Saget v. Trump

WILLIAM F. KUNTZ, II, United States District Judge:

Plaintiffs bring this action challenging then-Acting Secretary of Homeland Security Elaine C. Duke's November 20, 2017 determination to terminate Haiti's Temporary Protected Status designation based on her assessment that Haiti had sufficiently recovered from a 2010 earthquake and there were no longer "extraordinary and temporary conditions" preventing Haitian nationals residing in the United States from safely returning to Haiti. For the foregoing reasons, the Court hereby ORDERS a preliminary injunction enjoining the termination of Temporary Protected Status for those Haitian nationals lawfully residing in the United States of America under the Temporary Protected Status the United States of America awarded them.

TABLE OF CONTENTS

BACKGROUND...297 *296 A. History and Purpose of TPS...297

B. The TPS Decisionmaking Process...298

i. Department of State...298

ii. Department of Homeland Security...299

a. General Practices DHS Employs in Making TPS Determinations...299

b. Factors DHS Considers in Making TPS Determinations...300

HAITI'S TPS DESIGNATIONS...301

A. History of Haiti's TPS Designation...301

B. Events Leading Up to May 2017 Extension...302

i. The 2016 Periodic Review Process...302

ii. March 2017 Official Drafts Recommend 18-Month Extension...304

iii. In March and April 2017, USCIS Revises Draft Director Memorandum to Recommend Termination...305

iv. USCIS and DHS Officials Began Collecting Criminality, Welfare, and Immigration Status Data...307

v. Career Staffers React to USCIS's Recommendation...309

vi. April 2017 Press Leaks...310

vii. In May 2017, Secretary Kelly Announces 6-Month Extension...311

C. Events Leading Up to November 2017 Termination...313

i. DHS Looks to Statute for TPS Process with "Fresh Eyes"...313

ii. DHS and Department of State Officials Seek to Coordinate TPS Review...315

a. U.S. Embassy in Haiti Recommends Extension...317

b. WHA Recommends Termination and Sends a Split Memo to Secretary Tillerson...317

c. Secretary Tillerson Recommends Termination for Haiti, Honduras, El Salvador, and Nicaragua...318

iii. USCIS Recommends Termination...319

iv. Acting Secretary Duke Decides to Terminate TPS...322

a. Input Within DHS...322

b. Input from the White House and SOUTHCOM...324

c. The Government of Haiti Continues to Ask for Extension...326

d. Acting Secretary Duke Announces Termination of TPS for Haiti...327

PROCEDURAL HISTORY...328

JURISDICTION...329

A. Subject Matter Jurisdiction Over Plaintiffs' Claims...330

i. General Legal Standards...330

ii. Discussion...330

B. Plaintiff's Claims Against the President...333

STANDING...335

PRELIMINARY INJUNCTION...339

A. General Legal Standards...339

B. Likelihood of Success on the Merits/Serious Questions...340

i. APA and Ultra Vires Claims...340

a. Scope of Review...340

b. Discussion...345

1. Not in Accordance with Law...345

2. Arbitrary and Capricious...353

i. Departure from Agency Practices...354

ii. Improper Political Influence...359

iii. Pretext...360 *297 3. Notice-and-Comment...362

4. Ultra Vires...365

ii. Equal Protection Claim...365

a. General Legal Standards...366

b. Scope of Review...368

c. Discussion...368

1. Direct Evidence...369

2. Circumstantial Evidence...372

C. Irreparable Harm...374

D. Public Interest and Balance of the Equities...377

SCOPE OF RELIEF...378

CONCLUSION...379

BACKGROUND

A. History and Purpose of TPS

Congress enacted the Immigration Act of 1990 to amend the Immigration and Nationality Act ("INA") and to provide additional avenues for immigrants to enter lawfully and remain in the United States. See Pub. L. 101-649, 104 Stat. 4978 (1990). Upon signing the Act into law, President George H.W. Bush announced the Act "recognizes the fundamental importance and historic contributions of immigrants to our country." Presidential Statement on Signing the Immigration Act of 1990 (Nov. 29, 1990). The law established, among other things, a diversity visa program, a family-based immigration visa, and additional employment-based visas. See 104 Stat. at 4986-5001.

Congress also created Temporary Protected Status ("TPS") for nationals of designated countries experiencing an ongoing armed conflict, environmental disaster, or extraordinary and temporary conditions. 8 U.S.C. § 1254a(b). Section 1254a(b) governs TPS designations, providing in relevant part:

(1) the Attorney General, after consultation with appropriate agencies of the Government, may designate any foreign state (or any part of such foreign state) under this subsection only if-

(A) the Attorney General finds that there is an ongoing armed conflict within the state and, due to such conflict, requiring the return of aliens who are nationals of that state to that state (or to the part of the state) would pose a serious threat to their personal safety;

(B) the Attorney General finds that-

(i) there has been an earthquake, flood, drought, epidemic, or other environmental disaster in the state resulting in a substantial but temporary, disruption of living conditions in the area affected,

(ii) the foreign state is unable temporarily to handle adequately the return to the state of aliens who are nationals of the state, and

(iii) the foreign state officially has requested designation under this subparagraph; or

(C) the Attorney General finds that there exist extraordinary and temporary conditions in the foreign state that prevent aliens who are nationals of the state from returning to the state in safety, unless the Attorney General finds that permitting the aliens to remain temporarily in the United States is contrary to the national interest of the United States.

Id. Congress subsequently transferred authority to make TPS designations from the Attorney General to the Secretary of the Department of Homeland Security ("DHS"). See id. § 1103; 6 U.S.C. § 557 .

TPS provides eligible foreign nationals with employment authorization and deportation stays. 8 U.S.C. § 1254a(a)(2) ;

id="p298" href="#p298" data-label="298" data-citation-index="1" class="page-label">*298 id. § 1254a(g). To be eligible, the foreign national must: (1) be a national of a TPS-designated country; (2) have been present in the united States on the date of the initial designation, re-designation, or extension; (3) be otherwise admissible into the United States; and (4) register within a specified time frame. 8 U.S.C. § 1254a(c)(1)(A) ; 8 C.F.R. § 244.2 . Nationals who are otherwise eligible but who have been convicted of either a felony or two or more misdemeanors in the United States are categorically barred from TPS eligibility. 8 U.S.C. § 1254a(c)(2)(B). Moreover, if the Secretary determines allowing a foreign state's nationals to remain temporarily in the United States is against the U.S. national interest, the Secretary may elect not to designate that foreign state for TPS. Id. § 1254a(b)(1)(C).

When DHS first designates a foreign country for TPS, "the initial period of designation ... [is] not less than 6 months and not more than 18 months." 8 U.S.C. § 1254a(b)(2). The Secretary then undertakes a periodic review to determine whether to redesignate, extend, or terminate TPS for that country. See id. § 1254a(b)(3). Per the statute, "[a]t least 60 days before [the] end of the initial period designation, and any extended period of designation, ... the [Secretary of Homeland Security], after consultation with appropriate agencies of the Government, shall review the conditions in the foreign state ... and shall determine whether the conditions of such designation under this subsection continue to be met." Id. § 1254a(b)(3)(A). If the Secretary determines the foreign state no longer meets the conditions for TPS designation, the Secretary "shall terminate the designation." Id. § 1254a(b)(3)(B). If the Secretary "does not determine" the foreign state "no longer meets the conditions for designation ..., the period of designation is extended for an additional period of six, twelve, or eighteen months. Id. There is no limit to the number of extensions a designated foreign state may receive. The Secretary may also redesignate the foreign state for TPS, which may expand the population of eligible foreign nationals who were present in the United States after the prior designation. See 8 U.S.C. § 1254a(b) ; see also, e.g., Extension of Designation and Redesignation of Haiti for Temporary Protected Status , 76 Fed. Reg. 3476 (Jan. 21, 2010). The Secretary must timely publish the decision to extend or terminate TPS, including the basis for that determination, in the Federal Register. 8 U.S.C. § 1254a(b)(1)(C) ; id. §§ 1254a(b)(3)(A)-(B).

B. The TPS Decisionmaking Process

As noted, the TPS statute endows the DHS Secretary with the authority to determine whether to designate, redesignate, extend, or terminate a foreign nation's TPS. 8 U.S.C. §§ 1254a(b)(2)-(3). But the statute stipulates the Secretary is to consult the appropriate federal agencies when conducting the required periodic review for TPS designation. Id. § 1254a(b)(3)(A). During this periodic review, the Secretary is to consider the current conditions in the foreign state and whether the conditions supporting the original designation are still met. Id.

i. Department of State

The Department of State is one of the "appropriate agencies" with whom the Secretary consults when making a TPS determination. 8 U.S.C. §§ 1254a(b)(1), 1254a(b)(3)(A). Because of its vast network of foreign service officers, the Department is in a position to report effectively on local country conditions. See Pl. Ex. 331 at 2. Thus, DHS will contact the Department of State "to initiate their own process of putting together a country conditions assessment *299 and generally a recommendation ...." Prelogar Dep. Tr. at 31:11-14.

The local U.S. Embassy, under the direction of the local ambassador, provides the Department of State with an analysis of country conditions for the Secretary's consideration. PL Ex. 331 at 2; Trial Tr. at 114:11-115:7 (Posner). As former Ambassador James Nealon testified, "[A]n ambassador's input carries a tremendous amount of weight in the Department of State." Nealon Dep. Tr. at 109:8-10. Thus, the Department of State normally gives great deference to the factual reports prepared by the local Embassy. Pl. Ex. 331 at 2-3; Trial Tr. at 115:20-116:4 (Posner).

Once the local Ambassador and foreign service officers complete the report, they send it to the applicable regional bureau and policy bureaus to prepare a document-the Secretary of State Memorandum-for the Secretary's review. See Trial Tr. at 114:18-115:18 (Posner). The Bureau for Western Hemisphere Affairs ("WHA"), is the regional bureau for Haiti. Id. at 115:19-21 (Posner). Once the regional and policy bureaus complete the Secretary of State Memorandum, the Embassy and applicable bureaus review it and must approve it before submitting it to the Secretary of State. Id. at 126:24-131:17 (Posner); see also, e.g. , Pl. Ex. 145 at 6. The Department of State considers the Embassy's clearance and approval particularly important because the Embassy plays a primary role in gathering information on country conditions. Trial Tr. at 126:24-131:17 (Posner). If an embassy, regional bureau, or policy bureau disagree on a recommendation to the Secretary, the parties typically produce a "split memo" to present their competing positions to the Secretary. Pl. Ex. 331 at 4; see also Trial Tr. at 144:15-24 (Posner).

ii. Department of Homeland Security

DHS engages in well-established practices and considers a number of factors to aid the DHS Secretary in making a well-informed, evidence-based decision.

a. General Practices DHS Employs in Making TPS Determinations

Within DHS, the "process for gathering information to inform decision makers relating to the periodic review for TPS" begins with reaching out to the Refugee Asylum and International Operations ("RAIO") directorate, a subdivision of U.S. Citizenship and Immigration Services ("USCIS"). Prelogar Dep. Tr. at 31:1-8. RAIO contains a country conditions unit staffed by career civil servants specializing in country conditions research. See id. at 232:6-233:23; Trial Tr. at 233:15-23 (Rodriguez). RAIO creates a "country conditions assessment for the relevant country," which informs the Secretary's TPS determination. Prelogar Dep. Tr. at 31:9-10. This Report, also known as the "RAIO Report," is a fact-based assessment used to determine whether TPS should be extended, redesignated, or terminated. Trial Tr. at 233:15-23, 233:9-14 (Rodriguez). The Report "provide[s] an assessment about the country conditions and whether the statutory conditions continue to be met with respect to a TPS designation." Prelogar Dep. Tr. at 34:7-10. Because it contains the "factual predicate" for USCIS's recommendation to the DHS Secretary, the Report plays a crucial role in the Secretary's decision to extend or terminate TPS. Trial Tr. at 233:7-14 (Rodriguez).

In addition, the Office of Policy and Strategy ("OP & S"), another subdivision within USCIS, drafts a Decision Memorandum, also called a "Director Memo," containing USCIS's recommendation regarding a foreign nation's TPS designation and provides the final report to the Secretary. Kovarik Dep. Tr. at 28:12-16; see also Prelogar *300 Dep. Tr. at 31:16-22 (describing how the RAIO Report is used to create the Director Memo); Trial Tri at 235:15-21 (Rodriguez) (same). The Director Memo is a "distill[ed]" version of the more comprehensive RAIO Report. Trial Tr. at 235:20-21 (Rodriguez). The Office of the Executive Secretary, another office within USCIS, "would distribute a document for review by various entities within USCIS.... They would provide the administrative function of circulating it to the right people who needed to review it." Anderson Dep. Tr. at 133:11-21. Once drafted, OP & S sends the Director Memorandum to the Direction of USCIS to send to the DHS Secretary. Kovarik Dep. Tr. at 28:12-16.

The purpose of the Director Memorandum is to "give[ ] the secretary everything that they need" to make an informed decision on whether to designate, extend or terminate TPS. Trial Tr. at 235:20-21 (Rodriguez). Because the DHS Secretary holds a "tremendous number of responsibilities," she looks "to the USCIS, to the director, to [its] staff, as the experts on Temporary Protected Status." Id. at 235:6-14 (Rodriguez). Accordingly, the DHS Secretary gives a "high level of deference" to the USCIS Director's TPS recommendation. Id. at 246:5-7 (Rodriguez).

b. Factors DHS Considers in Making TPS Determinations

Former Director Rodriguez testified extensively to the factors DHS and USCIS have traditionally considered as part of TPS decisionmaking. According to Rodriguez, USCIS historically interpreted the term "extraordinary and temporary conditions," see 8 U.S.C. § 1254a(b)(1)(C), to require an analysis of conditions at the "particular point in time when the adjudication is occurring" that "prevent nationals of that country from returning to the country in safety, which means significant threat to life or health." Trial Tr. at 248:30-249:12, 250:11-12 (Rodriguez). This includes, conditions "not necessarily caused by," and conditions "untethered" to, the initial event that led to an initial TPS designation. Id. at 251:13-14, 252:6-14 (Rodriguez).

Under established practice, the USCIS Director and DHS Secretary generally consider many factors to determine whether it is safe for nationals to return to a country and whether the receiving country can absorb the return of TPS recipients, including but not limited to the number of TPS recipients, and issues of "public safety, national security, healthcare, housing, [and] education" in the receiving county. Id. at 214:20-25 (Rodriguez). It was established practice that USCIS recommendations on TPS considered "a broad range of issues, including food security, gender violence, stability of the Government, education, [and] healthcare." Id. at 255:5-9 (Rodriguez). Consequently, the USCIS Director and DHS Secretary have historically considered "intervening factors" arising after a country's original TPS designation, such as subsequent natural disasters, issues of governance, housing, health care, poverty, crime, general security, and other humanitarian considerations, even if those factors lacked any connection to the event that formed the basis for the original designation. Pl. Ex. 330 ¶ 21.

Rodriguez testified he did not consider crime rates among TPS recipients during his tenure as USCIS Director. As Director Rodriguez explained, crime rates were not a factor because "by definition, you do not qualify to receive TPS in the first place if you are a convicted criminal.... And if you are convicted while you were on TPS, your TPS would ordinarily be ... terminated ... based on that conviction. Trial Tr. at 255:25-256:6 (Rodriguez); see also 8 U.S.C. § 1254a(c)(2)(B). "[I]f somebody is convicted of a crime while they are on *301 TPS, ordinarily Immigrations and Customs Enforcement, which is the enforcement agency within the Department of Homeland Security, ... would initiate proceedings ... to terminate their TPS[ ] and then to potentially place that person in deportation proceedings." Trial Tr. at 257:24-258:5 (Rodriguez).

HAITI'S TPS DESIGNATIONS

A. History of Haiti's TPS Designation

After a 7.0-magnitude earthquake struck Haiti on January 12, 2010, DHS Secretary Janet Napolitano designated Haiti for TPS because she found "extraordinary and temporary conditions" prevented Haitian nationals from returning to Haiti in safety. Designation for Haiti for Temporary Protected Status , 75 Fed. Reg. 3476 , 3476-77 (Jan. 21, 2010). Secretary Napolitano made her determination "after consulting with the Department of State ... and other government agencies" and after DHS and the Department of State "conducted an initial review of the conditions in Haiti following the earthquake." Id. at 3477 . The Federal Register Notice that provided the Secretary's stated basis for designation cited reports describing collapsed homes, overflowing hospitals, and severe damage to critical infrastructure, which hindered access to Haiti's capital city, Port-au-Prince. Id. Initial reports estimated the death toll was substantial. Id. "Given the size of the destruction and humanitarian challenges," the Secretary found "there clearly exist extraordinary and temporary conditions preventing Haitian nationals from returning to Haiti in safety," warranting designation under 8 U.S.C. § 1254a(b)(1)(C). Id.

Immigration and Customs Enforcement ("ICE") temporarily ceased removing Haitian nationals to Haiti. Def. Ex. K. On April 1, 2011, just over one year after the earthquake, ICE announced it would resume removals of Haitians who had final orders of removal and were convicted of a serious crime or who posed a national security threat. Id.

In May 2011, Secretary Napolitano decided to extend and to redesignate Haiti for TPS for 18 months from July 23, 2011 through January 22, 2013. See Extension and Redesignation of Haiti for Temporary Protected Status , 76 Fed. Reg. 29,000 , 29,001 (May 19, 2011). "Based on [a] review" of the conditions conducted by DHS and the Department of State, Secretary Napolitano determined the "conditions prompting the original designation continue[d] to be met" and "further determined that these same conditions in Haiti support redesignating Haiti for TPS." Id. Because Secretary Napolitano redesignated Haiti for TPS, she determined protections should be extended for "eligible Haitians who arrived between January 12, 2010 and January 12, 2011." Id.

