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Paper trails: of TP and TPS

| Friday, October 26, 2018

It’s an old trope of visual comedy, right up there with slipping on a banana peel: a person, attempting to look dignified, strolls onto the scene trailing a ribbon of toilet paper off the heel of their shoe. The most recent performer to employ this sure laugh-getter was U.S. President Donald Trump, who recently walked across the tarmac and up the steps to Air Force One, dragging a clearly visible piece of tissue.

Of special interest was the fact that no one in Trump’s entourage — neither advisers, nor Secret Service agents, nor onlookers — advised Trump of this risible scene. In a modern take on “The Emperor’s New Clothes,” apparently no one had the courage to tell the emperor how ludicrous he looked. The issue was resolved when the tissue finally lodged itself in the carpet at the top of the stairs, where it was retrieved by an underling. Times being what they are, within minutes the scene was a meme blasted across the internet, with the typical good-natured ribbing and light banter that accompanies such matters.

As happens far too often these days, the burlesque antics of Trump, and the theatrics of various congressional schemes, have deflected attention from substantive assaults on the legal framework that defines this country. Another, more insidious, paper trail has emerged that reflects the attempt by Trump administration officials to align America’s immigration policies with Trump’s America-first rhetoric. In 2017, the Trump administration took action to throttle immigration from countries that had previously received protection under the Temporary Protected Status (TPS) program.

TPS grants temporary residence in the U.S. as a form of humanitarian relief for refugees from countries that were devastated by natural disasters or war, allowing beneficiaries to work legally while they remain here. The Trump administration terminated TPS for El Salvador, Nicaragua, Haiti and Sudan, representing 98 percent of TPS participants, many of whom have worked in the United States for decades. As documents later revealed, when then-acting Homeland Security Secretary Elaine Duke terminated TPS for Nicaragua, she explained this action in a memorandum to White House Chief of Staff John Kelly: “These decisions along with the public statements will send a clear signal that TPS in general is coming to a close. I believe it is consistent with the President’s position on immigration.”

In March of this year, plaintiffs filed a class-action lawsuit in U.S. District Court in San Francisco challenging the termination of the program. After the lawsuit was filed, Trump also canceled TPS for Honduras and Nepal. Judge Edward Chen, presiding over the Ramos vs. Nielsen case, heard arguments whether to uphold a preliminary injunction preventing the government’s actions to shrink the program. The government’s position essentially came down to this: conditions have improved in the targeted countries and TPS protections were no longer needed. The paper trail presented by the Trump administration proved embarrassingly thin, and the administration’s own memoranda and emails told a shocking story of bias, disinformation and dissembling.

Documents regarding Haiti were especially damning. Internal government memoranda had highlighted persistent dangerous and deadly conditions — cholera, drought, a migrant crisis and continued displacement from Hurricane Matthew in 2016 and the 2010 earthquake — and recommended that protections be extended for 18 months. Clearly, this result was not acceptable to the Trump administration, as reflected by the response from senior advisor Robert Law, who had previously worked for an anti-immigrant group, and said, “I do not think this is the conclusion we are looking for.”

The testimony presented by the administration’s own lawyers poked even more holes in the fact-free effort to reach a predetermined result. In reviewing the situation in war-torn Sudan, Judge Chen asked Justice Department attorney Adam Kirschner whether he knew the percentage of the Sudanese population that lives in regions still considered unsafe. “No, your honor,” Kirschner said. Chen’s response was pointed, but based firmly in the law establishing TPS: “Wouldn’t it matter before you deport somebody whether their family is in a safe or unsafe region?”

Surprising no one with a grasp of the facts and the law, Chen sided with the plaintiffs and suspended the termination of TPS, and the risk of deportation, for residents from the four named countries. In his ruling upholding the injunction sought by the plaintiffs, Chen noted there was evidence that the government undertook its assault on TPS “…in order to implement and justify a pre-ordained result desired by the White House.” The judge also questioned whether the actions taken by Homeland Security were “ … based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution.”

The judge’s decision suggests that he could rule against the Trump administration in the overall case, and it provides a framework for challenging any further such efforts to circumvent the law. This is a nation of laws, and while the paper trail required to comply with its dictates may seem like unnecessary obstacles in the way of a desired result for some, it may well serve as a shield against arbitrary actors with partisan agendas. Embarrassing or not, the paper trail is there for all to see.


The views expressed in this column are those of the author and not necessarily those of The Observer.

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About Raymond Ramirez

Ray Ramirez is an attorney practicing, yet never perfecting, law in Texas while waiting patiently for a MacArthur Genius Grant. You may contact him at [email protected]

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