Nepal refugees with temporary status in United States sue Homeland Security

SAN FRANCISCO — Attorneys with the Asian Americans Advancing Justice, American Civil Liberties Union and the law firm Sidley Austin filed a class action lawsuit, Feb. 11, on behalf of Temporary Protected Status (TPS) holders with from Nepal and Honduras. Pres. Donald J. Trump’s administration terminated TPS designation for people in the United States from Nepal, located just north of India, and Honduras, a Central American country.

            The United States grants TPS designations to individuals who are permitted to lawfully work and live in the country but cannot return to his or her home abroad due to armed conflict, natural disaster or other exceptional circumstances.

            More than 100,000 individuals from Nepal and Honduras are in the United States under TPS protection; nearly 15,000 TPS holders are of Nepali origin, according to the class action lawsuit. Their collective status is threatened by the Trump Administration’s decision to eliminate all TPS designations for Nepali and Honduran holders in the United States – an action the filed legal complaint hopes to prevent.

            Complicating matters: TPS holders have children who were born on the United States.

            “Approximately 86,000 Honduran TPS holders and 15,000 Nepali TPS holders face the loss of their ability to live and work lawfully in this country,” the class action lawsuit stated. “In addition, TPS holders from Nepal and Honduras have [more than] 50,000 U.S.-citizen children. These children, many of whom are school-aged, face an impossible choice between leaving the only home they have ever known and growing up without one or both of their parents.”

            Plaintiffs involved in this class action lawsuit cited a U.S. District Court decision out of Northern California in October 2018 – Ramos vs. Nielsen – to support their claim. The District Court ruling, according to the class action lawsuit, “issued a preliminary injunction halting the Trump Administration’s earlier decisions to terminate TPS for individuals from El Salvador, Haiti, Nicaragua, and Sudan.”

            Attorneys for the class action plaintiffs argue the same defects found in the earlier TPS termination also apply in current complaint.

            Revoking the TPS designation from Nepali and Honduran holders in the United States would, according to Asian Americans Advancing Justice, separate “tens of thousands of U.S. citizen children from their TPS-holder parents.”

            “The complaint filed today alleges that, in terminating TPS for Honduras and Nepal, political appointees in the Department of Homeland Security deliberately ignored recommendations from U.S. Ambassadors and evidence of conditions on the ground. Instead, they predetermined that TPS must be terminated to further the president’s ‘America First’ policy, which seeks to exclude non-white, non-European immigrants,” a release published by Asian Americans Advancing Justice stated.

            “The complaint recites a litany of racist statements made by President Trump in reference to Latin American and South Asian countries and immigrants, including referring to immigrants as snakes and animals, mispronouncing Nepal as ‘nipple,’ and faking an Indian accent in imitation of Indian Prime Minster Narendra Modi,” the statement continued.

            One Nepali TPS holder and class action plaintiff left Nepal for the United States after an earthquake nearly rocked the country in 2015 and killed about 9,000 people. The earthquake also sparked a deadly avalanche in the Himalayas.

            “With TPS I have been able to build a new life here with my family and I have a found a stable job,” TPS holder and plaintiff Keshav Raj Bhattarai said in a released statement. “I wish to continue working to support this country, and also continue supporting the rebuilding of Nepal, which is still recovering from the earthquake.”

            Congress created TPS in 1990 as a means to offer humanitarian relief, via formal criteria and procedures, to individuals from various countries.

            “The power to designate, extend or terminate TPS for individual countries now resides with the Secretary of the Department of Homeland Security (‘DHS’),” according to the class action complaint. “When deciding whether to continue or instead terminate a country’s TPS designation, under every prior administration, DHS (and prior to its inception, the Attorney General) regularly considered all of the conditions in that country, including the impact of natural disasters and social or economic crises that occurred after the country’s original TPS designation.”

            Attorneys for the plaintiff allege Trump’s decision to terminate certain TPS designations, in departing from precedent, were racially motivated.

            “President Trump has repeatedly broadcast his animus towards non-white, non-European immigrants,” attorneys for the plaintiffs stated in the class action complaint. “Most important, during a meeting in the White House discussing a legislative proposal that would have granted permanent residency to people from certain TPS-designated countries, he asked why the deal included people from ‘shithole countries’ and expressed a preference for immigrants from countries ‘like Norway.’”

            The class action also states Trump’s decision to terminate TPS designation for the 100,000-plus Nepali and Honduran beneficiaries violate their Fifth Amendment due process rights. Allowing the termination to move forward, the complaint continued, would force families to be separated.

            “[DHS’s] imposition of an arbitrary new standard motivated by invidious discrimination violates the substantive due process rights of school-aged U.S.-citizen children of TPS holders, by presenting them with an intolerable choice: either leave this country or be forced to live without their parents,” the complaint stated.

            “Families have a well-established, fundamental right to live together free from unwarranted government interference, and citizens of the United States have an absolute right to reside in this country,” the complaint continued. “DHS’s abrupt changes in TPS-related process and standards do not advance a legitimate government interest sufficient to justify the significant burden on both of these rights created by the TPS terminations.”