A federal appeals court on Wednesday appeared likely to allow the Trump administration to end humanitarian protections for immigrants from Haiti, Sudan, Nicaragua and El Salvador.
During a hearing, a three-judge panel of the U.S. 9th Circuit Court of Appeals expressed skepticism of an injunction handed down last year by a federal judge in San Francisco preventing the administration from lifting the protections.
About 300,000 immigrants from those four countries have been allowed to live and work in the United States because of unsafe conditions in their homelands. Most have lived in the U.S. for decades, and many have children who are U.S. citizens.
Once their designated protected status is removed, the immigrants would be subject to removal after 120 days.
The American Civil Liberties Union of Southern California and other civil rights groups obtained the preliminary injunction after arguing that the administration’s decision stemmed from racial bias.
In January 2018, as the new policy was being promulgated, President Trump asked participants in an Oval Office meeting why the United States should accept immigrants from “shithole countries” in Africa, Central America and the Caribbean, according to two people briefed on the meeting.
“What do we want Haitians here for?” the president asked, according to the people briefed. “Why do we want all these people from Africa here? Why do we want all these people from shithole countries?”
The president added: “We should have people from places like Norway.”
But at least two of the 9th Circuit judges who have been asked to remove the injunction appeared unlikely to find racial bias.
Judge Consuelo M. Callahan, appointed by President George W. Bush, said, “It seems to me the record is fairly thin” on evidence of racist motivations.
Judge Ryan D. Nelson, a Trump appointee, said the decision to end protected status for the immigrants was made before Trump’s highly quoted remark.
An ACLU attorney representing the immigrants replied that Trump disparaged the nations within days of the new policy’s enactment.
The ACLU has argued that the new policy developed by the Department of Homeland Security violates the equal protection clause of the U.S. Constitution.
“Is there any case that actually upheld an equal protection argument against an agency action?” Nelson asked.
“I feel like we are being asked to fall into a trap here,” he said. “How often do we need to get reversed by the Supreme Court before we say, ‘You know what? These equal protection claims are a little specious.’”
The District Court relied on broad statements by Trump in ordering the preliminary injunction, but the evidence shows “hard working career and political officials trying to get this right,” Nelson said.
“There is not an inkling of animus,” Nelson said. “To the contrary, they are trying to do the right thing here and realize this is a complicated and deeply affecting decision.”
Judge Morgan Christen, an Obama appointee, was the third judge on the panel. She appeared skeptical of some of the ACLU’s arguments but also asked questions supportive of their case.
A Trump administration lawyer pointed out that the Supreme Court has rejected a lawsuit over the so-called Muslim travel ban, which challengers had also said was motivated by animus. Christen noted that many of Trump’s statements at issue in that case were made before he was president.
Another lawsuit aimed at protecting immigrants from Nepal and Honduras is also pending in the District Court in San Francisco. The Trump administration agreed to postpone ending protections for immigrants from those two countries until the case before the 9th Circuit is resolved.
“If we win in this case, it benefits all six countries,” Emi Maclean, legal director at the National Day Laborer Organizing Network and one of the lawyers in the case, said after the hearing. “If we lose in this case, it harms all six cases.”
In a different lawsuit, a federal judge in New York decided in April to block the administration from ending protected status for immigrants from Haiti. That case would not be affected by the 9th Circuit decision.
Congress created the temporary protection program in 1990 to prevent the removal of immigrants to countries experiencing upheaval as a result of natural or man-made calamities. About 500,000 immigrants have been allowed to live and work in the U.S. with protected status since then.
The Trump administration has argued that many of the disasters that allowed immigrants to remain in the U.S. happened long ago and that the U.S. now deports immigrants to countries on the list.
The panel could rule any time.