Secretary Napolitano and her successor, Secretary Jeh Johnson announced 18-month extensions in October 2012, March 2014, and August 2015. See 77 Fed. Reg. 59,943 (Oct. 1, 2012) ; 79 Fed. Reg. 11,808 (Mar. 3, 2014) ; 80 Fed. Reg. 51,582 (Aug. 25, 2015). With each of these decisions, DHS outlined conditions arising from the 2010 earthquake in Haiti and its attendant damage to infrastructure, public health, agriculture, transportation, and educational facilities. In addition, each extension cited the cholera epidemic and the exacerbation of preexisting vulnerabilities caused by the earthquake, including food insecurity and a housing crisis. See 77 Fed. Reg. at 59 ,944 -45; 79 Fed. Reg. at 11 ,809 -10; 80 Fed. Reg. at 51 ,583 -84. In his extension of TPS designation on August 25, 2015, then-Secretary Johnson concluded:

*302 Many of the conditions prompting the original January 2010, TPS designation and the May 2011 redesignation persist, including a housing shortage, a cholera epidemic, limited access to medical care, damage to the economy, political instability, security risks, limited access to food and water, a heightened vulnerability of women and children, and environmental risks.... Although the Government of Haiti has taken significant steps to improve stability and the quality of life for Haitian citizens, Haiti continues to lack the adequate infrastructure, health and sanitation services, and emergency response capacity necessary to ensure the personal safety of Haitian nationals.

80 Fed. Reg. at 51 ,583 -84.

On September 22, 2016, Secretary Jeh Johnson announced DHS would resume more regular removals of Haitian nationals to Haiti, consistent with standard practice. Secretary Johnson's policy "prioritize[d] the removal of convicted felons, individuals convicted of significant or multiple misdemeanors, and individuals apprehended at or between ports of entry while attempting to unlawfully enter the United States." Id. Secretary Johnson stressed, however, that "Haitian nationals ... covered by Temporary Protected Status [were] unaffected by this change in policy ... and [were] not subject to removal." Id.

ICE briefly suspended removal flights after Hurricane Matthew struck on October 4, 2016. Def. Ex. L. On November 22, 2016, Secretary Johnson announced ICE had resumed removal flights to Haiti. Id. Again, Secretary Johnson stressed "Haitian nationals ... covered by Temporary Protected Status (TPS) [were] unaffected by the resumption of flights to Haiti ... and [were] not subject to removal." Id.

On May 24, 2017, Secretary John Kelly once again extended TPS designation through January 22, 2018. See Extension of Designation of Haiti for Temporary Protected Status , 82 Fed. Reg. 23,830 , 23,830 -01 (May 24, 2017).

B. Events Leading Up to May 2017 Extension

i. The 2016 Periodic Review Process

With the deadline for a TPS decision approaching, on December 12, 2016, Secretary of State John Kerry recommended Secretary Johnson extend TPS for Haiti upon its expiration on July 22, 2017, citing "lingering effects of the 2010 earthquake [that] remain in infrastructure, health, sanitation services, and emergency response capacity." Def. Ex. M. Specifically, Secretary Kerry wrote:

[O]f the original two million people made homeless by the 2010 earthquake, approximately 55,000 remain in camps for internally displaced persons. Gender-based violence in these settlements continue to be a serious concern, and personal security continues to be a serious and pervasive issue. Some of those displaced have moved back to unsafe homes, begun reconstruction of damaged homes without assistance or guidance, or relocated to informal settlements located in hazardous areas. Despite efforts by Haitian authorities and the international community to address these concerns, infrastructure damage to housing in Haiti remain[s]."

Id. Secretary Kerry concluded "[f]or these reasons, Haiti lacks the capacity to ensure the safe return of the 59,000 TPS beneficiaries residing in the United States" and recommended extension. Id. Secretary Kerry did not recommend redesignation of TPS for Haiti based on Hurricane Matthew, noting "conditions in Haiti have improved since the earthquake, and Haiti has taken significant steps to improve the stability *303 and the quality of life for its citizens." Id.

By December 2016, DHS began the TPS review process for Haiti. USCIS researchers and career analysts published the RAIO report in December 2016. Based on the conditions described in the report, USCIS officials considered formally recommending extension of TPS for Haiti until January 22, 2019. Although it found Haiti "continues to make progress in a variety of fields," it concluded:

[T]he pace and scope of recovery has been uneven, and the country remains vulnerable to external shocks and internal fragility. Many of the conditions prompting the original January 2010 TPS designation persist, including a housing shortage, a cholera epidemic and limited access to medical care, damage to the economy (including extensive damage to Haiti's physical infrastructure), political instability, security risks, food insecurity, and environmental risks (as exemplified by the impact of Hurricane Matthew in October 2016).

Pl. Ex. 326 at 1.

With respect to Haiti's housing shortage, the December 2016 RAIO Report determined "significant challenges remain." Id. According to the Report, individuals residing in internally displaced person ("IDP") camps had declined since the 2010 earthquake but "moved back to unsafe houses or started building or reconstructing their houses, in most cases with no assistance or guidance, and often in informal settlements located in hazardous areas." Id. at 2 (internal quotation marks omitted). For those who remained in IDP camps, "living conditions ... have progressively worsened as many humanitarian programmes have ended due to lack of funding and in line with the overall strategy of closing camps." Id.

The Report also made findings with respect to the public health system and the cholera epidemic, which began after the 2010 earthquake. Id. at 3 . Although the Report noted Haiti made "some progress" in recent years, Haiti continued to face significant public health challenges: "Approximately 40 percent of the population still lacks access to fundamental health and nutrition services. Public spending in the health sector is low, and the country has a limited number of health professionals and a deficit of health infrastructure." Id. The Report noted UN peacekeepers had introduced a cholera epidemic-"the largest such epidemic ever registered." Id. 1 The Report further noted "lack of access to safe drinking water and Haiti's weak sanitation infrastructure remain significant concerns." Id.

The Report also highlighted Haiti's economic and political instability. It explained the 2010 earthquake "caused $ 7.8 billion in damages and losses to the country's economy," which is "equivalent to more than 120 percent of Haiti's 2009 gross domestic product." Id. at 4 . Despite some economic strides, the Report, citing a 2014 World Bank report, noted "the wealth generated in the country is largely inadequate to meet the needs of the people." Id. Moreover, it found nearly 60 percent of the population is living in poverty and unable to meet basic needs, while almost 25 percent of the population is living in extreme poverty and unable to cover their basic food needs. Id. It found "[a]n additional one million people are at risk of falling into poverty following an external shock," 40 percent unemployment, "a dependence on *304 subsistence agriculture, recurring natural disasters, and a largely informal economy," present further challenges to economic growth. Id. It also reported "[t]he January 2010 earthquake had an immediate impact on governance and the rule of law in Haiti, killing an estimated 18 percent of the country's civil service and destroying key government infrastructure." Id. In 2016, Haiti continued to "lack[ ] fully-functioning governance institutions, enforceable legal norms, and qualified and trained government staff." Id. at 5 .

With respect to security, the Report noted "Haitians lack basic policing services, and criminals are able to operate without fear of the police." Id. at 6 . Based on reports from the Department of State, "homicide, armed robberies, and crimes against persons (including gender-based violence) remain major concerns in Haiti." Id. And as of September 2016, "an estimated 3.2 million people were food insecure." Id.

Finally, the Report addressed the environmental risks faced by Haiti as well as the damage caused by Hurricane Matthew, which it noted made landfall in Haiti in October 2016. Id. at 6-7 . According to the Report, Hurricane Matthew was "the strongest storm to hit Haiti" in more than half a century and caused extensive damage "at a time when the country is already facing an increase in the number of cholera cases and severe food insecurity and malnutrition." Id. at 7 . Following Hurricane Matthew, some towns in Haiti were "in a state of near total destruction ... almost wiped off the map" and "[b]y mid-December 2016 as many as 1.4 million people were in need of humanitarian assistance, while 806,000 people were severely food insecure." Id. at 7-8 (internal quotation marks omitted). In sum, the Report concluded:

Haiti continues to rebuild following the 2010 earthquake. However, Haiti's progress remains fragile and vulnerable, and the country faces serious challenges, including a housing shortage, a cholera epidemic and limited access to medical care, damage to the economy, political instability, security risks, food insecurity, and considerable environmental risk. The deleterious impact of Hurricane Matthew in October 2016 has further hindered Haiti's ability to recover from the 2010 earthquake.

Id. at 8 .

In February 2017, USCIS researchers and career analysts produced and published an addendum to the December 2016 RAIO Report dedicated entirely to the effects of Hurricane Matthew on Haiti. The addendum concluded Hurricane Matthew "exacerbated" the existing conditions, noting it "will likely take Haiti years to recover from the damages of Hurricane Matthew." Pl. Ex. 9 at 1. "Of the 2.1 million people who were impacted by Hurricane Matthew in Haiti," it found, "close to 1.4 million remain in need of some form of humanitarian assistance." Id. For example, Hurricane Matthew "caused an increase in the number of suspected [cholera ] cases" and "[a]n additional 175,000 people impacted by Hurricane Matthew have been left without housing." Id. at 1-2 .

ii. March 2017 Official Drafts Recommend 18-Month Extension

On March 2, 2017, the Office of the USCIS Executive Secretary received a draft Director Memorandum and draft Federal Register Notice regarding TPS for Haiti, recommending extension. Pl. Ex. 11 at 4. The cover email explained the draft "discuss[ed] relevant country conditions in Haiti and explain[ed] USCIS's recommendation that the Secretary extend the TPS designation of Haiti. Following a *305 decision by the Secretary, the [Federal Register Notice] would alert the public that the designation for TPS of Haiti is being extended." Id.

Specifically, the March 2, 2017 Draft Memorandum recommended that Secretary Kelly "extend Haiti's designation for TPS for 18 months ... through January 22, 2019." Pl. Ex. 144 at 1. The March 2nd Draft Memorandum largely tracked the December 2016 RAIO Report, noting:

[A]lthough Haiti continues to make progress in recovering from the 2010 earthquake, many of the conditions prompting Haiti's designation for TPS persist. Hurricane Matthew, which struck Haiti on October 4, 2016, has also significantly contributed to continued extraordinary and temporary conditions in Haiti that prevent Haitian nationals from safely returning to Haiti.

Id. at 2 . The Director Memorandum also described housing and infrastructure shortages, and "damage to the economy, health, sanitation services, security risks, and emergency response capacity, which it described as the "[l]ingering effects of the 2010 earthquake." Id. In addition, the Memorandum described the damage from Hurricane Matthew and a cholera epidemic, noting that since October 2010, "close to 800,000 Haitians have contracted cholera." Id. at 3 . USCIS officials delivered the draft Memorandum and Federal Register Notice to the Director's office for approval on March 6, 2017. Pl. Ex. 11 at 3.

iii. In March and April 2017, USCIS Revises Draft Director Memorandum to Recommend Termination

Beginning in March 2017, new USCIS appointees began to cultivate a record they believed would weigh in favor of termination. DHS officials suggested the USCIS memorandum could disregard factors not directly traceable to the 2010 earthquake. In a mid-March email exchange among Carl Risch, Gene Hamilton, Kathy Kovarik, and others, officials characterized Haiti's "challenges-from political instability to food insecurity" as "long-standing, intractable problems," and distinguished those "[i]ssues related specifically to the 2010 earthquake" as "hav[ing] been largely addressed." Pl. Ex. 309; Priv. Prod. 3468-70. The email also described Hurricane Matthew as a "recent hurricane [that] has caused new problems in Haiti." Id. Risch did not find this view of the statute "an unreasonable read at all." Id. He previously noted, "all of the problems caused by the earthquake are not necessarily solved (nor need they be to have TPS terminated)." Id. Risch finally suggested, "[a]fter our meeting, USCIS could decide to change this decision to recommend termination." Id. "If USCIS leadership wants to send up its package recommending an 18-month extension, then your memo might be needed to counter the recommendation by USCIS leadership." Id.

Meanwhile, USCIS political appointees directed staffers to "refashion" the draft Director Memorandum to now include an option for terminating TPS for Haiti. Gene Hamilton, an appointee of President Trump and Senior Counselor to Secretary Kelly "prognosticat[ed]" Secretary Kelly "may wish to terminate" TPS for Haiti. Pl. Ex. 12 at 1; see also Hamilton Dep. Tr. at 26:11-19. On March 24, 2017, Mark Boivin, a USCIS project manager, emailed USCIS officials Brandon Prelogar and Kathryn Anderson, writing: "I understand that [the Director Memorandum] will now be an action/decision memo and one of the options will be to terminate." Pl. Ex. 12 at 2. Prelogar responded: "The word you got regarding refashioning the memo to provide options is right." Id. at 1 . Prelogar stated USCIS would continue to assess conditions were met and extension is warranted but noted it would be a good idea *306 "to at least begin to draft up a termination memo so that, in the event [Secretary Kelly] does decide to end Haiti TPS, we're ready to provide the [Federal Register Notice] to do it." Id. On March 28, 2017, Prelogar sent a draft of the revised Director Memorandum for interoffice review. Id.

On April 3, 2017, the Office of the Executive Secretary received this new draft, which "now include[d] options for the Acting Director's approval," including termination of TPS for Haiti, and ultimately recommended extension. Pl. Ex. 11 at 1. Although the March 2, 2017 draft memorandum provided only one option for the Secretary-extension-the April 3, 2017 draft memorandum presented three options: (1) extension; (2) termination; or (3) redesignation, coupled with an extension of the current designation. Pl. Ex. 143 at 3-4. Nevertheless, the Director Memorandum recommended Secretary Kelly extend TPS for Haiti for 18 months because "extraordinary and temporary conditions" continued to prevent the safe return of Haitian nationals. See id. at 1-5 (highlighting the lingering effects of the earthquake in housing, infrastructure, damage to the economy, health, security risks, emergency response capacity, as well as gender-based violence in IDP camps, the development of informal, hazardous settlements, the impact of Hurricane Matthew, food insecurity, and the ongoing cholera epidemic). Indeed, the Memorandum concludes:

[A]lthough Haiti continues to make progress in recovering from the 2010 earthquake, many of the conditions prompting Haiti's designation for TPS persist. Hurricane Matthew, which struck Haiti on October 4, 2016, has also significantly contributed to continued extraordinary and temporary conditions in Haiti that prevent Haitian nationals from safely returning to Haiti.

Pl. Ex. 143 at 2.

Just a few days later, on April 10, 2017, USCIS circulated another draft, this time recommending termination of Haiti's designation with an effective date of January 22, 2018. Pl. Ex. 122. The April 10th Draft Memorandum differed from the March 2nd and April 3rd Draft Memoranda in a number of ways. For example, the March 2nd and April 3rd Draft Memoranda both concluded: "[A]lthough Haiti continues to make progress recovering from the 2010 earthquake, many of the conditions prompting Haiti's designation for TPS persist." See Pl. Exs. 143 at 2, 144 at 2. In contrast, the April 10th Draft Memorandum concluded "Haiti has made significant progress in recovering from the 2010 earthquake and no longer continues to meet the conditions for designation." Pl. Ex. 122.

The revisions focused on those conditions resulting directly from the 2010 earthquake. For example, the March 2nd and April 3rd memoranda each stated: "Lingering effects of the 2010 earthquake remain in housing, infrastructure, damage to the economy, health, sanitation services, security risks and emergency response capacity." Pl Exs. 143, 144. By contrast, the April 10th Draft Memorandum stated: "While lingering effects of the 2010 earthquake remain in housing, infrastructure damage to the economy, health, sanitation services, security risks, and emergency response capacity, Haiti has made significant progress in addressing issues specific to the earthquake." Pl. Ex. 122 at 3. The April 10th Draft Memorandum characterized the "specific extraordinary and temporary conditions" as having "been largely ameliorated" and cast the "myriad problems remaining in Haiti [as] longstanding *307 problems which have existed for many years before the 2010 disaster." Id. at 4 .

The April 10th Draft Memorandum, which the Acting USCIS Director ultimately signed, minimized many of the conditions that predated the 2010 earthquake. Id. For example, with respect to housing, current housing deficits were deemed irrelevant because they existed before the earthquake: "96 percent of people displaced by the earthquake and living in internally displaced person ... camps have left those camps. Over 98 percent of the IDP camps have closed. While those persons who have left the camps have not necessarily moved into ideal housing, Haiti had a substantial housing deficit long before the 2010 earthquake." Id. at 3 . Missing from this draft were critical facts noted in the prior iterations, both of which emphasized over 55,000 Haitians "are still living in 31 camps for internally displaced persons without viable options to leave." Pl. Exs. 143 at 2, 144 at 2. With respect to Haiti's economic and political conditions, the April 10th memorandum characterized Haiti as "the poorest country in the western hemisphere" with "enormous problems long before the 2010 earthquake. Even before the earthquake, the Haitian government could not or would not deliver core functions to the majority of its people." Pl. Ex. 122 at 3. Similarly, it characterized gender-based violence in IDP camps as "security problems [that] are not a post-earthquake phenomenon," and it related food insecurity to historical food challenges, tropical storm, and drought. Id. Previous draft memoranda never included such language classifying conditions as pre- versus post-earthquake phenomena. See Pl. Exs. 143, 144.

