Saget V Trump Government S Appellate Brief

Case 19-1685, Document 52, 09/19/2019, 2659711, Page1 of 71
No. 19-1685
IN THE UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
PATRICK SAGET, et al.,
Plaintiffs-Appellees,
v.
DONALD J. TRUMP, et al.,
Defendants-Appellants.
On Appeal from the United States District Court

for the Eastern District of New York
BRIEF FOR APPELLANTS
JOSEPH H. HUNT
Assistant Attorney General
RICHARD P. DONOGHUE
United States Attorney
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
JAMES R. CHO
JOSEPH A. MARUTOLLO
Assistant United States Attorneys
MARK B. STERN
GERARD SINZDAK
Attorneys, Appellate Staff
Civil Division, Room 7242
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0718
TABLE OF CONTENTS
Page
STATEMENT OF JURISDICTION ...................................................................................1
STATEMENT OF THE ISSUES..........................................................................................1
PERTINENT STATUTES AND REGULATIONS ........................................................1
STATEMENT OF THE CASE .............................................................................................1
A. Statutory Background ........................................................................................ 2
B. Factual Background ........................................................................................... 4
1. Haiti’s Initial TPS Designation, Redesignation, And

Extensions ............................................................................................... 5
2. Termination of Haiti’s TPS Designation ............................................ 6
C. Procedural Background..................................................................................... 8
SUMMARY OF ARGUMENT ........................................................................................... 12
STANDARD OF REVIEW ................................................................................................ 16
ARGUMENT ......................................................................................................................... 16
I. PLAINTIFFS’ APA CLAIMS CANNOT SUPPORT A

PRELIMINARY INJUNCTION............................................................................ 16
A. The TPS Statute’s Preclusion Provision Bars Plaintiffs’

APA Claims ......................................................................................................16
B. Plaintiffs’ APA Claims Would Fail On The Merits Even If

They Were Not Barred....................................................................................28
1. The Secretary’s Decision Was Rational, Consistent With

The TPS Statute, And Not Pretextual ..............................................28
2. The Secretary’s Decision Was Not The Product Of

Improper Political Influence ..............................................................35
3. The Secretary Did Not Depart From Past Agency

Practice In Evaluating Haiti’s TPS Designation..............................36
II. PLAINTIFFS’ EQUAL PROTECTION CLAIM CANNOT

SUPPORT A PRELIMINARY INJUNCTION .................................................. 42
A. Plaintiffs Are Unlikely To Succeed On Their Equal

Protection Claim Under Arlington Heights ..................................................... 43
B. The Secretary’s Decision Is Constitutional Under

Trump v. Hawaii ................................................................................................. 50
III. THE DISTRICT COURT SHOULD HAVE DISMISSED THE

PRESIDENT AS A PARTY .................................................................................... 55
IV. THE DISTRICT COURT ERRED IN ISSUING A

NATIONWIDE INJUNCTION ............................................................................ 57
CONCLUSION ..................................................................................................................... 59
CERTIFICATE OF COMPLIANCE
CERTIFICATE OF SERVICE
ii
TABLE OF AUTHORITIES
Cases: Page(s)
Amgen, Inc. v. Smith,

357 F.3d 103 (D.C. Cir. 2004) .............................................................................. 13, 17, 24
Armstrong v. Exceptional Child Ctr.,

135 S. Ct. 1378 (2015) .........................................................................................................57
California Trout v. FERC,

572 F.3d 1003 (9th Cir. 2009) ..................................................................................... 20, 21
Citizens to Pres. Overton Park, Inc. v. Volpe,

401 U.S. 402 (1971) ...................................................................................................... 40, 46
City of Rialto v. West Coast Loading Corp.,

581 F.3d 865 (9th Cir. 2009) ................................................................................. 18, 19, 24
DCH Reg’l Med. Ctr. v. Azar,

925 F.3d 503 (D.C. Cir. 2019) .................................................................................... 17, 18
Delgado v. Quarantillo,
643 F.3d 52 (2d Cir. 2011) .......................................................................................... 17, 26
Department of Commerce v. New York,

139 S. Ct. 2551 (2019) ........................................................................ 14, 20, 31, 32, 33, 34
FCC v. Fox Television Stations, Inc.,

556 U.S. 502 (2009) .............................................................................................................42
Fiallo v. Bell,
430 U.S. 787 (1977) ................................................................................................ 50, 51, 54
Florida Power & Light Co. v. Lorion,

470 U.S. 729 (1985) ...................................................................................................... 40, 46
Franklin v. Massachusetts,
505 U.S. 788 (1992) ...................................................................................................... 55, 56
Free Enter. Fund v. PCAOB,

561 U.S. 477 (2010) ................................................................................................ 32, 33, 56
iii
Galvan v. Press,
347 U.S. 522 (1954) .............................................................................................................51
Gebhardt v. Nielsen,
879 F.3d 980 (9th Cir. 2018) ................................................................................. 22, 23, 26
Gill v. Whitford,
138 S. Ct. 1916 (2018) .........................................................................................................57
Harisiades v. Shaughnessy,
342 U.S. 580 (1952) .............................................................................................................54
Holder v. Humanitarian Law Project,

561 U.S. 1 (2010) .................................................................................................................27
Jagers v. Federal Crop Ins. Corp.,

758 F.3d 1179 (10th Cir. 2014)..........................................................................................31
Kleindienst v. Mandel,
408 U.S. 753 (1972) .............................................................................................................51
Kohli v. Gonzales,
473 F.3d 1061 (9th Cir. 2007) ............................................................................................45
Madsen v. Women’s Health Ctr.,

512 U.S. 753 (1994) .............................................................................................................57
Malkentos v. DeBuono,
102 F.3d 50 (2d Cir. 1996) .................................................................................................16
Martinez v. Napolitano,
704 F.3d 620 (9th Cir. 2012) ..............................................................................................17
Mathews v. Diaz,
426 U.S. 67 (1976) ...............................................................................................................51
McNary v. Haitian Refugee Ctr., Inc.,

498 U.S. 479 (1991) ...................................................................................................... 23, 24
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ...............................................................................................................19
iv
Naranjo-Aguilera v. INS,
30 F.3d 1106 (9th Cir. 1994) ..............................................................................................26
Nixon v. Fitzgerald,
457 U.S. 731 (1982) ...................................................................................................... 46, 57
North American Soccer League, LLC v. U.S. Soccer Fed’n, Inc.,

883 F.3d 32 (2d Cir. 2018) .................................................................................................41
Proyecto San Pablo v. INS,

189 F.3d 1130 (9th Cir. 1999) ..................................................................................... 19, 20
Rajah v. Mukasey,
544 F.3d 427 (2d Cir. 2008) .................................................................................. 15, 51, 52
Reno v. American-Arab Anti-Discrimination Comm.,

525 U.S. 471 (1999) .............................................................................................................27
Reno v. Catholic Soc. Servs., Inc.,

509 U.S. 43 (1993) .................................................................................................. 23, 25, 26
SEC v. Chenery Corp.,

332 U.S. 194 (1947) .............................................................................................................21
Sierra Club v. Costle,

657 F.2d 298 (D.C. Cir. 1981) ...........................................................................................32
Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala,

80 F.3d 379 (9th Cir. 1996) ......................................................................................... 17, 24
Staub v. Proctor Hosp.,

562 U.S. 411 (2011) .............................................................................................................45
Swan v. Clinton,
100 F.3d 973 (D.C. Cir. 1996) ...........................................................................................55
Town of Orangetown v. Ruckelshaus,

740 F.2d 185 (2d Cir. 1984) ...............................................................................................21
Trump v. Hawaii,
138 S. Ct. 2392 (2018) ...............................................10, 15, 43, 51, 52, 53, 54, 55, 57, 58
v
Tummino v. Torti,
603 F. Supp. 2d 519 (E.D.N.Y. 2009) ..............................................................................22
United States v. Morgan,

304 U.S. 1 (1938) .................................................................................................................46
United States v. Nixon,

418 U.S. 683 (1974) .............................................................................................................46
Vermont Yankee Nuclear Power Corp. v. NRDC,

435 U.S. 519 (1978) .............................................................................................................30
Village of Arlington Heights v. Metropolitan Hous. Dev. Corp.,

429 U.S. 252 (1977) .................................................................................................. 9, 15, 43
Virginia Soc’y for Human Life, Inc. v. FEC,

263 F.3d 379 (4th Cir. 2001) ..............................................................................................58
Washington v. Trump,
858 F.3d 1168 (9th Cir. 2017) ............................................................................................49
Webster v. Doe,
486 U.S. 592 (1988) .............................................................................................................42
Winter v. NRDC,
555 U.S. 7 (2008) .................................................................................................................41
Wisconsin v. City of New York,

517 U.S. 1 (1996) .................................................................................................................33
Statutes:
Administrative Procedure Act:

5 U.S.C. § 701(a)(1) .............................................................................................................17
5 U.S.C. § 706(2)(B) ............................................................................................................42
6 U.S.C. § 557 ............................................................................................................................. 2
Immigration Act of 1990,

Pub. L. No. 101-649, 104 Stat. 4878 .................................................................................. 2
vi
8 U.S.C. § 1103........................................................................................................................... 2
8 U.S.C. § 1254a .......................................................................................................................54
8 U.S.C. § 1254a(a) .................................................................................................................... 3
8 U.S.C. § 1254a(b) .................................................................................................................... 3
8 U.S.C. § 1254a(b)(1) ...................................................................................................... 37, 53
8 U.S.C. § 1254a(b)(1)(C) ............................................................................... 5, 30, 31, 37, 47
8 U.S.C. § 1254a(b)(2) ............................................................................................................... 3
8 U.S.C. § 1254a(b)(3)(A) ..................................................................................... 3, 28, 29, 37
8 U.S.C. § 1254a(b)(3)(B) .................................................................................................. 3, 29
8 U.S.C. § 1254a(b)(3)(C) .................................................................................................. 4, 50
8 U.S.C. § 1254a(b)(5)(A) ...........................................................................4, 8, 12, 16, 18, 42
8 U.S.C. § 1254a(c) .................................................................................................................... 3
28 U.S.C. § 1292(a)(1) .......................................................................................................... 1, 2
28 U.S.C. § 1331 ........................................................................................................................ 1
Other Authorities:
Extension of Designation & Redesignation of Liberia Under TPS,

62 Fed. Reg. 16,608 (Apr. 7, 1997) ..................................................................................... 4
Termination of the Designation of the Province of Kosovo,

65 Fed. Reg. 33,356 (May 23, 2000) .................................................................................39
Termination of Designation of Angola,

68 Fed. Reg. 3896 (Jan. 27, 2003) .....................................................................................39
vii
Extension of the Designation of Nicaragua,

68 Fed. Reg. 23,748 (May 5, 2003)....................................................................................39
Termination of the Designation of Burundi,

72 Fed. Reg. 61,172 (Oct. 29, 2007) .................................................................................39
Designation of Haiti for TPS,

75 Fed. Reg. 3476 (Jan. 21, 2010) ....................................................................................... 5
Extension & Redesignation of Haiti,

76 Fed. Reg. 29,000 (May 19, 2011) ................................................................................... 5
Extension of the Designation of Haiti,

79 Fed. Reg. 11,808 (Mar. 3, 2014) ..................................................................................... 5
Extension of the Designation of Sudan,

79 Fed. Reg. 52,027 (Sept. 2, 2014) ..................................................................................39

80 Fed. Reg. 51,582 (Aug. 25, 2015)............................................................................ 5, 39
Extension of the Designation of El Salvador,

81 Fed. Reg. 44,645 (July 8, 2016) ....................................................................................38
Sierra Leone Termination,

81 Fed. Reg. 66,054 (Sept. 26, 2016) .................................................................................. 4
Termination of Guinea’s Designation,

81 Fed. Reg. 66,064 (Sept. 26, 2016) ................................................................................38

82 Fed. Reg. 23,830 (May 24, 2017) ............................................................................ 6, 38
Extension of the Designation of South Sudan,

82 Fed. Reg. 44,205 (Sept. 21, 2017) .................................................................................. 4
Termination of the Designation of Haiti for TPS,

