Saget v. Trump (375 F. Supp. 3d 280, 2019)

Citations

375 F. Supp. 3d 280

Full opinion text

WILLIAM F. KUNTZ, II, United States District Judge:

Plaintiffs bring this action challenging then-Acting Secretary of Homeland Security Elaine C. Duke's November 20, 2017 determination to terminate Haiti's Temporary Protected Status designation based on her assessment that Haiti had sufficiently recovered from a 2010 earthquake and there were no longer "extraordinary and temporary conditions" preventing Haitian nationals residing in the United States from safely returning to Haiti. For the foregoing reasons, the Court hereby ORDERS a preliminary injunction enjoining the termination of Temporary Protected Status for those Haitian nationals lawfully residing in the United States of America under the Temporary Protected Status the United States of America awarded them.

TABLE OF CONTENTS

BACKGROUND...297 A. History and Purpose of TPS...297

B. The TPS Decisionmaking Process...298

i. Department of State...298

ii. Department of Homeland Security...299

a. General Practices DHS Employs in Making TPS Determinations...299

b. Factors DHS Considers in Making TPS Determinations...300

HAITI'S TPS DESIGNATIONS...301

A. History of Haiti's TPS Designation...301

B. Events Leading Up to May 2017 Extension...302

i. The 2016 Periodic Review Process...302

ii. March 2017 Official Drafts Recommend 18-Month Extension...304

iii. In March and April 2017, USCIS Revises Draft Director Memorandum to Recommend Termination...305

iv. USCIS and DHS Officials Began Collecting Criminality, Welfare, and Immigration Status Data...307

v. Career Staffers React to USCIS's Recommendation...309

vi. April 2017 Press Leaks...310

vii. In May 2017, Secretary Kelly Announces 6-Month Extension...311

C. Events Leading Up to November 2017 Termination...313

i. DHS Looks to Statute for TPS Process with "Fresh Eyes"...313

ii. DHS and Department of State Officials Seek to Coordinate TPS Review...315

a. U.S. Embassy in Haiti Recommends Extension...317

b. WHA Recommends Termination and Sends a Split Memo to Secretary Tillerson...317

c. Secretary Tillerson Recommends Termination for Haiti, Honduras, El Salvador, and Nicaragua...318

iii. USCIS Recommends Termination...319

iv. Acting Secretary Duke Decides to Terminate TPS...322

a. Input Within DHS...322

b. Input from the White House and SOUTHCOM...324

c. The Government of Haiti Continues to Ask for Extension...326

d. Acting Secretary Duke Announces Termination of TPS for Haiti...327

PROCEDURAL HISTORY...328

JURISDICTION...329

A. Subject Matter Jurisdiction Over Plaintiffs' Claims...330

i. General Legal Standards...330

ii. Discussion...330

B. Plaintiff's Claims Against the President...333

STANDING...335

PRELIMINARY INJUNCTION...339

A. General Legal Standards...339

B. Likelihood of Success on the Merits/Serious Questions...340

i. APA and Ultra Vires Claims...340

a. Scope of Review...340

b. Discussion...345

1. Not in Accordance with Law...345

2. Arbitrary and Capricious...353

i. Departure from Agency Practices...354

ii. Improper Political Influence...359

iii. Pretext...360 3. Notice-and-Comment...362

4. Ultra Vires...365

ii. Equal Protection Claim...365

a. General Legal Standards...366

b. Scope of Review...368

c. Discussion...368

1. Direct Evidence...369

2. Circumstantial Evidence...372

C. Irreparable Harm...374

D. Public Interest and Balance of the Equities...377

SCOPE OF RELIEF...378

CONCLUSION...379

BACKGROUND

A. History and Purpose of TPS

Congress enacted the Immigration Act of 1990 to amend the Immigration and Nationality Act ("INA") and to provide additional avenues for immigrants to enter lawfully and remain in the United States. See Pub. L. 101-649, 104 Stat. 4978 (1990). Upon signing the Act into law, President George H.W. Bush announced the Act "recognizes the fundamental importance and historic contributions of immigrants to our country." Presidential Statement on Signing the Immigration Act of 1990 (Nov. 29, 1990). The law established, among other things, a diversity visa program, a family-based immigration visa, and additional employment-based visas. See 104 Stat. at 4986-5001.

Congress also created Temporary Protected Status ("TPS") for nationals of designated countries experiencing an ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. 8 U.S.C. § 1254a(b). Section 1254a(b) governs TPS designations, providing in relevant part:

(1) the Attorney General, after consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if-

(A) the Attorney General finds 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) the Attorney General finds 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

(iii) the foreign state officially has requested designation under this subparagraph; or

(C) the Attorney General finds 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 Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.

Id. Congress subsequently transferred authority to make TPS designations from the Attorney General to the Secretary of the Department of Homeland Security ("DHS"). See id. § 1103; 6 U.S.C. § 557.

TPS provides eligible foreign nationals with employment authorization and deportation stays. 8 U.S.C. § 1254a(a)(2) ;

id. § 1254a(g). To be eligible, the foreign national must: (1) be a national of a TPS-designated country; (2) have been present in the united States on the date of the initial designation, re-designation, or extension; (3) be otherwise admissible into the United States; and (4) register within a specified time frame. 8 U.S.C. § 1254a(c)(1)(A) ; 8 C.F.R. § 244.2. Nationals who are otherwise eligible but who have been convicted of either a felony or two or more misdemeanors in the United States are categorically barred from TPS eligibility. 8 U.S.C. § 1254a(c)(2)(B). Moreover, if the Secretary determines allowing a foreign state's nationals to remain temporarily in the United States is against the U.S. national interest, the Secretary may elect not to designate that foreign state for TPS. Id. § 1254a(b)(1)(C).

When DHS first designates a foreign country for TPS, "the initial period of designation ... [is] not less than 6 months and not more than 18 months." 8 U.S.C. § 1254a(b)(2). The Secretary then undertakes a periodic review to determine whether to redesignate, extend, or terminate TPS for that country. See id. § 1254a(b)(3). Per the statute, "[a]t least 60 days before [the] end of the initial period designation, and any extended period of designation, ... the [Secretary of Homeland Security], after consultation with appropriate agencies of the Government, shall review the conditions in the foreign state ... and shall determine whether the conditions of such designation under this subsection continue to be met." Id. § 1254a(b)(3)(A). If the Secretary determines the foreign state no longer meets the conditions for TPS designation, the Secretary "shall terminate the designation." Id. § 1254a(b)(3)(B). If the Secretary "does not determine" the foreign state "no longer meets the conditions for designation ..., the period of designation is extended for an additional period of six, twelve, or eighteen months. Id. There is no limit to the number of extensions a designated foreign state may receive. The Secretary may also redesignate the foreign state for TPS, which may expand the population of eligible foreign nationals who were present in the United States after the prior designation. See 8 U.S.C. § 1254a(b) ; see also, e.g., Extension of Designation and Redesignation of Haiti for Temporary Protected Status , 76 Fed. Reg. 3476 (Jan. 21, 2010). The Secretary must timely publish the decision to extend or terminate TPS, including the basis for that determination, in the Federal Register. 8 U.S.C. § 1254a(b)(1)(C) ; id. §§ 1254a(b)(3)(A)-(B).

