record indicates that any desire to terminate TPS was motivated by the

administration's immigration policy, with its emphasis on a ‘merit-based entry’ system, its focus on America's economic and national security interests, and its view on the limitations of TPS and the program's seeming overextension by prior administrations.”73

The split Ninth Circuit panel vacated the district court’s injunction and dismissed the

equal protection claim, finding that the racist statements of the president were not sufficiently

linked to the agency action terminating TPS.

C. Procedural due process.

Legal standard.

"A threshold requirement to a…procedural due process claim is the plaintiff's showing of

a liberty or property interest protected by the Constitution."74 “It is clearly established in this

circuit that although ‘[t]here is no constitutional right to [asylum] itself . . . a [noncitizen] who

has unlawfully entered the United States has a Fifth Amendment procedural due process right to petition the government for [asylum].”75

To constitute a protected property interest, an individual must have "more than an abstract need or desire" or "unilateral expectation" for a benefit, but rather a "legitimate claim of entitlement" based on "existing rules or understandings that stem from an independent source such as state law," a "statute defining eligibility," a contract "creat[ing] and defin[ing]" certain terms, or some other "clearly implied promise."76

It is clearly established in this circuit that although "there is no constitutional right to

political asylum itself," “An alien who has unlawfully entered the United States has a Fifth

Amendment procedural due process right to petition the government for political asylum and a statutory procedural due process right to a ‘meaningful or fair evidentiary hearing.’"77

Fact background.

In less than a year, the Biden administration expelled over 20,000 Haitian asylum seekers under Title 42.78 Over 6,000 Haitian people have been interdicted and repatriated in the last year.79 Thousands who crossed the border were detained in encampments and never provided the opportunity to request asylum.

1. Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 514 (S.D. Fla. 1980).

In 1978, the U.S. initiated the “Haitian Program,” under which then INS Deputy

Commissioner Noto directed immigration to deter Haitian immigration. Among the deterrence

methods were expediting the asylum process to allow officials to deport Haitian asylum seekers within fewer than 10 days, denying new and rescinding existing employment authorization, immediately detaining Haitian asylum seekers, and summarily expelling Haitian immigrants.80 This program was struck down by Haitian Refugee Center v. Civiletti, which found the policies violated due process and unlawfully discriminated against Haitian individuals.81 Because the process was set up “for the sole purpose of…expelling Haitians from the United States…by its very nature and intent, that process was prejudicial and discriminatory. In its particulars, the process violated the Haitians' due process rights.”82

The court wrote a description that remains true: “This case involves thousands of

[B]lack Haitian nationals, the brutality of their government, and the prejudice of ours.”83

1. Ramos v. Nielsen, 321 F. Supp. 3d 1083 (N.D.Cal. 2018) (2(B)(4)).

The Secretary is “given broad discretion in deciding whether to make an initial TPS

designation…The same is not true with respect to extensions and terminations, however. The

statute provides that the Secretary ‘shall’ terminate TPS status only if the Secretary ‘determines . . . that a foreign state . . . no longer continues to meet the conditions for designation under paragraph (1).’ 8 U.S.C. § 1254a(b)(3)(B).”84

The court found that the plaintiffs did not necessarily have a property interest in the

continuation of TPS because the “statute does not guarantee that a country will continue to be designated for TPS so long as its conditions in fact warrant. Rather, it merely provides that the Secretary "shall review the conditions . . . and shall determine whether the conditions for such designation under this subsection continue to be met." 8 U.S.C. § 1254a(b)(3)(A) (emphasis added). However, the court concluded that plaintiffs did have a property interest in statutorily mandated review of a TPS termination decision: because the plaintiffs' "reasonable expectation of entitlement is determined largely by the language of the statute, they can expect no more than the statutorily-mandated ‘review’ and ‘determin[ation].’"85

The court declined to dismiss plaintiffs’ claim: “to the extent Plaintiffs' challenge is based

on a property-entitlement theory, they have at least a plausible claim co-extensive with their

ability to prove that Defendants violated the APA or equal protection guarantee.”86

D. Fifth Amendment Substantive Due Process.

Legal standard.