On May 10, 2017, RAIO researchers published another addendum to the RAIO Report regarding TPS for Haiti. Pl. Ex. 141. It concluded "Haiti has yet to fully recover from the impact of the 2010 earthquake." Id. at 1 . Like the February addendum to the RAIO Report, the May addendum again emphasized the widespread destruction of Hurricane Matthew, and it further highlighted damage from recent spring flooding. Id. at 1-2 . The Report also stressed the extent to which aid for Haiti failed to materialize, both with respect to the earthquake and with respect to Hurricane Matthew. Id.

iv. USCIS and DHS Officials Began Collecting Criminality, Welfare, and Immigration Status Data

As officials circulated the USCIS Director Memorandum drafts in April 2017, numerous DHS and USCIS appointees instructed career staffers to compile criminality and welfare data on Haitian TPS recipients. According to internal DHS communications, officials sought this data to bolster the decision to terminate TPS for Haiti. See Pl. Ex. 119. 2

On April 7, 2017, Secretary Kelly emailed Kristjen Nielsen-copying Elizabeth Neumann, Gene Hamilton, Elaine Duke, Jonathan Hoffman, and Ben Cassidy-directing her to "arrange a conversation with the right people about TPS .... No email-just a conversation(s)." Priv. Prod. at 4757. 3 He also directed Nielsen to collect, "[s]pecific to Haiti, details on how many are on public and private relief, how *308 many school aged kids [are] in school, how many [are] convicted of crimes of any kind, how often they travel back and forth to the island, remittances, etc.," to which Nielsen responded, "Roger." Id. Hamilton subsequently sent an email to several individuals, including Kathy Kovarik, who had recently assumed the role of Chief of the USCIS Office of Policy and Strategy, relaying Secretary Kelly's directive to gather this data on Haitian TPS recipients. 4 Pl. Ex. 103. Kovarik then emailed USCIS career officials Brandon Prelogar and Kathryn Anderson and instructed them to gather crime and welfare data about TPS recipients. Pl. Ex. 15. The instructions Kovarik sent mirrored those in Kelly's directive. Compare id., with Pl Ex. 103; see also Kovarik Dep. Tr. at 74:15 (testifying her email to Prelogar and Anderson was "nearly identical" to the one she received from Hamilton on April 7, 2017).

According to Prelogar and Anderson, prior to Kovarik's request, no senior USCIS officials had ever asked them to gather criminality or welfare data on a TPS population during their combined nine years as USCIS researchers. Anderson Dep. Tr. at 17:8-14, 307:16-308:11; Prelogar Dep. Tr. at 116:10-118:20; accord Trial Tr. at 255:25-256:6 (Rodriguez) (testifying he never gathered or used criminality or welfare data for TPS determinations during his tenure as USCIS Director). On April 7, 2017, Prelogar replied to Kovarik's instructions, noting data regarding "public and private relief" were "[n]ot available specific to TPS holders." Pl. Ex. 15 at 10. Anderson similarly explained welfare data "specific to TPS holders is not available, but in general, TPS holders don't qualify for federal benefits." Id. at 8 . On April 10, 2017, another DHS staffer, Alexander King, wrote to Kovarik and others he had "been unable to verify whether we can systematically pull electronic criminality data" for TPS recipients. Id. at 4 .

Nevertheless, DHS staffers continued to demand criminality and welfare data on Haitian TPS recipients through the end of April. On April 25, 2017, Nielsen, Secretary Kelly's Chief of Staff at the time, emailed Hamilton, Acting USCIS Director James McCament, and USCIS staffer Carl Risch, asking for the following information by the end of the day:

(1) How many current Haitian TPS folks were illegal pre-TPS designation?

(2) Since designation, how many have committed crimes?

(3) Since designation, how many are on public assistance? Out of work?

(4) Can we describe what has changed in Haiti warranting the recommended change (this may be in the memo but I have not seen it yet-would include if verified items such as rebuild of palace, build of army, change in UN list, 4-5% growth in GDP.

Pl. Ex. 342 at 1. Acknowledging such data would be "difficult to obtain," Kovarik again emailed her subordinates requesting this data and instructed them on how it could be obtained. 5 Pl. Ex. 15 at 3-4. In *309 response, Anderson explained the "TPS statute does not require individuals to have lawful status in order to qualify for TPS." Id. at 3 . As she had previously informed Kovarik, Anderson further noted: "TPS beneficiaries are not eligible for the majority of public benefits. We know of no way internal to USCIS or DHS to determine whether TPS beneficiaries are on public assistance or out of work." Id. at 2 . On April 27, 2017, Kovarik emailed USCIS staffers once more and cautioned: "[T]he Secretary is going to be sending a request to us to be more responsive. I know that some of [the data] is not captured, but we'll have to figure out a way to squeeze more data out of our systems. So, we may as well get started." Id. at 1 .

In response to another "TPS data request" from Kovarik for "any data whatsoever" regarding "criminal activity," stories that positively depict "how things are in Haiti," and "random sampling[s] of files that [USCIS] could then use to generalize the entire population," Leroy Potts quoted several reports and replied "[u]nfortunately conditions in Haiti remain difficult." Pl. Ex. 212 at 1-3. The reports referenced by Potts largely concluded "Haiti has not fully recovered from the 2010 earthquake" and highlighted Hurricane Matthew, food security, housing, and heavy flooding. Id. at 1-2 .

Finally, on May 15, 2017, USCIS Director James McCament circulated a memorandum addressing the repeated demands for criminality and welfare data on Haitian TPS recipients. Pl Ex. 139. The memorandum stated: "Information regarding whether TPS beneficiaries have committed crimes is not currently available through USCIS systems." Id. at 4 . It further explained: "Regarding immigration status at the time of application, the TPS statute does not require individuals to have lawful status in order to qualify for TPS." Id.

v. Career Staffers React to USCIS's Recommendation

Numerous emails among USCIS staffers appear to indicate confusion and concern regarding the shift in USCIS's recommendation from extension to termination. On April 13, 2017, RAIO researcher LeRoy Potts separately emailed Anderson and Prelogar, asking "to get together next week and chat? For now, I'm hoping you can give me your take on the Haiti TPS decision? I'd like to know a little bit more about how it was decided current conditions 'don't merit ongoing TPS designation' ...." Pl. Ex. 16. In response, Anderson noted:

[T]he short answer is that the decision was a political one by the [USCIS Front Office] and [Secretary Kelly's] advisors. Their position was that Haiti was designated on account of the 2010 earthquake, and those conditions have significantly improved. The extraordinary conditions Haiti currently faces are longstanding, intractable problems, not "temporary" as the statute requires.

Id. see also Anderson Dep. Tr. at 199:21-200:1 ("TPS decisions are not always as impacted by political priorities as this one was."). Prelogar responded in kind: "I don't think it was RU's fine work on the country conditions, nor our original presentation of them in the Decision Memo we drafted, that didn't make the cut and led to the conclusion USCIS should recommend termination." Priv. Prod. at 20338 (emphasis added); see also Prelogar Dep. Tr. at 149:3-20 (testifying the process surrounding the TPS decision for Haiti was "handled differently" than previous TPS decisions for Haiti).

*310 Anderson and Prelogar also emailed one another to discuss an April 30, 2017 New York Times editorial reporting on Haiti TPS determinations. Pl. Ex. 18. According to Prelogar, the editorial, which recommended extending TPS for Haiti, was "[w]ell said." Id. at 1 . Anderson wrote she "especially appreciated that [the Times ] noted the memo did cite a bunch of horrible conditions but then somehow reached the wrong conclusion." Id. Prelogar responded: "Right? Give me a break." Id. By "[g]ive me a break," Prelogar intended to express his "contention that the country conditions and the statutory requirements suggested a different decision" from termination. Prelogar Dep. Tr. at 127:10-12. Prelogar testified he believed the April 10th Director Memorandum recommending termination reached the wrong conclusion. Id. at 126:13 . He also sought to express "agreement with Kathryn [Anderson]'s observation" and "some degree of incredulity." Id. at 123:11-14 . 6

In another email, Anderson confided to Prelogar she was "fuming" after a phone call following a May 19, 2017 meeting with Hamilton and then-DHS Deputy Secretary Duke. Pl. Ex. 25 at 1; Anderson Dep. Tr. at 243:7-9. Prelogar was "deeply distraught to hear this pillar of normality, [Secretary Duke], (our trusty second in charge) was anything but." Pl. Ex. 25 at 2; Prelogar Dep. Tr. at 146:2. "These people need a helping hand out," he wrote. Pl. Ex. 25 at 2. "Looks like there are whack jobs everywhere. Even the civil service." Id. Prelogar testified these statements referred to his "impression ... that the deputy secretary ... seemed to be in alignment with some of the perspectives on temporary protected status that were being advanced by parties with whom [he and Anderson] disagreed." Prelogar Dep. Tr at. 146:19-147:2.

vi. April 2017 Press Leaks

At the end of April, a number of items related to Secretary Kelly's upcoming decision on TPS for Haiti were leaked to the press. Several outlets reported Secretary Kelly sought criminality and welfare data in connection with his decision on TPS for Haiti. A May 9, 2017 Associated Press article quoted directly Kovarik's April 27 and April 28, 2017 directives to "squeeze [out] more data" on and "find any reports of criminal activity" by Haitian TPS beneficiaries. Pl. Ex. 124. Acting USCIS Director McCament forwarded to Kovarik an email chain with two articles reporting on her instructions. Id. By April 29, 2017, the April 10th Director Memorandum leaked to the press. Pl. Ex. 18. That day, the New York Times published an editorial quoting the April 10th Director Memorandum and urging Secretary Kelly to extend TPS for Haiti. Id.

On May 20, 2017, DHS's Office of Public Affairs circulated an email with draft talking points for a press conference scheduled for the following Monday, at which time Secretary Kelly would announce his decision on TPS for Haiti. Pl. Ex. 126. Among these talking points were denials that DHS or USCIS ever looked into criminal history or welfare data in connection with the TPS decision. See id. at 6-7 ("[C]riminal history and public benefit usage was not used as criteria for the TPS determination."). The *311 talking points stressed criminal activity data did not at all factor into the TPS decision; rather, "Secretary Kelly, separate and distinct from the decision on TPS for Haiti, asked DHS staff for information to increase his understanding of how the TPS program operates and the elements of information we have on program recipients." Id.

vii. In May 2017, Secretary Kelly Announces 6-Month Extension

By mid-May, DHS officials had been instructed to revise again the recommendation on Haiti's TPS, this time recommending an extension. In a May 18, 2017 email to DHS official Brian Kelliher, DHS official Megan Westmoreland wrote: "USCIS [was] told to redraft the Haiti TPS notice once again, this time to announce a 6-month extension.... [and was] instruct[ed] [ ] not to announce a termination at this point, but to suggest in the notice somehow that it is likely to be terminated in 6 months and that the Haiti beneficiaries should get their affairs in order." Priv. Prod. at 5206. According to Westmoreland, USCIS officials were "concerned how [the Secretary] could find Haiti to meet TPS conditions now but find in just a few months from now that it no longer does. Do the clients really believe conditions will improve over the current baseline over the next 4-6 months? Could extending now box [the Secretary] in for the next determination?" Priv. Prod. at 1186.

In a meeting held just three days before the announcement, several DHS staffers discussed their views with respect to TPS for Haiti and the TPS program as a whole. See Pl. Ex. 53; Anderson Dep. Tr. at 106:4-8. 7 Then-Deputy Secretary Duke reported there was "[e]very expectation Haiti may not be renewed again," and that in Secretary Kelly's view, "Haiti is still a horrible place to live, but good .... If we recommend terminating [Secretary Kelly] will be inclined to follow us, but be clear." Pl. Ex. 53; Anderson Dep. Tr. at 274-8-17. Gene Hamilton noted, in his view, TPS was "to be used" as an "extreme measure" and not "out of whole air like [the] Obama administration." Pl. Ex. 53; Anderson Dep. Tr. at 269:14-270:2. He further stressed Secretary Kelly was "not hesitant to make TPS designations when warranted." Anderson Dep. Tr. at 288:6-9; Pl. Ex. 53.

On May 22, 2017, DHS issued a press release announcing Secretary Kelly would extend TPS for Haiti for six months. Suppl. Admin. R. at 193-94. The same day, Anderson attended a press conference call on Secretary Kelly's decision on TPS for Haiti. Anderson Dep. Tr. at 252:12-21, 298:8-12. She recalled Gene Hamilton and a number of DHS communications staffers attended the call. Id. at 298:15-19 . DHS characterized Secretary Kelly's request for criminality data pertaining to Haitian TPS recipients as a "common sense" question to ensure the "programmatic integrity" of the TPS program at large. Id. at 301:10-14 .

The same press release announcing extension stressed TPS beneficiaries should use the time before the end of the extension period "to prepare for and arrange their departure from the United States-including proactively seeking travel documentation-or to apply for other immigration benefits for which they may be eligible." Suppl. Admin. R. at 194. DHS officials also informed the press that Secretary Kelly "highly encourages" TPS recipients "to pack up." Pl. Ex. 51. The Haitian Foreign Minister Antonio Rodrigue *312 and Haitian President Jovenel Moïse were advised "the Government of Haiti [should] take steps to preps re for the eventual end of its TPS designation." Suppl. Admin. R. at 12. 8

In announcing the six-month extension, Secretary Kelly "was ... encouraged by representations made to him directly by the Haitian government regarding their desire to welcome the safe repatriation of Haitian TPS recipients in the near future." Id. at 193 . A few weeks earlier, Ambassador Altidor wrote in his letter requesting an extension of Haiti's TPS that "[w]e look to the day Haiti can welcome our countrymen back home; however, now is not the time." Pl. Ex. 172 at 2.

The USCIS announcement on May 24, 2017, and the Federal Register Notice published the same day, also signaled TPS for Haiti would come to an impending end. The Federal Register Notice stated: "It is in the best interest of TPS beneficiaries to prepare for their return to Haiti in the event that Haiti's TPS designation is not extended again." Suppl. Admin. R. at 189. The same day he published his decision in the Federal Register, Secretary Kelly opined in a meeting that Congress had "no moral courage" because it failed to include a "sunset clause" for TPS. Pl. Ex. 52; Anderson Dep. Tr. at 317:1-5. 9 He also said Haitians are "[n]ot a bad people, but they are welfare recipients." P1. Ex. 52; Anderson Dep. Tr. at 321:14-322:4. 10

Despite Secretary Kelly's signal TPS for Haiti would soon come to an end, the Federal Register Notice found: "although Haiti has made significant progress in recovering from the January 2010 earthquake that prompted its initial designation conditions in Haiti supporting its designation for TPS persist." Suppl. Admin. R. at 187. The Notice characterized many of Haiti's difficulties as "longstanding," and highlighted whether they were recent developments:

Haiti faces longstanding public health challenges, where 40% of the population lacked access to basic health services before the 2010 earthquake. As of 2016, this figure remains the same-40% of the population lacks access to fundamental health and nutrition services. While the lack of access to safe drinking water and Haiti's weak sanitation infrastructure remain significant concerns, these are not new problems. Extreme poverty, corruption, and low levels of education in Haiti challenge its resilience and have contributed to the government's longstanding *313 inability to adequately provide for the security, health, and safety of its citizenry.

Id. Nevertheless, the Federal Register Notice cited Haiti's housing crisis, noting though 98 percent of IDP camps closed:

over 55,000 Haitians who lost their homes in the earthquake are still living in 31 camps ... without viable options to leave. Gender-based violence in these camps continues to be a serious concern, and personal security is a serious and pervasive issue. Some people who were displaced by the earthquake, although no longer in camps have moved back to unsafe homes or relocated to informal settlements located in hazardous areas.

Id. Importantly, the Federal Register Notice also cited the effects of more recent natural disasters, such as Hurricane Matthew and extensive flooding in the spring of 2017. It explained "Hurricane Matthew made landfall in Haiti on October 4, 2016, causing extensive damage to crops, housing, livestock, and infrastructure across Haiti's southwest peninsula." Id. The Notice also explained:

Heavy rains in late 2017 caused flooding and landslides in South, South East, Grand' Anse, and Nippes departments, with South department most impacted. At least four people were killed, nearly 10,000 homes may have been damaged, and at least 350,000 people may have been affected. According to a Haitian government official, an estimated 80% of the spring harvest in South department may have been destroyed.

Id.

In sum, the Notice provided, "the damage from Hurricane Matthew and the recent rains are compounding the existing food insecurity experienced by an estimated 3.2 million people (approximately 30 percent of the population) in September 2016." Id. The Federal Register Notice also cited Haiti's strained public health system, Haiti's weak sanitation infrastructure, and the cholera epidemic. See id.

C. Events Leading Up to November 2017 Termination

The day the extension was announced, officials at DHS began exploring rationales for terminating TPS for Haiti, recognizing Secretary Kelly-or whoever would be Secretary at the time-would seek termination. Indeed, when he arrived at DHS in July 2017, James Nealon, the Assistant Secretary of Homeland Security for International Affairs and Acting Undersecretary for Policy testified "there was a general feeling that TPS ... for Haiti was going to be terminated." Nealon Dep. Tr. at 27:5-18, 128:9-17. Nealon also retailed expecting termination based on a conversation he had with Secretary Kelly during that time. Id. at 129:5-130:10 . In conversations with a career officer, Nealon discussed the implications of a decision to terminate and "what sort of things we could do to help mitigate the consequences of that decision." Id. at 128:7-17 . Other officials at DHS, including Nielsen, inquired about conditions in Haiti that might weigh toward termination. On July 28, 2017, Nielsen sent an email to Nealon asking him whether USCIS had "any information on the TPS registrants in terms of current jobs or education" because she presumed "if the majority of folks are highly educated and have jobs in the US (many years living here), the [Haitian Government's] concerns about return, joblessness[,] and potentially turning to crime may be overstated." Pl. Ex. 355.

i. DHS Looks to Statute for TPS Process with "Fresh Eyes"

Secretary Kelly and other members of the Administration had "concerns about the TPS program as a whole" and planned *314 to look at TPS with "fresh eyes." Pl. Ex. 51. Secretary Kelly and other DHS officials emphasized he could premise an extension only on conditions related to the circumstances that prompted the original designation-in Haiti's case, the 2010 earthquake. For example, Kathryn Anderson testified that during the May 22, 2017 press call on Haiti's TPS, a DHS official said "[c]onditions have substantially improved since 2010. Congress asked us to look at conditions that led to initial designations and not at other conditions. Understand some fine lines to draw there." Pl. Ex. 51; Anderson Dep. Tr. at 297:10-14.