B. The TPS Decisionmaking Process

As noted, the TPS statute endows the DHS Secretary with the authority to determine whether to designate, redesignate, extend, or terminate a foreign nation's TPS. 8 U.S.C. §§ 1254a(b)(2)-(3). But the statute stipulates the Secretary is to consult the appropriate federal agencies when conducting the required periodic review for TPS designation. Id. § 1254a(b)(3)(A). During this periodic review, the Secretary is to consider the current conditions in the foreign state and whether the conditions supporting the original designation are still met. Id.

i. Department of State

The Department of State is one of the "appropriate agencies" with whom the Secretary consults when making a TPS determination. 8 U.S.C. §§ 1254a(b)(1), 1254a(b)(3)(A). Because of its vast network of foreign service officers, the Department is in a position to report effectively on local country conditions. See Pl. Ex. 331 at 2. Thus, DHS will contact the Department of State "to initiate their own process of putting together a country conditions assessment and generally a recommendation ...." Prelogar Dep. Tr. at 31:11-14.

The local U.S. Embassy, under the direction of the local ambassador, provides the Department of State with an analysis of country conditions for the Secretary's consideration. PL Ex. 331 at 2; Trial Tr. at 114:11-115:7 (Posner). As former Ambassador James Nealon testified, "[A]n ambassador's input carries a tremendous amount of weight in the Department of State." Nealon Dep. Tr. at 109:8-10. Thus, the Department of State normally gives great deference to the factual reports prepared by the local Embassy. Pl. Ex. 331 at 2-3; Trial Tr. at 115:20-116:4 (Posner).

Once the local Ambassador and foreign service officers complete the report, they send it to the applicable regional bureau and policy bureaus to prepare a document-the Secretary of State Memorandum-for the Secretary's review. See Trial Tr. at 114:18-115:18 (Posner). The Bureau for Western Hemisphere Affairs ("WHA"), is the regional bureau for Haiti. Id. at 115:19-21 (Posner). Once the regional and policy bureaus complete the Secretary of State Memorandum, the Embassy and applicable bureaus review it and must approve it before submitting it to the Secretary of State. Id. at 126:24-131:17 (Posner); see also, e.g. , Pl. Ex. 145 at 6. The Department of State considers the Embassy's clearance and approval particularly important because the Embassy plays a primary role in gathering information on country conditions. Trial Tr. at 126:24-131:17 (Posner). If an embassy, regional bureau, or policy bureau disagree on a recommendation to the Secretary, the parties typically produce a "split memo" to present their competing positions to the Secretary. Pl. Ex. 331 at 4; see also Trial Tr. at 144:15-24 (Posner).

ii. Department of Homeland Security

DHS engages in well-established practices and considers a number of factors to aid the DHS Secretary in making a well-informed, evidence-based decision.

a. General Practices DHS Employs in Making TPS Determinations

Within DHS, the "process for gathering information to inform decision makers relating to the periodic review for TPS" begins with reaching out to the Refugee Asylum and International Operations ("RAIO") directorate, a subdivision of U.S. Citizenship and Immigration Services ("USCIS"). Prelogar Dep. Tr. at 31:1-8. RAIO contains a country conditions unit staffed by career civil servants specializing in country conditions research. See id. at 232:6-233:23; Trial Tr. at 233:15-23 (Rodriguez). RAIO creates a "country conditions assessment for the relevant country," which informs the Secretary's TPS determination. Prelogar Dep. Tr. at 31:9-10. This Report, also known as the "RAIO Report," is a fact-based assessment used to determine whether TPS should be extended, redesignated, or terminated. Trial Tr. at 233:15-23, 233:9-14 (Rodriguez). The Report "provide[s] an assessment about the country conditions and whether the statutory conditions continue to be met with respect to a TPS designation." Prelogar Dep. Tr. at 34:7-10. Because it contains the "factual predicate" for USCIS's recommendation to the DHS Secretary, the Report plays a crucial role in the Secretary's decision to extend or terminate TPS. Trial Tr. at 233:7-14 (Rodriguez).

In addition, the Office of Policy and Strategy ("OP & S"), another subdivision within USCIS, drafts a Decision Memorandum, also called a "Director Memo," containing USCIS's recommendation regarding a foreign nation's TPS designation and provides the final report to the Secretary. Kovarik Dep. Tr. at 28:12-16; see also Prelogar Dep. Tr. at 31:16-22 (describing how the RAIO Report is used to create the Director Memo); Trial Tri at 235:15-21 (Rodriguez) (same). The Director Memo is a "distill[ed]" version of the more comprehensive RAIO Report. Trial Tr. at 235:20-21 (Rodriguez). The Office of the Executive Secretary, another office within USCIS, "would distribute a document for review by various entities within USCIS.... They would provide the administrative function of circulating it to the right people who needed to review it." Anderson Dep. Tr. at 133:11-21. Once drafted, OP & S sends the Director Memorandum to the Direction of USCIS to send to the DHS Secretary. Kovarik Dep. Tr. at 28:12-16.

The purpose of the Director Memorandum is to "give[ ] the secretary everything that they need" to make an informed decision on whether to designate, extend or terminate TPS. Trial Tr. at 235:20-21 (Rodriguez). Because the DHS Secretary holds a "tremendous number of responsibilities," she looks "to the USCIS, to the director, to [its] staff, as the experts on Temporary Protected Status." Id. at 235:6-14 (Rodriguez). Accordingly, the DHS Secretary gives a "high level of deference" to the USCIS Director's TPS recommendation. Id. at 246:5-7 (Rodriguez).

b. Factors DHS Considers in Making TPS Determinations

Former Director Rodriguez testified extensively to the factors DHS and USCIS have traditionally considered as part of TPS decisionmaking. According to Rodriguez, USCIS historically interpreted the term "extraordinary and temporary conditions," see 8 U.S.C. § 1254a(b)(1)(C), to require an analysis of conditions at the "particular point in time when the adjudication is occurring" that "prevent nationals of that country from returning to the country in safety, which means significant threat to life or health." Trial Tr. at 248:30-249:12, 250:11-12 (Rodriguez). This includes, conditions "not necessarily caused by," and conditions "untethered" to, the initial event that led to an initial TPS designation. Id. at 251:13-14, 252:6-14 (Rodriguez).