83 Fed. Reg. 2648 (Jan. 18, 2018) .................................................................................. 6, 7
Extension of the Designation of Syria,

83 Fed. Reg. 9329 (Mar. 5, 2018) ................................................................................... 4, 5
viii
Extension of the Designation of Yemen,

83 Fed. Reg. 40,307 (Aug. 14, 2018)................................................................................... 5
Extension of Designation of Somalia,

83 Fed. Reg. 43,695 (Aug. 27, 2018)................................................................................... 5
ix
STATEMENT OF JURISDICTION
Plaintiffs invoked the jurisdiction of the district court pursuant to 28 U.S.C.
§ 1331, raising claims under the Administrative Procedure Act (APA) and the
Constitution. Joint Appendix (JA) 60. The district court entered a preliminary
injunction on April 11, 2019. Special Appendix (SA) 1. The government filed a
timely notice of appeal on June 6, 2019. JA.2290. This Court has jurisdiction under
28 U.S.C. § 1292(a)(1).
STATEMENT OF THE ISSUES
1. Whether the district court erred in concluding that plaintiffs were likely to
succeed on their APA claims challenging the Secretary of Homeland Security’s
decision to terminate Haiti’s Temporary Protected Status (TPS) designation.
2. Whether the court erred in concluding that plaintiffs’ equal protection claim
raised serious legal questions.
3. Whether the court erred in declining to dismiss the President as a party.
4. Whether the court erred in applying its preliminary injunction nationwide.
PERTINENT STATUTES AND REGULATIONS
Pertinent statutes are reproduced in the Special Appendix.
STATEMENT OF THE CASE
This appeal arises out of a challenge to the Secretary of Homeland Security’s
decision to terminate the Temporary Protected Status designation for Haiti. The
government moved to dismiss the suit for lack of jurisdiction and failure to state a
claim. On December 14, 2018, the district court (Kuntz, J.) denied the government’s
motion. SA.146-69. On April 11, 2019, the court entered a preliminary injunction
enjoining the Secretary from terminating Haiti’s TPS designation. SA.1-145. The
government appeals under 28 U.S.C. § 1292(a)(1).
A. Statutory Background
The Immigration Act of 1990 established a program for providing temporary
shelter in the United States on a discretionary basis for aliens from countries
experiencing armed conflict, natural disaster, or other “extraordinary and temporary
conditions” that prevent the aliens’ safe return. Pub. L. No. 101-649. The program
authorizes the Secretary of Homeland Security,1 “after consultation with appropriate
agencies of the Government,” to designate countries for “Temporary [P]rotected
[S]tatus,” if she finds:
(A) … that there is an ongoing armed conflict within the state and, due
to such conflict, requiring the return of aliens who are nationals of that
state to that state (or to the part of the state) would pose a serious threat
to their personal safety;
(B) … that—
(i) there has been an earthquake, flood, drought, epidemic, or