On June 6, 2017, Secretary Kelly testified before the Senate Homeland Security and Governmental Affairs Committee. During questioning, officials asked about his approach to TPS designations and extensions. Pl. Ex. 213 at 69-71. Secretary Kelly responded that in his view, TPS "is for a specific event.... [I]n Haiti, it was the earthquake. Yes, Haiti had horrible conditions before the earthquake, and those conditions aren't much better after the earthquake. But the earthquake was why TPS-was granted and-and's that's how I have to look at it." Id. at 70 . Kelly added, "the word [in the statute] is 'temporary,' and I-I think those that have been ... in my position over the years have simply automatically extended it." Id. at 71 . Indeed, after she took over as DHS Secretary, Kirstjen Nielsen stated the TPS statute forbade her from considering country conditions other than those connected to the original designating event-in Haiti's case, the 2010 earthquake. In testimony to Congress, Nielsen explained that, in her view, "the law really restricts [a DHS Secretary's] ability to extend TPS. The law says that if the effects of the originating event ... do not continue to exist, then the Secretary of Homeland Security must terminate." Pl. Ex. 345 at 3 (emphasis added).

The day after Secretary Kelly testified, USCIS Writer-Editor Tina Wimbush sent a high-priority email to, among others, the USCIS Executive Secretary. Pl. Ex. 29 at 3. The email contained instructions and notes "from the Secretary's Office" for drafting responses to letters to Secretary Kelly from the public about Haiti's TPS. Id. According to the email, Secretary Kelly instructed those drafting the letter to "[h]ighlight [the] temporary nature" of TPS and state the "2010 Earthquake is the only reason for TPS being granted-not [the] hurricane or current economic conditions-[n]ot [the] cholera epidemic." Id. In accordance with this instruction, the email suggested the draft include: "As you know, granting TPS was based solely on [the] 2010 earthquake that ravaged Port au Prince." Id.

Similarly, on June 8, 2017, Gene Hamilton exchanged emails: with DHS Spokesman and Trump Administration official David Lapan to respond to an inquiry from a reporter regarding TPS for Haiti. Hamilton noted Lapan should include in his response:

Secretary Kelly does have the authority under US law to designate a foreign country for Temporary Protected Status (TPS) in very limited circumstances outlined in section 244 of the Immigration and Nationality Act. As the Secretary has said, the operative word is "temporary." TPS is a temporary benefit that does not lead to lawful permanent resident status or give any other immigration status.

Priv. Prod. at 4148.

Tina Wimbush's high-priority email regarding letter responses to TPS inquiries also stated Secretary Kelly "want[ed] a stronger response beginning to build a case for not extending" TPS for Haiti. Pl. Ex. 29 at 3. According to the email, Secretary Kelly requested inclusion of the following *315 suggested language in letter responses: "Primarily localized damage in [the] capital region of Port au Prince. Recovery [is] slow but steady, [the] UN has determined their stabilization force is no longer needed. Decision to rebuild palace shows [the] economic [situation] is recovering." Id.

Career USCIS researchers believed many of these talking points to be untrue. Kathryn Anderson, for example, thought Secretary Kelly's proposed language was "ridiculous" and "amazing (and mostly incorrect)." Id. at 2 . In particular, she believed "this idea of localized damage from the earthquake is insane." Id. Prelogar agreed with Anderson's sentiment and described Secretary Kelly's suggestions to be "[u]nreal." Id. Prelogar expressed difficulty drafting the letter responses in accordance with Secretary Kelly's directives regarding their content, writing to Anderson: "I'm torn between taking a first run at saying not untrue things and just quoting Secretary Kelly saying untrue things from the get go." Id. He ultimately decided to "just pull some stuff from [Secretary Kelly's May 22, 2017] statement" announcing the TPS extension. Id. Anderson agreed with Prelogar's approach, noting "[a]t least the untrue things said by Sec[retary] K[elly] can be attributed to him." Id. Exercising this approach, Prelogar completed a draft that quoted extensively Secretary Kelly's May 22, 2017 statement. Id. After reviewing his draft, Anderson lauded Prelogar: "That's the best possible combo of true things from you and quotes of not true things from [Secretary Kelly]. Nicely done." Id.

In a separate chain of emails, DHS officials concurrently inquired about the status of "more aggressive" response letters. Priv. Prod. at 3785. One DHS official, Elizabeth Neumann, directed another, Michael Plostock, to look for "stronger language indicating Haiti is recovering from the earthquake." Id. On June 13, 2017, Neumann emailed Hamilton a draft letter, noting it would "help with one of the tasks [Hamilton] received from [Secretary Kelly] ...." She added, "I'd like for [Secretary Kelly] to see soon as he personally asked me for this about a week ago." Id.

ii. DHS and Department of State Officials Seek to Coordinate TPS Review

As DHS prepared for the TPS review process, the Department of State also began to work through its own internal process regarding TPS. And although Secretary Tillerson recommended extending TPS in June and the U.S. Embassy in Haiti advocated for an extension to the Department of State in August in advance of Secretary Duke's decision, Secretary Tillerson ultimately recommended termination of TPS not only for Haiti but also for Honduras, El Salvador, and Nicaragua-all within the same timeframe.

According to Anderson's handwritten notes from a meeting involving herself, Duke, Hamilton, and other DHS officials, they asked, "[C]an we support keeping State in their lane?" which Anderson understood to mean: "[C]an we look into how we can have [S]tate focus on providing country conditions as opposed to using TPS as a foreign policy tool[?]" Pl. Ex. 53 at 4; Anderson Dep. Tr. at 287:11-16.

On June 2, 2017, Scott Krause emailed Nielsen, and others, noting he "received a couriered letter from Secretary of State Tillerson recommending a 12 month TPS extension for Haiti." Priv. Prod. at 3710. He attached a copy of the letter for review. Id. Nielsen responded, noting briefly "[t]his is a mistake. State will be pulling this back shortly." Id. The Department of State ultimately did retract its recommendation and, despite the Embassy's findings over the summer, worked diligently *316 throughout the Fall to reach the opposite conclusion for the next series of TPS determinations.

Secretary Tillerson's May 31, 2017 letter recommended Secretary Kelly "extend for twelve months the designation of Temporary Protected Status (TPS) for Haiti upon expiration on July 22, because certain extraordinary and temporary conditions related to the 2010 earthquake continue to exist." Pl. Ex. 256. The letter noted:

As described in the Department of State's Haiti country conditions report, significant lingering effects from the 2010 earthquake remain in Haiti in the areas of infrastructure, health, sanitation services, and emergency response capacity. For example, of the original two million people made homeless by the 2010 earthquake, approximately 55,000 remain in evacuation shelters or other temporary facilities. Some of those who were displaced have moved back to unsafe homes, begun ad-hoc reconstruction of damaged homes, or relocated to informal settlements located in hazardous areas. Despite efforts by Haitian authorities and the international community to address these concerns, Haiti still lacks the capacity to fully ensure a safe return of the 59,000 TPS beneficiaries residing in the United States.

Id. Secretary Tillerson also described the progress Haiti has made since the earthquake:

For example, all of the 10 million cubic meters of 2010 earthquake-related rubble has been cleared, and there have been improvements to road conditions and infrastructure. Most government offices and ministries destroyed in the earthquake are now housed in temporary facilities. Tourism increased by 10 percent annually from 2012 to 2015.... These conditions allow Haiti to safely receive traditional levels of returned Haitian nationals, which it is doing ....

Id. Secretary Tillerson did not recommend re-designating Haiti for TPS based on Hurricane Matthew's impact, noting its impact "was limited to three of Haiti's 10 departments and conditions in Port-au-Prince have returned to normal." Id.

The report appended to Secretary Tillerson's letter regarding extension of TPS for Haiti noted "Haiti lacks the capacity to absorb the approximately 59,000 Haitians residing in the United States under TPS." Pl. Ex. 257. In support of this finding, the report cited:

• poor quality of education for children;

• the Haitian government's weak institutional capacity to respond to the lingering effects of the earthquake;

• the 55,000 people residing in IDP camps;

• gender-based violence in IDP camps;

• the creation of informal settlements located in hazardous areas;

• Haitian citizens moving back to unsafe homes;

• the Haitian National Police's susceptibility to severe budgetary pressure and its heavy concentration in the capital, as opposed to other parts of the country;

• Haiti's poor infrastructure, health and sanitation services, and emergency response capacity; and

• concerns the "Haitian government would have serious problems shouldering the responsibility for facilitating the reintegration of approximately 59,000 Haitian nationals when the *317 Haiti TPS program would otherwise expire.

Id.

Just over one month after Secretary Tillerson's "mistake" recommendation, DHS and the Department of State began to make affirmative efforts to coordinate on upcoming TPS decisions. On July 8, Kathy Kovarik sent an email to Gene Hamilton, Theresa Hunter, and Susanne Cassil-copying James McCament, among others-"to share a draft letter ... we propose Secretary Kelly send to Secretary Tillerson to formally request his recommendation and State Department input on upcoming Temporary Protected Status designations." Priv. Prod. at 7244; 13837. Kovarik noted this approach would be "a departure from past practice," but she stressed "[t]here may be an advantage in ensuring Secretary Tillerson's visibility into and commitment to the TPS consultative process." Id. Both Kovarik and her colleagues at the Department of State agreed "to facilitate State's, and, specifically, Secretary Tillerson's input into DHS' TPS review process, it's best if Secretary Tillerson directly receives a written request from DHS." Id. On July 17, Kovarik wrote in the same email exchange "we did a call with State about Haiti TPS and they welcome this letter as soon as we can send it." Id.

a. U.S. Embassy in Haiti Recommends Extension

On August 3, 2017, the U.S. Embassy in Haiti sent a cable again recommending extension of TPS for Haiti. Pl. Ex. 370. The Embassy analyzed the facts on the ground, acknowledging there had been some progress but ultimately noted country conditions remain poor. Id. at 2 . On the whole, the Embassy's cable was largely consistent with the Department's previous findings, though it added of Haiti's socio-political conditions: "Hurricane Matthew demonstrated Haiti's weakened ability to cope, recover, and adapt to shock from natural disasters. Meanwhile, as a result of electoral-related tensions, politically motivated demonstrations and insecurity have affected the humanitarian operating environment...." Id. As a result, the cable concluded:

Extending TPS for Haiti is in the U.S. national interest. At this time the [Government of Haiti] is not capable of facilitating the reabsorption of 59,000 Haitians currently holding TPS in the United States in a time frame of less than several years. Lingering issues from the 2010 earthquake, additional effects of the cholera epidemic, and the aftermath of Hurricane Matthew exacerbate this concern, and a termination of TPS for Haiti would threaten the country's ability to make needed progress across numerous sectors.

Id.

b. WHA Recommends Termination and Sends a Split Memo to Secretary Tillerson

The Embassy was not the only entity within the Department of State that recommended extension of TPS for Haiti; however, the Bureau of Population and Refugee Management ("PRM") also recommended a six-month extension. See Pl. Ex. 246. On the other hand, the WHA-the Department of State's regional bureau for Haiti-and the Department's Policy Planning Staff ("S/P") recommended termination. Id. at 1-3 . Because these three recommendations conflicted, the bureaus presented a split memo to Secretary Tillerson. See id. at 1-5 . The split memo did not present the U.S. Embassy's position recommending an extension of TPS for Haiti, but it included the two memoranda recommending termination-from the WHA and S/P-and the PRM memorandum *318 recommending extension. See id. at 4 (listing attachments). It omitted the U.S. Embassy's principal findings regarding conditions in Haiti as well as the views of the Haitian Government. See id. at 1-5 ; Trial Tr. at 157:23-158:3, 159:4-8 (Posner). The split memo included a clearance page indicating certain Department of State bureaus and divisions had cleared the document, but it was unclear Whether the U.S. Embassy in Haiti had. Pl. Ex. 246 at 5; Trial Tr. at 126:10-131:17, 158:24-159:8 (Posner).

c. Secretary Tillerson Recommends Termination for Haiti, Honduras, El Salvador, and Nicaragua

The Department of State ultimately developed a memorandum recommending extension. See Suppl. Admin. R. at 45. The memorandum acknowledged many of the concerns identified by the Embassy, 11 but it concluded "[t]he extraordinary and temporary conditions that served as the basis for Haiti's most recent designation have sufficiently improved such that they no longer prevent nationals of Haiti from returning in safety." Id. It noted:

Country conditions have improved since the January 2010 earthquake. The IDP population has decreased 97 percent from its peak in 3010. A legitimized government is in place after two years of electoral impasse. As of October 15, 2017, all UN military personnel have been withdrawn from Haiti; to be replaced by a police only successor mission focused on strengthening rule of law and promoting human rights.

Id. The memorandum also flagged several measures the Government of Haiti had undertaken to prepare for repatriating and reintegrating its citizens, including: (1) establishing a working group to mitigate illegal migration; (2) raising awareness among diaspora leaders to inform the Haitian community in the U.S. on how a policy change will affect them; and (3) and establishing a hotline to provide legal assistance to migrants. Id. at 48 . And when describing Secretary Kelly's recent extension of TPS for Haiti, the memorandum carefully distinguished conditions it considered related to the earthquake from those it classified as "subsequent conditions." Id. at 45 . 12 Notably, the State memorandum *319 omitted the necessary clearance page that would have indicated the U.S. Embassy in Haiti cleared the document. See Trial Tr. at 158:9-10 (Posner [text missing on original]

This process culminated in Secretary Tillerson's October 31, 2017 letter to Acting Secretary Duke recommending her to terminate TPS not only for Haiti but also for El Salvador, Honduras, and Nicaragua. Suppl. Admin. R. at 36-37. Secretary Tillerson wrote, "[t]he extraordinary and temporary conditions that served as the basis for Haiti's most recent designation have sufficiently improved such that they no longer prevent nationals of Haiti from returning in safety." Id. at 36 . He emphasized, "these countries do not-in the State Department's judgment-meet the legal requirements necessary for extension." Id. at 37 . Secretary Tillerson's letter attached the Department of State's country conditions report. Id. at 36 . It did not otherwise describe the conditions in Haiti warranting termination. Compare id. at 36-37 , with Pl. Ex. 256 (describing some of the conditions in Haiti warranting a twelve-month extension of TPS).

iii. USCIS Recommends Termination

As the Department of State prepared to recommend termination of TPS for Haiti, so too did officials at DHS. In October 2017, RAIO published a country conditions report detailing the conditions in Haiti. Through the remainder of the month, officials at DHS and USCIS grappled with the Report's findings and ultimately recommended terminating TPS for Haiti.

The October RAIO Report found "[m]any of the conditions prompting the original January 2010 TPS designation persist, and the country remains vulnerable to external shocks and internal fragility." Suppl. Admin. R. at 51. The Report concluded Haiti continued to struggle from the effects of the earthquake, which caused the destruction of approximately 105,000 houses, considerable damage to 188,383 houses, and the displacement of 1.5 million persons. Id. at 52 . Despite some progress, "Haiti was also still facing "considerable obstacles" in housing, including relocation to unsafe homes or to informal settlements in hazardous areas, and the eviction of 60,000 IDPs. Id. According to the Report, lack of access to fundamental health services and public health challenges continued to plague Haiti, including the ongoing cholera epidemic. Id. at 53-55 . The Report acknowledged U.N. troops are "widely blamed" for introducing cholera -"reportedly the largest such outbreak of cholera in recent history" and that, despite a decline in suspected outbreaks in 2016, it "continues to place additional strains on Haiti's beleaguered public health system." Id. at 54-55 .

The RAIO Report also addressed the status of Haiti's governance and political stability. While the earthquake "destroyed 28 of 29 government ministry buildings, the Haitian National Police's headquarters, and various judicial facilities," President Moïse announced plans to rebuild the National Palace in April 2017 and pledged to rebuild the Parliament and the Palace of Justice. Id. at 56-57 . In another sign of progress, the Report acknowledged Haiti "successfully completed its electoral process in February 2017," but despite " 'the formal structures of a democracy, many of these have yet to become fully functional.' "

*320 Id. Citing the United Nations Economic and Social Council, the Report noted "the Government has limited capacity to ensure a public administration system that can effectively guarantee the rule of law and a functioning justice system, promote the fight against corruption and effectively protect human rights." Id. at 57-58 .

Concerns for the economy, public security, and food security continued to persist, according to the RAIO Report. As to the Haitian economy, the Report concluded the earthquake "caused $ 7.8 billion in damages and economic losses-equivalent to more than 120 percent of Haiti's 2009 gross domestic product" and over 25% of Haiti's gross domestic product comes from remittances sent back to Haiti from diaspora members living in the United States. Id. at 55-56 . The Report emphasized high unemployment figures and widespread poverty. Id.

The Report noted the earthquake "had a deleterious impact on public security in Haiti" by "creating new security vulnerabilities and stimulating an increase in crime.... The escape of thousands of prisoners and the diffusion of gangs throughout Port-au-Prince in the aftermath overwhelmed Haiti's historically weak justice system and police." Id. at 58 . The Report acknowledged the U.N. would withdraw the military component of its peacekeeping mission, MINUSTAH, and replace it with a mission that would help the Government strengthen rule-of-law institutions and develop and train local police. Id. at 59-60 . But overall the Report characterized the security situation in Haiti as "unpredictable." Id. at 59 . It expressed concern about gender-based violence, theft, domestic violence, homicide, robberies, and other crimes against persons. Id. at 58-59 .

The RAIO Report also noted "[d]amage from the 2010 earthquake exacerbated Haiti's historic food security challenges," contributing to "a sharp decline in income and food availability" and an "increase in the price of food." Id. at 61 . It stressed Haiti continues to rely on imports to meet more than half of its food needs and over half the population suffers from chronic malnutrition. Id. It concluded as of May 2017, "approximately 5.82 million people were facing food insecurity in Haiti, including 2.35 million people who were severely food-insecure and in need of immediate assistance." Id. at 62 .

