Amicus Curiae Brief — Jose Santos Sanchez, et ux., Petitioners v. Alejandro N. Mayorkas, Secretary of Homeland Security, et al.

Supreme Court briefMar 1, 2021

Ask Donna

What actually matters in this document.

Text

No. 20-315

IN THE

Supreme Court of the United States

______________________

JOSE SANTOS SANCHEZ , ET AL.,

Petitioners,

ALEJANDRO N. MAYORKAS, SECRETARY OF HOMELAND

SECURITY , ET AL.,

Respondents.

__________________________

On Writ of Certiorari

to the United States Court of Appeals

for the Third Circuit

_____________

BRIEF OF AMIC US CURIAE

OXFAM AMERICA IN SUPPORT OF PETITIONERS

_____________

DIANA KEARNEY

LEGAL AND SHAREHOLDER

ADVOCACY ADVISOR

OXFAM AMERICA

1101 17TH STREET, NW

SUITE 1300

WASHINGTON DC 20036-4710

DIANA. KEARNEY@ OXFAM. ORG

EMILY JOHNSON HENN

COUNSEL OF RECORD

COVINGTON & BURLING LLP

3000 EL CAMINO REAL

5 PALO ALTO SQUARE, 10TH FLOOR

PALO ALTO, CA 94306-2112

EHENN@ COV. COM

(650) 632-4715

JULIANA GOLDROSEN

ANDREW S. GOVE

JENNA L. ZHANG

COVINGTON & BURLING LLP

SALESFORCE TOWER,

415 MISSION STREET ,

SUITE 5400

SAN FRANCISCO, CA 94105-2533

ETHAN A. SACHS

N ANDINI SINGH

COVINGTON & BURLING LLP

ONE CITYCENTER,

850 TENTH STREET , NW

WASHINGTON, DC 20001-4956

COUNSEL FOR AMICUS CURIAE

TABLE O F CO N TEN TS

Page

INTEREST OF THE AMICUS CURIAE .....................1

INTRODUCTION AND SUMMARY OF

ARGUMENT ........................................................2

ARGUMENT ...................................................................4

II.

El Salvador’s continuing struggle

with the impact of natural

disasters has made the country

unsafe for the return of TPS

holders. .................................................................4

Environmental disasters have increased

food insecurity and poverty in El

Salvador. ...................................................6

Salvadorian TPS holders would face the

threat of violent crime. ............................7

Haitian TPS holders would

return to a state of increasing

violence and a lack of food and

vital healthcare infrastructure. .......................10

Violent crime and civil unrest in Haiti

have intensified in recent years. ..........11

Ten years after the 2010 earthquake,

Haiti still lacks sufficient healthcare

infrastructure. ........................................13

—i—

III.

IV.

Haitians continue to struggle with

poverty-related conditions such as

scarcity of food, water, housing, and

economic opportunities..........................14

Honduras continues to be

ravaged by natural disasters that

have exacerbated dangerous

living conditions. ...............................................17

Honduras has yet to recover from the

1998 hurricane. ......................................18

Honduras is plagued by extreme

violence and impunity. ..........................21

South Sudanese TPS holders

would return to rampant violence

and a humanitarian crisis. ...............................23

Ongoing armed conflict in South Sudan

makes safe return impossible...............25

Violence targeting civilians, and in

particular women and children, is

prevalent. ................................................27

There is a humanitarian crisis in South

Sudan due to the desperate need for aid

and difficulty in providing it.................29

Yemeni TPS holders would

return to violent civil war and

severe shortages of food and

healthcare...........................................................32

—ii—

Yemen continues to suffer from chronic

violence, especially against civilians. ..34

The civil war has exacerbated food

insecurity. ...............................................37

The conflict has weakened Yemen's

healthcare infrastructure ......................39

CONCLUSION..............................................................41

—iii—

TABLE OF AUTHORITIES

Cases

Page(s)