To show a violation of substantive due process, plaintiffs must demonstrate that the

government’s conduct either interfered with rights "implicit in the concept of ordered liberty,"87

or was "so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience."88 “The central question is whether the [government’s] conduct manifested deliberate indifference to plaintiffs' and the class members' constitutional rights.”89

“Freedom from bodily restraint [has] always [] been recognized as the core of the liberty

protected by the Due Process Clause.”90 Family integrity is also recognized as a fundamental right; courts have additionally recognized that separating families to deter immigration “shocks the conscience.”91 Civil detention, like pretrial detention, requires a higher standard of care because the individual has not been convicted of a crime. Where a plaintiff’s conditions of confinement amount to punishment - exceed what is necessary to accomplish the government’s purpose, such as ensuring presence at an immigration proceeding - those conditions violate substantive due process.92

Fact background.

When approximately 15,000 Haitian asylum seekers arrived at the U.S. - Mexico border

in 2021, they were immediately detained in a makeshift encampment, prevented from entering the U.S., and stranded without food, water, or shelter from the heat. Border Patrol agents on horseback beat and trampled people when they tried to cross the Rio Grande into the encampment, pushing them back through the dangerous current towards Mexico. Many were crossing to get food, water, or medicine for their families. Haitian people were detained in “dense crowds sleeping on dirt or milling about in triple-digit heat amid conditions of

deteriorating sanitation.”93 An August 30, 2022 report to the UN described how “Texas state

police troopers were stationed across the river’s northern bank, while Mexican state police and officers from Mexico’s National Migration Institute (INM) lined the southern bank.

By effectively preventing individuals from leaving the encampment, the government

created a special relationship giving rise to a duty to provide basic care under state law and the Fifth Amendment.94 Even though some individuals were able to cross the river into Mexico, formal and total detention is not necessary in order to amount to custody and create a constitutional duty.95

Haitian immigrants are also more likely to be incarcerated, assigned higher bond, and

placed in segregation while detained. If Biden implements the proposal to detain Haitian asylum seekers in Guantanamo, conditions may be so severe as to amount to punishment.

1. Doe v. Barr, 2020 U.S.Dist.LEXIS 64459, at *1-2 (N.D.Cal. Apr. 12, 2020).

A lawful permanent resident of the U.S. who was granted Special Immigrant Juvenile

Status after witnessing police behead his parents in Haiti was determined deportable, detained, and placed in removal proceedings by ICE based on a robbery conviction. At the time of the order, he had been in the custody of ICE at Yuba County Jail for approximately one year without a bond hearing. He had medical conditions making him vulnerable to COVID-19 and mental health needs including PTSD.

"[P]unitive conditions may be shown (1) where the challenged restrictions are expressly

intended to punish, or (2) where the challenged restrictions serve an alternative, non-punitive

purpose but are nonetheless excessive in relation to the alternative purpose, . . . or are employed to achieve objectives that could be accomplished in so many alternative and less harsh methods."96

The court granted his release by TRO, finding that there were serious questions as to

whether “in light of the petitioner's health, his detention is excessive in relation to the

government's interest in securing his presence at immigration proceedings,” and that he was

likely to succeed on his procedural due process claim.97

2. Unknown Parties v. Nielsen 2020 U.S.Dist.LEXIS 27890 (D.Ariz. Feb. 19, 2020).

Plaintiffs brought a Fifth Amendment claim challenging “inhumane and punitive

treatment of civil immigration detainees by Customs and Border Patrol (CBP)” in various

stations near the border intended for processing and coordinating transfer or parole of people apprehended near the border.98

When the “State takes a person into its custody and holds him there against his will, the

Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being."99 Once that special relationship is created, if the “government violates the Due Process Clause if it fails to provide civil detainees with "food, clothing, shelter, medical care, and reasonable safety."100

CBP was detaining individuals in these processing centers, which were meant to provide temporary shelter, not long term residence, for prolonged periods without basic accommodations such as decent food. The lengthy detentions were largely due to capacity constraints in receiving agencies, such as ICE detention facilities. Even though the court found that “evidence reflects that CBP has stretched existing resources to provide the best conditions of confinement available under the circumstances,” the court granted plaintiffs’ request for permanent injunction.101 “CBP shall be enjoined from holding detainees, who are "processing complete," i.e., meaning the detainee has been processed by CBP and the appropriate receiving agency has been identified, longer than 48 hours from book-in time. Detention may not extend into a third night under the "no longer than 48 hours" rule, unless and until CBP can provide conditions of confinement that meet detainees' basic human needs for sleeping in a bed with a blanket, a shower, food that meets acceptable dietary standards, potable water, and medical assessment performed by a medical professional.”102 Lack of capacity did not absolve the government of its duty to protect the constitutional rights of detained individuals.