The RAIO report also addressed a series of natural disasters that have affected Haiti after the earthquake. It reported Hurricane Matthew was the "strongest Hurricane to strike the country in more than 50 years and the third strongest ever recorded in Haiti." Id. at 64 . The "impact of the hurricane occurred at a time when Haiti was already facing an increase in the number of cholera cases and severe food insecurity and malnutrition." Id. The Report found Hurricane Matthew "affected 2.1 million people in Haiti; of this amount, 1.4 million were estimated to be in need of humanitarian assistance in the aftermath of the storm. An estimated 175,000 people were displaced, and 546 people were killed." Id. at 64-65 . At the time, the damage from Hurricane Matthew was "estimated at nearly $ 2.8 billion-equivalent to 1/3 of Haiti's gross domestic product." Id. at 65 . It also "exacerbated food insecurity in Haiti." Id. at 61 .

Similarly, in September 2017, Hurricane Irma displaced more than 12,500 people and impacted about 8,000 homes and caused extensive damage to livestock and crops. Id. at 63-64 . And in April 2017, the Report noted, a heavy rainy season caused significant damage including floods and landslides. Id. at 63 . According to the Report, prior to the flooding, Haiti experienced several years of drought, which had *321 been exacerbated by the effects of El Nino. Id. at 64 .

Last, the Report references a recent "crackdown on undocumented migrants in the Dominican Republic [that] has contributed to an influx of returnees to Haiti in recent years." Id. at 66 . Citing a UN Secretary General Report, RAIO found "returnees ... continue to find themselves in a situation of vulnerability owing to the insufficient reception capacity of the Haitian authorities and a lack of reintegration opportunities." Id. at 67 . Ultimately, the October 2017 RAIO Report concluded:

Haiti's recovery [from the 2010 earthquake] has been hindered by subsequent natural disasters and various political, social, health, security, and economic conditions which have negatively impacted the country in recent years. Haiti remains vulnerable to external shocks, and its internal fragility has left it unable to adequately respond to a wide range of persistent humanitarian needs."

Id. at 68 . Indeed, RAIO wrote: "Haiti's recovery from the 2010 earthquake could be characterized as ... one step forward, two steps back." Id. at 68 .

After receiving the RAIO Report, USCIS officials began working on a draft Director Memorandum for USCIS Director Cissna. Cissna set a meeting with Acting Secretary Duke regarding TPS for about the middle of October. See Pl. Ex. 36 at 1. Kovarik wanted a draft from USCIS career official Prelogar recommending termination of TPS for Haiti by that time, noting, "We don't need them finalized, but in good shape for Dir[ector] Cissna before he meets with Sec[retary] Duke at 4:30." Id. She critiqued the Director Memorandum in its current form, adding: "The problem is that [the Director Memo] reads as though we'd recommend an extension [because] we talk so much about how bad it is [in Haiti], but there's not enough in there about positive steps that have been taken since its designation." Id. Within minutes, Prelogar responded:

We can comb through the country conditions to try to see what else there might be, but the basic problem is that it IS bad there [with regard to] all of the standard metrics. Our strongest argument for termination, we thought, is just that it is not bad in a way clearly linked to the initial disasters prompting the designations. We can work ... to try to get more, and/or comb through the country conditions we have again looking for positive gems, but the conditions are what they are.

Pl. Ex. 37 at 1.

On October 20, 2017, DHS Spokesman and Trump Administration official David Lapan forwarded an email containing a transcript of a "gaggle" from the previous day to request comments on what his office should clarify to the press. Pl. Ex. 40A at 4-7. During the press gaggle, a reported asked: "[In] the case of Haiti ... are [DHS officials] reviewing the effects of the cholera epidemic or just sticking to the earthquake?" Id. at 4 . Lapan responded, "No, it's the earthquake. That was, again, by statute, it's the condition that created the TPS designation in the first place, the conditions in the country at that time that are considered." Id. He added with respect to the cholera epidemic, "let me not rule that out completely, because again, if there is a tie to the event, rather than being something that is completely separate." Id. In response to several questions, Lapan went on:

We're looking at the fact that temporary protected status means temporary and it has not been temporary for many years and that we have created, the U.S. Government, the situation where people have lived in this country a long time. But it always should have been the understanding that it was temporary. But *322 every time it's well, then we're going to give an extension and then we're going to give an extension, and soon you have people who have been living here 20 plus years under what was supposed to be a temporary program....

Again, if you take a look at Haiti, for example, when we talked about the conditions in Haiti having to do with the earthquake, which is where the TPS designation came from in the first place, nobody would argue that a week before, a month before, a year before that earthquake, things in Haiti weren't pretty bad. But we can't judge for temporary protected status what the conditions were that have nothing to do with the event that created TPS to start with. So nobody is going to argue that there is still a lot of poverty in Haiti. That's been the way for a long time, that there is still a lot of other things that affect those countries. But the statute provides that TPS is designated and decisions about extending should be based on those conditions that predicated the designation, not everything else that may point to the fact that those countries have problems....

Id. at 5-6 . Referencing the recent extension of Haiti's TPS, Lapan stressed Secretary Kelly's instructions to Haitian TPS recipients to prepare to return to Haiti, forecasting an end to the TPS program. Id. at 6 . On Lapan's request for comment, Kovarik noted she had some concerns but stressed, "I think he did okay in really trying to stick to the letter of the law." Id. at 3 .

By October 22, 2017, Kovarik was still dissatisfied with the draft Director Memorandum. She sent the draft to Robert Law, another USCIS official, because she "want[ed] another set of eyes on it." Pl. Ex. 127 at 1. In response to Kovarik's request to review the draft Director Memorandum, Law noted:

The draft is overwhelming[ly] weighted for extension[,] which I do not think is the conclusion we are looking for. The memo seems to dismiss or downplay the positive developments that should suggest reauthorization is inappropriate. The memo also makes no mention of the substantial amount of foreign aid the U.S. and charities have invested in Haiti since the earthquake-another relevant factor to indicate that Haiti no longer meets the definition of TPS.

Id. Kovarik then instructed Law to "[e]dit away!" Id.

In less than thirty minutes, Law changed the conclusion of the Director Memorandum. USCIS career official Prelogar had initially written the draft to "support either extension or termination" and "left the recommendation blank pending further discussion." Id. at 1-2 . But Law noted he "made the document fully support termination" and "provided comment boxes where additional data should be provided to back up this decision." Id. at 1 . 13 A little over one week later, Law emailed DHS employee Jacob Stubbs with an "important research project" seeking "positive data on the current status of Haiti to bolster the recommendation to terminate TPS." Pl. Ex. 86 at 1. Law referred Stubbs to the recent TPS extension "for language citing 'improvements' or the like that I can plug in ... unemployment/workforce, wages, etc. Be creative." Id.

iv. Acting Secretary Duke Decides to Terminate TPS

a. Input Within DHS

On November 3, 2017, USCIS issued a Director Memorandum, signed by Director *323 Cissna and addressed to Secretary Duke. Suppl. Admin. R. at 38-44. Director Cissna formally recommended Acting Secretary Duke to terminate TPS for Haiti, noting Haiti has "made significant progress in recovering from the 2010 earthquake" and "no longer continues to experience the extraordinary and temporary conditions that formed the basis of [its] designation and Redesignation of TPS." Id. at 38 .

The Memorandum first describes the bases for Haiti's original TPS designation-the "7.0 magnitude earthquake"-and subsequent redesignation. Id. at 39 . According to the Memorandum, the original designation described a substantial death toll and overflowing hospitals, the destruction of homes and government buildings, and extensive damage to infrastructure and food security. Id. at 38-39 .

The Director Memorandum noted DHS re-designated TPS for Haiti in 2011 because, at the time, more than one million Haitians were either homeless or living in one of 1,300 IDP camps. Id. at 39 . According to the Memorandum, DHS also premised Haiti's TPS redesignation on crowd conditions, flood susceptibility, "crime (including gender-based violence), and disease" in the camps. Id.

The Director Memorandum then described country conditions in Haiti, stressing their relationship to the earthquake. For example, it noted "Haiti is the poorest country in the western hemisphere, but it had enormous problems long before, and unrelated to, the 2010 earthquake." Id. at 40 . Similarly, although the Memorandum alludes to gender-based violence and security concerns, it stresses "neither is a post-earthquake phenomenon." Id. The Memorandum reaches the same conclusion with respect to food insecurity, contending: "Haiti's food insecurity problems seem related to tropical storms and a drought rather than from lingering effects of the 2010 earthquake." Id. at 41 .

To support the recommendation for termination, the Director Memorandum cites the declining number of IDP camps and IDPs, the withdrawal of the U.N. peacekeeping mission, the completion of the presidential election, and the Haitian President's commitment to reconstruct government buildings including the National Palace. Id. at 40 . The Memorandum also points to GDP growth through 2016 and the regular removals of Haitian migrants since September 2016 as a sign of progress, although this evidence was not included in the RAIO Report. Id.

With respect to the cholera epidemic, the Memorandum notes only that "cholera is currently at its lowest level since the outbreak started." Id. at 41 . It does not include any information as to what USCIS estimates that level to be. See id. The Memorandum then describes Acting Secretary Duke's various options. With respect to her option to extend, it notes:

USCIS has concluded that the specific extraordinary and temporary conditions stemming from the 2010 earthquake which caused Haiti to be initially designated for TPS and to be redesignated in 2011 have been largely ameliorated. Haitian nationals may safely return to Haiti as evidenced by DHS's decision to resume removals to Haiti in 2016. Additionally, it is not in the national interest to extend a TPS designation when the specific extraordinary and temporary conditions giving rise to a TPS designation no longer exist.... The review of conditions in Haiti indicates that significant progress has been made in reconstruction and recovery efforts and Haiti's current challenges cannot be directly tied to the 2010 earthquake.

Id. With respect to Acting Secretary Duke's option to redesignate Haiti, the *324 Memorandum noted Hurricane Matthew was "[t]he most significant recent event that could be considered." Id. at 42 . It then stresses USCIS does not seek redesignation on that basis. Id.

After receiving the Director Memorandum from USCIS, Acting Secretary Duke began preparing to terminate TPS for Haiti. Acting Secretary Duke's own handwritten notes-many of which appear in the designated administrative record-reveal her approach to the impending decision. For example, Acting Secretary Duke's notes reference the "America first" strategy. Reciting President Trump's slogan, Acting Secretary Duke wrote, "I believe America First," but she opined she was "not sure ending TPS is America first strategy." Suppl. Admin. R. at 318. In other notes concerning TPS for El Salvador, Honduras, and Nicaragua, which she reviewed concurrently with TPS for Haiti, Acting Secretary Duke wrote: "The TPS program must end for these countries soon .... This conclusion is the result of an America first view of the TPS decision." Pl. Ex. 179 at 1.

Acting Secretary Duke's notes also demonstrate she could not yet rationalize terminating Haiti's TPS by early November. In one set of notes, she wrote: "Haiti TPS is dramatically different from the other three countries due to the limited duration of TPS. Haiti-7 years; Honduras and Nicaragua-19 years.... Separate out Haiti. They have been given a preview of what is likely to happen. Eight years is not the same as 20 years." Suppl. Admin. R. at 317-18. Regarding her "[r]ationale" for terminating TPS, she wrote: "don't know, need to rationalize conflicting info" but that "all agree [TPS] must end." Id. at 318 . To that end, Acting Secretary Duke wrote of the "need" for a "plan for a decision" and to "foreshadow [TPS] will end." Id. She queried, "do we need a better strategy to lay a groundwork before terminating (diplomacy) to ensure neg[ative] consequences don't occur[?]" Id. Regarding termination, Acting Secretary Duke added laying such groundwork was "better than term[inating] in 18 mo[nths] [and] dealing w[ith] fallout .... [TPS] still could end in 18 mo[nths,] just w[ith]out the 'punch.' " Id. These notes revealed an initial desire to defer terminating TPS for Haiti to "give full discretion" to incoming DHS Secretary Nielsen. Id. Duke also considered going "one step stronger than Kelly" by indicating the "hurricane condition does not exist." Id.

b. Input from the White House and SOUTHCOM

As her decision deadline approached, Acting Secretary Duke met with political officials and solicited information from additional sources. On November 3, 2017, the White House sponsored a Principals Small Group Meeting to "coordinate the conditions and process for terminating temporary protected status (TPS) for aliens from El Salvador, Honduras, Nicaragua, and Haiti." Id. at 127 . Present at the meeting were Acting Secretary Duke, White House advisor Stephen Miller, former White House Advisor Tom Bossert, former Attorney General Jeff Sessions, and Gene Hamilton. Hamilton Dep. Tr. at 184:16-185:22. The committee briefing materials expressly recommended Acting Secretary Duke to "[t]erminate with an effective date of January 5, 2019 and engage Congress to pass a comprehensive immigration reform to include a merit based entry system." Suppl. Admin. R. at 129. The materials further noted:

Extending TPS for any or all of the four countries would prolong the distortion between the temporary protections that TPS was designed to provide and current circumstances. It would also lengthen the period during which beneficiaries *325 would deepen their connections to the United States, making any future resolution of their status in the United States more complicated. Redesignation is not a viable option because the challenges all four countries face are long-term political, security, and economic deficiencies and are unrelated to ongoing armed conflict or natural disasters.

Id. Moreover, they suggested the approaching deadline on TPS for Haiti "support[ed] a case for setting a unified course of action for all four countries simultaneously," referring to Nicaragua, El Salvador, Honduras, and Haiti. Id. at 127 .

According to Secretary Duke's handwritten notes from the meeting, Sessions told Duke she "can't keep certifying," "no one has the guts to pull the trigger, and she should just "just bite the bullet" and decertify. Id. at 113-15 . He noted it would be "problematic to recertify" and added it would be "dangerous to separate out Haitians" because it would show "prejudice against Haitians." Id. He concluded that she "cannot certify." Id. at 115 . The officials also discussed the political ramifications of a decision to terminate TPS for Haiti, cautioning the decision should not "get too close to end of 2019 political and midterms." Id. at 113 .

Acting Secretary Duke spoke over the phone with Tom Bossert and Zack Fuentes, both White House Officials, on November 5, 2017. See Suppl. Admin. R. at 283. According to Acting Secretary Duke's handwritten notes, Bossert and Fuentes told her "conditions in [the four] countries no longer exist," "gutless fed[eral officials] have extended" TPS, and the White House would be "extremely disappointed if [she] kick[ed the termination decision] into [the] lap of [the] next secretary." Id.

On November 6, 2017, Acting Secretary Duke emailed White House Chief of Staff Kelly regarding her decision to terminate TPS for Nicaragua, with an effective date of 18 months later, and to extend a "no decision" for Honduras. In her email, Acting Secretary Duke wrote:

These decisions along with the public statements will send a clear signal that TPS in general is coming to a close. I believe it is consistent with the President's position on immigration.... While some are portraying this differently, this decision is really just a difference in strategy to get to the President's objectives.

Pl. Ex. 169 at 1. Several hours after her initial email, Acting Secretary Duke wrote to Kelly once more: "I had a discussion with [Tom Bossert] this evening and he informed me of a strategy I was not previously aware of. I incorporated this new information into my final decision and the published timeframe for the Nicaragua termination is 12 months, not 18." Pl. Ex. 96 at 1. At Acting Secretary Duke's request, Chad Wolf forwarded her initial email to Bossert, who responded, "Thank you for all the time and effort today, and for the 12 month outcome." Pl. Ex. 165 at 1. He later added the TPS decisions would signal a "clear need for statutory reform of our immigration system." Id.

On November 10, 2017, Chief of Staff Kelly wrote to Acting Secretary Duke, Stephen Miller, Hope Hicks, Sarah Huckabee Sanders, Tom Bossert, and others, noting:

The conversation revolved around 'make a decision.' That the decision on TPS was entirely [Duke's]. That whatever she decided she'd be criticized but that comes with the job. My view was to grant limited (no more than 12 months or so [versus] the maximum 18 months allowed by the TPS program) to the Central American TPS recipients who have been here for 20 years. This approach then gives us time to work out a *326 permanent solution with the hill. Similar thinking on Haiti."

Pl. Ex. 184. He later added, "[C]alls to leaders and staff within an organization to help in the decision making process particularly when they call looking for guidance, which includes ensuring agenda adherence, is EXACTLY what a chief-of-staff does." Id.

On November 15, 2017 Secretary Duke requested "any input SOUTHCOM has on the potential impact/points of consideration" regarding her decision on TPS for Haiti. Suppl. Admin. R. at 2. In response to Secretary Duke's request, Major General Jon Norman noted:

The impact of removing Haiti from TPS ... may have near and long term repercussions for Haitian stability. In the near term, the removal of an estimated 59,000 Haitians from the US may place considerable additional stress on the Government of Haiti (GOH) and the social services of the country. Current conditions and GOH capacity have improved sufficiently to absorb the return of a moderate flow of Haitian nationals, but a large return would likely overwhelm a fragile government system and infrastructure. The GOH continues to receive weekly flights of between 50 and 100 noncriminal deportees, and even this moderate number is a level that stretches its resources to maintain a secure and orderly reception program. The return of a large number of citizens may place additional security stress upon the Haitian government, which is contending with rising crime and violence exacerbated by the security vacuum created by the withdrawal of MINUSTAH....

