Law360: Advocacy Groups Want Info On Decision To End Nepal's TPS

Jun 24, 2019

By Suzanne Monyak

Law360 (June 24, 2019, 6:36 PM EDT) -- Two New York-based advocacy organizations accused the
U.S. Department of Homeland Security and other agencies Monday of ignoring their requests for
information about the Trump administration’s decision to end temporary protected status for about
15,000 Nepali citizens living in the U.S.

In a lawsuit filed in New York’s Southern District, the New York Immigration Coalition, which
represents over 200 immigrants rights groups, and the nonprofit Adhikaar, which represents the
interests of the Nepali community, asked the court to force the federal government to conduct a full
records search in response to their nine-month-old Freedom of Information Act requests for
communications between officials about Nepal’s temporary protected status, or TPS, designation.

Nepal’s TPS designation was initially set to expire Monday, the day the suit was filed, after the Trump
administration decided to revoke its TPS designation last year, but the protections have been
preserved while a lawsuit challenging other countries’ TPS terminations is pending.

The advocacy groups said in the suit that as a result of the planned termination, about 15,000
Nepalis will be left without legal immigration status or work authorization, while the American
children of Nepali TPS holders would “face total disruption of their lives if their parents lose their
ability to remain in the United States.”

“Timely disclosure of these records is critically important because of the intended termination of legal
immigration status for thousands of Nepali nationals living in the United States,” the complaint says.

“The documents sought through this request will shed light on the legality of the termination, the
reasons for the termination, the adequacy of the review of relevant conditions and the need for
immediate action to reverse or otherwise ameliorate that decision.”

Nepal has been designated for TPS, which allows people from countries in crisis to live and work in
the U.S., since a major earthquake struck the country in 2015. But last year, the Trump
administration decided to terminate Nepal’s TPS designation, concluding that the conditions caused
by that 2015 earthquake had sufficiently improved.

DHS has also announced it would be terminating TPS designations for El Salvador, Haiti, Nicaragua,
Sudan and Honduras.

These terminations had sparked a flurry of litigation in federal courts across the country brought by
advocacy groups arguing that the administration’s decision to evaluate TPS eligibility solely by the
status of the disaster that triggered the initial designation, rather than by current country conditions
as a whole, marks an arbitrary and discriminatory policy change.

In one such lawsuit, known as Ramos v. Nielsen, attorneys with Sidley Austin LLP, the American Civil
Liberties Union and other advocacy groups have challenged the TPS terminations for El Salvador,
Haiti, Nicaragua and Sudan on behalf of a proposed class of TPS holders from those four countries
and their American children.

A California federal court found in October that the advocates had raised “serious questions” as to whether the policy overtly targeted non-whites, temporarily blocking the terminations from going into
effect. The federal government has appealed that finding to the Ninth Circuit.

Sidley, the ACLU and the other groups then brought another lawsuit challenging the terminations for
Honduras and Nepal earlier this year. The TPS protections for citizens of those two countries have
been temporarily kept in place, and the proceedings in that suit paused, pending the outcome of the
Ramos v. Nielsen appeal.

According to Monday’s lawsuit, the NYIC and Adhikaar filed their FOIA requests to the U.S.
Department of State, DHS, U.S. Citizenship and Immigration Services and U.S. Immigration and
Customs Enforcement in September, seeking correspondence and communications about Nepal’s TPS
designation in an effort to learn more about the rationale and review process behind the decision to
revoke Nepal’s TPS.

The agencies have acknowledged receipt of the requests but failed to respond within the 20-day
statutory limit under FOIA law. The organizations have also filed administration appeals challenging
the government’s non-responsiveness to no avail, the suit says.

Matthew K. Handley of Handley Farah Anderson Law Firm, an attorney for the NYIC and
Adhikaar, told Law360 on Monday that he and his clients felt “compelled” to pursue their FOIA
requests in court in order to shed light on “what was considered and not considered” by the Trump
administration when it determined that Nepal no longer merits a TPS designation.

“Without getting access to these documents, which we think under FOIA we’re entitled to, our clients
and their constituents can’t really evaluate what the basis is,” he said.

He added that if his clients are able to obtain the requested documents, everyone would welcome
them, including the plaintiffs in the federal court litigation challenging the terminations themselves.
Spokespeople for DHS, USCIS, ICE and the State Department all declined to comment.

The New York Immigration Coalition and Adhikaar are represented by Matthew K. Handley and
George F. Farah of Handley Farah Anderson Law Firm.

Counsel information for the government was not yet available.

The case is Adhikaar et al. v. U.S. Department of Homeland Security et al., case number 1:19-cv-
05881, in the U.S. District Court for the Southern District of New York.

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