A neighborhood shows the damage after an earthquake measuring 7 plus on the Richter scale rocked Port au Prince Haiti just before 5 p.m. Jan. 12, 2010. Photo: UN Photo/Logan Abassi/United Nations Development Programme via Wikimedia Commons.

The director of U.S. Citizenship and Immigration Services violated the law by disregarding dangerous conditions in Haiti when recommending the termination of temporary protected status for refugees who fled the country following a devastating 2010 earthquake, the director’s predecessor told a federal judge at a Brooklyn trial testing the Trump administration’s decision.

Leon Rodriguez, a partner at Seyfarth Shaw who served as USCIS director from 2014 to 2017, told U.S. District Judge William Kuntz II of the Eastern District of New York that the law governing temporary protected status (TPS) requires that officials consider persistent ills that continue to affect Haiti, such as ongoing threats to public safety and food shortages, when assessing whether or not Haitian refugees should continue to receive protected status.

But in his recommendation to then-Acting Homeland Security Secretary Elaine Duke to terminate TPS, Rodriguez’s successor as USCIS director, L. Francis Cissna, said Haiti had largely bounced back from the 2010 earthquake—which killed more than 200,000 people, according to some estimates—and that ongoing problems in Haiti like food insecurity and gender-based violence are unrelated to the earthquake.

“It violated the law in that it is a pretty serious misconstruction of the statute,” Rodriguez said of Cissna’s recommendation.

Rodriguez made the remarks during questions from Ira Kurzban of Kurzban Kurzban Tetzeli & Pratt, who is part of the team of attorneys representing advocacy groups for Haitian refugees, as well as several of the more-than 50,000 Haitians who were granted TPS in the aftermath of the earthquake.

Plaintiffs’ attorneys are squaring off with Assistant U.S. Attorneys Joseph Marutollo and James Cho of the Eastern District in a bench trial before Kuntz, the first trial to challenge the termination of TPS for Haitian refugees.

In November 2017, Homeland Security issued a news release in which Duke said that the “extraordinary yet temporary” conditions caused by the 2010 earthquake were no longer present, and thus TPS would be terminated for Haitian refugees, effective this upcoming July.

Just days before Homeland Security published notice of the termination in the federal register, in January 2018, news outlets reported that President Donald Trump expressed frustration in a closed-door meeting that the U.S. is taking on immigrants from “shithole” countries like Haiti and some African nations.

The New York Times also reported in 2017 that Trump said during a meeting in the Oval Office about immigration that people from Haiti “all have AIDS.”

Plaintiffs in the lawsuit challenging the TPS termination for Haitian refugees allege that the policy change was driven by Trump’s racial animus, which is the basis for the due process claim contained in their suit.

Government attorneys deny that race had anything to do with the decision to end TPS for Haitian immigrants.

But the plaintiffs are also fighting the federal government on a more bureaucratic front: they allege that government officials violated the Administrative Procedure Act by abandoning well-established practice for reviewing TPS and took a narrow focus on the triggering event that caused Haitians to flee their country rather than the full spectrum of conditions that may affect the refugees’ ability to safely return home.

The New York case is one of five from around the country challenging the TPS termination. In October, U.S. District Judge Edward Chen of the Northern District of California granted a temporary injunction to block the Trump Administration’s plans to end TPS from Haitian immigrants, as well as people from El Salvador, Nicaragua and Sudan.

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