Id. at 1 .

c. The Government of Haiti Continues to Ask for Extension

The Haitian Government made clear its position on TPS for Haiti even prior to Secretary Kelly's May 2017 decision. On May 4, 2017, the Haitian Ambassador to the United States, Paul Altidor, sent a letter to Secretary Kelly "asking for an extension of TPS, a stay of deportations to Haiti and the much-needed time to adequately prepare to welcome our citizens home." Pl. Ex. 172 at 2. Ambassador Altidor wrote Haiti had "encountered a number of roadblocks in the rebuilding process" since the 2010 earthquake, including Hurricane Matthew, which "caused, by some estimates, more than two (2) billion USD worth of damage and resulted in complete destruction of some parts of the country." Id. at 1 . He also reported "pledges of donations did not equate to monies received" and noted the cholera epidemic "continu[ed] to devastate [Haiti's] citizens given [its] vulnerable conditions." Id. As a result, "recovery is not yet at a stage where [it] can receive and provide the necessary support for more than 50,000 arrivals back to the country." Id. at 2 . Four days later, Ambassador Altidor sent another letter to Secretary Kelly requesting an in-person meeting to discuss Haiti's TPS designation. Pl. Ex. 171. Ambassador Altdor wrote the Government of Haiti "strongly believes that a renewal of TPS for Haitians, for at least another eighteen (18) months, is in the national interest of both Haiti and the United States." Id. at 1 .

Secretary Kelly met with Haitian Foreign Minister Antonio Rodrigue approximately one week later. Pl. Ex. 22. According to a memo from a November 13, 2017 Haiti TPS Strategy Meeting, "At former Secretary Kelly's request, Haiti has taken some steps to prepare for the eventual end of its TPS designation" even though the "Government of Haiti ... stresse[d] it does not yet have the ability to accept back all of its TPS beneficiaries." Suppl. Admin. R. at 28.

*327 James Nealon, the Assistant Secretary of Homeland Security for International Affairs and Acting Undersecretary for Policy, spoke by phone with Ambassador Altidor to also discuss Haiti's TPS in July 2017. See Pl. Ex. 355; Nealon Dep. Tr. at 27:12-22. Nealon called "the Haitian Ambassador to urge progress on preparing Haitian citizens to return home with the impending end of TPS." Pl. Ex. 355 at 1. During the call, Ambassador Altidor told Nealon the Haitian Government understands TPS is temporary. Id. But he stressed "Haiti is not yet ready to absorb a large number of returnees." Id. He stressed though "the Government is focused on creating an environment in which returnees ... could expect to find adequate housing, ... those conditions don't yet exist." Id. Ambassador Altidor also noted the Haitian Government does not want to "welcome [its] citizens back only to see them attempt to return to the United States for lack of opportunity, or worse, be attracted to criminal activity because of lack of legitimate work opportunities." Id. Nealon reported "the Ambassador asked directly if TPS will end in 2018. His message was clear - we understand it's a temporary program, but we're not ready, please extend it." Id.

Through the fall of 2017, the Haitian government continued to warn DHS officials it was not prepared to repatriate Haitian TPS recipients. The Embassy of the Republic of Haiti wrote DHS to further highlight the conditions warranting extension, including the housing shortage, destruction from Hurricane Matthew, the cholera epidemic, food insecurity, and damage from other environmental disasters. Suppl. Admin. R. at 7-9. And on October 4, 2017, Ambassador Altidor sent a letter to Acting Secretary Duke requesting an eighteen-month extension of Haiti's TPS designation or re-designation. Suppl. Admin. R. at 4-6. In the letter, Ambassador Altidor stressed the destruction of Hurricane Matthew, the ongoing cholera epidemic, and newly-inflicted damage from Hurricanes Maria and Irma warranted extension or re-designation. Id. As such, while Ambassador Altidor reported Haiti "is diligently working to put the country back on a trajectory towards a swift recovery," he expressed "fear that a non-renewal may cause TPS beneficiaries to find alternative, and ill-advised, ways to remain in the United States, and would also embolden trans-national human traffickers and cartels to prey upon this group of vulnerable individuals." Id. at 6 .

In his October 4 letter, Ambassador Altidor invited Acting Secretary Duke to Haiti to discuss TPS and see the conditions in Haiti on the ground. Id. at 6 . instead, Acting Secretary Duke met with Foreign Minister Rodrigue in the United States on November 13, 2017. Id. at 11-13 . Prior to that meeting, Acting Secretary Duke's briefing notes demonstrate she recognized the steps Haiti had taken "to prepare for the eventual end of its TPS designation" may be insufficient to adequately prepare "for the potential return of tens of thousands of Haitian TPS beneficiaries in the United States." Id. at 11 . USCIS Director Francis Cissna, who attended the meeting, testified Foreign Minister Rodrigue "expressed his desire that the Secretary would extend TPS, and just he and his staff made that desire very clear." Cissna Dep. Tr. at 134:16-20.

d. Acting Secretary Duke Announces Termination of TPS for Haiti

On November 20, 2017, Acting Secretary Duke announced she had decided to terminate TPS for Haiti. DHS issued a press release announcing her decision:

The decision to terminate TPS for Haiti was made after a review of the conditions upon which the country's original *328 designation were based and whether those extraordinary but temporary conditions prevented Haiti from adequately handling the return of their nationals, as required by statute. Based on all available information, including recommendations received as part of an inter-agency consultation process, Acting Secretary Duke determined that those extraordinary but temporary conditions caused by the 2010 earthquake no longer exist.

Pl. Ex. 114 at 1. The press release also noted "Acting Secretary Duke met with Haitian Foreign Minister Rodrigue" to discuss TPS. Id. It did not, however, reflect Foreign Minister Rodrigue's desire to extend. Cissna Dep. Tr. at 134:16-20. After the announcement, Prelogar emailed Anderson: "Unbelievable." Pl. Ex. 42. Prelogar later testified he found "unbelievable" that "an announcement by the secretary that [in his] view was riddled with errors of various sorts would be released." Prelogar Dep. Tr. at 230:19-231:11.

DHS published its official notice in the Federal Register in January 2018, providing exclusively the following for its reasons:

[T]he conditions for Haiti's designation for TPS-on the basis of "extraordinary and temporary conditions" relating to the 2010 earthquake that prevented Haitian nationals from returning in safety-are no longer met.

Haiti has made progress recovering from the 2010 earthquake and subsequent effects that formed the basis for its designation. For example, the number of internally displaced persons (IDP) from the earthquake has continued to decline-98 [percent] of IDP sites have closed, and only approximately 38,000 of the estimated 2 million Haitians who lost their homes in the earthquake were still living in camps as of June 2017. In October 2017, the United Nations withdrew its peacekeeping mission, noting the mission had achieved its goals. The peacekeeping mission has been replaced by a successor operation that is a police-only force focused on strengthening rule of law, promoting human rights and supporting the Haitian National Police.

Haiti successfully completed its presidential election in February 2017. The 2010 earthquake destroyed key government infrastructure, including dozens of primary federal buildings, which the Haitian government is working to rebuild. The Supreme Court is already reconstructed and operational, and, in April 2017, President Moïse announced a project to rebuild Haiti's National Palace. A Palace spokesperson announced on January 8 that a project to reconstruct the Palace would commence on January 12, 2018.

Haiti's economy continues to recover from the 2010 earthquake. Annual GDP growth has been generally positive since 2010, averaging 1.7 percent over the period (2010-2016). Although Haiti has grappled with a cholera epidemic that began in 2010 in the aftermath of the earthquake, cholera is currently at its lowest level since the outbreak began.

Pl. Ex. 341 at 3. The language in the notice largely tracks the language in the November 2017 Director Memorandum. Compare id., with Suppl. Admin. R. at 40.

PROCEDURAL HISTORY

On March 15, 2018, Patrick Saget, Yolnick Jeune, Sabina Badio Florial, Jean Claude Mompoint, Gerald Michaud, Leoma Pierre, Naïscha Vilme, Guerline Francoise, Beatrice Beliard, Rachelle Guiriand, Family Action Network Movement, Inc. ("FANM") and Haiti Liberté (collectively, "Plaintiffs") filed this action against President Donald J. Trump, the United States of America, the Department of Homeland *329 Security ("DHS"), Kirstjen Nielsen in her capacity as the DHS Secretary, and Elaine C. Duke as DHS Deputy Secretary (who was later replaced by Claire M. Grady) (collectively, "Defendants") seeking declaratory and injunctive relief. Compl., ECF No. 1.

On May 31, 2018, Plaintiffs filed an Amended Complaint challenging then-Acting Secretary of Homeland Security Elaine C. Duke's termination of Temporary Protected Status ("TPS") for Haiti, effective July 22, 2019. Am. Compl., ECF No. 21. Plaintiffs claim the decision to terminate TPS for Haiti: (1) was arbitrary and capricious, an abuse of discretion, and otherwise not in accordance with law in violation of the Administrative Procedure Act ("APA"); (2) was based on a new and changed standard for conducting TPS review, violating both the APA and the Regulatory Flexibility Act ("RFA"); (3) violated the Due Process and Equal Protection clauses of the Fifth Amendment of the Constitution; and (4) was ultra vires of the Immigration and Nationality Act ("INA").

On October 9, 2018, Defendants moved to dismiss the action pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure. Def. Mot., ECF No. 58 ; see also Def. Mem. ECF No. 59 ; Pl. Opp'n, ECF No. 62 ; Def. Reply, ECF No. 63. On October 30, 2018, Defendants filed a motion to stay this action pending final appellate review of the preliminary injunction issued in Ramos v. Nielsen , 336 F.Supp.3d 1075 (N.D. Cal. 2018). Mot. to Stay, ECF No. 65. After the motions were fully briefed, the Court held oral argument on the motions on November 13, 2018. At the hearing, this Court made an oral ruling denying both Defendants' motion to dismiss and motion to stay, see Nov. 13, 2018 Tr., ECF No. 72, and issued a written decision and order on December 14, 2018, ECF No. 96.

From January 7, 2019 through January 10, 2019, this Court held a bench trial in this action to determine the propriety of a preliminary injunction. During the trial, the Court heard testimony from eight witnesses called by Plaintiffs. The witnesses included: two individual plaintiffs, Rachelle Guirand and Naischa Vilme; representatives of the two organizational plaintiffs, Haiti Liberté and the Family Action Network Movement, Inc. ("FANM"); and four expert witnesses. The expert witnesses included Ellie Happel and Brian Concannon, experts on country conditions in Haiti; Michael Posner, a former Assistant Secretary of State and an expert on Department of State practice and procedure; and Leon Rodriguez, the former Director of the United States Citizenship and Immigration Services ("USCIS") and an expert on USCIS practice and procedure. Defendants called no witnesses at trial. The parties entered into evidence deposition designations from eight witnesses, including witnesses called in Ramos . On January 10, 2019, this Court admitted these deposition transcripts in their entirety. See Order, ECF No. 133 ; Trial Tr. at 610-11. At the conclusion of trial, the Court reserved judgment and directed the parties to file proposed findings of fact and conclusions of law. Trial Tr. at 728:10-14; see Pls. Proposed Findings of Fact and Concls. of Law ("Pl. Br."), ECF No. 146-1 ; Defs. Proposed Findings of Fact and Concls. of Law ("Def. Br."), ECF No. 136 ; Pl. Resp. to Defs. Proposed Findings of Fact and Concls. of Law ("Pl. Reply"), ECF No. 154 ; Defs. Resp. to Pls. Proposed Findings of Fact and Concls. of Law ("Def. Reply"), ECF No. 153.

JURISDICTION

This Court previously held the judicial review provision of the TPS statute, 8 U.S.C. § 1254a(b)(5)(A), does not bar review *330 of Secretary Duke's decisionmaking process for terminating Haiti's TPS. See Saget v. Trump , 345 F.Supp.3d 287 (E.D.N.Y. 2018) (Kuntz, J.). Nevertheless, Defendants continue to assert this Court lacks subject matter jurisdiction. First, Defendants argue Section 1254a(b)(5)(A) bars judicial review of claims relating to the Secretary's determination, be they statutory or constitutional. Def. Br. at 47-50. The TPS statute strips courts of jurisdiction to review "any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection." 8 U.S.C. § 1254a(b)(5)(A). Second, Defendants contend the Court also lacks subject matter jurisdiction over all claims against the President.

A. Subject Matter Jurisdiction Over Plaintiffs' Claims

Because, as Defendants argue, Plaintiffs challenge "the content and factual accuracy" of Secretary Duke's decision, the TPS statute bars this Court from reviewing Plaintiffs' claims. Def. Br. at 48. Defendants also argue the statute bars judicial review even when the Secretary violates the TPS statute. Id. at 49. The Court addresses these arguments in turn and concludes it has subject matter jurisdiction over all of Plaintiffs' claims.

i. General Legal Standards

With respect to Plaintiffs' APA claims, there is a "strong presumption that Congress intends judicial review of administrative action." Bowen v. Mich. Acad. of Family Physicians , 476 U.S. 667 , 670, 106 S.Ct. 2133 , 90 L.Ed.2d 623 (1986). As a result, "statutory limitations on judicial review of agency action should be interpreted narrowly in light of the APA's strong presumption in favor of judicial review." Sharkey v. Quarantillo , 541 F.3d 75 , 84 (2d Cir. 2008) (citing I.N.S. v. St. Syr , 533 U.S. 289 , 298, 121 S.Ct. 2271 , 150 L.Ed.2d 347 (2001) ; Bowen , 476 U.S. at 670 , 106 S.Ct. 2133 ). Given this strong presumption, courts must "restrict access to judicial review" of administrative action "only upon a showing of 'clear and convincing evidence' of contrary legislative intent." Bowen , 476 U.S. at 671 -73 , 106 S.Ct. 2133 (quoting Abbott Labs. v. Gardner , 387 U.S. 136 , 141, 87 S.Ct. 1507 , 18 L.Ed.2d 681 (1967) ). Similarly, with respect to Plaintiffs' constitutional claims, "where Congress intends to preclude judicial review of constitutional claims its intent to do so must be clear." Webster v. Doe , 486 U.S. 592 , 603, 108 S.Ct. 2047 , 100 L.Ed.2d 632 (1988) (citation omitted).

ii. Discussion

Defendants face " 'the heavy burden of overcoming the strong presumption that Congress did not mean to prohibit all judicial review of [its] decision.' " Salazar v. King , 822 F.3d 61 , 75 (2d Cir. 2016) (quoting Dunlop v. Bachowski , 421 U.S. 560 , 567, 95 S.Ct. 1851 , 44 L.Ed.2d 377 (1975) ). Defendants contend they meet this burden because the plain text of the TPS statute precludes judicial review. Def. Br. at 48-49. The defendants in Ramos v. Nielsen , 321 F.Supp.3d 1083 (N.D. Cal. 2018), and Centro Presente v. Department of Homeland Security , 332 F.Supp.3d 393 (D. Mass. 2018), advanced similar jurisdictional arguments, which both courts rejected. See Ramos , 321 F.Supp.3d at 1104 (concluding the Government could not show "clear and convincing evidence of Congressional intent to strip jurisdiction of the courts to review generally applicable policies and practices which transcend individual TPS determination for a particular country"); Centro Presente , 332 F.Supp.3d at 409 (holding the plaintiffs' challenge was "sufficiently collateral that *331 the Court has jurisdiction over both the constitutional and statutory claims").

In denying Defendants' motion to dismiss, the Court compared the instant action to McNary v. Haitian Refugee Center , 498 U.S. 479 , 111 S.Ct. 888 , 112 L.Ed.2d 1005 (1991). In McNary , the Supreme Court held the Immigration Reform and Control Act ("Reform Act") did not bar constitutional and statutory challenges to INS's decision making process regarding special agricultural worker status "given the absence of clear congressional language mandating preclusion of federal jurisdiction and the nature of respondents' requested relief." Id. at 483-84 , 111 S.Ct. 888 . Critically, the plaintiffs in McNary did not seek a substantive declaration. Id. at 495 , 111 S.Ct. 888 ; see also Reno v. Catholic Soc. Servs., Inc. , 509 U.S. 43 , 55-56, 113 S.Ct. 2485 , 125 L.Ed.2d 38 (1993) (applying McNary to conclude the Reform Act did not preclude "jurisdiction over an action challenging the legality of a regulation without referring to or relying on the denial of any individual application"). The Reform Act's jurisdiction-stripping provision is very similar to that of the TPS statute. Whereas the TPS statute provides "[t]here no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state," 8 U.S.C. § 1254a(b)(5)(A) (emphasis added), the Reform Act provides "[t]here shall be no ... judicial review of a determination respecting an application for adjustment of status," 8 U.S.C. § 1160 (e)(1) (emphasis added). See also McNary , 498 U.S. at 492 , 111 S.Ct. 888 .

The construction of the TPS statute does not evince an intent to bar all judicial review. If Congress intended to bar collateral challenges to the processes underlying TPS determinations, it very well could have by using "broader statutory language," such as language proscribing "all causes ... arising under" the statute or "referring to review 'on all questions of law and fact,' " as Congress has done elsewhere in the INA. McNary , 498 U.S. at 494 , 111 S.Ct. 888 ; compare 8 U.S.C. § 1252 (b)(9) ("Judicial review of all questions of law and fact, including interpretation and application of constitutional and statutory provisions , arising from any action taken or proceeding brought to remove an alien ... shall be available only injudicial review of a final order under this section." (emphasis added) ), with id. § 1254a(b)(5)(A) ("There is no judicial review of any determination of the Attorney General with respect to the designation, or termination or extension of a designation, of a foreign state under this subsection."). Thus, as the Court concluded previously, the text of the TPS statute demonstrates the jurisdiction-stripping provision proscribes only direct review of individual TPS determinations.