Under established practice, the USCIS Director and DHS Secretary generally consider many factors to determine whether it is safe for nationals to return to a country and whether the receiving country can absorb the return of TPS recipients, including but not limited to the number of TPS recipients, and issues of "public safety, national security, healthcare, housing, [and] education" in the receiving county. Id. at 214:20-25 (Rodriguez). It was established practice that USCIS recommendations on TPS considered "a broad range of issues, including food security, gender violence, stability of the Government, education, [and] healthcare." Id. at 255:5-9 (Rodriguez). Consequently, the USCIS Director and DHS Secretary have historically considered "intervening factors" arising after a country's original TPS designation, such as subsequent natural disasters, issues of governance, housing, health care, poverty, crime, general security, and other humanitarian considerations, even if those factors lacked any connection to the event that formed the basis for the original designation. Pl. Ex. 330 ¶ 21.

Rodriguez testified he did not consider crime rates among TPS recipients during his tenure as USCIS Director. As Director Rodriguez explained, crime rates were not a factor because "by definition, you do not qualify to receive TPS in the first place if you are a convicted criminal.... And if you are convicted while you were on TPS, your TPS would ordinarily be ... terminated ... based on that conviction. Trial Tr. at 255:25-256:6 (Rodriguez); see also 8 U.S.C. § 1254a(c)(2)(B). "[I]f somebody is convicted of a crime while they are on TPS, ordinarily Immigrations and Customs Enforcement, which is the enforcement agency within the Department of Homeland Security, ... would initiate proceedings ... to terminate their TPS[ ] and then to potentially place that person in deportation proceedings." Trial Tr. at 257:24-258:5 (Rodriguez).

HAITI'S TPS DESIGNATIONS

A. History of Haiti's TPS Designation

After a 7.0-magnitude earthquake struck Haiti on January 12, 2010, DHS Secretary Janet Napolitano designated Haiti for TPS because she found "extraordinary and temporary conditions" prevented Haitian nationals from returning to Haiti in safety. Designation for Haiti for Temporary Protected Status , 75 Fed. Reg. 3476, 3476-77 (Jan. 21, 2010). Secretary Napolitano made her determination "after consulting with the Department of State ... and other government agencies" and after DHS and the Department of State "conducted an initial review of the conditions in Haiti following the earthquake." Id. at 3477. The Federal Register Notice that provided the Secretary's stated basis for designation cited reports describing collapsed homes, overflowing hospitals, and severe damage to critical infrastructure, which hindered access to Haiti's capital city, Port-au-Prince. Id. Initial reports estimated the death toll was substantial. Id. "Given the size of the destruction and humanitarian challenges," the Secretary found "there clearly exist extraordinary and temporary conditions preventing Haitian nationals from returning to Haiti in safety," warranting designation under 8 U.S.C. § 1254a(b)(1)(C). Id.

Immigration and Customs Enforcement ("ICE") temporarily ceased removing Haitian nationals to Haiti. Def. Ex. K. On April 1, 2011, just over one year after the earthquake, ICE announced it would resume removals of Haitians who had final orders of removal and were convicted of a serious crime or who posed a national security threat. Id.

In May 2011, Secretary Napolitano decided to extend and to redesignate Haiti for TPS for 18 months from July 23, 2011 through January 22, 2013. See Extension and Redesignation of Haiti for Temporary Protected Status , 76 Fed. Reg. 29,000, 29,001 (May 19, 2011). "Based on [a] review" of the conditions conducted by DHS and the Department of State, Secretary Napolitano determined the "conditions prompting the original designation continue[d] to be met" and "further determined that these same conditions in Haiti support redesignating Haiti for TPS." Id. Because Secretary Napolitano redesignated Haiti for TPS, she determined protections should be extended for "eligible Haitians who arrived between January 12, 2010 and January 12, 2011." Id.

Secretary Napolitano and her successor, Secretary Jeh Johnson announced 18-month extensions in October 2012, March 2014, and August 2015. See 77 Fed. Reg. 59,943 (Oct. 1, 2012) ; 79 Fed. Reg. 11,808 (Mar. 3, 2014) ; 80 Fed. Reg. 51,582 (Aug. 25, 2015). With each of these decisions, DHS outlined conditions arising from the 2010 earthquake in Haiti and its attendant damage to infrastructure, public health, agriculture, transportation, and educational facilities. In addition, each extension cited the cholera epidemic and the exacerbation of preexisting vulnerabilities caused by the earthquake, including food insecurity and a housing crisis. See 77 Fed. Reg. at 59,944 -45; 79 Fed. Reg. at 11,809 -10; 80 Fed. Reg. at 51,583 -84. In his extension of TPS designation on August 25, 2015, then-Secretary Johnson concluded:

Many of the conditions prompting the original January 2010, TPS designation and the May 2011 redesignation persist, including a housing shortage, a cholera epidemic, limited access to medical care, damage to the economy, political instability, security risks, limited access to food and water, a heightened vulnerability of women and children, and environmental risks.... Although the Government of Haiti has taken significant steps to improve stability and the quality of life for Haitian citizens, Haiti continues to lack the adequate infrastructure, health and sanitation services, and emergency response capacity necessary to ensure the personal safety of Haitian nationals.

80 Fed. Reg. at 51,583 -84.

On September 22, 2016, Secretary Jeh Johnson announced DHS would resume more regular removals of Haitian nationals to Haiti, consistent with standard practice. Secretary Johnson's policy "prioritize[d] the removal of convicted felons, individuals convicted of significant or multiple misdemeanors, and individuals apprehended at or between ports of entry while attempting to unlawfully enter the United States." Id. Secretary Johnson stressed, however, that "Haitian nationals ... covered by Temporary Protected Status [were] unaffected by this change in policy ... and [were] not subject to removal." Id.

ICE briefly suspended removal flights after Hurricane Matthew struck on October 4, 2016. Def. Ex. L. On November 22, 2016, Secretary Johnson announced ICE had resumed removal flights to Haiti. Id. Again, Secretary Johnson stressed "Haitian nationals ... covered by Temporary Protected Status (TPS) [were] unaffected by the resumption of flights to Haiti ... and [were] not subject to removal." Id.

On May 24, 2017, Secretary John Kelly once again extended TPS designation through January 22, 2018. See Extension of Designation of Haiti for Temporary Protected Status , 82 Fed. Reg. 23,830, 23,830 -01 (May 24, 2017).