other environmental disaster in the state resulting in a substantial,
but temporary, disruption of living conditions in the area affected,
(ii) the foreign state is unable, temporarily, to handle adequately
the return to the state of aliens who are nationals of the state, and
1
The statute originally vested the Attorney General with the power to make
TPS decisions. Congress transferred that power to the Secretary of Homeland
Security. See 8 U.S.C. § 1103; 6 U.S.C. § 557.
2
(iii) the foreign state officially has requested designation under this
subparagraph; or
(C) … that there exist extraordinary and temporary conditions in the
foreign state that prevent aliens who are nationals of the state from
returning to the state in safety, unless the [Secretary] finds that
permitting the aliens to remain temporarily in the United States is
contrary to the national interest of the United States.
8 U.S.C. § 1254a(b).
When the Secretary designates a country for TPS, eligible aliens from that
country who are physically present in the United States on the effective date of the
designation (and continuously thereafter) may not be removed from the United States
and are authorized to work here for the duration of the country’s TPS designation.
8 U.S.C. § 1254a(a), (c).
Initial designations may not exceed eighteen months. 8 U.S.C. § 1254a(b)(2).
The Secretary must consult with appropriate agencies and review each designation
sixty days before the designation period ends to determine whether the conditions for
the country’s designation continue to be met. Id. § 1254a(b)(3)(A). If the Secretary
finds that the foreign state “no longer continues to meet the conditions for
designation,” she “shall terminate the designation” by publishing notice in the Federal
Register of the determination and the basis for the termination. Id. § 1254a(b)(3)(B).
If the Secretary “does not determine” that the foreign state “no longer meets the
conditions for designation,” then “the period of designation of the foreign state is
extended for an additional period of 6 months (or, in the discretion of the [Secretary],
3
a period of 12 or 18 months).” Id. § 1254a(b)(3)(C). In addition to terminating or
extending a TPS designation, the Secretary may also redesignate a country for TPS,
the functional equivalent of a new designation. See Extension of Designation &
Redesignation of Liberia Under TPS, 62 Fed. Reg. 16,608, 16,609 (Apr. 7, 1997)
(discussing redesignation authority).
The statute makes the Secretary’s TPS decisions unreviewable. Section
1254a(b)(5)(A) states: “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.”
B. Factual Background
Since the program’s inception, the government has designated twenty-one
countries and the Province of Kosovo for TPS. The government terminated twelve
of those designations before 2017, including three terminations in 2016. See, e.g., Sierra
Leone Termination, 81 Fed. Reg. 66,054 (Sept. 26, 2016).
In 2017 and 2018, Acting Secretary of Homeland Security Elaine Duke and her
successor extended the TPS designations of four countries: Somalia, South Sudan,
Syria, and Yemen. In each case, the Secretary determined that the conditions that
prompted the country’s TPS designation persisted and prevented the safe return of
the country’s nationals, warranting an extension. See Extension of the Designation of South
Sudan, 82 Fed. Reg. 44,205 (Sept. 21, 2017); Extension of the Designation of Syria, 83 Fed.
4
Reg. 9329 (Mar. 5, 2018); Extension of the Designation of Yemen, 83 Fed. Reg. 40,307
(Aug. 14, 2018); Extension of Designation of Somalia, 83 Fed. Reg. 43,695 (Aug. 27, 2018).
But the Secretaries determined that not all countries with TPS designations
merited extensions. After consulting with relevant government agencies, Secretary
Duke determined that conditions in Haiti no longer met the statutory requirements
for a TPS designation. As required by the TPS statute, she terminated the
designation.
1. Haiti’s Initial TPS Designation, Redesignation, And Extensions
Haiti was initially designated for TPS under 8 U.S.C. § 1254a(b)(1)(C) in
January 2010 due to the “extraordinary and temporary conditions” caused by a 7.0-
magnitude earthquake. See Designation of Haiti for TPS, 75 Fed. Reg. 3476, 3477. In
May 2011, Secretary Napolitano extended Haiti’s designation for 18 months “because
the conditions prompting the original designation continue[d] to be met.” Extension
and Redesignation of Haiti, 76 Fed. Reg. 29,000, 29,001. She also redesignated Haiti for
TPS. See id.
Secretary Napolitano and her successor, Secretary Johnson, subsequently
extended Haiti’s TPS designation in October 2012, March 2014, and August 2015. See
Extension of the Designation of Haiti, 80 Fed. Reg. 51,582, 51,583 (Aug. 25, 2015). In
extending Haiti’s TPS status, however, Secretary Johnson noted the Haitian
government’s “considerable progress in improving security and quality of life of its
citizens.” Extension of Haiti Designation, 79 Fed. Reg. at 11,809; 80 Fed. Reg. at 51,584.
5
In light of Haiti’s improving conditions, Secretary Johnson announced in September
2016 that the United States would resume removals of Haitian non-TPS holders, a
practice the government had suspended following the 2010 earthquake. JA.362.
After a change in administrations, Secretary John Kelly extended Haiti’s
designation for six months. Extension of the Designation of Haiti, 82 Fed. Reg. 23,830
(May 24, 2017). Although Secretary Kelly determined that the conditions that
prompted Haiti’s designation continued to be met, he emphasized that “Haiti has
made significant progress in addressing issues specific to the earthquake,” that 96% of
people living in displaced-person camps had left those camps, and that security had
improved enough for the United Nations to announce its intention to withdraw its
peacekeeping mission. Id. at 23,832. Given those improving conditions, he advised
Haitian TPS beneficiaries that it would be in their “best interest” to “prepare for their
return to Haiti in the event that Haiti’s TPS designation is not extended again.” Id.
2. Termination of Haiti’s TPS Designation
In January 2018, Secretary Duke concluded that Haiti had made sufficient
progress recovering from the 2010 earthquake that the conditions giving rise to its
TPS designation and redesignation were no longer met. Termination of the Designation of
Haiti for TPS, 83 Fed. Reg. 2648, 2650. She therefore terminated Haiti’s TPS
designation. Id.
In concluding that the conditions that gave rise to Haiti’s TPS designation no
longer persisted, Secretary Duke noted that Haiti had closed 98% of the displaced-
6
person sites that were created following the earthquake and that only approximately
38,000 of the estimated two million Haitians who lost their homes in the earthquake
were still living in camps as of June 2017. 83 Fed. Reg. at 2650. Haiti’s recovery was
further evidenced by the fact that the United Nations had withdrawn its peacekeeping
mission in October 2017. Id. The Secretary also noted that Haiti had completed a
presidential election in February 2017, its Supreme Court was again operational, and
the country was in the process of rebuilding government infrastructure destroyed by
the earthquake. Id. Haiti had also experienced continuing GDP growth since the
earthquake and, although Haiti had grappled with a cholera epidemic that began after
the earthquake, cholera was at its lowest level since the earthquake. Id.
In reaching her determination, Secretary Duke relied on the “in-depth review
of conditions in Haiti” conducted by U.S. Citizenship and Immigration Services
(USCIS), who also provided a thorough and exhaustive country-conditions report.
JA.362-63, 373-90, 399-400. Based on its review, USCIS concluded that “Haiti has
made significant progress in recovering from the 2010 earthquake, and no longer
continues to meet the condition for designation.” JA.362. Secretary Duke also
received a similar assessment and recommendation from the State Department.
JA.358-59, 367-71; see, e.g., JA.367 (“[T]he extraordinary and temporary conditions” in
Haiti that led to its TPS designation have “sufficiently improved such that they no
longer prevent nationals of Haiti from returning in safety”). She additionally received
7
and considered input from the military, civic leaders, and Haitian government
officials, among others. JA.323-35, 455-60, 487-94.
C. Procedural Background
1. Plaintiffs are ten Haitian TPS beneficiaries, a Haitian newspaper, and a
nonprofit organization. JA.53-59. In May 2018, plaintiffs filed this action challenging
Secretary Duke’s decision to terminate Haiti’s TPS designation. As relevant here, the
complaint alleges that the termination decision was unlawful because (1) the
determination was not made in accordance with the TPS statute and was arbitrary and
capricious in violation of the APA; and (2) the decision was motivated by
discriminatory animus in violation of equal-protection principles.
The government moved to dismiss, urging that plaintiffs’ suit was precluded by
the statute’s bar on judicial review and that the claims failed as a matter of law.
2. The district court denied the government’s motion. SA.146-69. The court
held that the statutory bar on judicial review of TPS decisions did not apply. The
court acknowledged that the statute precludes review of “any determination … with
respect to the designation, or termination or extension of a designation, of a foreign
state under this subsection.” SA.150 (quoting 8 U.S.C. § 1254a(b)(5)(A)). But it
concluded that § 1254a(b)(5)(A) did not bar plaintiffs’ APA claims because plaintiffs
were challenging “the process of the adjudication and whether an evidence-based
determination under the statutory criteria occurred, rather than the content of the
decision.” SA.153. The court further concluded that plaintiffs’ constitutional claim
8
was not barred because the judicial-review provision did “not reflect clear evidence of
congressional intent” to bar constitutional claims. Id.
The district court also declined to dismiss the President as a party, speculating
that “this could be one of the rare cases in which the extraordinary remedy of
injunctive relief against the President could be appropriate.” SA.155-56.
The court then held that plaintiffs plausibly alleged that Secretary Duke
violated the APA by taking a different approach to TPS determinations than past
administrations without acknowledging or explaining the change. SA.157-59. The
court determined that plaintiffs plausibly alleged that prior Secretaries evaluating
whether to extend a TPS designation “relied on current country conditions as a whole
to determine whether an extension was warranted,” whereas Secretary Duke “only
considered whether the conditions supporting Haiti’s initial TPS designation
continued to exist.” SA.159. The court further concluded that plaintiffs had plausibly
alleged that the Secretary violated the APA by “rel[ying] on factors not contemplated
by the TPS statute” and by “failing to consider relevant reports and data evidencing
that the extraordinary and temporary conditions relevant under the statute persisted.”
SA.160.
With respect to plaintiffs’ equal protection challenge, the court stated that
Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252 (1977),
provided the relevant standard of review. Under that standard, “government actions
may violate equal protection if a discriminatory purpose was one motivating factor.”
9
SA.163. The court declined to apply the “deferential” rational-basis review standard
set out in Trump v. Hawaii, 138 S. Ct. 2392, 2419-20 (2018), for courts reviewing
constitutional challenges to discretionary agency decisions in “admission and
immigration cases.” The court cited two reasons for refusing to apply the rational-
basis standard: (1) the TPS decision did not “implicate[] national security concerns”;
and (2) TPS determinations affect persons residing in the United States, not those
seeking to enter. SA.164. Applying the Arlington Heights standard, the district court
concluded that plaintiffs had plausibly alleged that animus on the part of the President
was a motivating factor in the Secretary’s decision. SA.165-67.
3. After the government filed an administrative record for the challenged
determination, see Dkt. 45-47, the district court granted plaintiffs’ request for extra-
record discovery. JA.646-47. Pursuant to that order, the government produced
thousands of documents and provided several government employees for depositions.
4. On April 11, 2019, following a four-day hearing, the district court entered a
preliminary injunction barring the Secretary from implementing the decision to
terminate Haiti’s TPS designation.2 The court concluded that the likelihood of
2
The court’s injunction order was unexpected. Plaintiffs did not move for a
preliminary injunction, and the district court initially described the four-day hearing as
a trial on the merits, before recasting it as an injunction hearing in its April 2019
decision. See SA.59.
10
irreparable injury, the balance of hardships, and the public interest favored plaintiffs.
SA.136-43.
On the merits, the district court reiterated its conclusion that plaintiffs’ APA
claims were not barred by 8 U.S.C. § 1254a(b)(5)(A) because “Plaintiffs’ claims rely on
process-based deficiencies” and did “not challenge the content of the [termination]
decision.” SA.64. The court also again refused to dismiss the President as a party,
reasoning that it was necessary to “enjoin[] the President to ensure executive officials
operate in accordance with the law.” SA.69.
The district court next concluded that plaintiffs were likely to succeed on their
APA claims, in two respects. SA.87-115. First, the court held that plaintiffs were
likely to prevail on their claim that the Secretary’s decision did not follow “the dictates
of the [TPS] statute”—i.e., her decision “was not purely evidence-based, as the statute
requires,” but was instead “pretextual” and “made in part due to political influence.”
SA.88. Second, the court concluded that plaintiffs were likely to prevail on their
claims that the termination decision was arbitrary and capricious because it “(1)
departed from both the statute and well-established agency practice; (2) was the
product of improper political influence … ; and (3) reflected a pre-ordained
outcome.” SA.101.
Although the court recognized that judicial review under the APA is normally
confined to the administrative record, it determined that it could review extra-record
11
materials because, in the court’s view, plaintiffs had offered significant evidence that
the government “undertook the TPS process in bad faith.” SA.84.
With respect to plaintiffs’ equal protection claim, the court held that plaintiffs
had raised “serious questions.” SA.123. Although the court found no evidence that
Secretary Duke harbored discriminatory animus, the court reasoned that a
discriminatory motive could be imputed to the Secretary because there was evidence
indicating that “the White House influenced the decisionmaking process to terminate
TPS,” and that “the President and other White House officials harbored animus
against” “non-white immigrants.” SA.128-31.
Finally, the court declined to limit the scope of its injunction to plaintiffs,
reasoning that a limited injunction “would not adequately protect the interests of all
stakeholders.” SA.144.
SUMMARY OF ARGUMENT
1. Plaintiffs’ APA claims are precluded by § 1254a(b)(5)(A)’s bar on judicial
review of TPS determinations and are without merit in any event. Section
1254a(b)(5)(A) provides that there is “no judicial review of any determination of the
[Secretary] with respect to the designation, or termination or extension of a [TPS]
designation.” Through their APA claims, plaintiffs seek a declaration and injunction
setting aside the Secretary’s decision to terminate Haiti’s TPS designation on the
grounds that the determination was arbitrary and capricious and in violation of the
12
TPS statute. Plaintiffs’ APA claims thus clearly challenge a “determination of the
[Secretary] with respect to the … termination” of a TPS designation and are barred.
The district court concluded that plaintiffs could circumvent § 1254a(b)(5)(A)’s
unambiguous bar on review on the theory that they are not challenging the
determination itself, but rather the Secretary’s approach to the TPS determination.
The distinction drawn by the district court is without basis. “If a no-review provision
shields particular types of administrative action, a court may not inquire whether a
challenged agency decision is arbitrary, capricious, or procedurally defective.” Amgen,
Inc. v. Smith, 357 F.3d 103, 113 (D.C. Cir. 2004). The criteria and evidence a Secretary
deems important in arriving at a particular TPS determination cannot be separated
from the decision itself. That is clear from the district court’s analysis, which
purported to conclude that plaintiffs were likely to succeed in demonstrating that the
Secretary’s decision was arbitrary and capricious—precisely the type of determination
precluded by § 1254a(b)(5)(A).
In attempting to circumvent the statutory restriction on review, the district
court frustrated the fundamental purposes of the judicial-review bar. That provision
prevents judicial second-guessing of sensitive judgments about foreign policy that the
Executive Branch is uniquely suited to handle. And it precludes the inevitable and
protracted litigation that TPS determinations (which Congress expressly designed to
be temporary) would otherwise engender.
13
Even if they were not barred, plaintiffs’ APA claims would fail on the merits.
Secretary Duke provided a rational explanation, supported by the record, for
concluding that the temporary and extraordinary conditions that gave rise to Haiti’s
TPS designation in 2010 did not persist eight years later. The standard that Secretary
Duke applied in arriving at that decision follows from a natural reading of the TPS
statute. Neither her approach nor her decision-making process differed materially
from those used by past Secretaries. As the Supreme Court recently made clear, a
court may not set aside an agency decision under the APA simply because the
decision may “have been influenced by political considerations or prompted by an
Administration’s priorities.” Department of Commerce v. New York, 139 S. Ct. 2551, 2573
(2019). Only in the “rare” case in which the record reveals an agency’s stated
rationale appears “contrived” and unworthy of credence does the existence of an
unstated rationale support setting an agency decision aside. See id. Nothing like that
circumstance exists here, where the Secretary’s decision was fully supported by the
record and there is no reason to doubt that the Secretary believed that the
extraordinary and temporary conditions that gave rise to Haiti’s TPS designation eight
years earlier no longer justified continuing its designation. That Secretary Duke may
have been predisposed towards terminating Haiti’s TPS designation, received input
from the White House, and believed that her decision was consistent with the White
House’s immigration priorities thus provide no bases for setting that decision aside.
14
2. Plaintiffs are likewise unable to demonstrate that they are likely to succeed
on their equal protection claim, or that such a claim raises serious questions. That is
the case even assuming the claim is reviewable and should be analyzed under the
standard provided by Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S.
252 (1977). And it is even more clearly the case if the claim is properly analyzed
under Trump v. Hawaii, 138 S. Ct. 2392 (2018), and Rajah v. Mukasey, 544 F.3d 427 (2d
Cir. 2008), which furnish the relevant rational-basis standard where, as here, a court is
reviewing immigration-related policy decisions “implicat[ing] relations with foreign
powers” and country “classifications defined in the light of changing political and
economic circumstances,” Hawaii, 138 S. Ct. at 2418-19.
After obtaining extensive discovery, plaintiffs have identified no evidence
indicating that Secretary Duke harbored discriminatory animus against “non-white
immigrants.” On the contrary, the record reflects that the Secretary carefully
considered the TPS termination decision after consulting with relevant government
stakeholders and fully explained her decision to terminate TPS for Haiti. That she
and her successor extended the TPS designations for South Sudan, Syria, Yemen, and
Somalia—four countries with significant non-white populations—further undermines
any suggestion that the Secretary’s decision was motivated by discriminatory animus.
Without evidence of animus on the part of the decisionmaker, the district court
characterized alleged statements made by the President as reflecting impermissible
animus and then imputed that alleged animus to the Secretary. That approach was
15
flawed at every level. The court erred as a legal matter in concluding that it could
impute any purported animus on the President’s part to the statutorily-assigned
decision of a Cabinet Secretary acting under an oath to uphold the Constitution. And,
in any event, the various statements, objectively construed, reflect an emphasis on an
immigration policy that focuses on America’s economic and security interests, not
racial or ethnic animus. This conclusion is even clearer once this Court reviews the
remarks in light of the presumption of regularity afforded to the President.
STANDARD OF REVIEW
When reviewing a district court’s decision on a preliminary injunction, this
Court reviews the district court’s legal conclusions de novo. Malkentos v. DeBuono, 102
F.3d 50, 54 (2d Cir. 1996). Otherwise, the district court’s entry of a preliminary
injunction is reviewed for abuse of discretion. Id.
ARGUMENT
I. PLAINTIFFS’ APA CLAIMS CANNOT SUPPORT A

PRELIMINARY INJUNCTION
A. The TPS Statute’s Preclusion Provision Bars Plaintiffs’ APA

