What’s At Stake

There’s more at stake with respect to the nomination of Brett Kavanaugh then “merely” the threat to abortion rights.

Late yesterday, U.S.D.J. Edward Chen of the U.S.D.C. for the Northern District Court of California issued a preliminary injunction blocking the termination of the Temporary Protected Status (“TPS”) designations of four countries: Haiti, Sudan, Nicaragua, and El Salvador.  As described by the Court:

Under three prior administrations, the TPS designations of these countries have been repeatedly extended based on adverse and dangerous conditions in these countries. Under the designations, approximately 300,000 TPS beneficiaries have been allowed to stay and work in the United States because of dangerous or unsafe conditions in their home countries. Without TPS designations, these beneficiaries will be subject to removal from the United States.

Here is a description of the irreparable harm some of the plaintiff families would suffer if the injunction had not issued:

Ebtihal Abdalla and her husband are TPS beneficiaries from Sudan. They have been beneficiaries since the late 1990s. They have three children. One is a TPS beneficiary and has lived in the United States since she was a baby. The other two are U.S. citizens. Once Sudan’s designation is terminated, her husband will be unable to work and, as he is the primary breadwinner, this will have significant impact on the family’s livelihood. Furthermore, since the announcement of Sudan’s termination, Ms. Abdalla has suffered bouts of uncontrollable crying and serious migraines. She has also found it difficult to eat and to leave the house. She was recently diagnosed with severe depression and prescribed medications. Ms. Abdalla’s children have also been impacted by the announcement of Sudan’s termination. For example, Ms. Abdalla’s oldest daughter is currently at a community college. Once Sudan’s termination is terminated, she will not be able to work, and she needs the work in order to help pay for tuition. She is fearful that she will not be able to attend a four-year college or university, as planned, if Sudan’s TPS is terminated before she completes her coursework at the community college. As for Ms. Abdalla’s youngest daughter, she is only twelve and, after learning that her family’s immigration status is in jeopardy, she has struggled at school, with a teacher even expressly voicing concern.

Similar testimony is provided in the declarations of Elsy Yolanda Flores De Ayala, see De Ayala Decl. (testifying about the impact of the announcement of El Salvador’s termination on her, her husband, her U.S.-citizen sister who has cancer, and her three children, one who is a TPS beneficiary and the other two who are U.S. citizens); Hiwaida Elarabi, see Elarabi Decl. (testifying about the impact of the announcement of Sudan’s termination on him, her extended family with whom she lives in the United States and whom she helps support, and her parents in Sudan whom she helps support); Imara Ampie, see Ampie Decl. (testifying about the impact of the announcement of Nicaragua’s termination on her, her husband, and her two U.S.-citizen children, both of whom have special needs); and Wilna Destin. See Destin Decl. (testifying about the impact of the announcement of Haiti’s termination on her and her two U.S.-citizen children).

At the hearing, the government conceded that there are 300,000 registered TPS beneficiaries and that they are likely to be subject to removal.  See slip op. at 8.

There are those of us who know of the story of the MS St. Louis, better known as the “Voyage of the Damned.”  Over 900 mostly Jewish refugees fleeing Nazi Germany in 1939 were denied asylum in the U.S. and Canada.  Many times that number have now been protected by Judge Chen’s order.  Since many of those individuals have children who are U.S. citizens, the total number at risk of irreparable harm is even greater.

Just as there was anti-Semitic animus against the passengers aboard the St. Louis, the Court here found that:

[T]here is evidence that President Trump and/or the White House influenced the DHS on the TPS decisions to at least raise serious question on the merits, the remaining issue is whether there is evidence that President Trump harbors an animus against non-white, non-European aliens which influenced his (and thereby the Secretary’s) decision to end the TPS designation. As Plaintiffs have cataloged, there is evidence of such as reflected by statements made by President Trump before, during, and after the TPS decision-making process[.]

The evidence cited by Judge Chen includes remarks by Trump (i) “characterizing Mexican immigrants as drug dealers or users, criminals, and rapists,” (ii) “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.’” (iii) asking ‘Why are we having all these people from shithole countries come here?,”  and (iv) characterizing immigrants as criminals and comparing them to snakes and animals.  See slip op. at 31.

As reported in the Washington Post:

Justice Department spokesman Devin O’Malley in a statement shortly after the decision said the administration would “continue to fight for the integrity of our immigration laws and our national security.” He said Chen’s decision “usurps the role of the executive branch in our constitutional order,” and rejected “the notion that the White House or the Department of Homeland Security did anything improper.”

Is there any question but that a Justice Kavanaugh would vote to turn away the St. Louis support Trump in this case.