B. Events Leading Up to May 2017 Extension

i. The 2016 Periodic Review Process

With the deadline for a TPS decision approaching, on December 12, 2016, Secretary of State John Kerry recommended Secretary Johnson extend TPS for Haiti upon its expiration on July 22, 2017, citing "lingering effects of the 2010 earthquake [that] remain in infrastructure, health, sanitation services, and emergency response capacity." Def. Ex. M. Specifically, Secretary Kerry wrote:

[O]f the original two million people made homeless by the 2010 earthquake, approximately 55,000 remain in camps for internally displaced persons. Gender-based violence in these settlements continue to be a serious concern, and personal security continues to be a serious and pervasive issue. Some of those displaced have moved back to unsafe homes, begun reconstruction of damaged homes without assistance or guidance, or relocated to informal settlements located in hazardous areas. Despite efforts by Haitian authorities and the international community to address these concerns, infrastructure damage to housing in Haiti remain[s]."

Id. Secretary Kerry concluded "[f]or these reasons, Haiti lacks the capacity to ensure the safe return of the 59,000 TPS beneficiaries residing in the United States" and recommended extension. Id. Secretary Kerry did not recommend redesignation of TPS for Haiti based on Hurricane Matthew, noting "conditions in Haiti have improved since the earthquake, and Haiti has taken significant steps to improve the stability and the quality of life for its citizens." Id.

By December 2016, DHS began the TPS review process for Haiti. USCIS researchers and career analysts published the RAIO report in December 2016. Based on the conditions described in the report, USCIS officials considered formally recommending extension of TPS for Haiti until January 22, 2019. Although it found Haiti "continues to make progress in a variety of fields," it concluded:

[T]he pace and scope of recovery has been uneven, and the country remains vulnerable to external shocks and internal fragility. Many of the conditions prompting the original January 2010 TPS designation persist, including a housing shortage, a cholera epidemic and limited access to medical care, damage to the economy (including extensive damage to Haiti's physical infrastructure), political instability, security risks, food insecurity, and environmental risks (as exemplified by the impact of Hurricane Matthew in October 2016).

Pl. Ex. 326 at 1.

With respect to Haiti's housing shortage, the December 2016 RAIO Report determined "significant challenges remain." Id. According to the Report, individuals residing in internally displaced person ("IDP") camps had declined since the 2010 earthquake but "moved back to unsafe houses or started building or reconstructing their houses, in most cases with no assistance or guidance, and often in informal settlements located in hazardous areas."Id. at 2 (internal quotation marks omitted). For those who remained in IDP camps, "living conditions ... have progressively worsened as many humanitarian programmes have ended due to lack of funding and in line with the overall strategy of closing camps." Id.

The Report also made findings with respect to the public health system and the cholera epidemic, which began after the 2010 earthquake. Id. at 3. Although the Report noted Haiti made "some progress" in recent years, Haiti continued to face significant public health challenges: "Approximately 40 percent of the population still lacks access to fundamental health and nutrition services. Public spending in the health sector is low, and the country has a limited number of health professionals and a deficit of health infrastructure." Id. The Report noted UN peacekeepers had introduced a cholera epidemic-"the largest such epidemic ever registered." Id. The Report further noted "lack of access to safe drinking water and Haiti's weak sanitation infrastructure remain significant concerns." Id.

The Report also highlighted Haiti's economic and political instability. It explained the 2010 earthquake "caused $ 7.8 billion in damages and losses to the country's economy," which is "equivalent to more than 120 percent of Haiti's 2009 gross domestic product." Id. at 4. Despite some economic strides, the Report, citing a 2014 World Bank report, noted "the wealth generated in the country is largely inadequate to meet the needs of the people." Id. Moreover, it found nearly 60 percent of the population is living in poverty and unable to meet basic needs, while almost 25 percent of the population is living in extreme poverty and unable to cover their basic food needs. Id. It found "[a]n additional one million people are at risk of falling into poverty following an external shock," 40 percent unemployment, "a dependence on subsistence agriculture, recurring natural disasters, and a largely informal economy," present further challenges to economic growth. Id. It also reported "[t]he January 2010 earthquake had an immediate impact on governance and the rule of law in Haiti, killing an estimated 18 percent of the country's civil service and destroying key government infrastructure." Id. In 2016, Haiti continued to "lack[ ] fully-functioning governance institutions, enforceable legal norms, and qualified and trained government staff." Id. at 5.

With respect to security, the Report noted "Haitians lack basic policing services, and criminals are able to operate without fear of the police." Id. at 6. Based on reports from the Department of State, "homicide, armed robberies, and crimes against persons (including gender-based violence) remain major concerns in Haiti." Id. And as of September 2016, "an estimated 3.2 million people were food insecure." Id.

Finally, the Report addressed the environmental risks faced by Haiti as well as the damage caused by Hurricane Matthew, which it noted made landfall in Haiti in October 2016. Id. at 6-7. According to the Report, Hurricane Matthew was "the strongest storm to hit Haiti" in more than half a century and caused extensive damage "at a time when the country is already facing an increase in the number of cholera cases and severe food insecurity and malnutrition." Id. at 7. Following Hurricane Matthew, some towns in Haiti were "in a state of near total destruction ... almost wiped off the map" and "[b]y mid-December 2016 as many as 1.4 million people were in need of humanitarian assistance, while 806,000 people were severely food insecure."Id. at 7-8 (internal quotation marks omitted). In sum, the Report concluded:

Haiti continues to rebuild following the 2010 earthquake. However, Haiti's progress remains fragile and vulnerable, and the country faces serious challenges, including a housing shortage, a cholera epidemic and limited access to medical care, damage to the economy, political instability, security risks, food insecurity, and considerable environmental risk. The deleterious impact of Hurricane Matthew in October 2016 has further hindered Haiti's ability to recover from the 2010 earthquake.

Id. at 8.

In February 2017, USCIS researchers and career analysts produced and published an addendum to the December 2016 RAIO Report dedicated entirely to the effects of Hurricane Matthew on Haiti. The addendum concluded Hurricane Matthew "exacerbated" the existing conditions, noting it "will likely take Haiti years to recover from the damages of Hurricane Matthew." Pl. Ex. 9 at 1. "Of the 2.1 million people who were impacted by Hurricane Matthew in Haiti," it found, "close to 1.4 million remain in need of some form of humanitarian assistance." Id. For example, Hurricane Matthew "caused an increase in the number of suspected [cholera ] cases" and "[a]n additional 175,000 people impacted by Hurricane Matthew have been left without housing." Id. at 1-2.

ii. March 2017 Official Drafts Recommend 18-Month Extension

On March 2, 2017, the Office of the USCIS Executive Secretary received a draft Director Memorandum and draft Federal Register Notice regarding TPS for Haiti, recommending extension. Pl. Ex. 11 at 4. The cover email explained the draft "discuss[ed] relevant country conditions in Haiti and explain[ed] USCIS's recommendation that the Secretary extend the TPS designation of Haiti. Following a decision by the Secretary, the [Federal Register Notice] would alert the public that the designation for TPS of Haiti is being extended." Id.