Claims
The TPS statute unambiguously provides that “[t]here 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” for TPS. 8 U.S.C. § 1254a(b)(5)(A).
The statute thus makes clear that TPS designation, extension, and termination
determinations, such as the Haiti determination plaintiffs challenge here, are
16
committed to the unreviewable authority of the Secretary of Homeland Security.
Accordingly, an APA challenge seeking to set aside any such determination is
precluded. See 5 U.S.C. § 701(a)(1).
The district court mistakenly concluded that plaintiffs could evade the statutory
bar by characterizing their APA claims as “collateral” challenges to the “process” by
which Secretary Duke arrived at her termination decision. SA.151-53; see also SA.64
(concluding that plaintiffs’ APA claims were not barred because they “rely on process-
based deficiencies” and not “the content of the decision”). But “[i]f a no-review
provision shields particular types of administrative action, a court may not inquire
whether a challenged agency decision is arbitrary, capricious, or procedurally
defective.” Amgen, Inc. v. Smith, 357 F.3d 103, 113 (D.C. Cir. 2004); see Delgado v.
Quarantillo, 643 F.3d 52, 55 (2d Cir. 2011) (preclusion provision barred review of APA
claim “indirectly challenging” the underlying unreviewable order); Martinez v.
Napolitano, 704 F.3d 620, 623 (9th Cir. 2012) (preclusion provision barred APA claim
“challeng[ing] the procedure and substance” of the non-reviewable determination);
Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala, 80 F.3d 379, 386 (9th Cir. 1996) (preclusion
provision applies when “a procedure is challenged only in order to reverse the
individual [unreviewable] decision”); see also DCH Reg’l Med. Ctr. v. Azar, 925 F.3d 503,
505-07 (D.C. Cir. 2019) (holding that a statute precluding review of any “estimate”
necessarily extended to challenges to the methodology used by the agency to arrive at
those estimates, and observing that a contrary holding “would eviscerate the statutory
17
bar, for almost any challenge to an estimate could be recast as a challenge to its
underlying methodology”). Thus, any claim that the Haiti TPS determination was
arrived at in a procedurally improper manner is a challenge to the determination itself
and is barred. Indeed, neither plaintiffs nor the district court cite any cases in which a
court has permitted APA claims like those plaintiffs bring here to proceed in the face
of a judicial-review bar.
The text of § 1254a(b)(5)(A) does not support a distinction between the
determination and the evidence and methodology considered in reaching it. See DCH
Reg. Med. Ctr., 925 F.3d at 507. Section 1254a(b)(5)(A)’s broad language, which bars
review of “any determination with respect to the designation, or termination or extension
of a designation,” indicates the opposite. See id.
That plaintiffs’ APA claims, regardless of their rubric, are fundamentally
challenges to the determination itself is clear from a review of those claims. The first
of plaintiffs’ statutory claims that the district court found meritorious was plaintiffs’
claim that Secretary Duke’s decision was not based “on an objective, inter-agency
assessment [of country conditions that] the TPS statute requires” and was instead
“preordained and pretextual.” SA.87-88.
Contrary to the district court’s conclusion, plaintiffs’ claim that Secretary Duke
failed to comply with the TPS statute’s requirements in arriving at her termination
decision is self-evidently a challenge to the substantive determination itself and is
therefore barred by the express language of § 1254a(b)(5)(A). See City of Rialto v. West
18
Coast Loading Corp., 581 F.3d 865, 876 (9th Cir. 2009) (Whether an agency
determination “met the substantive requirements of the [relevant] statute” is “decidedly
substantive” and thus barred by a provision precluding review of that determination);
see also Proyecto San Pablo v. INS, 189 F.3d 1130, 1139 (9th Cir. 1999) (preclusion
provision barred review of challenges to the agency’s “interpretation of the [statute’s]
substantive eligibility requirements” and “the application of [those] requirements in
any particular case”). Nothing in § 1254a(b)(5)(A)’s categorical preclusion (or
common sense) suggests that Congress intended to permit an alien to obtain review
of a Secretary’s application of the statute in making her determination, including the
manner in which a Secretary weighs conditions in a foreign country or what factors
and evidence a given Secretary finds most significant. That is precisely what the
statute bars. The criteria and evidence a Secretary deems important in arriving at a
particular TPS determination and the weight the Secretary accords to those criteria
cannot be separated from the determination itself. The district court’s conclusion that
Secretary Duke violated the TPS statute was based on its view that Secretary Duke
“ignored” certain evidence and failed to consider “contrary or inconvenient factual”
information, see SA.88, 101. But those are the criteria that guide a court’s review of an
agency determination, not its review of a collateral matter. Motor Vehicle Mfrs. Ass’n of
U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (An agency decision is
“arbitrary and capricious if the agency … entirely failed to consider an important
19
aspect of the problem, [or] offered an explanation for its decision that runs counter to
the evidence before the agency.”).
The district court’s conclusion that the Secretary’s decision appeared to be
“preordained and pretextual” similarly represents a challenge to the Secretary’s
determination. The argument that a decision “was pretextual is no different from [an]
argu[ment] that [the decision] was wrong.” Proyecto San Pablo, 189 F.3d at 1141. It is
thus a challenge to the determination itself. See id.; see also Department of Commerce v.
New York, 139 S. Ct. 2551, 2575 (2019) (the conclusion that the Commerce Secretary
provided a “pretextual” rationale for his decision to reinstate a citizenship question
rendered the decision arbitrary and capricious).
Plaintiffs’ other APA claims are likewise challenges to the Haiti determination
and are therefore barred. For example, the district court concluded that the plaintiffs
were likely to prevail on their claim that the Secretary’s decision was arbitrary and
capricious because, in arriving at her Haiti decision, Secretary Duke allegedly
“departed from [past] agency practices by adopting a new standard without
justification or explanation.” SA.103.
Plaintiffs’ argument is a common basis for challenging an agency determination
itself as arbitrary and capricious, as is clear from California Trout v. FERC, 572 F.3d
1003 (9th Cir. 2009), relied on by the district court. In California Trout, the Ninth
Circuit reviewed an agency decision to determine whether the decision was arbitrary
and capricious because it constituted an unexplained change of policy (and concluded

20
that it did not). The district court quoted language recognizing that a prior policy can
be established “by rule or by settled course of adjudication, SA.104 (quoting California
Trout, 572 F.3d at 1023). But California Trout’s reaffirmation of that principle in no
way means that a party can challenge an allegedly unexplained departure from such a
policy despite an express bar on judicial review—which was not present in California
Trout—simply by characterizing their challenge to the determination Congress
insulated from judicial review as a challenge to a purportedly “collateral” policy. To
the contrary, the principle that polices can be established and changed either by
“general rule or by individual, ad hoc litigation,” SEC v. Chenery Corp., 332 U.S. 194,
203 (1947), long predates the enactment of § 1254a(b)(5)(A), see id., which confirms
that § 1254a(b)(5)(A)’s bar to judicial review encompasses claims alleging that a
decision is arbitrary and capricious because it departed without sufficient explanation
from a policy established in prior adjudications.
The district court also determined that plaintiffs were likely to show that
Secretary Duke’s TPS determination was arbitrary and capricious because evidence in
the record indicated that “political motivations influenced” the Secretary’s decision.
SA.113. But, again, the claim that Secretary Duke considered improper or irrelevant
factors in arriving at her decision is a challenge to the substantive decision itself, as the
cases relied on by the district court make clear. SA.111; see Town of Orangetown v.
Ruckelshaus, 740 F.2d 185, 188 (2d Cir. 1984) (plaintiff challenged agency decision to
remove a grant restriction on the ground that the decision was politically motivated);
21
Tummino v. Torti, 603 F. Supp. 2d 519, 544 (E.D.N.Y. 2009) (same with respect to
FDA decision).
The Ninth Circuit’s decision in Gebhardt v. Nielsen, 879 F.3d 980, 987 (9th Cir.
2018), exemplifies the principles outlined above and further demonstrates that the
TPS statute bars plaintiffs’ APA claims. Gebhardt involved INA provisions that barred
review of any “decision or action” relating to “no risk” determinations made by the
Secretary of Homeland Security. Id. at 984. Plaintiff, who was the subject of an
adverse “no risk” determination, asserted that the judicial-review bar did not apply to
his statutory claims challenging the “standard” the Secretary applied in making “no
risk” determinations and the process through which the Secretary adopted that
standard. Id. at 987.
The Ninth Circuit rejected the plaintiff’s attempt to circumvent the judicial-
review bar. Gebhardt, 879 F.3d at 987. In so doing, it stressed that “[t]he standards by
which the Secretary reaches a decision within his or her ‘sole and unreviewable
discretion’—and the methods by which the Secretary adopts those standards—are just
as unreviewable as the Secretary’s ultimate decisions themselves.” Id. Like the
plaintiff in Gebhardt, plaintiffs here challenge the standard the Secretaries used in
22
making their TPS determinations and the manner in which they adopted that
standard. As in Gebhardt, such challenges are barred.3
Neither McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479 (1991), nor Reno v.
Catholic Social Services, Inc., 509 U.S. 43 (1993) (CSS), supports the district court’s
decision. McNary addressed whether a statutory provision which channeled judicial
review of determinations concerning special agricultural worker (SAW) status to
removal proceedings barred the district court from considering plaintiffs’ challenge to
an alleged “pattern or practice of procedural due process violations by the
Immigration and Naturalization Service (INS) in its administration of the SAW
program.” 498 U.S. at 483. The Supreme Court held that district court jurisdiction
could lie over such an action because the channeling provision applied to review of
individual denials rather than “collateral challenges to unconstitutional practices and
policies used by an agency in processing applications.” Id. at 492. The Court
observed that plaintiffs did “not seek review on the merits of a denial of a particular
application.” Id. at 494. Rather, they sought review of genuinely “collateral” matters
related to the administration of the SAW program, including whether SAW applicants
3
The district court erroneously attempted to distinguish Gebhardt on the
ground that the statute at issue in Gebhardt committed “no risk” determination to the
“sole and unreviewable discretion” of the Secretary. SA.65. That distinction is
unavailing. The preclusion provision in Gebhardt was no different in substance from
§ 1254a(b)(5)(A). See Gebhardt, 879 F.3d at 984. And, critically, the court in Gebhardt
assumed that a genuinely collateral challenge to an agency pattern or practice would
be reviewable (just as plaintiffs argue here), but that plaintiffs’ claims did not qualify as
collateral challenges. Id. at 987.
23
should be permitted to present witnesses at SAW hearings and provided with
interpreters. Id. at 488, 493-94.
Unlike the collateral challenges in McNary, plaintiffs here challenge the
Secretary’s substantive determination and seek declaratory and injunctive relief setting
the termination decision aside, and thus their claim is squarely covered by the review
bar. See City of Rialto, 581 F.3d at 877 (concluding that McNary-type rationale was
inapplicable to a “pattern and practice” claim that sought “the very same [relief] that
successful direct review … would produce: invalidation of the” underlying
unreviewable agency decision); Skagit, 80 F.3d at 386 (9th Cir. 1996) (rejecting reliance
on McNary where “a procedure is challenged only in order to reverse the individual
[unreviewable] decision”). Plaintiffs’ APA claims bear no resemblance to the
genuinely collateral challenges at issue in McNary, and, unsurprisingly, the district
court cited no case (until this litigation) in which any court has undertaken review
under McNary of any kind of arbitrary-and-capricious challenge in the face of a review
bar resembling § 1254a(b)(5)(A).
In concluding that plaintiffs’ APA claims were analogous to the claims of the
plaintiffs in McNary, the district court erroneously found it significant that the
Secretary could reach the same TPS determination on remand after applying the
appropriate procedures. SA.64. But preclusion provisions like § 1254a(b)(5)(A) apply
where, as here, “a procedure is challenged only in order to reverse the individual
[unreviewable] decision.” Skagit, 80 F.3d at 386; Amgen, 357 F.3d at 113. That is true
24
even though requiring an agency to apply a different procedure on remand would not
dictate a determination in the plaintiffs’ favor. And, indeed, the vast majority of
successful APA challenges do not mandate a particular result on remand to the
agency. The district court’s reasoning would thus permit APA review of the
Secretary’s TPS determinations as a matter of course.
The Supreme Court’s decision in CSS is likewise of no help to plaintiffs. CSS
addressed the question whether a district court had jurisdiction to review a regulation
issued by INS. The Court rejected the contention that a provision withholding
“judicial review” of “determination[s] respecting an application for adjustment of
status” “precludes district court jurisdiction over an action challenging the legality of a
regulation without referring to or relying on the denial of any individual application.”
509 U.S. at 56. Critically, however, the Court declined to review the plaintiffs’
challenge to the regulation because the claim was unripe, as the plaintiffs had not yet
applied for an adjustment of status. Id. at 59. The Court further emphasized that,
once plaintiffs applied for adjustment and had their application denied (thus rendering
their challenge to the regulation ripe), that challenge would be covered by the judicial
review provision, because the challenge would arise in the context of “a denial of an
individual application.” See id. at 60.
Plaintiffs here seek declaratory and injunctive relief that would set aside a
specific determination. Their contentions rely on an analysis of the factors that
Secretary Duke relied on in making the Haiti TPS determination, and thus “refe[r] to
25
[and] rel[y] on,” CSS, 509 U.S. at 56, a specific determination. Moreover, the
Secretary has made the relevant determination in this case. Thus, even if plaintiffs
were, like the plaintiffs in CSS, challenging an agency regulation, that challenge would
arise out of an individual termination determination and would therefore fall within
§ 1254a(b)(5)(A)’s ambit.
The district court’s suggestion that plaintiffs’ APA claim survive
§ 1254a(b)(5)(A)’s bar because they implicate “immigration status” further
underscores the errors in the court’s analysis. SA.66. The court cited no authority for
the proposition that preclusion provisions are interpreted differently in the
immigration context. To the contrary, courts have frequently concluded that such
provisions bar review of claims implicating immigration status. See, e.g., Delgado, 643
F.3d at 55-56; Gebhardt, 879 F.3d at 987; Naranjo-Aguilera v. INS, 30 F.3d 1106, 1113-
14 (9th Cir. 1994). And, indeed, Congress routinely includes preclusion provisions in
immigration statutes, in part to avoid the protracted litigation and delays that
otherwise accompany the Executive Branch’s implementation of immigration statutes.
Allowing plaintiffs to circumvent § 1254a’s bar on judicial review through a
thinly veiled challenge to the determinations themselves would run counter to the
very purpose of the bar. In enacting the TPS statute, Congress recognized that TPS
designations will involve sensitive and uncertain foreign-policy judgments (about, for
example, the nature of foreign hostilities, an assessment of on-the-ground conditions
abroad and a foreign government’s response, and the ability of foreign nations to
26
accept the return of their nationals) made at a country-wide level of generality. It is
well-established that such considered judgments, “implicat[ing] sensitive and weighty
interests of national security and foreign affairs” and based on an “evaluation of the
[ever-changing] facts,” are within the province of the Executive Branch, not the
courts. Holder v. Humanitarian Law Project, 561 U.S. 1, 33–34 (2010). Congress thus
deliberately shielded such judgments, as reflected in the TPS determinations, from
judicial second-guessing.
Moreover, Congress was aware that TPS designations would affect thousands
of individuals, many of whom could be expected to desire that TPS designations be
extended indefinitely. It thus would not have been difficult for Congress to predict
that litigation over the termination of TPS designations, under the APA or otherwise,
could mire TPS-related decisions (which Congress expressly intended to be
temporary) in litigation for years and undermine the discretionary nature of the
designations. See Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 490
(1999) (noting that delay “is often the principal object of resistance to a deportation
proceeding”). Congress may also have concluded that Secretaries would be less likely
to designate countries initially if doing so would inevitably lead to protracted and
burdensome litigation, with corresponding lengthy extensions.
27
B. Plaintiffs’ APA Claims Would Fail On The Merits Even If