The Court found that conditions were not related to CBP’s purpose and “that the

conditions of detention in CBP holding cells, especially those that preclude sleep over several nights, are presumptively punitive and violate the Constitution.”103

In a case challenging termination of TPS for El Salvador, a court found plaintiffs had

stated a plausible claim that termination of TPS, in conjunction with racist statements by Trump, “was 'so egregious, so outrageous, that it may fairly be said to shock the contemporary conscience…Substantive due process has long encompassed racial discrimination, and it is no surprise; one can hardly think of a more arbitrary motivation for executive action than racial discrimination.”104

Emergency encampments at the border like the one in Del Rio that involve abusive and

punitive conditions may shock the conscience. Especially if plaintiffs can show that they at least one motivating factor is racial animus, a court may find that these conditions are not rationally related to a legitimate government purpose. Even if the government raises a defense that emergency or extenuating conditions required these violent and inhumane responses, a court may find that the conditions are presumptively punitive and that the government cannot justify them based solely on logistical challenges.

E. Administrative Procedures Act

Legal Standard.

Under the APA, courts must set aside any final agency action that is "arbitrary,

capricious, an abuse of discretion, or otherwise not in accordance with law," § 706(2)(A);

"contrary to constitutional right, power, privilege or immunity," § 706(2)(B); "in excess of

statutory jurisdiction, authority, or limitations, or short of statutory right," § 706(2)(C); or

"without observance of procedure required by law," § 706(2)(D). An agency policy or regulation is arbitrary and capricious if it fails to apply the least restrictive means standard. "Reasoned decisionmaking requires that when departing from precedents or practices, an agency must 'offer a reason to distinguish them or explain its apparent

rejection of their approach.'"105

An agency policy or regulation is arbitrary and capricious if the agency fails to consider

the consequences of enacting it. Reasoned decisionmaking “involves examining the reasons for agency decisions—or, as the case may be, the absence of such reasons."106 The agency must consider any reliance interests of the impacted group if it terminates or changes a policy.107

An agency policy or regulation is arbitrary and capricious if the agency fails to consider

alternatives, and where there are less novel or harmful alternatives, the agency must articulate why the alternatives are not feasible.108

An agency policy or regulation is arbitrary and capricious policy if it does not rationally

serve its stated purpose. An agency must provide a basis for assuming the presence or absence of a problem or need and an explanation of how the regulation or policy will address it.109

Fact background.

The U.S. has repeatedly implemented policies and practices designed specifically to

exclude Haitian immigrants and asylum seekers. These policies are often implemented quietly and under pretextual justification. Some challenges to anti-Hatian policies under the APA have been successful.

1. Jeanty v. Bulger 204 F.Supp.2d 1366, (S.D.Fla. 2002).

Finding that an agency policy directing INS not to parole any Haitian asylum seeker who

arrive by boat did not create a “binding norm” and therefore was not a reviewable final agency action.110 “The Detention Use Policy, which was not promulgated as a rule,” instructs INS to favor parole rather than detention for asylum seekers. “The adjusted policy does not negate the discretionary nature of the parole determination, and it does not prevent INS officials from granting parole. Instead, the adjustment only requires that Miami officials obtain Headquarters' approval before granting parole to a Haitian who did not arrive by regular means at a designated port of entry…therefore, the adjustment does not establish a "binding norm," and it need not be promulgated as a rule under the APA.”111

2. Saget v. Trump 345 F. Supp. 3d 287, (E.D.N.Y . 2018).

Plaintiffs claimed that "Defendants abandoned their well-established standard for

reviewing TPS designations [when] Defendants terminated Haiti's TPS based solely on an overly narrow consideration of the 'conditions on which the country's original designation were based,' without any consideration of the extraordinary conditions that currently prevent Haitian immigrants from safely returning to Haiti.” Plaintiffs argued that this “1) renders Secretary Duke's decision to terminate Haiti's TPS arbitrary and capricious under 5 U.S.C. § 706(2)(a), (C), and (D); and 2) promulgated a new rule without fulfilling the notice-and-comment requirements of 5 U.S.C. § 553(b), (c).”112