Specifically, the March 2, 2017 Draft Memorandum recommended that Secretary Kelly "extend Haiti's designation for TPS for 18 months ... through January 22, 2019." Pl. Ex. 144 at 1. The March 2nd Draft Memorandum largely tracked the December 2016 RAIO Report, noting:

[A]lthough Haiti continues to make progress in recovering from the 2010 earthquake, many of the conditions prompting Haiti's designation for TPS persist. Hurricane Matthew, which struck Haiti on October 4, 2016, has also significantly contributed to continued extraordinary and temporary conditions in Haiti that prevent Haitian nationals from safely returning to Haiti.

Id. at 2. The Director Memorandum also described housing and infrastructure shortages, and "damage to the economy, health, sanitation services, security risks, and emergency response capacity, which it described as the "[l]ingering effects of the 2010 earthquake." Id. In addition, the Memorandum described the damage from Hurricane Matthew and a cholera epidemic, noting that since October 2010, "close to 800,000 Haitians have contracted cholera." Id. at 3. USCIS officials delivered the draft Memorandum and Federal Register Notice to the Director's office for approval on March 6, 2017. Pl. Ex. 11 at 3.

iii. In March and April 2017, USCIS Revises Draft Director Memorandum to Recommend Termination

Beginning in March 2017, new USCIS appointees began to cultivate a record they believed would weigh in favor of termination. DHS officials suggested the USCIS memorandum could disregard factors not directly traceable to the 2010 earthquake. In a mid-March email exchange among Carl Risch, Gene Hamilton, Kathy Kovarik, and others, officials characterized Haiti's "challenges-from political instability to food insecurity" as "long-standing, intractable problems," and distinguished those "[i]ssues related specifically to the 2010 earthquake" as "hav[ing] been largely addressed." Pl. Ex. 309; Priv. Prod. 3468-70. The email also described Hurricane Matthew as a "recent hurricane [that] has caused new problems in Haiti." Id. Risch did not find this view of the statute "an unreasonable read at all." Id. He previously noted, "all of the problems caused by the earthquake are not necessarily solved (nor need they be to have TPS terminated)." Id. Risch finally suggested, "[a]fter our meeting, USCIS could decide to change this decision to recommend termination." Id. "If USCIS leadership wants to send up its package recommending an 18-month extension, then your memo might be needed to counter the recommendation by USCIS leadership." Id.

Meanwhile, USCIS political appointees directed staffers to "refashion" the draft Director Memorandum to now include an option for terminating TPS for Haiti. Gene Hamilton, an appointee of President Trump and Senior Counselor to Secretary Kelly "prognosticat[ed]" Secretary Kelly "may wish to terminate" TPS for Haiti. Pl. Ex. 12 at 1; see also Hamilton Dep. Tr. at 26:11-19. On March 24, 2017, Mark Boivin, a USCIS project manager, emailed USCIS officials Brandon Prelogar and Kathryn Anderson, writing: "I understand that [the Director Memorandum] will now be an action/decision memo and one of the options will be to terminate." Pl. Ex. 12 at 2. Prelogar responded: "The word you got regarding refashioning the memo to provide options is right." Id. at 1. Prelogar stated USCIS would continue to assess conditions were met and extension is warranted but noted it would be a good idea "to at least begin to draft up a termination memo so that, in the event [Secretary Kelly] does decide to end Haiti TPS, we're ready to provide the [Federal Register Notice] to do it." Id. On March 28, 2017, Prelogar sent a draft of the revised Director Memorandum for interoffice review. Id.

On April 3, 2017, the Office of the Executive Secretary received this new draft, which "now include[d] options for the Acting Director's approval," including termination of TPS for Haiti, and ultimately recommended extension. Pl. Ex. 11 at 1. Although the March 2, 2017 draft memorandum provided only one option for the Secretary-extension-the April 3, 2017 draft memorandum presented three options: (1) extension; (2) termination; or (3) redesignation, coupled with an extension of the current designation. Pl. Ex. 143 at 3-4. Nevertheless, the Director Memorandum recommended Secretary Kelly extend TPS for Haiti for 18 months because "extraordinary and temporary conditions" continued to prevent the safe return of Haitian nationals. See id. at 1-5 (highlighting the lingering effects of the earthquake in housing, infrastructure, damage to the economy, health, security risks, emergency response capacity, as well as gender-based violence in IDP camps, the development of informal, hazardous settlements, the impact of Hurricane Matthew, food insecurity, and the ongoing cholera epidemic). Indeed, the Memorandum concludes:

Pl. Ex. 143 at 2.

Just a few days later, on April 10, 2017, USCIS circulated another draft, this time recommending termination of Haiti's designation with an effective date of January 22, 2018. Pl. Ex. 122. The April 10th Draft Memorandum differed from the March 2nd and April 3rd Draft Memoranda in a number of ways. For example, the March 2nd and April 3rd Draft Memoranda both concluded: "[A]lthough Haiti continues to make progress recovering from the 2010 earthquake, many of the conditions prompting Haiti's designation for TPS persist." See Pl. Exs. 143 at 2, 144 at 2. In contrast, the April 10th Draft Memorandum concluded "Haiti has made significant progress in recovering from the 2010 earthquake and no longer continues to meet the conditions for designation." Pl. Ex. 122.

The revisions focused on those conditions resulting directly from the 2010 earthquake. For example, the March 2nd and April 3rd memoranda each stated: "Lingering effects of the 2010 earthquake remain in housing, infrastructure, damage to the economy, health, sanitation services, security risks and emergency response capacity." Pl Exs. 143, 144. By contrast, the April 10th Draft Memorandum stated: "While lingering effects of the 2010 earthquake remain in housing, infrastructure damage to the economy, health, sanitation services, security risks, and emergency response capacity, Haiti has made significant progress in addressing issues specific to the earthquake." Pl. Ex. 122 at 3. The April 10th Draft Memorandum characterized the "specific extraordinary and temporary conditions" as having "been largely ameliorated" and cast the "myriad problems remaining in Haiti [as] longstanding problems which have existed for many years before the 2010 disaster." Id. at 4.