They Were Not Barred
Assuming that judicial review were available, plaintiffs’ APA claims would fail
on the merits. The district court concluded that plaintiffs were likely to succeed on
their APA claims for three interrelated reasons: (1) plaintiffs were likely to succeed in
establishing that Secretary Duke did not conduct a “purely evidence-based” review of
Haiti’s TPS designation, as the statute purportedly requires, but instead reached a
decision that was “preordained and pretextual,” SA.88; (2) plaintiffs were likely to
succeed in showing that the decision was arbitrary and capricious because it was
influenced by the White House, SA.101; and (3) plaintiffs were likely to succeed in
showing that the decision was arbitrary and capricious because the Secretary departed
from past agency practice without explanation, id. None of the district court’s
conclusions had merit.
1. The Secretary’s Decision Was Rational, Consistent

With The TPS Statute, And Not Pretextual
The TPS statute requires the Secretary of Homeland Security to review
periodically “the conditions in the foreign state” for which a TPS designation is in
effect to determine “whether the conditions for such designation … continue to be
met.” 8 U.S.C. § 1254a(b)(3)(A). The Secretary must “consult[] with appropriate
agencies” in conducting her review, and, if she determines that a country’s TPS
designation is no longer justified, must “terminate the designation by publishing
28
notice in the Federal Register of th[at] determination.” Id. § 1254a(b)(3)(A), (B). The
notice must explain the “basis for the determination.” Id.
Secretary Duke satisfied each of those criteria here. She conducted a thorough
review of the conditions in Haiti, and did so in consultation with “appropriate
agencies,” including the State Department, USCIS, and the military. See supra pp. 7-8.
After concluding that the temporary and extraordinary conditions that gave rise to
Haiti’s initial TPS designation no longer persisted, the Secretary published notice of
her decision to terminate Haiti’s TPS designation in the Federal Register and
explained her reasons for doing so. See supra pp. 6-8. She stated that Haiti’s recovery
from the conditions that gave rise to its TPS designation was evidenced by
improvements in the country’s housing, the United Nations’ withdrawal of its
peacekeeping mission, Haiti’s conduct of a presidential election, the country’s
reconstruction of government infrastructure, the continuing growth of its GDP, and a
decline in the cholera epidemic that began after the earthquake. See id. The
Secretary’s findings are fully supported by the administrative record, and, indeed, the
district court purported to acknowledge that the “content of the decision” and the
Secretary’s factual determinations were not subject to dispute. SA.63-64.
The district court nonetheless erroneously concluded that the Secretary’s
determination violated the TPS statute because her decision was not “purely evidence-
based,” as the TPS statue purportedly requires. SA.88. It is not clear what the court
meant by a “purely evidence-based” review or how Secretary Duke or the current

29
Secretary could satisfy that requirement. In reviewing agency action under the APA, a
court is limited to evaluating the “contemporaneous explanation of the agency
decision.” Vermont Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 549 (1978).
Here, Secretary Duke gave “purely evidence-based” reasons for terminating Haiti’s
designation, thus satisfying any requirement that the bases for the decision be “purely
evidence-based.”
Although beside the point, the district court’s conclusion that the TPS statute
mandates that a Secretary base her TPS determinations on a “purely evidence-based”
assessment of the conditions in a foreign state was wrong. The statutory provision
under which Haiti was designated requires a Secretary to consider whether
“permitting the aliens [from the relevant country] to remain temporarily in the United
States is contrary to the national interest.” 8 U.S.C. § 1254a(b)(1)(C). If a Secretary
concludes that allowing the aliens to stay would be contrary to the national interest,
she must terminate the TPS designation, regardless of the conditions in the relevant
country.
The district court rested its conclusion that Secretary Duke did not comply
with the TPS statute on its determination that her decision to terminate Haiti’s TPS
designation was “preordained and pretextual.” SA.88. That determination was, in
turn, based on evidence purportedly showing that the Secretary and other
Administration officials were predisposed towards terminating Haiti’s designation,
that she was under pressure from the White House to terminate TPS, that the White
30
House influenced her decision, and that political appointees disagreed with career
staff and ordered them to revise various memoranda to support a termination
determination. SA.91-99. To the extent the district court relied on evidence outside
the administrative record, that was alone an abuse of discretion. See infra p. 40.
The evidence would not, in any event, provide a basis for setting the Secretary’s
determination aside. Even assuming the Secretary had an unstated predisposition
towards terminating Haiti’s TPS designation, that fact would not render her otherwise
rational and fully supported decision invalid under the APA. “[A] court may not
reject an agency’s stated reasons for acting simply because the agency might also have
had other unstated reasons.” Department of Commerce, 139 S. Ct. at 2573; see also Jagers v.
Federal Crop Ins. Corp., 758 F.3d 1179, 1185-86 (10th Cir. 2014) (rejecting argument
that “the agency’s subjective desire to reach a particular result must necessarily
invalidate the result, regardless of the objective evidence supporting the agency’s
conclusion”). Moreover, it would not be surprising for the Secretary to be skeptical
that a designation Congress intended to be “temporary” and based on “extraordinary
and temporary conditions,” 8 U.S.C. § 1254a(b)(1)(C), remained justified eight years
after it was first implemented.
That the Secretary purportedly took account of the views of certain White
House officials who favored termination likewise does not provide a ground for
invalidating her decision. “[A] court may not set aside an agency’s policymaking
decision solely because it might have been influenced by political considerations or

31
prompted by an Administration’s priorities.” Department of Commerce, 139 S. Ct. at
2573. It is neither unusual nor improper for White House officials to convey their
views on a significant policy decision with a relevant agency decisionmaker,
particularly where, as here, that decision has significant foreign-policy implications.
See id. (Policy “decisions are routinely informed by unstated considerations of politics,
the legislative process, public relations, interest group relations, foreign relations, and
national security concerns (among others).”). “Our form of government simply could
not function effectively or rationally if key executive policymakers were isolated from
each other and from the Chief Executive.” Sierra Club v. Costle, 657 F.2d 298, 406
(D.C. Cir. 1981). The Constitution vests the Executive Power in the President. See
Free Enter. Fund v. PCAOB, 561 U.S. 477, 492 (2010). An interpretation of the APA
that prohibited the President from sharing his views with a Cabinet Secretary on an
important policy matter would raise significant separation-of-powers concerns.
Moreover, the record indicates that White House officials favored terminating
TPS for Haiti because they believed that the conditions warranting its designation no
longer persisted—i.e., for the very “evidence-based” reasons that the district court
believed the statute demanded. For example, the Principals Committee memorandum
cited by the district court, see SA.92, recommended terminating Haiti’s TPS
designation because “the temporary conditions that arose out of natural disasters and
supported [Haiti’s] TPS designation[] have long ceased to exist.” See JA.451.
Similarly, then-Secretary Kelly “foreshadowed the end of TPS for Haiti” in 2017,
32
SA.93, because he believed conditions in Haiti had significantly improved since the
2010 earthquake. See supra p. 6.
The district court likewise erred in finding it significant that political appointees
within DHS overruled recommendations from career employees and had those career
employees redraft memoranda to support the decision to terminate TPS. Such
disagreements are a commonplace feature of agency decisionmaking. See Wisconsin v.
City of New York, 517 U.S. 1, 23 (1996) (“[T]he mere fact that the Secretary’s decision
overruled the views of some of his subordinates is by itself of no moment in any
judicial review of his decision.”); Free Enter. Fund, 561 U.S. at 499 (“One can have a
government that functions without being ruled by functionaries, and a government
that benefits from expertise without being ruled by experts.”). It is evidence only of
disagreements about policy—here, how to weigh the different factors that go into
deciding whether to extend or terminate TPS designations. And, indeed, TPS
extension decisions are inherently complicated, fact-specific decisions requiring a
difficult assessment of the conditions in a foreign nation. It is to be expected that
different individuals assessing those evolving conditions would disagree as to whether
an extension was warranted.
This case bears no resemblance to the “unusual circumstances” that the
Supreme Court found supported a conclusion that the reasons the Secretary of
Commerce gave for reinstating a citizenship question on the 2020 Census were
pretextual and in violation of the APA. Department of Commerce, 139 S. Ct. at 2575-76.
33
There, the Commerce Secretary stated that he was reinstating a citizenship question in
response to a request from the Department of Justice for more granular citizenship
data to aid the Justice Department’s enforcement of the Voting Rights Act. Id. In the
Court’s view, however, the record indicated that this rationale was “contrived.” Id.
The Court noted that the record indicated that “the Secretary began taking steps to
reinstate a citizenship question” long before the Department of Justice’s request and
with “no hint that he was considering VRA enforcement in connection” with the
decision to reinstate the question. Id. Moreover, the Justice Department initially
declined the Commerce Department’s invitation to request more detailed citizenship
information, and ultimately requested the information for VRA-enforcement
purposes only after Commerce staff proposed and developed the idea and the
Commerce Secretary contacted the Attorney General directly. Id. The Department of
Justice’s letter requesting reinstatement of the citizenship question also “drew heavily
on contributions from Commerce staff and advisors” and went beyond “what one
might expect of a typical request from another agency.” Id. These facts indicated to
the Court that the Department of Justice’s “interest was directed more to helping the
Commerce Department than to securing the data,” and that the Commerce
Secretary’s “sole stated reason” for reinstating the question was “incongruent with
what the record reveals about the agency’s priorities and decisionmaking process.” Id.
Nothing like those circumstances exists here. In contrast to Department of
Commerce, the record here provides no basis for concluding that Secretary Duke did
34
not believe her stated reason for terminating Haiti’s designation—i.e., that the
temporary and extraordinary conditions in Haiti that gave rise to its TPS designation
eight years previously no longer supported that temporary designation—or that it was
contrived to reach a preordained result. That she extended TPS for South Sudan
underscores that her decision was based on an assessment of the conditions in each
country and terminated TPS for Haiti because she believed the circumstances
warranted it.
2. The Secretary’s Decision Was Not The Product Of

Improper Political Influence
The district court also erred in concluding that the Secretary’s decision was
arbitrary and capricious because “the White House exerted significant influence over
Secretary Duke when she made her TPS decision.” SA.112-13. As explained supra
pp. 32-33, there is nothing unusual or improper about the White House sharing its
views on the Haiti TPS determination or the Secretary’s belief that her decision was
consistent with the Administration’s immigration priorities. Indeed, as noted above,
the TPS statute required the Secretary to consider whether extending Haiti’s
designation was in the “national interest” (regardless of the conditions in country) and
to consult with the appropriate government officials, such as the White House, with
knowledge of that topic.
35
3. The Secretary Did Not Depart From Past Agency