The court found that plaintiffs had “plausibly alleged Defendants failed to undertake the

required statutory review process by abandoning their well-established standard for reviewing TPS designations in favor of a narrower construction’ and that they had ‘provided no’ ’reasoned explanation’ for their departure from prior practices or policies.”113

3. Ramos v. Nielsen 321 F. Supp. 3d 1083 (N.D.Cal. 2018).

Plaintiffs challenged termination of TPS for several countries. One claim was that the

termination violated the APA because it resulted from a change in policy that was not

acknowledged or explained. “The APA constrains an agency's ability to change its practices or policies without acknowledging the change or providing an explanation. The requirement that an agency provide reasoned explanation for its action would ordinarily demand that an agency display awareness that it is changing position . . . Thus, agencies may not . . . depart from a prior policy sub silentio or simply disregard rules that are still on the books, and must show that there are good reasons for the new policy." An agency need not demonstrate that "the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better, which the conscious change of course adequately indicates."114

III. Ongoing Litigation

On 12/20/21, the Haitian Bridge Alliance filed a suit against Biden asserting the

following claims:

Violation of the Due Process Clause of the Fifth Amendment - Equal Protection: the

Haitian Deterrence Policy, a term referencing a series of policies aimed at deterring immigration from Haiti, and disproportionate application of Title 42 were motivated by discriminatory purpose based on race and national origin with no compelling government interest.

Violation of the Due Process Clause of the Fifth Amendment - Substantive Due Process: the conduct of Border Patrol in Del Rio and mass deportations without hearing shocked the conscience and interfered with asylum seekers’ rights.

Violation of the Due Process Clause of the Fifth Amendment - Special Relationship /

Conditions of Detention / Substantive Due Process: a special relationship arose when Border

Patrol detained individuals in the border encampment. The government had a duty to provide for the basic needs of detained people, but showed deliberate indifference to the health and safety of people in custody. This conduct was egregious and outrageous and shocked the conscience.

Violation of Due Process of the Fifth Amendment - Procedural Due Process: Haitian

asylum seekers were denied the opportunity to apply for asylum, withholding of removal, and

relief under CAT under sections 1158, 1231, which denied them procedural due process provided for by statute.

Violation of the APA, 5 USC s 706(2): policies were not in accordance with law and were

outside the statutory authority granted to the executive branch under 42 USC ss 265, 8 USC s 1158, 1231.

Title 42 does not authorize denying asylum. Congress preempts the field of immigration

and removal proceedings, and use of Title 42 to expel asylum seekers is ultra vires and contrary to the INA (proceedings before judge are “sole and exclusive procedure” 8 USC s 1229(a)(3)).

Violation of APA 5 USC s 706(2): policies were arbitrary and capricious because they

were based on discriminatory motives, there was no reasoned explanation for this use of Title 42, the government relied on mproper considerations, the government failed to consider important aspects such as fear of persecution, the government failed to consider reasonable, less restrictive means, the government’s explanation (public health) runs counter to evidence, and the government’s explanation was pretextual.

Violation of APA 5 USC s 706(1): the government unlawfully withheld and unreasonably

delayed a required agency action when CBP failed to inspect and provide opportunity to request asylum, and failed to comply with FARRA and the INA in removal procedures.

Violation of APA 5 USC s 706(2): the government action was arbitrary and capricious, an abuse of discretion, not in accordance with law, and in excess of statutory authority as described above.

Plaintiffs sought to relate this case to Huisha-Huisha v. Gaynor, No. 21-cv-100 (D.D.C.

2021), and P .J.E.S. v. Wolf, No. 20-cv-2245 (D.D.C. 2020), requesting that the case be assigned to the same Court under Local Civil Rule 40.5(a). Motions to dismiss and replies were filed. On 6/14/22, the judge found that the cases were not sufficiently related and ordered that the case be randomly reassigned. The case was reassigned to Judge Jia M. Cobb.