The April 10th Draft Memorandum, which the Acting USCIS Director ultimately signed, minimized many of the conditions that predated the 2010 earthquake. Id. For example, with respect to housing, current housing deficits were deemed irrelevant because they existed before the earthquake: "96 percent of people displaced by the earthquake and living in internally displaced person ... camps have left those camps. Over 98 percent of the IDP camps have closed. While those persons who have left the camps have not necessarily moved into ideal housing, Haiti had a substantial housing deficit long before the 2010 earthquake." Id. at 3. Missing from this draft were critical facts noted in the prior iterations, both of which emphasized over 55,000 Haitians "are still living in 31 camps for internally displaced persons without viable options to leave." Pl. Exs. 143 at 2, 144 at 2. With respect to Haiti's economic and political conditions, the April 10th memorandum characterized Haiti as "the poorest country in the western hemisphere" with "enormous problems long before the 2010 earthquake. Even before the earthquake, the Haitian government could not or would not deliver core functions to the majority of its people." Pl. Ex. 122 at 3. Similarly, it characterized gender-based violence in IDP camps as "security problems [that] are not a post-earthquake phenomenon," and it related food insecurity to historical food challenges, tropical storm, and drought. Id. Previous draft memoranda never included such language classifying conditions as pre- versus post-earthquake phenomena. See Pl. Exs. 143, 144.

On May 10, 2017, RAIO researchers published another addendum to the RAIO Report regarding TPS for Haiti. Pl. Ex. 141. It concluded "Haiti has yet to fully recover from the impact of the 2010 earthquake."Id. at 1. Like the February addendum to the RAIO Report, the May addendum again emphasized the widespread destruction of Hurricane Matthew, and it further highlighted damage from recent spring flooding. Id. at 1-2. The Report also stressed the extent to which aid for Haiti failed to materialize, both with respect to the earthquake and with respect to Hurricane Matthew. Id.

iv. USCIS and DHS Officials Began Collecting Criminality, Welfare, and Immigration Status Data

As officials circulated the USCIS Director Memorandum drafts in April 2017, numerous DHS and USCIS appointees instructed career staffers to compile criminality and welfare data on Haitian TPS recipients. According to internal DHS communications, officials sought this data to bolster the decision to terminate TPS for Haiti. See Pl. Ex. 119.

On April 7, 2017, Secretary Kelly emailed Kristjen Nielsen-copying Elizabeth Neumann, Gene Hamilton, Elaine Duke, Jonathan Hoffman, and Ben Cassidy-directing her to "arrange a conversation with the right people about TPS .... No email-just a conversation(s)." Priv. Prod. at 4757. He also directed Nielsen to collect, "[s]pecific to Haiti, details on how many 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.," to which Nielsen responded, "Roger." Id. Hamilton subsequently sent an email to several individuals, including Kathy Kovarik, who had recently assumed the role of Chief of the USCIS Office of Policy and Strategy, relaying Secretary Kelly's directive to gather this data on Haitian TPS recipients. Pl. Ex. 103. Kovarik then emailed USCIS career officials Brandon Prelogar and Kathryn Anderson and instructed them to gather crime and welfare data about TPS recipients. Pl. Ex. 15. The instructions Kovarik sent mirrored those in Kelly's directive. Compare id., with Pl Ex. 103; see also Kovarik Dep. Tr. at 74:15 (testifying her email to Prelogar and Anderson was "nearly identical" to the one she received from Hamilton on April 7, 2017).

According to Prelogar and Anderson, prior to Kovarik's request, no senior USCIS officials had ever asked them to gather criminality or welfare data on a TPS population during their combined nine years as USCIS researchers. Anderson Dep. Tr. at 17:8-14, 307:16-308:11; Prelogar Dep. Tr. at 116:10-118:20; accord Trial Tr. at 255:25-256:6 (Rodriguez) (testifying he never gathered or used criminality or welfare data for TPS determinations during his tenure as USCIS Director). On April 7, 2017, Prelogar replied to Kovarik's instructions, noting data regarding "public and private relief" were "[n]ot available specific to TPS holders." Pl. Ex. 15 at 10. Anderson similarly explained welfare data "specific to TPS holders is not available, but in general, TPS holders don't qualify for federal benefits." Id. at 8. On April 10, 2017, another DHS staffer, Alexander King, wrote to Kovarik and others he had "been unable to verify whether we can systematically pull electronic criminality data" for TPS recipients. Id. at 4.

Nevertheless, DHS staffers continued to demand criminality and welfare data on Haitian TPS recipients through the end of April. On April 25, 2017, Nielsen, Secretary Kelly's Chief of Staff at the time, emailed Hamilton, Acting USCIS Director James McCament, and USCIS staffer Carl Risch, asking for the following information by the end of the day:

(1) How many current Haitian TPS folks were illegal pre-TPS designation?

(2) Since designation, how many have committed crimes?

(3) Since designation, how many are on public assistance? Out of work?

(4) Can we describe what has changed in Haiti warranting the recommended change (this may be in the memo but I have not seen it yet-would include if verified items such as rebuild of palace, build of army, change in UN list, 4-5% growth in GDP.

Pl. Ex. 342 at 1. Acknowledging such data would be "difficult to obtain," Kovarik again emailed her subordinates requesting this data and instructed them on how it could be obtained. Pl. Ex. 15 at 3-4. In response, Anderson explained the "TPS statute does not require individuals to have lawful status in order to qualify for TPS." Id. at 3. As she had previously informed Kovarik, Anderson further noted: "TPS beneficiaries are not eligible for the majority of public benefits. We know of no way internal to USCIS or DHS to determine whether TPS beneficiaries are on public assistance or out of work." Id. at 2. On April 27, 2017, Kovarik emailed USCIS staffers once more and cautioned: "[T]he Secretary is going to be sending a request to us to be more responsive. I know that some of [the data] is not captured, but we'll have to figure out a way to squeeze more data out of our systems. So, we may as well get started." Id. at 1.

In response to another "TPS data request" from Kovarik for "any data whatsoever" regarding "criminal activity," stories that positively depict "how things are in Haiti," and "random sampling[s] of files that [USCIS] could then use to generalize the entire population," Leroy Potts quoted several reports and replied "[u]nfortunately conditions in Haiti remain difficult." Pl. Ex. 212 at 1-3. The reports referenced by Potts largely concluded "Haiti has not fully recovered from the 2010 earthquake" and highlighted Hurricane Matthew, food security, housing, and heavy flooding. Id. at 1-2.