Practice In Evaluating Haiti’s TPS Designation
Contrary to the district court’s conclusion, Secretary Duke did not depart from
past agency standards when she evaluated whether an extension of Haiti’s TPS
designation was warranted. According to the court, Secretary Duke broke from past
agency practice when she interpreted the TPS statute as requiring her “to consider
only those conditions resulting from the originating event—i.e., the 2010
earthquake”—and not those “conditions untethered to [that] event.” SA.105. As
explained below, Secretary Duke applied a process and legal standard that is materially
similar to those used by past Secretaries when evaluating TPS termination decisions.
That she reached a different conclusion than recent Secretaries regarding whether
conditions in Haiti justified an extension of the country’s TPS designation at most
reflects a different assessment of evolving country conditions at a later point in time.
To the extent the district court suggested that Secretary Duke ignored
intervening events altogether, SA.105-06, that suggestion is belied by even a cursory
inspection of the Federal Register notice announcing the termination of TPS for
Haiti. In that notice, the Secretary expressly considered the country’s current
conditions, including its housing situation, its political climate, its current GDP, its
infrastructure, and the current state of its cholera epidemic. See supra pp. 6-8. The
Secretary’s analysis of Haiti’s current conditions necessarily involved consideration of
whether intervening events hampered the country’s recovery from the earthquake that
36
resulted in its initial TPS designation. That the statute required the Secretaries to
consider whether aliens can safely return to their countries (for reasons related to the
2010 earthquake), 8 U.S.C. § 1254a(b)(1), likewise demonstrates that the Secretaries
necessarily considered current country conditions.
Secretary Duke indeed focused her analysis on whether the conditions that
gave rise to Haiti’s TPS designation persisted and declined to consider conditions
untethered to the 2010 earthquake that led to Haiti’s designation. But that approach
was consistent with the approach employed by past Secretaries. Indeed, Secretary
Duke’s approach follows from a natural reading of the statute. The statute ties a
country’s initial TPS designation to specific events or conditions—i.e., an “ongoing
armed conflict,” “an earthquake, flood, drought, epidemic, … other environmental
disaster,” or other “extraordinary and temporary conditions.” 8 U.S.C. § 1254a(b)(1).
The statute emphasizes that the conditions that give rise to the TPS designation must
be “temporary” and “extraordinary.” See id. § 1254a(b)(1)(C). Thus, when the statute
mandates that the Secretary periodically evaluate whether “the conditions for such
designation … continue to be met,” id. § 1254a(b)(3)(A), it follows that the Secretary
is to evaluate whether the “extraordinary and temporary” conditions caused by the
event that gave rise to the TPS designation continue to exist. Nothing in the statute
suggests that a Secretary’s periodic evaluation of a TPS designation must incorporate
entirely unrelated intervening events and conditions, some of which may have
occurred years later.

37
That the statute contemplates that the Secretary will focus her decision to
terminate or extend an existing TPS designation on the originating event is further
underscored by DHS’s longstanding interpretation of the TPS statute as providing
that the Secretary, when reviewing a country’s TPS status, may redesignate a country
for TPS, as opposed to extending the country’s existing TPS designation. See supra p.
4. DHS’s longstanding recognition of a distinction between redesignations and
extensions of previous designations demonstrates that the agency understands the
statute to differentiate between whether country conditions justify a TPS designation
independently (thus warranting a redesignation) and whether conditions resulting
from the events that gave rise to the initial designation continue to exist (thus
warranting an extension of the initial designation).
It is thus unsurprising that prior Secretaries likewise focused their TPS
extension or termination decisions on whether the event and conditions that led to
the original designation persisted and considered intervening conditions only to the
extent that they could be linked to or impeded recovery from the event underlying the
initial designation. See, e.g., Extension of Designation for Haiti, 82 Fed. Reg. 23,830,
23,831 (May 24, 2017) (extending Haiti’s TPS designation because the conditions
“supporting its [initial] designation for TPS persist[ed]”); Termination of Guinea’s
Designation, 81 Fed. Reg. 66,064 (Sept. 26, 2016) (“the extraordinary and temporary
conditions that prompted Guinea’s TPS designation have substantially resolved”);
Extension of the Designation of El Salvador, 81 Fed. Reg. 44,645 (July 8, 2016) (“Recovery
38
from the [2001] earthquakes has been slow and encumbered by subsequent natural
disasters and environmental challenges.”); Extension of the Designation of Haiti, 80 Fed.
Reg. 51,582 (Aug. 25, 2015) (“Haiti’s ability to recover [from the 2010 earthquake] has
been further constrained by political instability.”); Extension of the Designation of Sudan,
79 Fed. Reg. 52,027 (Sept. 2, 2014) (“[A]n 18-month extension is warranted because
the armed conflict [in Sudan] is ongoing and the extraordinary and temporary
conditions that prompted the May 2013 extension and redesignation continue to
exist.”); Termination of the Designation of Burundi, 72 Fed. Reg. 61,172 (Oct. 29, 2007)
(“[C]onditions that warranted the initial designation of TPS [for Burundi] in 1997 and
the re-designation in 1999 no longer continue to be met.”); see also, e.g., Extension of the
Designation of Nicaragua, 68 Fed. Reg. 23,748 (May 5, 2003) (“Each decision to extend
the TPS designation was made on the determination that the conditions that
warranted the TPS designation initially continued to exist.”).
TPS designations have also been terminated in the past despite significant
ongoing problems in the relevant countries. See, e.g., Termination of Designation of Angola,
68 Fed. Reg. 3896 (Jan. 27, 2003) (terminating Angola’s TPS designation despite the
remaining “challenge of assisting an estimated 4 million displaced Angolan nationals,”
and ongoing “concern that Angola lacks housing, medical services, water systems, and
other basic services destroyed by a 27-year-long war”); Termination of the Designation of
the Province of Kosovo, 65 Fed. Reg. 33,356 (May 23, 2000) (terminating Kosovo’s
designation because, “[a]lthough conditions remain difficult with bursts of ethnically-

39
motivated violence, the situation in Kosovo cannot now be classified as ongoing
internal conflict”).
The district court’s erroneous conclusion that past Secretaries extended TPS
designations based on intervening events and conditions unrelated to the event giving
rise to the TPS designation was based largely on evidence outside the administrative
record. Specifically, the court looked primarily to the testimony of a former USCIS
director, who opined that USCIS, in recommending whether to continue a TPS
designation, had the discretion to consider the impact of intervening factors
“regardless of whether those intervening factors had any connection to the event that
formed the basis for the original designation or to the country’s recovery from that
originating event.” JA.2025; SA.107-08.
The district court erred in relying on such evidence outside the administrative
record and in allowing discovery. See Florida Power & Light Co. v. Lorion, 470 U.S. 729,
743 (1985) (“The focal point for judicial review [of agency action] should be the
administrative record already in existence, not some new record made initially in the
reviewing court.”). Only in the rare case where the plaintiffs have made a “strong
showing of bad faith or improper behavior” may a district court consider information
beyond the administrative record. See Citizens to Pres. Overton Park, Inc. v. Volpe, 401
U.S. 402, 420 (1971). Here, the Secretary provided a reasoned explanation for her
decision to terminate Haiti’s TPS designation, and nothing in the record comes close
to establishing that her stated rationale was provided in bad faith.

40
But even assuming that extra-record evidence could properly be considered,
Rodriguez’s testimony and the other extra-record evidence relied on by the district
court as allegedly establishing a past agency practice is not consistent with prior TPS
determinations, which, as noted, focused on the initial conditions that gave rise to a
country’s TPS designation and cite intervening events only where those events related
to or hampered recovery from those initial conditions.4
In sum, because § 1254a(b)(5)(A) precludes review of plaintiffs’ APA claims
and because those claims fail in any event, plaintiffs cannot establish that they have “a
likelihood of success on the merits” of those claims or even that the claims raise
“serious questions,” North American Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883
F.3d 32, 37 (2d Cir. 2018). The district court abused its discretion in entering a
preliminary injunction on that ground.5
4
Because prior determinations considered intervening events only to the extent
they related to the originating condition, the district court’s “wealth of evidence”
indicating that the determination here likewise follows that practice, SA.107-110, is of
no moment, even if it could be properly considered.
5
The district court applied this Court’s standard under which a plaintiff seeking
a preliminary injunction need only show that there are “serious questions on the
merits”—a lesser showing than likelihood of success on the merits—if the “balance
of hardships decidedly favor[s] the moving party.” NASL, 883 F.3d at 37. Although
binding on the panel, the government respectfully submits that the standard is
inconsistent with the Supreme Court’s decision in Winter v. NRDC 555 U.S. 7, 20
(2008).
41
II. PLAINTIFFS’ EQUAL PROTECTION CLAIM CANNOT

SUPPORT A PRELIMINARY INJUNCTION
After considering the current conditions in Haiti, Secretary Duke determined
that the country no longer met the qualifications for TPS because the “extraordinary
and temporary” conditions that gave rise to its TPS designation following a 2010
earthquake were no longer present. Congress clearly precluded review of those
determinations, see 8 U.S.C. § 1254a(b)(5)(A), and the district court wrongly concluded
that this clear bar on judicial review could be circumvented by a constitutional
challenge that—in any event—is flatly at odds with the reasoning of the challenged
determination, which shows no sign of being infected by discriminatory animus.6 The
district court likewise erred in concluding that, even if the constitutional claim were
reviewable, plaintiffs could rely on extra-record evidence and discovery to establish
that claim, because the APA and its record-review limits also govern such challenges
to agency action. See 5 U.S.C. § 706(2)(B) (providing cause of action to “set aside
agency action” “contrary to constitutional right”); FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 516 (2009).
In any event, plaintiffs’ equal protection claim would not raise “serious
questions” even if it were reviewable. That is the case, even assuming that the district
court correctly held that plaintiffs’ equal protection claim should be reviewed under
6
Section 1254a(b)(5)(A) provides a far clearer bar on review than the statutory
provision at issue in Webster v. Doe, 486 U.S. 592, 603-04 (1988).
42
the standard set forth in Village of Arlington Heights v. Metropolitan Housing Development
Corp., 429 U.S. 252 (1977), which requires plaintiffs to establish that “a discriminatory
purpose has been a motivating factor in the [government’s] decision,” id. at 265-266.
But to be clear, to the extent review is permitted in the face of the express statutory
bar, the appropriate standard is that set forth in Trump v. Hawaii, 138 S. Ct. 2392
(2018), which held that constitutional challenges to Executive Branch immigration
policies are to be judged under a rational-basis standard and affirmed so long as they
are “plausibly related” to the objective of the policy. Id. at 2420. Ultimately, though,
because plaintiffs cannot establish that animus towards “non-white immigrants” was a
motivating factor in the Secretary’s decision, their equal protection claim fails under
any standard.
A. Plaintiffs Are Unlikely To Succeed On Their Equal

Protection Claim Under Arlington Heights
Secretary Duke provided a reasoned explanation for her decision to terminate
Haiti’s TPS designation, and that decision would properly be sustained under normal
principles of APA review, if Congress had not explicitly precluded such review. The
decision likewise permits no inference of impermissible discriminatory intent. Despite
having extraordinarily obtained hundreds of privileged documents reflecting internal
government deliberations, plaintiffs have not demonstrated that Secretary Duke
harbored animus in making the termination decision at issue.
43
The record demonstrates that the Secretary carefully considered the conditions
in Haiti and made an independent determination, amply supported by the record, that
conditions in the country had improved enough that the initial TPS designation was
no longer sustainable. See supra pp. 6-8. The record (which includes extensive
materials documenting Secretary Duke’s deliberations) makes clear that she received
input from a number of sources, both within and outside DHS, see id., that she
carefully considered how Haiti differed from other TPS countries, see, e.g., JA.465-6,
641, and that she worked assiduously to understand and reconcile the sometimes
conflicting information she received, JA.641-42. The Federal Register notice sets
forth the Secretary’s ultimate conclusion to terminate Haiti’s designation and her
reasons for doing so.
The plaintiffs’ allegations of discriminatory animus are especially implausible
because Secretary Duke and her immediate successor extended TPS designations for
South Sudan, Syria, Yemen, and Somalia. See supra pp. 4-5. That the Secretaries
extended the TPS designations of several “non-white” countries underscores that
their TPS decisions were driven by a reasoned analysis of the existing conditions in
each country, not racial or ethnic animus.
The district court acknowledged that plaintiffs have failed to produce any
evidence of animus on the part of Secretary Duke. SA.127; see also SA.167.
Nonetheless, the court declared that plaintiffs’ claim presented “serious questions”
because President Trump has purportedly expressed “animus against non-white

