Mancini Shenk LLP Files Ninth Circuit Amici Curiae Brief

Mancini Shenk LLP Files Ninth Circuit Amici Curiae Brief in Ramos v. Nielsen, a/k/a the “Shithole Countries” Case.

Yesterday afternoon, Mancini Shenk LLP filed an amici curiae brief in Ramos v. Nielsen, Ninth Circuit Court of Appeal Case No. 18-16981. The brief was filed on behalf of twenty-seven prominent immigration law scholars and practitioners, and opposes the Government’s appellate effort to lift a nationwide injunction enjoining the Government from terminating Temporary Protected Status (“TPS”), a form of statutory humanitarian aid, for approximately 300,000 refugees from four countries: Sudan, Nicaragua, Haiti and El Salvador.

Thank you to the 27 Immigration Law Scholars for working with us to file this brief. We are proud to make a contribution protecting humanitarian, democratic, and constitutional principles.

Case Background

Ramos v. Nielsen began in the United States District Court for the Northern District of California when the American Civil Liberties Union of Southern California, the National Day Laborer Organizing Network, and Sidley Austin LLP filed a class action alleging the proposed TPS terminations were pretextual, unconstitutional, discriminatory, and in violation of the Administrative Procedures Act.

Discovery in the case corroborated those allegations. In seeking the injunction, some of the evidence relied upon by the refugee-plaintiffs included:

• the President’s musings questioning “Why are we having all these people from shithole countries come here?”
• the President’s stated desire that refugees from Haiti, El Salvador, and African nations be deported and replaced with immigrants “from countries such as Norway.”
• a critical e-mail from USCIS Directer Francis Cissna stating that the Trump administration’s draft decision memo arguing for terminating TPS for refugees from Sudan was so incoherent that it seemed to have been written by “one person who strongly supports extending TPS for Sudan . . . up to the recommendation section, and then someone who opposes extension snuck up behind the first guy, clubbed him over the head, pushed his senseless body out of the way, and finished the memo.”
• Trump administration e-mails complaining that career professionals conducting analyses of conditions on the ground in Sudan, Nicaragua, Haiti, and El Salvador were writing memos that “read[] as though [the Trump administration] recommend[ed] an extension [because] we talk so much about how bad it is,” and that the draft memo regarding the analysis of Haiti “is overwhelming[ly] weighted for extension which I do not think is the conclusion we are looking for.”
• A response to the foregoing complaints explaining that “the basic problem is that it IS bad there [with respect to] all of the standard metrics,” followed by an observation that “our strongest argument for termination . . . is just that it is not bad in a way clearly linked to the initial disasters prompting the designations.”

A nationwide injunction was ordered by Hon. Edward M. Chen on October 3, 2018.

Summary of Appeal

The Government appealed, seeking to overturn the injunction. On appeal, the Government argues that the TPS statute bars all judicial review of TPS decisions, including judicial review of unconstitutional process or result, discriminatory purpose, or procedural infirmities in the decision-making process.

The refugee-appellees argue that while judicial review of factual “determinations” under the TPS statute is barred by the jurisdiction-stripping clause relied upon by the Government, that clause does not prevent judicial review of constitutional, administrative or collateral issues affecting the decision-making process.

Our brief argues that robust legislative history relating to the development to TPS proves Congress intended to limit executive branch discretion over TPS determinations, and consequently that the Trump administration’s broad interpretation of the jurisdiction-stripping clause is contradicted by legislative history and by the anti-discretionary and humanitarian purpose of the TPS statute.