Finally, on May 15, 2017, USCIS Director James McCament circulated a memorandum addressing the repeated demands for criminality and welfare data on Haitian TPS recipients. Pl Ex. 139. The memorandum stated: "Information regarding whether TPS beneficiaries have committed crimes is not currently available through USCIS systems." Id. at 4. It further explained: "Regarding immigration status at the time of application, the TPS statute does not require individuals to have lawful status in order to qualify for TPS." Id.

v. Career Staffers React to USCIS's Recommendation

Numerous emails among USCIS staffers appear to indicate confusion and concern regarding the shift in USCIS's recommendation from extension to termination. On April 13, 2017, RAIO researcher LeRoy Potts separately emailed Anderson and Prelogar, asking "to get together next week and chat? For now, I'm hoping you can give me your take on the Haiti TPS decision? I'd like to know a little bit more about how it was decided current conditions 'don't merit ongoing TPS designation' ...." Pl. Ex. 16. In response, Anderson noted:

[T]he short answer is that the decision was a political one by the [USCIS Front Office] and [Secretary Kelly's] advisors. Their position was that Haiti was designated on account of the 2010 earthquake, and those conditions have significantly improved. The extraordinary conditions Haiti currently faces are longstanding, intractable problems, not "temporary" as the statute requires.

Id. see also Anderson Dep. Tr. at 199:21-200:1 ("TPS decisions are not always as impacted by political priorities as this one was."). Prelogar responded in kind: "I don't think it was RU's fine work on the country conditions, nor our original presentation of them in the Decision Memo we drafted, that didn't make the cut and led to the conclusion USCIS should recommend termination." Priv. Prod. at 20338 (emphasis added); see also Prelogar Dep. Tr. at 149:3-20 (testifying the process surrounding the TPS decision for Haiti was "handled differently" than previous TPS decisions for Haiti).

Anderson and Prelogar also emailed one another to discuss an April 30, 2017 New York Times editorial reporting on Haiti TPS determinations. Pl. Ex. 18. According to Prelogar, the editorial, which recommended extending TPS for Haiti, was "[w]ell said." Id. at 1. Anderson wrote she "especially appreciated that [the Times ] noted the memo did cite a bunch of horrible conditions but then somehow reached the wrong conclusion." Id. Prelogar responded: "Right? Give me a break." Id. By "[g]ive me a break," Prelogar intended to express his "contention that the country conditions and the statutory requirements suggested a different decision" from termination. Prelogar Dep. Tr. at 127:10-12. Prelogar testified he believed the April 10th Director Memorandum recommending termination reached the wrong conclusion. Id. at 126:13. He also sought to express "agreement with Kathryn [Anderson]'s observation" and "some degree of incredulity." Id. at 123:11-14.

In another email, Anderson confided to Prelogar she was "fuming" after a phone call following a May 19, 2017 meeting with Hamilton and then-DHS Deputy Secretary Duke. Pl. Ex. 25 at 1; Anderson Dep. Tr. at 243:7-9. Prelogar was "deeply distraught to hear this pillar of normality, [Secretary Duke], (our trusty second in charge) was anything but." Pl. Ex. 25 at 2; Prelogar Dep. Tr. at 146:2. "These people need a helping hand out," he wrote. Pl. Ex. 25 at 2. "Looks like there are whack jobs everywhere. Even the civil service." Id. Prelogar testified these statements referred to his "impression ... that the deputy secretary ... seemed to be in alignment with some of the perspectives on temporary protected status that were being advanced by parties with whom [he and Anderson] disagreed." Prelogar Dep. Tr at. 146:19-147:2.

vi. April 2017 Press Leaks

At the end of April, a number of items related to Secretary Kelly's upcoming decision on TPS for Haiti were leaked to the press. Several outlets reported Secretary Kelly sought criminality and welfare data in connection with his decision on TPS for Haiti. A May 9, 2017 Associated Press article quoted directly Kovarik's April 27 and April 28, 2017 directives to "squeeze [out] more data" on and "find any reports of criminal activity" by Haitian TPS beneficiaries. Pl. Ex. 124. Acting USCIS Director McCament forwarded to Kovarik an email chain with two articles reporting on her instructions. Id. By April 29, 2017, the April 10th Director Memorandum leaked to the press. Pl. Ex. 18. That day, the New York Times published an editorial quoting the April 10th Director Memorandum and urging Secretary Kelly to extend TPS for Haiti. Id.

On May 20, 2017, DHS's Office of Public Affairs circulated an email with draft talking points for a press conference scheduled for the following Monday, at which time Secretary Kelly would announce his decision on TPS for Haiti. Pl. Ex. 126. Among these talking points were denials that DHS or USCIS ever looked into criminal history or welfare data in connection with the TPS decision. See id. at 6-7 ("[C]riminal history and public benefit usage was not used as criteria for the TPS determination."). The talking points stressed criminal activity data did not at all factor into the TPS decision; rather, "Secretary Kelly, separate and distinct from the decision on TPS for Haiti, asked DHS staff for information to increase his understanding of how the TPS program operates and the elements of information we have on program recipients." Id.

vii. In May 2017, Secretary Kelly Announces 6-Month Extension

By mid-May, DHS officials had been instructed to revise again the recommendation on Haiti's TPS, this time recommending an extension. In a May 18, 2017 email to DHS official Brian Kelliher, DHS official Megan Westmoreland wrote: "USCIS [was] told to redraft the Haiti TPS notice once again, this time to announce a 6-month extension.... [and was] instruct[ed] [ ] not to announce a termination at this point, but to suggest in the notice somehow that it is likely to be terminated in 6 months and that the Haiti beneficiaries should get their affairs in order." Priv. Prod. at 5206. According to Westmoreland, USCIS officials were "concerned how [the Secretary] could find Haiti to meet TPS conditions now but find in just a few months from now that it no longer does. Do the clients really believe conditions will improve over the current baseline over the next 4-6 months? Could extending now box [the Secretary] in for the next determination?" Priv. Prod. at 1186.

In a meeting held just three days before the announcement, several DHS staffers discussed their views with respect to TPS for Haiti and the TPS program as a whole. See Pl. Ex. 53; Anderson Dep. Tr. at 106:4-8. Then-Deputy Secretary Duke reported there was "[e]very expectation Haiti may not be renewed again," and that in Secretary Kelly's view, "Haiti is still a horrible place to live, but good .... If we recommend terminating [Secretary Kelly] will be inclined to follow us, but be clear." Pl. Ex. 53; Anderson Dep. Tr. at 274-8-17. Gene Hamilton noted, in his view, TPS was "to be used" as an "extreme measure" and not "out of whole air like [the] Obama administration." Pl. Ex. 53; Anderson Dep. Tr. at 269:14-270:2. He further stressed Secretary Kelly was "not hesitant to make TPS designations when warranted." Anderson Dep. Tr. at 288:6-9; Pl. Ex. 53.