44
immigrants” and his alleged animus could be imputed to the Secretary. SA.127, 131.
That conclusion is flawed in every respect.
The asserted animus in the President’s purported statements cannot be a basis
for questioning the good faith of Secretary Duke, who is “entitled to a presumption
that [she] act[ed] properly and according to law.” Kohli v. Gonzales, 473 F.3d 1061,
1068 (9th Cir. 2007). The district court was wrong to assume that it could import
from the employment discrimination context the so-called “cat’s paw” theory of
animus and apply it to statutory determinations made by Cabinet Secretaries in the
foreign-policy and national-security context. See SA.127 (concluding that “liability for
discrimination will lie when a biased individual manipulates a non-biased decision-
maker into taking discriminatory action”). This Court should not blithely extend the
doctrine to an exercise of statutory authority by a Cabinet Secretary acting under an
oath to uphold the Constitution. As the Supreme Court explained in Staub v. Proctor
Hospital, 562 U.S. 411 (2011), “general principles of … agency law” “suggest[] that the
malicious mental state of one agent cannot generally be combined with the harmful
action of another agent to hold the principal liable for a tort that requires both.” Id. at
418. Although the Court was nevertheless willing to hold an employer liable by
deeming a biased supervisor responsible for the adverse action of an unbiased
supervisor if the former’s discriminatory acts were the intended and proximate cause
of the latter’s adverse action, id. at 418-20, extending that sort of imputation to the
45
government regulatory context would severely undermine the ability of government
officials to make decisions exclusively within their purview.
Rather than “judicial review of agency action” focusing on “the administrative
record already in existence,” Florida Power & Light, 470 U.S. at 743, absent a “strong
showing of bad faith or improper behavior” to overcome the presumption of
regularity, Overton Park, 401 U.S. at 420, the “cat’s paw” approach would invite judicial
second-guessing of one government official’s actions based on mere allegations of
discriminatory motive on the part of a different government official who played some
role in the decision-making process. That would invite impermissible intrusion on
privileged Executive Branch deliberations, see United States v. Nixon, 418 U.S. 683, 708
(1974), and United States v. Morgan, 304 U.S. 1, 18 (1938), and potential litigant-driven
discovery that would disrupt the execution of the laws, see Nixon v. Fitzgerald, 457 U.S.
731, 749-50 (1982).
Here, in particular, Secretary Duke gave eminently rational reasons for
terminating TPS for Haiti that are supported by the record, and no one has accused
her of harboring discriminatory intent. It would severely intrude on agency
decisionmaking to allow plaintiffs to attack the Secretary’s decision based on the
President’s alleged bias, or to require the Secretary to show that such bias was not a
proximate cause of her decision.
The district court sought to bridge the gap from alleged presidential statements
to impermissible discrimination by the Secretary on the ground that “the White

46
House was not only involved in but was influential in producing the decision to
terminate TPS for Haiti.” SA.129. The court’s analysis necessarily assumes that the
various White House officials at issue who communicated with the Secretary (or her
staff) about TPS were motivated by discriminatory animus. There is no basis for that
extraordinary assumption.
The district court wrongly suggested that evidence of animus on the part of
White House officials could be inferred from Chief of Staff John Kelly’s request for
information on how many Haitian TPS recipients “are on public and private relief,
how many school aged kids [are] in school, how many [are] convicted of crimes of any
kind, how often they travel back and forth to the island, remittances, etc.” SA.23-24,
132, 134-35. The district court’s reliance on Kelly’s request as evidence of racial
animus ignored a crucial aspect of Haiti’s TPS designation. Haiti was designated
under 8 U.S.C. § 1254a(b)(1)(C). That provision expressly prohibits the Secretary
from extending a country’s TPS status if the Secretary “finds that permitting the aliens
to remain temporarily in the United States is contrary to the national interest of the
United States.” Id. Thus, Secretary Duke was required to evaluate whether allowing
Haitian TPS recipients to remain temporarily in the United States was contrary to the
country’s national interest and to consult with appropriate officials about that
determination. A request for information from one of those officials regarding
whether Haitian TPS recipients have committed crimes, rely on government
47
resources, and remove dollars from the U.S. economy is in keeping with that statutory
obligation.
The only other purported evidence of animus on the part of White House
officials that the district court cited was a statement from a DHS adviser to the White
House that, with respect to their TPS designations, “African countries are toast,” and
“Haiti is up next.” SA.132. But that perhaps impolitic description of the Secretary’s
decision to terminate TPS for certain countries hardly qualifies as a “racial slur[],
epithet[], or other racially charged language,” as the district court concluded. SA.132.
And, indeed, Secretary Duke and her successor extended TPS for Somalia and South
Sudan (as well as Syria and Yemen), negating any suggestion that they or White House
officials harbored animus against African and “non-white” countries.
The district court likewise erred in concluding that there was evidence of
animus in the fact that certain White House officials favored termination of Haiti’s
TPS designation and shared that view with the Secretary. See SA.129-30. As
explained supra pp. 32-33, there was nothing improper about the White House
communicating its views on an important policy decision implicating foreign relations.
Nor was there anything untoward about Secretary Duke considering those views in
arriving at her determination.
Plaintiffs also have failed to support their claim that the Secretary’s decision to
terminate TPS for Haiti was motivated by racial or ethnic animus on the part of the
President himself. As an initial matter, it would be plainly inappropriate to rely on

48
campaign statements by then-candidate Trump, made before he took the oath of
office, to impugn the legitimate foreign-policy-related judgments of unbiased Cabinet
Secretaries. See Washington v. Trump, 858 F.3d 1168, 1173 & n.4 (9th Cir. 2017)
(Kozinski, J., dissenting from denial of rehearing en banc). But even taking the
purported statements on their own terms, such statements do not establish racial or
ethnic animus.
The offered statements, construed from an objective legal perspective, reflect
the current Administration’s focus on immigration policies that benefit Americans
rather than aliens, and not unconstitutional bias. Any statement about “shithole
countries” and about Haitians having AIDS should be understood as a denigrating
reference to the conditions and problems in the country, rather than a commentary on
the race or ethnicity of the country’s inhabitants. Indeed, such an objective
interpretation of the alleged statements is compelled by the presumption of regularity
to which the President is entitled as the head of a coordinate branch. In any event,
given the respect that is owed to a coordinate branch of government and the lack of
evidence to connect the President’s statements to the Secretary’s TPS determination,
this Court need not wade into the question of what can or cannot be inferred from
those statements.
The district court’s reliance on purported circumstantial evidence of racial and
ethnic animus in the Secretary’s termination decision likewise misses the mark. As
discussed supra pp. 36-41, Secretary Duke followed the same practices and applied the
49
same legal standard as past Secretaries. And the fact that political appointees at DHS
overruled their career subordinates’ recommendations is neither atypical nor evidence
that the determination was the product of discriminatory animus. See supra p. 33.
The district court likewise erred in finding anything untoward in Secretary
Duke’s terminating Haiti’s TPS designation only six months after former Secretary
Kelly extended it. See SA.134. In extending Haiti’s designation, Secretary Kelly
emphasized that conditions in Haiti had improved significantly and that Haitian TPS
beneficiaries should be preparing to return to the country. See supra p. 6. Moreover,
Congress set the default extension period at six months. 8 U.S.C. § 1254a(b)(3)(C).
Congress itself thus believed that the “temporary” conditions giving rise to a TPS
designation were likely to improve within a short period, necessitating frequent review
of those conditions.
B. The Secretary’s Decision Is Constitutional Under Trump v.

Hawaii
1. Although plaintiffs’ equal protection claim fails under any standard, the
district court erred at the threshold in failing to limit its review to whether a rational
basis existed for the termination decision. The Supreme Court “ha[s] long recognized
the power to expel or exclude aliens as a fundamental sovereign attribute exercised by
the Government’s political departments largely immune from judicial control.” Fiallo
v. Bell, 430 U.S. 787, 792 (1977). Because decisions in these matters implicate
“relations with foreign powers” and involve “classifications … defined in the light of
50
changing political and economic circumstances,” such judgments “are frequently of a
character more appropriate to either the Legislature or the Executive.” Mathews v.
Diaz, 426 U.S. 67, 81 (1976); see also Galvan v. Press, 347 U.S. 522, 531 (1954).
The Supreme Court has accordingly made clear that decisions by the political
branches about which classes of aliens to exclude or expel will generally be upheld
against constitutional challenges so long they satisfy deferential rational-basis review.
Hawaii, 138 S. Ct. at 2420; see also Kleindienst v. Mandel, 408 U.S. 753, 766-70 (1972)
(judicial review of “[p]olicies pertaining to the entry of aliens and their right to remain
here” is limited to whether the Executive gave a “facially legitimate and bona fide”
reason for its action); Mathews, 426 U.S. at 82-83; Fiallo, 430 U.S. at 795, 799.
The Supreme Court explained in Hawaii that the rational-basis standard applies
“across different contexts and constitutional claims.” 138 S. Ct. at 2419. In support
of that proposition, the Supreme Court cited this Court’s decision in Rajah v. Mukasey,
544 F.3d 427, 438 (2d Cir. 2008), a case which, like this one, involved an equal
protection challenge to an Executive Branch action brought by aliens within the
United States. Hawaii, 138 S. Ct. at 2419.
Indeed, this Court’s decision in Rajah dictates application of the rational-basis
review standard in this case. See Rajah, 544 F.3d at 438. Rajah involved a regulatory
program, enacted in the wake of the September 11 attacks, which, among other
things, required alien males from certain Muslim-majority countries (and North
Korea) who were residing in the United States to appear at an INS facility for
51
registration and a review of their immigration status. Id. at 433. After the plaintiffs in
Rajah appeared, they were ordered removed. Id. at 434. The plaintiffs subsequently
challenged the removal orders, arguing that the new registration program violated
their equal protection rights because it discriminated against them based on their
religion, ethnicity, gender, and race. Id. at 438.
This Court rejected the plaintiffs’ equal protection claim. In so doing, it
emphasized that “the most exacting level of scrutiny that [this Court] will impose on
immigration legislation is rational basis review.” Rajah, 544 F.3d at 438. This Court
then concluded that there was a “plainly rational” basis for the program: it sought to
counter “the lax enforcement of immigration laws” that facilitated the September 11
attacks by “monitor[ing] more closely aliens from certain countries selected on the
basis of national security criteria.” Id. at 438-39.
Like the policies at issue in Hawaii and Rajah, TPS termination decisions
involve unique country-specific determinations that both “implicate relations with
foreign powers” and “involve classifications defined in the light of changing political
and economic circumstances,” Hawaii, 138 S. Ct. at 2418, precisely the situation in
which the Supreme Court and this Court have repeatedly applied rational-basis
review. The TPS statute requires the Secretary to determine whether a foreign state is
able “to handle adequately the return” of its nationals and whether conditions in the
country prevent the country’s nationals “from returning to the state in safety.”
52
8 U.S.C. § 1254a(b)(1). Such determinations are fraught with potential implications
for our relations with the relevant country.
The record in this case reflects the foreign-policy and national-security
considerations inherent in any TPS termination decision. For example, the record
shows that, before arriving at her decision, Secretary Duke consulted with the State
Department, whose recommendation emphasized “the significant humanitarian,
foreign policy, and political interests at play” in the TPS decision. See JA.358. In
discussing the potential termination of TPS for Haiti and other counties, the State
Department noted in particular that “[t]ermination of TPS will … likely generate a
backlash from the governments themselves,” who may view the termination as
“undermin[ing]” cooperative arrangements between the country and the United
States. Id. The record also includes correspondence from foreign government
officials, who urged the Secretary to extend Haiti’s TPS designation. See, e.g., JA.326-
28 (letter from Haiti’s ambassador to the United States). The military also weighed in.
See JA.323.
Neither of the two reasons the district court gave for refusing to apply the
rational-basis standard withstands scrutiny. First, the court declined to apply rational-
basis review because TPS decisions purportedly do not implicate “national security
concerns.” Id. But TPS decisions plainly “implicate relations with foreign powers”
and “involve classifications defined in the light of changing political and economic
circumstances,” Hawaii, 138 S. Ct. at 2418, the twin rationales the Supreme Court has
53
repeatedly cited as necessitating deferential review. See id.; see also, e.g., Fiallo, 430 U.S.
at 799; Harisiades v. Shaughnessy, 342 U.S. 580, 588-89 (1952) (Deferential review
applies to “any policy toward aliens” because such policies are “vitally and intricately
interwoven with … the conduct of foreign relations.”).
The district court likewise erred in concluding that rational-basis review was
inappropriate because this case involves foreign nationals who are present in the
United States. SA.164. That conclusion cannot be squared with this Court’s decision
in Rajah, which likewise involved aliens residing in the country, with the Supreme
Court’s reliance on Rajah in Hawaii, 138 S. Ct. at 2419, and with the Supreme Court’s
underlying rationale for applying rational-basis review in the immigration context.
2. Secretary Duke’s termination decision easily passes rational-basis review. In
enacting the TPS program, Congress created a special immigration classification to
provide “temporary” relief to aliens who cannot safely return to their home countries
because of extraordinary but temporary conditions in those countries. See 8 U.S.C.
§ 1254a. Secretary Duke’s termination decision plainly is “plausibly related” to the
objectives of the TPS program. Hawaii, 138 S. Ct. at 2420. After consulting with
other appropriate governmental agencies, the Secretary determined that the temporary
conditions that gave rise to Haiti’s TPS designation no longer existed. That is fully
consistent with Congress’s goal of providing temporary, interim relief to aliens until
the conditions necessitating that relief come to an end.
54
Moreover, the Secretary set forth her reasons for concluding that conditions in
Haiti had improved to such an extent that the TPS designation was no longer
warranted. See supra pp. 6-8. The Secretary’s explanations included an analysis of
such factors as the country’s current economic condition, its ability to provide basic
services to its citizens, its political climate, and its recovery efforts since the
earthquake that gave rise to its TPS designation. The termination decision thus
reflects the results of a careful analysis undertaken by a Cabinet official in consultation
with other Cabinet officials and their agencies, the upshot of which was that the
conditions giving rise to the country’s TPS designation no longer persisted. There is
no serious question that the termination decision can “reasonably be understood to
result from a justification independent of unconstitutional grounds,” Hawaii, 138 S.
Ct. at 2420.
III. THE DISTRICT COURT SHOULD HAVE DISMISSED THE