Despite the Court's prior decision, Defendants argue the evidence presented at trial "demonstrates that Plaintiffs' real objective is not to establish a process-based deficiency, but instead to challenge both the content of [Secretary] Duke['s] decision and the factual accuracy of Acting Secretary Duke's findings." Def. Br. at 47-48. Defendants point to Plaintiffs' expert testimony regarding country conditions in Haiti to suggest Plaintiffs' motive is to challenge the substance of the decision itself. Id. at 48 . In response, Plaintiffs argue they did not call country conditions experts to contradict factual findings but rather to demonstrate Defendants "intentionally disregarded and/or misconstrued relevant, available evidence and therefore violated the procedural requirements of the TPS statute." Pl. Reply at 23. Ultimately, Plaintiffs do not ask the Court to make findings of fact concerning current *332 conditions in Haiti or to evaluate the factual accuracy of Acting Secretary Duke's findings. Id. at 22 . Rather, "Plaintiffs have requested that the Court make findings of fact relating to deficiencies in the process employed by Defendants to terminate TPS for Haiti." Id. At trial, Plaintiffs brought experts who spoke directly to the typical processes employed at DHS and the Department of State leading up to TPS determinations and the alleged procedural deficiencies in the decision to terminate Haiti's TPS. As Plaintiffs point out, "most of the evidence that Plaintiffs presented at trial speaks directly to process-based deficiencies in the Trump Administration's policies and practices for reviewing TPS." Id. at 23 .

Defendants also argue Plaintiffs' legal assertions evince a "quintessential arbitrary-and-capricious challenge to the agency decision itself." Def. Reply at 3. But again, Plaintiffs' claims rely on process-based deficiencies. Plaintiffs do not challenge the content of the decision. They do not seek a substantive declaration from the Court they are entitled to a TPS determination in their favor. Pl. Br. at 90. Plaintiffs' success in this case would not compel Defendants to extend Haiti's TPS designation. Rather, it would require Defendants to make a new, good faith, fact-and evidence-based determination regarding Haiti's status by applying lawful criteria. See McNary , 498 U.S. at 495 , 111 S.Ct. 888 (noting respondents would be entitled only "to have their case files reopened and their applications reconsidered"); Centro Presente , 332 F.Supp.3d at 408 . If the Court were to grant Plaintiffs the relief they seek, Acting Secretary Duke's TPS determination would be set aside, and the DHS Secretary would need to make a new determination, applying lawful criteria-that is, criteria other than those Plaintiffs allege to be procedurally deficient. See id. at 408 . This very well could result in the same TPS determination.

Defendants cite several cases to support their argument the TPS statute bars this Court from reviewing Acting Secretary Duke's decision. See, e.g. , Gebhardt v. Nielsen , 879 F.3d 980 (9th Cir. 2018) ; Skagit Cty. Public Hosp. District No. 2 v. Shalala , 80 F.3d 379 (9th Cir. 1996) ; Palisades Gen. Hosp. v. Leavitt , 426 F.3d 400 (D.C. Cir. 2005) ; see also City of Rialto v. W. Coast Loading Corp. , 581 F.3d 865 (9th Cir. 2009). But Defendants' reliance on these cases is misplaced.

The issue in the present case is different from that in Gebhardt . In Gebhardt , the Ninth Circuit determined the Adam Walsh Act precluded judicial review of statutory claims because the explicit and clear language of the statute provides the Secretary with "sole and unreviewable discretion" over a determination bearing on the risk a citizen poses to a non-citizen being claimed as an immediate relative. 879 F.3d at 984 ; see also 8 U.S.C. § 1154 (a)(1)(A)(i). The TPS statute does not endow the Secretary with such unfettered discretion. It does not provide the Secretary with "sole and unreviewable discretion." Compare 8 U.S.C. § 1154 (a)(1)(A)(i), with 8 U.S.C. § 1254a(b)(5)(A). In fact, the TPS statute limits the Secretary's discretion by requiring the Secretary to, among other things: (1) consult with appropriate government agencies; (2) publish the basis for a determination in the federal register; and (3) terminate a foreign state's TPS if that state no longer meets the conditions for designation. See 8 U.S.C. §§ 1254a(b)(3)(A)-(B) (providing the Secretary " shall " fulfill these responsibilities (emphasis added) ). Thus, the requirements of the APA and the TPS statute itself constrain the Secretary. Put another way, the Secretary may not violate the *333 law. If she does, a federal court may hold her accountable.

The issues in this case also differ from those in Skagit County, Palisades General Hospital , and City of Rialto . In both Skagit County and Palisades General Hospital , the plaintiffs requested relief in the form of a substantive declaration from the court. See Skagit Cty. , 80 F.3d at 386 (asking the court "to order ... [the Health Care Finance Administration to] award [the plaintiff] its appropriate share of Medicare reimbursement"); Palisades Gen. Hosp. , 426 F.3d at 403-05 (citing the same "unique" statutory scheme as Skagit County , 42 U.S.C. § 1395 (d)(10)(C)(iii)(II), as the basis of finding the court lacked jurisdiction). Similarly, in City of Rialto , the Ninth Circuit determined a "pattern and practice" claim under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 was "decidedly substantive," distinguishing it from McNary in which the plaintiffs sought a "fair hearing" regarding the "deprivation of a substantial liberty interest." 581 F.3d at 876 , 878 . As the Court has already stressed, Plaintiffs seek neither a substantive declaration nor individualized relief. Rather, they seek to prevent the Secretary and DHS from making TPS determinations based on a subjective goal engineered toward termination rather than on the objective assessment required by law.

Moreover, the case at hand, unlike Skagit County, Palisades General Hospital , and City of Rialto , involves a substantial liberty interest-immigration status. Protecting liberty interests such as those associated with TPS is vital to the proper functioning of the rule of law: "Given th[ose] substantial liberty interest[s] and the 'well-settled presumption favoring interpretations of statutes that allow judicial review of administrative action,' " Congress did not isolate the immigrants in this case from seeking judicial review of their valid claims. See id. at 878 (quoting McNary , 498 U.S. at 496 , 111 S.Ct. 888 ).

If the Court did not have jurisdiction to hear Plaintiffs' claims, there would be no judicial avenue by which Plaintiffs could meaningfully object to DHS procedure regarding TPS determinations at large. See McNary , 498 U.S. at 496 , 111 S.Ct. 888 . Defendants argued at the Preliminary Injunction Hearing Plaintiffs' only recourse is to lobby Congress to enact legislation to designate a given country for TPS. See Trial Tr. at 720:16-721:9. Defendants note they would maintain this position even if the DHS Secretary deliberately and blatantly violated the dictates of the APA or the TPS statute. Id. ; see also Def. Br. at 49 (stating "judicial review is ... not permitted even in a scenario where a Secretary of Homeland Security violates the TPS statute" (emphasis added) ). The language of the TPS statute does not provide such an unrestrained destruction of the rule of law. Given "our well-settled presumption favoring interpretations of statutes that allow judicial of review of administrative action" and the limited review provisions of the TPS statute, the Court finds Defendants fail to meet their burden of demonstrating Congress intended "to foreclose all forms of meaningful judicial review" under the TPS statute. See McNary , 498 U.S. at 496 , 111 S.Ct. 888 (citation omitted). Accordingly, the Court has subject-matter jurisdiction over Plaintiffs' claims.

B. Plaintiffs Claims Against the President

Defendants also contend this Court does not have subject matter jurisdiction over Plaintiffs' claims against the President, who Plaintiffs sue in his official capacity. Def. Br. at 50; Def. Reply at 7. This Court previously held it was premature to dismiss the President as a party to *334 this action when it denied Defendants' Motion to Dismiss. See Saget , 345 F.Supp.3d at 297 . Courts possess the power to grant injunctive relief against subordinate executive officials, Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579 , 584, 588, 72 S.Ct. 863 , 96 L.Ed. 1153 (1952), as well as the President, Clinton v. New York , 524 U.S. 417 , 433, 118 S.Ct. 2091 , 141 L.Ed.2d 393 (1998) ; Nixon v. Fitzgerald , 457 U.S. 731 , 753-54, 102 S.Ct. 2690 , 73 L.Ed.2d 349 (1982). That no individual is above the law is a well-settled principle in this nation. See Nixon , 457 U.S. at 754 , 102 S.Ct. 2690 (citing Youngstown Sheet & Tube Co. , 343 U.S. at 579 , 72 S.Ct. 863 ; United States v. Burr , 25 F. Cas. 30 , 34 (C.C. Va. 1807) (Marshall, C.J.) (contrasting the "principle of the English constitution that the king can do no wrong," with the U.S. constitution, which explicitly includes provisions for impeachment and removal) ).

Enjoining the President from certain action is "extraordinary" relief, but it may nonetheless be available in certain circumstances. Franklin v. Massachusetts , 505 U.S. 788 , 802-03, 112 S.Ct. 2767 , 120 L.Ed.2d 636 (1992). Courts "must balance the constitutional weight of the interest to be served against the dangers of intrusion on the authority and functions of the Executive Branch." Nixon , 457 U.S. at 754 , 102 S.Ct. 2690 .

Defendants previously invoked and incorporate by reference Franklin and Mississippi v. Johnson , 71 U.S. (4 Wall.) 475 , 18 L.Ed. 437 (1866), to argue this Court cannot enjoin the President in this action. See Def. Br. at 50. In Mississippi , a group of Southern states sought to enjoin President Johnson and his subordinate officials from enforcing the post- Civil War Reconstruction Acts passed by Congress, which the Supreme Court deemed unconstitutional. 71 U.S. (Wall.) at 498 . Although it dismissed the suit as to all defendants, the Mississippi Court-as the Court in Franklin acknowledged-did not bar injunctive relief against the President in all cases; instead, it left the door open for "a judicial injunction requiring the performance of a purely 'ministerial' duty." Franklin , 505 U.S. at 802 -03 , 112 S.Ct. 2767 (quoting Mississippi v. Johnson , 71 U.S. (4 Wall) at 498-99 ). And as the D.C. Circuit has advised, courts "should be extremely reluctant in light of the fundamental constitutional reasons for subjecting Executive actions to the purview of judicial scrutiny to hold that the federal judiciary lacks power to compel the President to perform a ministerial duty in accordance with the law." Nat'l Treasury Emps. Union v. Nixon , 492 F.2d 587 , 612 (D.C. Cir. 1974) (issuing a declaratory judgment against the President). The correction of an unlawful act "far more closely resembles the performance of 'a mere ministerial duty,' where 'nothing [is] left to discretion,' than the performance of a 'purely executive and political' duty requiring the exercise of discretion vested in the President." Knight First Amendment Inst. v. Trump , 302 F.Supp.3d 541 , 578 (S.D.N.Y. 2018) ( Buchwald, J.) (quoting Mississippi , 71 U.S. (4 Wall.) at 499 ).

Plaintiffs argue injunctive relief against the President is proper in this case. Pl. Br. at 92-93. They contend "[a]n injunction against the President is ... appropriate to ensure that the Secretary's new decision on whether to extend or terminate TPS for Haiti is based on a review of the proper statutory criteria and not prejudicial influence motivated by racial animus." Id. In balancing the weight of the interests to be served by injunctive relief against the intrusion into Executive affairs, the Court concludes, at this time, enjoining the President to ensure executive officials operate in accordance with the law is appropriate in this case and *335 well within the Court's power. The Government's comparison to Mississippi -where states that disagreed with the constitutionality of a law sought to enjoin the President from enforcing it-is inapposite. Here, unlike in Mississippi , injunctive relief against the President corrects unlawful conduct (rather than promotes it) and ensures the decision to extend or terminate TPS for Haiti is in accordance with the law. Plaintiffs cite numerous statements made by the President himself to support their respective claims in this action, and evidence within the administrative record reflects the influence of several senior White House officials. See, e.g. , Suppl. Admin. R. at 127-29 (White House-sponsored small group meeting coordinating TPS process); id. at 283 (Duke's handwritten notes describing phone call with White House officials). Such involvement suggests enjoining the Secretary alone would not afford complete relief sought by Plaintiffs. Moreover, any intrusion into executive function would be minimal; the Court is not directing the President or any executive official to reach a certain policy conclusion but rather to abide by the mandates of the APA, the TPS statute, and the Constitution. The United States is a government of laws, not of men. Executive officials, be they senior or subordinate, must follow the law.

The Government also cites as support Doe 2 v. Trump , 319 F.Supp.3d 539 (D.D.C. 2018). There, plaintiffs filed suit seeking injunctive relief against the President after he issued a statement via Twitter announcing "the United states Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military," Id. at 540 . The court dismissed the President as a party in the action, based "on the particular facts of this case- where no relief is available from the President himself, the Court can review the policy at issue without the President as a party, and Plaintiffs can obtain all of the relief that they seek from other Defendants." Id. at 542-43 .

But Doe 2 is markedly different from the instant action. First, the plaintiffs sought to declare a presidential policy itself was unconstitutional, not that the means by which the policy was enacted was unlawful. Second, the policy at issue in Doe 2 was without question "an official, non-ministerial act of the President[.]" Id. at 541 . Here, injunctive relief against the President does not invade the province of executive discretion as it would in Doe 2 ; rather, enjoining the President and other executive officials from violating the TPS statute is akin to performing a ministerial duty and ensuring executive officials follow the laws enacted by the Congress. See Knight First Amendment Inst. , 302 F.Supp.3d at 578 -79 . Third, the plaintiffs in Doe 2 explicitly stated in their Second Amended Complaint "they are no longer seeking preliminary (or permanent) injunctive relief from the President at all." Doe 2 , 319 F.Supp.3d at 541 . Here, Plaintiffs continue to seek relief against the President.

Accordingly, the Court concludes at this stage of the litigation the President is an appropriate party to the action.

STANDING

The Court next addresses "the threshold question in every federal case": whether Plaintiffs have standing. Denney v. Deutsche Bank AG , 443 F.3d 253 , 263 (2d Cir. 2006). Because federal courts may hear only actual cases or controversies, litigants must "satisfy th[is] 'irreducible constitutional minimum' of Article III standing" before their claims may be properly heard in federal court. Strubel v. Comenity Bank , 842 F.3d 181 , 187 (2d Cir. 2016) (quoting *336 Lujan v. Defs. of Wildlife , 504 U.S. 555 , 560-61, 112 S.Ct. 2130 , 119 L.Ed.2d 351 (1992) ). To establish standing, a plaintiff must have first suffered an "injury in fact,... an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical." Lujan , 504 U.S. at 560 , 112 S.Ct. 2130 (internal quotation marks and citations omitted); see also Spokeo, Inc. v. Robins , --- U.S. ----, 136 S.Ct. 1540 , 1547-48, 194 L.Ed.2d 635 (2016). Congress may construct a statutory right that, if violated, would lead to an injury in fact that would not otherwise be cognizable. See, e.g. , Fed. Election Comm'n v. Akins , 524 U.S. 11 , 19-21, 118 S.Ct. 1777 , 141 L.Ed.2d 10 (1998) (holding advocacy organizations' "inability to obtain information" that Congress determined to make public by statute is a concrete injury satisfying the standing requirement of Article III); Spokeo, Inc. , 136 S.Ct. at 1549-50 (listing cases); id. at 1554-55 (Ginsburg, J., dissenting) (listing cases). Second, a plaintiff must show the injury is "fairly traceable" to the defendant's challenged action. Lujan , 504 U.S. at 560 , 112 S.Ct. 2130 (alterations omitted). Third, a plaintiff must show "the injury will be redressed by a favorable decision." Id. at 561 , 112 S.Ct. 2130 (internal quotation marks omitted).

The requirements for "organizational" standing, when an organization sues on its own behalf to vindicate a right, are the same. See Havens Realty Corp. v. Coleman , 455 U.S. 363 , 378-79, 102 S.Ct. 1114 , 71 L.Ed.2d 214 (1982) ; N.Y. Civil Liberties Union v. N.Y.C. Transit Auth. , 684 F.3d 286 , 294 (2d Cir. 2012). If an organization is suing on behalf of its members, or asserting "associational" standing, it must also show: "(a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization's purposes; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Hunt v. Wash. State Apple Advert. Comm'n , 432 U.S. 333 , 343, 97 S.Ct. 2434 , 53 L.Ed.2d 383 (1977). An interest is "germane" to an organization's purpose if the litigation would "reasonably tend to further the general interests that individual members sought to vindicate in joining the association and ... bears a reasonable connection to the association's knowledge and experience." Bldg. & Constr. at Trades Council & Vicinity v. Downtown Dev., Inc. , 448 F.3d 138 , 149 (2d Cir. 2006) ; see also Humane Soc. of the U.S. v. Hodel , 840 F.2d 45 , 58 (D.C. Cir. 1988) (noting germaneness requires only "mere pertinence between litigation subject and organizational purpose"). The third requirement is "only a prudential one" and "not an element of Article Ill's jurisdictional limitations on the power of the federal courts." New York v. U.S. Dep't of Commerce , 351 F.Supp.3d 502 , 605 (S.D.N.Y. 2019) (Furman, J.) (citing Food & Commercial Workers v. Brown Grp. , 517 U.S. 544 , 544, 116 S.Ct. 1529 , 134 L.Ed.2d 758 (1996) ).

Defendants argue Haiti Liberté lacks organizational standing because it has not suffered an injury-in-fact that is concrete and particularized and because "Plaintiffs cannot prove the causation prong to show Haiti Liberté's organizational standing." Def. Reply at 11. The Government also argues Haiti Liberté lacks standing under the RFA because it should not be considered a "small entity." See Def. Br. at 66-67; Def. Reply at 8-10. 14 In response, Plaintiffs contend Haiti Liberté has organizational and associational standing to sue *337 Defendants because its readership in the United States will be reduced by approximately ten percent if Haiti's TPS is terminated and because one of its employees, Mr. Rateau, is a Haitian TPS beneficiary. Pl. Br. at 84, 86-87. They argue as a concrete injury "the loss of one of its most important writers" and a "decrease in readership and revenue." Pl. Reply at 40. Additionally. Haiti Liberté asserts it has standing under the RFA as a "small business" or "small entity" because it does not dominate the field of newspaper publishing and has approximately twelve employees. Id. at 86; Pl. Reply at 39-40.