On May 22, 2017, DHS issued a press release announcing Secretary Kelly would extend TPS for Haiti for six months. Suppl. Admin. R. at 193-94. The same day, Anderson attended a press conference call on Secretary Kelly's decision on TPS for Haiti. Anderson Dep. Tr. at 252:12-21, 298:8-12. She recalled Gene Hamilton and a number of DHS communications staffers attended the call. Id. at 298:15-19. DHS characterized Secretary Kelly's request for criminality data pertaining to Haitian TPS recipients as a "common sense" question to ensure the "programmatic integrity" of the TPS program at large. Id. at 301:10-14.

The same press release announcing extension stressed TPS beneficiaries should use the time before the end of the extension period "to prepare for and arrange their departure from the United States-including proactively seeking travel documentation-or to apply for other immigration benefits for which they may be eligible." Suppl. Admin. R. at 194. DHS officials also informed the press that Secretary Kelly "highly encourages" TPS recipients "to pack up." Pl. Ex. 51. The Haitian Foreign Minister Antonio Rodrigue and Haitian President Jovenel Moïse were advised "the Government of Haiti [should] take steps to preps re for the eventual end of its TPS designation." Suppl. Admin. R. at 12.

In announcing the six-month extension, Secretary Kelly "was ... encouraged by representations made to him directly by the Haitian government regarding their desire to welcome the safe repatriation of Haitian TPS recipients in the near future." Id. at 193. A few weeks earlier, Ambassador Altidor wrote in his letter requesting an extension of Haiti's TPS that "[w]e look to the day Haiti can welcome our countrymen back home; however, now is not the time." Pl. Ex. 172 at 2.

The USCIS announcement on May 24, 2017, and the Federal Register Notice published the same day, also signaled TPS for Haiti would come to an impending end. The Federal Register Notice stated: "It is in the best interest of TPS beneficiaries to prepare for their return to Haiti in the event that Haiti's TPS designation is not extended again." Suppl. Admin. R. at 189. The same day he published his decision in the Federal Register, Secretary Kelly opined in a meeting that Congress had "no moral courage" because it failed to include a "sunset clause" for TPS. Pl. Ex. 52; Anderson Dep. Tr. at 317:1-5. He also said Haitians are "[n]ot a bad people, but they are welfare recipients." P1. Ex. 52; Anderson Dep. Tr. at 321:14-322:4.

Despite Secretary Kelly's signal TPS for Haiti would soon come to an end, the Federal Register Notice found: "although Haiti has made significant progress in recovering from the January 2010 earthquake that prompted its initial designation conditions in Haiti supporting its designation for TPS persist." Suppl. Admin. R. at 187. The Notice characterized many of Haiti's difficulties as "longstanding," and highlighted whether they were recent developments:

Haiti faces longstanding public health challenges, where 40% of the population lacked access to basic health services before the 2010 earthquake. As of 2016, this figure remains the same-40% of the population lacks access to fundamental health and nutrition services. While the lack of access to safe drinking water and Haiti's weak sanitation infrastructure remain significant concerns, these are not new problems. Extreme poverty, corruption, and low levels of education in Haiti challenge its resilience and have contributed to the government's longstanding inability to adequately provide for the security, health, and safety of its citizenry.

Id. Nevertheless, the Federal Register Notice cited Haiti's housing crisis, noting though 98 percent of IDP camps closed:

over 55,000 Haitians who lost their homes in the earthquake are still living in 31 camps ... without viable options to leave. Gender-based violence in these camps continues to be a serious concern, and personal security is a serious and pervasive issue. Some people who were displaced by the earthquake, although no longer in camps have moved back to unsafe homes or relocated to informal settlements located in hazardous areas.

Id. Importantly, the Federal Register Notice also cited the effects of more recent natural disasters, such as Hurricane Matthew and extensive flooding in the spring of 2017. It explained "Hurricane Matthew made landfall in Haiti on October 4, 2016, causing extensive damage to crops, housing, livestock, and infrastructure across Haiti's southwest peninsula." Id. The Notice also explained:

Heavy rains in late 2017 caused flooding and landslides in South, South East, Grand' Anse, and Nippes departments, with South department most impacted. At least four people were killed, nearly 10,000 homes may have been damaged, and at least 350,000 people may have been affected. According to a Haitian government official, an estimated 80% of the spring harvest in South department may have been destroyed.

Id.

In sum, the Notice provided, "the damage from Hurricane Matthew and the recent rains are compounding the existing food insecurity experienced by an estimated 3.2 million people (approximately 30 percent of the population) in September 2016." Id. The Federal Register Notice also cited Haiti's strained public health system, Haiti's weak sanitation infrastructure, and the cholera epidemic. See id.

C. Events Leading Up to November 2017 Termination

The day the extension was announced, officials at DHS began exploring rationales for terminating TPS for Haiti, recognizing Secretary Kelly-or whoever would be Secretary at the time-would seek termination. Indeed, when he arrived at DHS in July 2017, James Nealon, the Assistant Secretary of Homeland Security for International Affairs and Acting Undersecretary for Policy testified "there was a general feeling that TPS ... for Haiti was going to be terminated." Nealon Dep. Tr. at 27:5-18, 128:9-17. Nealon also retailed expecting termination based on a conversation he had with Secretary Kelly during that time. Id. at 129:5-130:10. In conversations with a career officer, Nealon discussed the implications of a decision to terminate and "what sort of things we could do to help mitigate the consequences of that decision." Id. at 128:7-17. Other officials at DHS, including Nielsen, inquired about conditions in Haiti that might weigh toward termination. On July 28, 2017, Nielsen sent an email to Nealon asking him whether USCIS had "any information on the TPS registrants in terms of current jobs or education" because she presumed "if the majority of folks are highly educated and have jobs in the US (many years living here), the [Haitian Government's] concerns about return, joblessness[,] and potentially turning to crime may be overstated." Pl. Ex. 355.

i. DHS Looks to Statute for TPS Process with "Fresh Eyes"

Secretary Kelly and other members of the Administration had "concerns about the TPS program as a whole" and planned to look at TPS with "fresh eyes." Pl. Ex. 51. Secretary Kelly and other DHS officials emphasized he could premise an extension only on conditions related to the circumstances that prompted the original designation-in Haiti's case, the 2010 earthquake. For example, Kathryn Anderson testified that during the May 22, 2017 press call on Haiti's TPS, a DHS official said "[c]onditions have substantially improved since 2010. Congress asked us to look at conditions that led to initial designations and not at other conditions. Understand some fine lines to draw there." Pl. Ex. 51; Anderson Dep. Tr. at 297:10-14