1 BBC News, Migrants in Texas: US probes horseback charge on Haiti migrants (Sept. 21, 2021), https://www.bbc.com/news/world-us-canada-58637116.

2 NPR, After Del Rio, some Haitian migrants found safety in the U.S. But many have not. (September 7), https://www.npr.org/2022/09/07/1120775143/after-del-rio-some-haitian-migrants-found-safety-in-the-u-s-but-many-have-not.

3 CBS News Miami, Report: 96K Haitians flee homes amid spike in gang violence (Oct. 28, 2022), https://www.cbsnews.com/miami/news/report-96k-haitians-flee-homes-amid-spike-in-gang-violence/.

4 Julia Ainsley, With a possible surge of Haitian migrants ahead, the Biden admin is weighing holding them in a third country or at Guantánamo, NBC News (Oct. 30, 2022), https://www.nbcnews.com/politics/immigration/possible-surge-haitian-migrants-ahead-biden-admin-weighs-holding-third-rcna54610.

5 US Coast Guard News Release, Coast Guard cutter patrols near Port-au-Prince, Haiti (Oct. 12, 2022).

6 James Frederick, metering at the Border, NPR (June 29, 2019), https://www.npr.org/2019/06/29/737268856/metering-at-the-border.

7 Epidemiologists and Public Health Experts Reiterate Urgent Call to End Title 42 (June 7, 2022), https://www.publichealth.columbia.edu/research/program-forced-migration-and-health/epidemiologists-and-public-health-experts-reiterate-urgent-call-end-title-42.

8 Haitian Bridge Alliance, Black Alliance for Just Immigration, Human Rights First, Migrant Center for Education and Legal Services, Kennedy Human Rights, Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination (CERD), p. 9 (Aug. 30, 2022), https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INTCERDNGOUSA49305E.pdf.

9 Id.

10 42 U.S.C.S. § 265 (LexisNexis, Lexis Advance through Public Law 117-214, approved October 19, 2022).

11 Drishti Pillai and Samantha Artiga, Title 42 and its Impact on Migrant Families, KFF (May 26, 2022), https://www.kff.org/racial-equity-and-health-policy/issue-brief/title-42-and-its-impact-on-migrant-families/#:~:text=Southwest%20Border%20Encounters%20by%20Title%20of%20Authority%20and%20Demographic%2C%202021&text=As%20of%20March%202022%2C%20over,expelled%20cumulatively%20under%20Title%2042.

12 Biden et al., v Texas et al., (slip opinion) (June 30, 2022), https://www.supremecourt.gov/opinions/21pdf/21-9547l48.pdf.

13 DHS, DHS Statement on U.S. District Court’s Decision Regarding MPP (Aug. 8, 2022),

https://www.dhs.gov/news/2022/08/08/dhs-statement-us-district-courts-decision-regarding-mpp.

14 Public Health Reassessment and Order Suspending the Right to Introduce Certain Persons from Countries Where a Quarantinable Communicable Disease Exists, 86 Fed. Reg. 42828 ("August 2021 Order"); Public Health Determination and Order Regarding Suspending the Right To Introduce Certain Persons From Countries Where a Quarantinable Communicable Disease Exists, 87 Fed. Reg. 19941, 19942 (April 1, 2022).

15 Louisiana v. CDC, No. 22-cv-885, 2022 WL 1604901 (W.D. La. May 20, 2022).

16 Huisha-Huisha v. Gaynor, No. 21-cv-100 (D.D.C. 2021); Louisiana v. CDC, No. 22-cv-885, 2022 WL 1604901 (W.D. La. May 20, 2022).

17 Haitian Bridge Alliance, Black Alliance for Just Immigration, Human Rights First, Migrant Center for Education and Legal Services, Kennedy Human Rights, Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination (CERD), p. 5 (Aug. 30, 2022), https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INTCERDNGOUSA49305E.pdf (internal citations omitted).

18 Id.

19 NPR, After Del Rio, some Haitian migrants found safety in the U.S. But many have not., (September 7, 2022), https://www.npr.org/2022/09/07/1120775143/after-del-rio-some-haitian-migrants-found-safety-in-the-u-s-but-many-have-not.