The Court agrees with Defendants that Haiti Liberté's interest in reducing its readership and advertising revenues in the United States is not a concrete future injury actually or imminently threatened by the challenged action of Defendants. Thus, Haiti Liberté fails to establish an injury-in-fact and lacks organizational standing. 15 If Haiti's TPS expires, and TPS beneficiaries return to Haiti, these beneficiaries would still be able to access and read Haiti Liberté's weekly newspaper. Indeed, Mr. Kim Ives, a journalist for Haiti Liberté, testified readers situated in Haiti can access the weekly paper online or in print because the organization maintains an office in Port-au-Prince. Trial Tr. at 359:21-22, 372:17-22 (Ives). Moreover, neither Mr. Ives nor Plaintiffs suggest Haiti Liberte would fire its key employee, Mr. Rateau, in the event his TPS status expires. Haiti Liberté would not suffer "the loss of one its most important writers" because of the Secretary's decision to terminate TPS for Haiti because he could work out of the Port-au-Prince office should he return to Haiti. Plaintiffs also have not proffered evidence the readership of Haiti Liberté overall would be reduced or harmed by some of its readership relocating from the United States to Haiti. Haiti Liberté also fails to show any loss in advertising based on terminating Haiti's TPS is a "concrete" future injury "certainly impending." See Lujan , 504 U.S. at 564 n.2, 112 S.Ct. 2130 ; Clapper v. Amnesty Int'l USA , 568 U.S. 398 , 409, 133 S.Ct. 1138 , 185 L.Ed.2d 264 (2013). The Court cannot rely on the mere conjecture of Mr. Ives without more evidence of a concrete injury. See Clapper , 568 U.S. at 409 , 133 S.Ct. 1138 ("Allegations of possible future injury are not sufficient." (internal quotation marks omitted) ).

Haiti Liberté's contention it maintains associational standing is also without merit. Even if the Court were to accept the tenuous argument the removal of Mr. Rateau would "make it exceedingly difficult for Haiti Liberté to cover news and current events in Haiti," Haiti Liberté still fails to meet the second criteria for associational standing. Pl. Br. at 84. 16 Rather than explain its interests or its broader purpose, Plaintiffs assert only "[t]he interests that Haiti Liberté seeks to protect through this lawsuit are germane to its purpose." Id. at 86. If the Court were to accept such a conclusory recitation without more, associational standing requirements would become toothless. Furthermore, this hollow argument fails for the same reason Haiti Liberté failed to establish organizational standing. As a Haitian weekly newspaper distributed in the United *338 States and in Haiti, Haiti Liberté does not proffer evidence to show its interests as an organization, such as maintaining its readership, would be harmed based on the residency of some of its readers, when the paper is accessible in Haiti. Haiti Liberté's "general interests" appear to be informing its readership and broader public about Haiti-centric issues, and it is not clear to this Court how its involvement in the action regarding the immigration status of some of its readers "bears a reasonable connection to the association's knowledge and experience." Bldg. & Constr. at Trades Council , 448 F.3d at 149 .

Because Haiti Liberté lacks organizational or associational standing, standing under the RFA is the only means by which it can remain in this action as a federal litigant. "The RFA requires administrative agencies to consider the effect of their actions on small entities, including small businesses, small non-profit enterprises, and small local governments." Nw. Mining Ass'n v. Babbitt , 5 F.Supp.2d 9 , 14 (D.D.C. 1998). The RFA provides "a small entity that is adversely affected or aggrieved by final agency action is entitled to judicial review." 5 U.S.C. § 611 (a)(1) ; see also Nw. Mining Ass'n , 5 F.Supp.2d at 13 . A "small entity" is "any not-for-profit enterprise which is independently owned and operated and is not dominant in its field." 5 U.S.C. § 601 (4). The D.C. Circuit "has consistently rejected the contention that the RFA applies to small businesses indirectly affected by the regulation of other entities." Cement Kiln Recycling Coal. v. E.P.A. , 255 F.3d 855 , 869 (D.C. Cir. 2001) ; see also Mid-Tex Elec. Coop. v. F.E.R.C. , 773 F.2d 327 , 342 (D.C. Cir. 1985) ("The problem Congress ... discerned was the high cost to small entities of compliance with uniform regulations, and the remedy Congress fashioned-careful consideration of those costs in regulatory flexibility analyses-is accordingly limited to small entities subject to the proposed regulation ." (emphasis added) ).

Here, Defendants do not contest Haiti Liberté is independently owned and operated, but they argue Haiti Liberté dominates its field because it is the largest Haitian weekly newspaper in New York City. Def. Br. at 66-67 (citations omitted). Moreover, in Defendants' view, while Plaintiffs submit Haiti Liberté makes no profit as a business, "such losses do not legally qualify Haiti Liberté as a 'not-for-profit enterprise' under the RFA." Def. Reply at 12-13. In response, Plaintiffs contend, at a minimum, Haiti Liberté is a "small business"[not dominant in the field of newspaper publishing because it has approximately twelve employees. Pl. Br. at 86-87 (citations omitted). According to Plaintiffs, "Defendants' attempt to narrow Haiti Liberté's 'field' to 'Haitian weekly newspaper[s] in New York' lacks any basis in law. The Small Business Association... does not list this category, nor does common sense dictate this conclusion. Pl. Reply at 40 (citations omitted). Even if Haiti Liberté is considered a small entity, Defendants still assert "Plaintiffs fail to prove that Haiti Liberté is 'adversely affected or aggrieved,' either through its workforce or readership." Def. Br. at 67 (quoting 5 U.S.C. § 611 (a)(1) ).

The Court need not decide whether Haiti Liberté is a "small entity" under the RFA because it concludes it is not a regulated small entity "adversely affected or aggrieved by final agency action" and therefore lacks prudential standing to bring its RFA claim. See Mid-Tex Elec. Coop., Inc. , 773 F.2d at 342 ; see also Permapost Prods., Inc. v. McHugh , 55 F.Supp.3d 14 , 30 (D.D.C. 2014) (applying the reasoning of Mid-Tex Electric Co-op., Inc. and holding company-plaintiffs lacked prudential standing to bring RFA claims *339 because they were not subject to the proposed regulation). Plaintiffs do not argue Haiti Liberté is a small entity subject to the decision to terminate Haiti's TPS; rather, they argue it would suffer economic harm through reduced readership and the relocation of one employee as an indirect result of the agency action. But as the Court has already concluded, Plaintiffs have failed to establish this hypothetical injury is concrete, particularized, and actual or imminent. Moreover, a decision to terminate TPS would "doubtless have economic impacts in many sectors of the economy. But to require an agency to assess the impact on all of the nation's small businesses possibly affected by a rule would be to convert every rulemaking process into a massive exercise in economic modeling, an approach" this Court, in accord with the D.C. Circuit, rejects. Cement Kiln Recycling Coal. , 255 F.3d at 869 (citing Mid-Tex Elec. Coop. , 773 F.2d at 343 ).

In sum, Haiti Liberté has failed to adduce cognizable evidence of an injury to confer standing. Accordingly, its claim against Defendants is dismissed.

PRELIMINARY INJUNCTION

Plaintiffs seek to enjoin Defendants' November 20, 2017 decision to terminate TPS status for Haitian beneficiaries. Compl. at 1. As a result, Plaintiffs' TPS status is set to expire on July 22, 2019. Pl. Ex. 341 at 3. For the reasons set forth below, Plaintiffs have demonstrated they are entitled to a preliminary injunction against termination of TPS status for Haitian beneficiaries.

A. General Legal Standards

A preliminary injunction is an equitable remedy a court may issue in its discretion. Silber v. Barbara's Bakery, Inc. , 950 F.Supp.2d 432 , 438-39 (E.D.N.Y. 2013) (Kuntz, J.) (citing Munaf v. Geren , 553 U.S. 674 , 689-90, 128 S.Ct. 2207 , 171 L.Ed.2d 1 (2008) ). A preliminary injunction preserves the status quo and the rights of the parties until a final adjudication on the merits. See N. Am. Soccer League, LLC v. U.S. Soccer Fed'n, Inc. , 883 F.3d 32 , 36 (2d Cir. 2018) ; see also Boardman v. Pac. Seafood Grp. , 822 F.3d 1011 , 1024 (9th Cir. 2016) ("The purpose of a preliminary injunction is to preserve the status quo ante litem ... [which] refers to the last uncontested status which preceded the pending controversy.") (internal quotation marks and citations omitted). Courts may enjoin future action by government officials where the traditional principles of equity support such relief. See, e.g. , Gonzales v. Oregon , 546 U.S. 243 , 260-61, 126 S.Ct. 904 , 163 L.Ed.2d 748 (2006) (affirming an injunction against the Attorney General in an APA action); Franklin v. Massachusetts , 505 U.S. 788 , 802, 112 S.Ct. 2767 , 120 L.Ed.2d 636 (1992) ("[I]njunctive relief against executive officials like the Secretary of Commerce is within the courts' power.").

In the Second Circuit, a party seeking a preliminary injunction must demonstrate: (1) irreparable harm; (2) either (a) a likelihood of success on the merits or (b) both serious questions on the merits and a balance of hardships decidedly favoring the moving party; and (3) that a preliminary injunction is in the public interest. N. Am. Soccer League, LLC , 883 F.3d at 37 ; see also Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7 , 20, 129 S.Ct. 365 , 172 L.Ed.2d 249 (2008). A showing that irreparable harm is probable in the absence of a preliminary injunction is "the single most important prerequisite for the issuance of a preliminary injunction." Bell & Howell: Mamiya Co. v. Masel Supply Co. Corp. , 719 F.2d 42 , 45 (2d Cir. 1983) (internal quotation marks omitted). Regarding the last two factors, because the Government is a party, and "the Government's *340 interest is the public interest," the balance of hardships and public interest merge as one factor. New York v. U.S. Dep't. of Commerce , 351 F.Supp.3d 502 , 673 (S.D.N.Y. 2019) (Furman, J.) (internal quotation marks omitted).

B. Likelihood of Success on the Merits/Serious Questions

i. APA and Ultra Vires Claims

a. Scope of Review

As a threshold matter, Defendants raise several evidentiary objections relevant to the Court's decision. First, Defendants argue the Court should decide this case based solely on the administrative record. Second, even if the Court reviews materials beyond the designated administrative record, Defendants argue this Court should not admit a number of documents on the bases of deliberative-process privilege and attorney-client privilege.

For the reasons discussed below, the Court holds it may consider evidence outside of the designated administrative record. Regardless of that finding, the evidence on the record is alone sufficient to establish Plaintiffs' likelihood of success on the merits. With respect to Defendants' privilege assertions, the Court has carefully reviewed Defendants' substantial privilege log in camera . 17 The Court admits only the privilege-log documents cited in this opinion.

Defendants argue the Court should decide this case based solely on the designated administrative record they have prepared for the Court's consideration. Def. Br. at 52 (citing Fla. Power & Light Co. v. Lorion , 470 U.S. 729 , 743-44, 105 S.Ct. 1598 , 84 L.Ed.2d 643 (1985) ). Plaintiffs, on the other hand, argue the Court can and should consider evidence outside the designated administrative record because they introduce "a wealth of specific evidence showing bad faith and improper behavior by Defendants." Pl. Reply at 26.

Courts reviewing agency action under the APA must base their review on the "whole record." 5 U.S.C. § 706 (2). Ordinarily, courts confine their review of administrative action under the APA to the full administrative record, which should include all materials the agency "compiled" that were before the agency when it made its decision. Citizens to Preserve Overton Park v. Volpe , 401 U.S. 402 , 419, 91 S.Ct. 814 , 28 L.Ed.2d 136 (1971) ; James Madison Ltd. by Hecht v. Ludwig , 82 F.3d 1085 , 1095 (D.C. Cir. 1996). When courts evaluate an agency's compliance with the APA, "the focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court." Camp v. Pitts , 411 U.S. 138 , 142, 93 S.Ct. 1241 , 36 L.Ed.2d 106 (1973) (per curiam). Ultimately, "[i]t is well settled that judicial review of agency action is normally confined to the full administrative record before the agency at the time the decision was made." Envtl. Def. Fund, Inc. v. Costle , 657 F.2d 274 , 284 (D.C. Cir. 1981).

The agency under review is ordinarily tasked with compiling the "whole" administrative record for the court. The "whole administrative record, however, is not necessarily those documents that the agency has compiled and submitted as 'the' administrative record." Thompson v. U.S. Dep't of Labor , 885 F.2d 551 , 555 (9th Cir. 1989) (internal quotation marks and citation omitted). Rather, "[t]he 'whole' administrative record ... consists of all documents and materials directly or indirectly considered by agency decision-makers, including *341 evidence contrary to the agency's position." Id. (internal quotation marks and citation omitted) (emphasis in original); see also Schicke v. Romney , 474 F.2d 309 , 315 (2d Cir. 1973) ("[T]he court must have before it the full administrative record which was before the agency and on which the agency determination was based.").

An agency's designation of the administrative record is entitled to a rebuttable " 'presumption of administrative regularity.' " New York , 351 F.Supp.3d at 632 (quoting Bar MK Ranches v. Yuetter , 994 F.2d 735 , 740 (10th Cir. 1993) ). A court is to assume "the agency properly designated the Administrative Record absent clear evidence to the contrary." Bar MK Ranches , 994 F.2d at 740 . If a party shows the record may be incomplete, additional discovery is appropriate. Id. Ultimately, it is the responsibility of the reviewing court to determine the administrative record is complete. See New York , 351 F.Supp.3d at 631-32 (noting the question of what constitutes the Administrative Record is "one for the Court" (citing Overton Park , 401 U.S. at 420 , 91 S.Ct. 814 ; Occidental Petroleum Corp. v. SEC , 873 F.2d 325 , 340 (D.C. Cir. 1989) ; Dopico v. Goldschmidt , 687 F.2d 644 , 654 (2d Cir. 1982) ; Suffolk Cty. v. Sec'y of Interior , 562 F.2d 1368 , 1384 n.9 (2d Cir. 1977) ).

Courts have delineated several circumstances in which a party may nevertheless include evidence beyond the scope of the designated administrative record. A court may consider extra-record or supplemental evidence when: (1) the agency's designated administrative record is incomplete, and the district court cannot conduct its review in accordance with the APA's "whole record" requirement; (2) when supplemental materials would illuminate a complex record; (3) when the court must look to supplemental materials to evaluate whether the agency failed to consider all relevant factors, ignored an important aspect of the problem, or deviated from established agency practices; and (4) when a plaintiff makes a "strong showing" the Government's decision was in bad faith. The Court discusses the grounds for considering supplemental or extra-record evidence in turn.

First , a court may look to evidence outside the agency's designated Administrative Record when it finds the Administrative Record so designated is incomplete. See, e.g. , Nat. Res. Def. Council v. Train , 519 F.2d 287 , 291 (D.C. Cir. 1975) (finding the plaintiffs "made a substantial showing in the District Court that the Administrator had not filed the entire administrative record with the court"). "The failure to include the information relied upon by the agency in the administrative record, even if later disclosed to the court is ... inconsistent with the Administrative Procedure Act's requirement that review take place on 'the whole record.' " U.S. Lines, Inc. v. Fed. Mar. Comm'n 584 F.2d 519 , 534 n.43 (D.C. Cir. 1978). Thus, "where it appears that the administrative record designated by the agency is not the 'whole record' that was before the agency decisionmakers at the time of decision, a court may order that the record be completed ." New York , 351 F.Supp.3d at 632 (citing Home Box Office, Inc. v. F.C.C. , 567 F.2d 9 , 54 (D.C. Cir. 1977) ). A court may accordingly order completion of the record when "a challenger shows that 'materials exist that were actually considered by the agency decision-makers but are not in the record as filed.' " Id. (quoting Comprehensive Cmty. Dev. Corp. v. Sebelius , 890 F.Supp.2d 305 , 309 (S.D.N.Y. 2012) (Engelmayer, J.) ). It may also do so when a challenger has *342 "made a prima facie showing that the agency excluded from the record evidence adverse to its position." Id. (internal quotation marks and citation omitted). Importantly, a court may also "consider evidence that was considered by the agency but omitted from the [designated] administrative record." New York v. Shalala , 93-CV-1330 (JFK), 1996 WL 87240 , at *5 (S.D.N.Y. Feb. 29, 1996) (Keenan, J.); see also Thompson , 885 F.2d at 555-56 (holding that letters outside the designated agency record "should have been included as part of the record" and that the "court can consider [them] in determining whether the Secretary's decision was 'arbitrary and capricious' ").

Second , a court may supplement the record with additional material, including, "for example, background information." See, e.g. , AT & T Info. Sys., Inc. v. Gen. Servs. Admin. , 810 F.2d 1233 , 1236 (D.C. Cir. 1987). It is "proper" for courts to consider supplemental materials to clarify or explain "the original information before the [a]gency" when such material would be "helpful in understanding the problem faced by the [a]gency and the methodology it used to resolve it." Ass'n of Pac. Fisheries v. EPA , 615 F.2d 794 , 811 (9th Cir. 1980) (Kennedy, J.). A party may not use supplemental materials admitted for this purpose "as a new rationalization either for sustaining or attacking the [a]gency's decision." Id. at 811-12 . Rather, "a court may consider such materials only to illuminate a complex record and to help the court better understand the issues involved." New York , 351 F.Supp.3d at 633 .

Third , a court may consider supplemental materials to evaluate "whether all relevant factors were examined by an agency," whether the agency ignored an important aspect of the problem, or whether the agency departed from established agency practices. See AT & T Info. Sys., Inc. , 810 F.2d at 1236 ; see also I.N.S. v. Yueh-Shaio Yang , 519 U.S. 26 , 32, 117 S.Ct. 350 , 136 L.Ed.2d 288 (1996) ; Motor Vehicle Mfrs. of U.S., Inc. v. State Farm. Mut. Auto. Ins. Co. , 463 U.S. 29 , 44,

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