“The only way you can hold those agencies accountable to Congress and the public is if they are transparent and honest about the reasons why they do things.”
In an article for the Financial Times, reporter Madison Darbyshire takes a dive into the legal battles that have brought to light how the Trump administration has tried to legally justify it’s “America first” promise to oppose immigrants and immigration. They have used deception, disregarded expert analysis by government officials and followed the lead of anti-immigrant advocates hired by the administration to carry out its anti-immigration agenda.
The administration’s posture has led to various policies which have targeted immigrants and people of color – including terminating Temporary Protected Status (TPS) for hundreds of thousands of immigrants who have made homes and families here in the U.S. for decades.
Darbyshire’s article is excerpted below and available in full here:
The administration of President Donald Trump has, periodically, made sweeping decisions designed to deliver on campaign promises to put “America first”. Immigration policies have presented low-hanging fruit and are easy targets for reform.
… However, lawyers say these policy changes are designed to have a disproportionate effect on minority or immigrant communities, and their declared rationale is often a veneer for anti-immigrant intent.
… In January 2018, when the administration eliminated TPS for people from Haiti, El Salvador, Nicaragua and Sudan, lawyers were shocked. TPS is a designation applied to countries that, because of war, natural disaster or humanitarian emergency, are no longer considered safe enough for citizens abroad to return to. Haiti received TPS status after the 2010 earthquake that killed an estimated 230,000 people.
… When officials first ordered an analysis of conditions in Haiti, the information in the report was overwhelmingly in support of the continued need for TPS. Robert Law — a senior immigration services adviser who had previously worked for an anti-immigration organisation described as a hate group by the Southern Poverty Law Center, a non-profit organisation — said that the subsequent report recommending the continuation of TPS was not what the Trump administration was “looking for”.
Exactly 29 minutes later he sent the letter back to his supervisor, revised to exclude information supporting TPS. He later directed a subordinate to “be creative” in finding data to argue that TPS should be eliminated.
These memos — as well as handwritten notes by Elaine Duke, acting deputy secretary of homeland security, which outlined the decision-making process — were made available to lawyers in discovery. Ms Duke wrote of her rationale for terminating TPS in Haiti: “Don’t know, need to rationalise conflicting info.” US Citizenship and Immigration Services declined to comment.
Lawyers at Mayer Brown argued that in the case of Haiti, the government edited available information in order to engineer the outcome of eliminating TPS rather than basing the decision on facts, as required by law.
Mr Pipoly says: “You rarely end up being as right as we were in this case.” The release of the documents from within the administration, he says, “is a good illustration of the fact that there are still people in government who are there to do the work of government. People that, when asked to present documents, just do it”.
The Trump administration’s attempt to add a question about citizenship to the 2020 census, citing the VRA, also triggered alarm. “For people who work on [voting rights] for a living it was doubly galling,” says Dale Ho, director of voting rights at the American Civil Liberties Union.
… By forcing the government to turn over the administrative record, lawyers established that the request was choreographed to look as if it was an independent request from the justice department, when it had in fact come from the political leadership within the commerce department itself. “Every living census director from both political parties said adding this question was a bad idea,” says John Freedman, partner at Arnold & Porter. “[The department] didn’t do anything to test this question when any change to the census questionnaire is usually a 10-year process where they test it repeatedly.”
The government had “curated documents to provide a misleading picture”, says Mr Ho. Lawyers used that information to retrieve previously withheld documents. The final record was more than 10 times as long as the 1,300 pages initially provided by the administration. These documents “allowed us to build this case brick by brick,” says Mr Ho. The Supreme Court blocked the question from being added to the 2020 census. The Department of Commerce said in a statement that it “acted in good faith and in consultation with counsel at the Department of Justice”.
“The only way you can hold those agencies accountable to Congress and the public is if they are transparent and honest about the reasons why they do things,” says Mr Ho. None of the information was publicly available, he adds. “It took litigation to bring all of that to light.”