20 Adam Isacson, A tragic milestone: 20,000th migrant deported to Haiti since Biden inauguration, WOLA (February 17, 2022), https://www.wola.org/analysis/a-tragic-milestone-20000th-migrant-deported-to-haiti-since-biden-inauguration/.

21 Adam Isacson, A tragic milestone: 20,000th migrant deported to Haiti since Biden inauguration, WOLA (February 17, 2022), https://www.wola.org/analysis/a-tragic-milestone-20000th-migrant-deported-to-haiti-since-biden-inauguration/.

22 Franklin White et al., Migrant interdiction near Key Largo comes amid massive influx of Cuban, Haitian migrants in 2022, 7 News Miami (Aug. 6, 2022), https://wsvn.com/news/local/florida/migrant-interdiction-near-key-largo-comes-amid-massive-influx-of-cuban-haitian-migrants-in-2022/

23 US Coast Guard News Release, Coast Guard repatriates 180 people to Haiti (Nov. 25, 2022), https://content.govdelivery.com/accounts/USDHSCG/bulletins/339dc85.24 Plyler v. Doe, 457 U.S. 202, 215 (1982); see also Yick Wo v. Hopkins, 118 U.S. 356, 368 (1886), the Supreme Court reasoned that the "rights of the petitioners . . . are not less because they are aliens and subjects of the emperor of China."

25 Haitian Refugee Center, Inc. v. Baker, 953 F.2d 1498, 1502-03 (11th Cir. 1992).

26 Haitian Refugee Ctr. v. Baker, 953 F.2d 1498, 1510 (11th Cir. 1992). 27 Haitian Ctrs. Council v. McNary, 969 F.2d 1326, 1339-40 (2d Cir. 1992).28 Sale v. Haitian Centers Council, 509 U.S. 155 (1993).

29 Sale v. Haitian Ctrs. Council, 509 U.S. 155, 158-59 (1993).

30 The Haitian Centre for Human Rights et al. v. United States, Case 10.675, 10.675, Inter-American Commission on Human Rights (IACHR), 13 March 1997, available at: https://www.refworld.org/cases,IACHR,3ae6b71b8.html.

31 Id.

32 Dep't of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1977 (2020).

33 United States v. Guzman-Hernandez, 487 F. Supp. 3d 985, 990-91 (E.D. Wash. 2020).

34 Village of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 270 (1977).

35 Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S.Ct. 1891, 1915 (2020) (analyzing rescission of DACA, Chief Justice Roberts stated "because Latinos make up a large share of the unauthorized alien population, one would expect them to make up an outsized share of recipients of any cross-cutting immigration relief program. . . Were this fact sufficient to state a claim, virtually any generally applicable immigration policy could be

challenged on equal protection grounds."); Trump v. Hawaii, 138 S. Ct. 2392, 2418 (June 2018) ("For more than a century, this Court has recognized that the admission and exclusion of foreign nationals is a 'fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.'").

36 Saget v. Trump, 345 F. Supp. 3d 287, 301 (E.D.N.Y . 2018) (“Under Arlington Heights . . . Plaintiffs need not plead or show the disparate treatment of other similarly situated individuals[.]”)37 Kingman Park Civic Ass'n v. Gray, 27 F. Supp. 3d 142, 160 (quoting Arlington Heights, 429 U.S. at 266-268).

38 Arlington Heights, 429 U.S. at 268.

39 Mathews v. Diaz, 426 U.S. 67, 77, 96 S. Ct. 1883, 48 L. Ed. 2d 478 (1976) ("There are literally millions of aliens within the jurisdiction of the United States. The Fifth Amendment, as well as the Fourteenth Amendment, protects every one of these persons from deprivation of life, liberty, or property without due process of law.")

40 See Kwai Fun Wong v. United States, 373 F.3d 952, 970-73 (9th Cir. 2004); see also Plyler v. Doe, 457 U.S. 202, 210, 102 S. Ct. 2382, 72 L. Ed. 2d 786 (1982) ("Indeed, we have clearly held that the Fifth Amendment protects aliens whose presence in this country is unlawful from invidious discrimination by the Federal Government." (citing Mathews, 426 U.S. at 77)).