PRESIDENT AS A PARTY
The district court erred in refusing to dismiss the President as a party. See
SA.67-70. The Supreme Court has made clear that, in general, federal courts have “no
jurisdiction of a bill to enjoin the President in the performance of his official duties.”
Franklin v. Massachusetts, 505 U.S. 788, 802-03 (1992). And the Court has explained
that this is particularly true where a plaintiffs’ injuries can be redressed by an
injunction directed at another government official. Id. at 803; see also Swan v. Clinton,
100 F.3d 973, 979-81 (D.C. Cir. 1996) (declining to enjoin the President where
55
“injunctive relief against [a subordinate] official[] could substantially redress [the
plaintiffs’] injury,” even while “recognizing that the President has the power, if he so
chose, to undercut th[at] relief”). Here, the Secretary of Homeland Security is the
sole, statutorily-assigned decisionmaker. An injunction reversing the decision to
terminate Haiti’s TPS designation and requiring the current Secretary to take action in
accordance with the district court’s orders would thus fully redress plaintiffs’ injuries.
Although the district court stated that “enjoining the Secretary alone would not afford
complete relief,” SA.69, there is no evidence in the record supporting that conclusion
or the view that the Secretary would disregard a court order. And, contrary to the
district court’s breathtaking suggestion, SA.69, an injunction directed at the President
and requiring the President not to interfere with the Secretary’s implementation of the
TPS statute is far more than a “minimal” intrusion on the Executive. An injunction
requiring the President to refrain from advising a cabinet Secretary on a matter
implicating foreign relations is the quintessential example of a court interfering with
the President’s execution of his constitutional responsibilities. See Free Enter. Fund,
561 U.S. at 492-95 (discussing the importance of the President’s ability to oversee
executive officers).
In light of the separation-of-powers concerns that arise when a court attempts
to enjoin the President, the Supreme Court has twice squarely held that a clear
statement by Congress is required before a general cause of action will be construed
to extend to the President for his official conduct. See Franklin, 505 U.S. at 800-01
56
(concluding that the APA lacks the required “express statement” necessary to subject
the President’s actions to APA review); Fitzgerald, 457 U.S. at 748 n.27 (holding that
Bivens and implied statutory damages claims are inapplicable to the President given
“the absence of explicit affirmative action by Congress”). Here, Franklin forecloses
APA relief against the President, and Fitzgerald forecloses any implied cause of action
in equity against the President, see Armstrong v. Exceptional Child Ctr., 135 S. Ct. 1378,
1384 (2015); id. at 1385 (“The power of federal courts of equity to enjoin unlawful
executive action is subject to express and implied statutory limitations.”). Given that
plaintiffs cannot identify an express cause of action against the President, their claims
against the President necessarily fail.
IV. THE DISTRICT COURT ERRED IN ISSUING A

NATIONWIDE INJUNCTION
Even if the Court were to conclude that the district court could properly enter
an injunction, the district court plainly erred insofar as it extended relief to parties not
before it.
Article III requires that injunctive relief “must be tailored to redress the
plaintiff’s particular injury.” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018). Principles
of equity independently require that injunctions be no broader than “necessary to
provide complete relief to the plaintiffs.” Madsen v. Women’s Health Ctr., 512 U.S. 753,
765 (1994); see Hawaii, 138 S. Ct. at 2426 (Thomas, J., concurring) (universal
injunctions “do not seem to comply” with “longstanding principles of equity”).
57
Moreover, nationwide injunctions “take a toll on the federal court system—
preventing legal questions from percolating through the federal courts, encouraging
forum shopping, and making every case a national emergency for the courts and for
the Executive Branch.” Hawaii, 138 S. Ct. at 2425 (Thomas, J., concurring). They
also create an inequitable one-way-ratchet under which any prevailing party obtains
relief on behalf of all others, but a victory by the government does not preclude other
potential plaintiffs from seeking relief from another court, as plaintiffs have done with
respect to Secretary’s Duke’s decision. See Ramos v. Nielsen, No. 18-16981 (9th Cir.).
The district court’s reasons for believing a nationwide injunction was warranted
are unavailing. See SA.144. The court noted that plaintiffs include “not only” New
York residents, “but also individuals and a nonprofit entity based in Florida.” Id. But
the court nowhere explained why it could not limit the scope of its injunction to the
plaintiffs (wherever they live) in order to afford them complete relief. The court also
concluded that a nationwide injunction was justified because TPS determinations have
“a nationwide effect.” Id. But the same is true of many government policies, and
such a justification would improperly permit nationwide injunctions as a routine
matter. But see Virginia Soc’y for Human Life, Inc. v. FEC, 263 F.3d 379, 392-94 (4th Cir.
2001).
58
CONCLUSION
The district court’s judgment should be reversed.
Respectfully submitted,
JOSEPH H. HUNT
Assistant Attorney General
RICHARD P. DONOGHUE
United States Attorney
HASHIM M. MOOPPAN
Deputy Assistant Attorney General
JAMES R. CHO
JOSEPH A. MARUTOLLO
Assistant United States Attorneys
MARK B. STERN
/s/ Gerard Sinzdak
GERARD SINZDAK
Attorneys, Appellate Staff
Civil Division, Room 7242
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0718
gerard.j.sinzdak@usdoj.gov
September 2019
59
CERTIFICATE OF COMPLIANCE
This brief complies with the type-volume limit of Federal Rule of Appellate
Procedure 32(a)(7)(B) because it contains 13,998 words. This brief also complies with
the typeface and type-style requirements of Federal Rule of Appellate Procedure
32(a)(5)-(6) because it was prepared using Microsoft Word 2013 in Garamond 14-
point font, a proportionally spaced typeface.
s/ Gerard Sinzdak
Gerard Sinzdak
CERTIFICATE OF SERVICE
I hereby certify that on September 19, 2019, I electronically filed the foregoing
brief with the Clerk of the Court for the United States Court of Appeals for the
Second Circuit by using the appellate CM/ECF system. Participants in the case are
registered CM/ECF users, and service will be accomplished by the appellate
CM/ECF system.
s/ Gerard Sinzdak
Gerard Sinzdak

Saget V Trump Government S Appellate Brief

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Saget V Trump Government S Appellate Brief

Uploaded by

Copyright:

Available Formats

Case 19-1685, Document 52, 09/19/2019, 2659711, Page1 of 71

PATRICK SAGET, et al.,

DONALD J. TRUMP, et al.,

On Appeal from the United States District Court

BRIEF FOR APPELLANTS

STATEMENT OF JURISDICTION ...................................................................................1

STATEMENT OF THE ISSUES..........................................................................................1

PERTINENT STATUTES AND REGULATIONS ........................................................1

STATEMENT OF THE CASE .............................................................................................1

A. Statutory Background ........................................................................................ 2

B. Factual Background ........................................................................................... 4

1. Haiti’s Initial TPS Designation, Redesignation, And

2. Termination of Haiti’s TPS Designation ............................................ 6

SUMMARY OF ARGUMENT ........................................................................................... 12

STANDARD OF REVIEW ................................................................................................ 16

I. PLAINTIFFS’ APA CLAIMS CANNOT SUPPORT A

A. The TPS Statute’s Preclusion Provision Bars Plaintiffs’

B. Plaintiffs’ APA Claims Would Fail On The Merits Even If

1. The Secretary’s Decision Was Rational, Consistent With

2. The Secretary’s Decision Was Not The Product Of

3. The Secretary Did Not Depart From Past Agency

II. PLAINTIFFS’ EQUAL PROTECTION CLAIM CANNOT

A. Plaintiffs Are Unlikely To Succeed On Their Equal

B. The Secretary’s Decision Is Constitutional Under

III. THE DISTRICT COURT SHOULD HAVE DISMISSED THE

IV. THE DISTRICT COURT ERRED IN ISSUING A

Amgen, Inc. v. Smith,

Armstrong v. Exceptional Child Ctr.,

California Trout v. FERC,

Citizens to Pres. Overton Park, Inc. v. Volpe,

City of Rialto v. West Coast Loading Corp.,

DCH Reg’l Med. Ctr. v. Azar,

Department of Commerce v. New York,

FCC v. Fox Television Stations, Inc.,

Florida Power & Light Co. v. Lorion,

Free Enter. Fund v. PCAOB,

Holder v. Humanitarian Law Project,

Jagers v. Federal Crop Ins. Corp.,

Madsen v. Women’s Health Ctr.,

McNary v. Haitian Refugee Ctr., Inc.,

North American Soccer League, LLC v. U.S. Soccer Fed’n, Inc.,

Proyecto San Pablo v. INS,

Reno v. American-Arab Anti-Discrimination Comm.,

Reno v. Catholic Soc. Servs., Inc.,

SEC v. Chenery Corp.,

Sierra Club v. Costle,

Skagit Cty. Pub. Hosp. Dist. No. 2 v. Shalala,

Staub v. Proctor Hosp.,

Town of Orangetown v. Ruckelshaus,

United States v. Morgan,

United States v. Nixon,

Vermont Yankee Nuclear Power Corp. v. NRDC,

Village of Arlington Heights v. Metropolitan Hous. Dev. Corp.,

Virginia Soc’y for Human Life, Inc. v. FEC,

Wisconsin v. City of New York,

Administrative Procedure Act:

6 U.S.C. § 557 ............................................................................................................................. 2

Immigration Act of 1990,

8 U.S.C. § 1254a .......................................................................................................................54

8 U.S.C. § 1254a(a) .................................................................................................................... 3

8 U.S.C. § 1254a(b) .................................................................................................................... 3

8 U.S.C. § 1254a(b)(1) ...................................................................................................... 37, 53

8 U.S.C. § 1254a(b)(1)(C) ............................................................................... 5, 30, 31, 37, 47