41 Julia Ainsley, With a possible surge of Haitian migrants ahead, the Biden admin is weighing holding them in a third country or at Guantánamo, NBC News (Oct. 30, 2022),

https://www.nbcnews.com/politics/immigration/possible-surge-haitian-migrants-ahead-biden-admin-weighs-holding-third-rcna54610.

42 Haitian Bridge Alliance, Black Alliance for Just Immigration, Human Rights First, Migrant Center for Education and Legal Services, Kennedy Human Rights, Shadow Report to the United Nations Committee on the Elimination of Racial Discrimination (CERD), p. 5 (Aug. 30, 2022), https://tbinternet.ohchr.org/Treaties/CERD/Shared%20Documents/USA/INTCERDNGOUSA49305E.pdf (internal citations omitted).

43 Report to CERD, supra, at 11; USCIS credible and reasonable fear determinations - FY 2016 to FY 2021 (through May 2021) received via Freedom of Information Act Request by Human Rights First, https://www.humanrightsfirst.org/file/cow2021001887-cfandrfdataxlsx.

44 ACLU of New Mexico et al., Complaint Re: “Severe Violations of Due Process and Inhumane Conditions at Torrance County Detention Facility” (Nov. 23, 2021),

https://www.americanimmigrationcouncil.org/sites/default/files/research/compla1.pdf; Innovation Law Lab et al., Complaint Re: “Re: Access to legal services for Haitian immigrants at Torrance County Detention Facility” (Nov. 5, 2021), https://innovationlawlab.org/media/TorranceLetter11.5.21.pdf.

45 Syracuse University, Transactional Records Access Clearinghouse, The Impact of Nationality, Language, Gender and Age on Asylum Success (Dec. 7, 2021), https://trac.syr.edu/immigration/reports/668/.

46 RAICES, Black Immigrant Lives are Under Attack, https://www.raicestexas.org/2020/07/22/black-immigrant-lives-are-under-attack/.

47 Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 514 (S.D. Fla. 1980).

48 Id. at 450.

49 Id. at 511.

50 Haitian Refugee Center v. Civiletti, 503 F.Supp. 442, 514 (S.D.Fla. 1980).

51 Civiletti, 503 F. Supp. 442 at 514.52 Civiletti, 503 F. Supp. 442 at 450.

53 Jeanty v. Bulger, 204 F.Supp.2d 1366, 1378 (S.D.Fla. 2002).

54 Id. at 1381.

55 Id. at 1381.

56 Id. at 1382.57 Saget v. Trump, 345 F. Supp. 3d 287, 303 (E.D.N.Y . 2018).

58 Id. at 303.

59 Id. at 374. 60 Ramos v. Nielsen, 321 F. Supp. 3d 1083, 1123 (N.D.Cal. 2018).61 Id. at 1132.

62 Ramos, 321 F. Supp. 3d at 1123.

63 Trump v. Hawaii, 138 S.Ct. 2392, 2418 (2018) (finding that "plaintiffs seek to invalidate a national security directive regulating the entry of aliens abroad," and that the executive order was "facially neutral toward religion,” giving rise only to rational basis review because the admission and exclusion of foreign nationals is a "fundamental sovereign attribute exercised by the Government's political departments largely immune from judicial control.'")

64 Ramos, 321 F. Supp. 3d at 1132. 65 NAACP v. United States Dep't of Homeland Sec. 364 F. Supp. 3d 568, 576 (D.Md. 2019).

66 Id. at 577.

67 Id. at 577.

68 Id. at 577.

69 Ramos v. Wolf, 975 F.3d 872, 896 (9th Cir. 2020). 70 Id. at 897.71 Id. at 898.

72 Id. at 886.

73 Id. at 899.74 Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 62 (9th Cir. 1994).

75 Gutierrez-Rogue v. I.N.S., 954 F.2d 769, 773 (D.C. Cir. 1992); see also Las Americas Immigr. Advoc. Ctr. v. Wolf, 507 F. Supp. 3d 1, 38-39 (D.D.C. 2020) (recognizing protected interest in right to apply for asylum, withholding, and CAT protection).

76 Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 576-78 (1972).

77 Gutierrez-Rogue v. INS, 293 U.S.App.D.C. 338 (1992).

78 Adam Isacson, A tragic milestone: 20,000th migrant deported to Haiti since Biden inauguration, WOLA (February 17, 2022), https://www.wola.org/analysis/a-tragic-milestone-20000th-migrant-deported-to-haiti-since-biden-inauguration/.

79 Franklin White et al., Migrant interdiction near Key Largo comes amid massive influx of Cuban, Haitian migrants in 2022, 7 News Miami (Aug. 6, 2022), https://wsvn.com/news/local/florida/migrant-interdiction-near-key-largo-comes-amid-massive-influx-of-cuban-haitian-migrants-in-2022/.

80 Haitian Refugee Center v. Civiletti, 503 F. Supp. 442, 514 (S.D. Fla. 1980).

81 Id. at 450.

82 Id. at 511.

83 503 F. Supp. 442, 450 (S.D. Fla. 1980).

84 Ramos v. Nielsen 321 F. Supp. 3d 1083, 1121 (N.D.Cal. 2018).

85 Id. at 1122 (citing Wedges/Ledges of Cal., Inc. v. City of Phoenix, Ariz., 24 F.3d 56, 62 (9th Cir. 1994).).

86 Id. at 1122.

87 U.S. v. Salerno, 481 U.S. 739, 746 (1987). 88 County of Sacramento v. Lewis, 523 U.S. 833, 847 n.8, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998).

89 Barnes v. District of Columbia, 793 F.Supp.2d 260, 276-277 (D.D.C. 2011).

90 Youngberg v. Romeo, 457 U.S. 307, 316 (1982).

91 Ms. L. v. U.S. Immigr. & Customs Enf’t, 302 F. Supp. 3d 1149, 1167 (S.D. Cal. 2018).

92 Bell v. Wolfish, 441 U.S. 520, 535 (1979).

93 James Dobbins, Thousands of Migrants Huddle in Squalid Conditions Under Texas Bridge, New York Times (Sept. 16, 2021), https://www.nytimes.com/2021/09/16/us/texas-migrants-del-rio.html 94 Giraldo v. Dept. of Corrections & Rehab., 168 Cal. App. 4th 231, 250 (2008).

95 See Harvey v. D.C., 798 F.3d 1042, 1051 (D.C. Cir. 2015) (some “flexibility hardly amounts to freedom from state restraints”); Butera v. D.C., 235 F.3d 637, 651 (D.C. Cir. 2001) (“something less than physical custody may suffice to present a substantive due process claim”).

96 Jonas v. Blanas, 393 F.3d 918, 932 (9th Cir. 2004).

97 Doe v. Barr, 2020 U.S.Dist.LEXIS 64459, at *20 (N.D.Cal. Apr. 12, 2020).

98 Unknown Parties v. Nielsen, 2020 U.S.Dist.LEXIS 27890, at *5 (D.Ariz. Feb. 19, 2020).

99 DeShaney v. Winnebago Cty. Dep't of Soc. Servs., 489 U.S. 189, 199-200 (1989).

100 Dawson v. Asher, 2020 U.S.Dist.LEXIS 62019, at *30 (W.D.Wash. Apr. 8, 2020).

101 Id. at *9.

102 Id. at *6. 103 Id. at *5.

104 CASA de Md., Inc. v. Trump, 355 F. Supp. 3d 307, 327 (D.Md. 2018).

105 Physicians for Social Responsibility v. Wheeler, 956 F.3d 634, 644 (D.C. Cir. 2020)

106 Judulang v. Holder, 565 U.S. 42, 53, 132 S. Ct. 476, 181 L. Ed. 2d 449 (2011).

107 Supreme Court in Dep't of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020).

108 Huisha-Huisha v. Mayorkas, 2022 U.S.Dist.LEXIS 207282, at *39 (D.D.C. 2022) (finding that the program authorizing Title 42 expulsions was arbitrary and capricious).

109 Id.

110 Jeanty v. Bulger 204 F.Supp.2d 1366, (S.D.Fla. 2002)1383.

111 Id.112 Saget v. Trump 345 F. Supp. 3d 287, 298 (E.D.N.Y . 2018).

113 Id. at 299. 114 Ramos v. Nielsen 321 F. Supp. 3d 1083, 1108 (N.D.Cal. 2018) (internal citation omitted).

12.16 CHALLENGES TO POLICY PRACTICE ADVISORY - Asylum and Protection from Removal for Hait

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