Ramirez v. Brown,

852 F.3d 954 (9th Cir. 2017) ....................................3

Sanchez v. Secretary United States

Department of Homeland Security,

967 F.3d 242 (3d Cir. 2020) .....................................2

Statutes

8 U.S.C. § 1254a(b)(1) ....................................................3

8 U.S.C. § 1254a(b)(1)(C) .......................................... 2, 3

Other Authorities

64 Fed. Reg. 524 (Jan. 5, 1999) ...................................18

65 Fed. Reg. 30,438 (May 11, 2000)............................18

66 Fed. Reg. 14,214 (Mar. 9, 2001) ...............................4

66 Fed. Reg. 23,269 (May 8, 2001)..............................18

67 Fed. Reg. 22,451 (May 3, 2002)....................... 18, 19

67 Fed. Reg. 22,452 (May 3, 2002)..............................18

68 Fed. Reg. 23,745 (May 5, 2003)..............................17

75 Fed. Reg. 3,476 (Jan. 21, 2010) ..............................10

75 Fed. Reg. 39,556 (July 9, 2010)................................5

—iv—

76 Fed. Reg. 63,629 (Oct. 13, 2011) ..................... 24, 31

76 Fed. Reg. 68,488 (Nov. 4, 2011) .............................18

77 Fed Reg. 59,943 (Oct. 1, 2012) ...............................10

78 Fed. Reg. 1,866 (Jan. 9, 2013) ................................25

78 Fed. Reg. 20,123 (Apr. 3, 2013)....................... 17, 19

78 Fed. Reg. 32,418 (May 30, 2013)..............................5

79 Fed. Reg. 11,808 (Mar. 3, 2014) .............................10

79 Fed. Reg. 11,810 (Mar. 3, 2014) ............................10

79 Fed. Reg. 11,811 (Mar. 3, 2014) .............................10

79 Fed. Reg. 52,019 (Sept. 2, 2014) ..................... 25, 26

79 Fed. Reg. 62,170 (Oct. 16, 2014) ..................... 17, 19

80 Fed. Reg. 51,582 (Aug. 25, 2015) ...........................10

80 Fed. Reg. 51,583 (Aug. 25, 2015) ..........................10

80 Fed. Reg. 51,584 (Aug. 25, 2015) ...........................10

80 Fed. Reg. 53,319 (Sept. 3, 2015) ............... 33, 34, 37

81 Fed. Reg. 4,051 (Jan. 25, 2016) ..............................25

81 Fed. Reg. 30,331 (May 16, 2016)............................20

81 Fed. Reg. 44,645 (July 8, 2016)........................... 4, 6

82 Fed. Reg. 23,830 (May 24, 2017)............................10

—v—

82 Fed. Reg. 44,205 (Sept. 21, 2017) ............. 25, 28, 29

84 Fed. Reg. 13,688 (Apr. 5, 2019)................. 25, 28, 31

85 Fed. Reg. 12,313 (Mar. 4, 2020) ...................... 34, 40

85 Fed. Reg. 69,344 (Nov. 2, 2020) ................ 25, 26, 27

Amina Lahreche & Niko Alfred

Hobdari, Four Things to Know About

How Fragile States Like South

Sudan Are Coping With COVID-19,

Int’l Monetary Fund (Nov. 20, 2020) ............ 25, 29

AP Report: Yemen’s Food Donations Are

Being Snatched From the Starving,

PBS NewsHour (Dec. 18, 2018) .............................38

Claire Ribando Seelke, El Salvador:

Background and U.S. Relations,

Cong. Rsch. Serv. (July 1, 2020)..................... 6, 7, 8

Declan Walsh, The Tragedy of Saudi

Arabia’s War, N.Y. Times (Oct. 26,

2018) ............................................................ 34, 35, 38

Deported to Danger: United States

Deportation Policies Expose

Salvadorans to Death and Abuse,

Human Rights Watch (Feb. 5, 2020) ......................8

Dozens Dead in Central America

Tropical Storms, NBC News (June 1,

2010) .........................................................................19

—vi—

El Salvador: Events of 2020, Human

Rights Watch ........................................................ 7, 8

Extending Temporary Protected Status

for El Salvador: Country Conditions

and U.S. Legal Requirements, Ctr.

for Latin Am. & Latino Studies

(Dec. 2017) ........................................................ 4, 5, 9

Fact Sheet #1: Haiti – Complex

Emergency USAID (Jan. 19, 2021) .... 11, 12, 14, 15

Femicide and International Women’s

Rights: An Epidemic of Violence in

Latin America, Glob. Ams. Rep.

(2021) ............................................................. 7, 21, 22

Food Assistance Fact Sheet - South

Sudan, USAID (Mar. 30, 2020) .............................30

Haiti: Treating Trauma Patients

Affected by Chronic Violence, Doctors

Without Borders/Medecins Sans

Frontieres (Dec. 17, 2020) ......................................14

Harold Isaac et al., Haiti Braces for

Unrest As a Defiant President

Refuses to Step Down, N.Y. Times

(Feb. 9, 2021) ...........................................................13

Honduras: Events of 2019, Human

Rights Watch .................................................... 21, 22

Haiti: Events of 2020, Human Rights

Watch .......................................................... 11, 12, 15

—vii—

Honduras: Hurricane Eta and Iota –

Emergency Appeals No. MDR 43007

Operation Update No. 2, Int’l Fed’n

of Red Cross and Red Crescent

Soc’ys (Jan. 21, 2021)..............................................21

IPC Acute Food Insecurity Analysis:

Haiti, Integrated Food Security

Phase Classification (Sept. 2020) ..........................16

Jason Beaubien, Migrant Caravan:

Thousands Move Into Guatemala,

Hoping To Reach U.S., NPR (Jan.

18, 2021) ...................................................................22

Jennifer Williams, The Conflict in

South Sudan, Explained, Vox (Jan.

9, 2017) .....................................................................24

Jeremy M. Sharp, Yemen: Civil War

and Regional Intervention, Cong.

Rsch. Serv. (Dec. 8, 2020).............................. passim

Jessica Obert, Coronavirus in Haiti:

Weakened by Past Disasters, the

Country Was Already in Crisis, The

New Humanitarian (Apr. 20, 2020) ............... 13, 14

Julie Gregory & Aditi Gorur, Data

Overview: Violence Against Civilians

in South Sudan, Stimson Ctr. (Oct.

13, 2020) ...................................................................27

—viii—

Kent Garber et al., Estimating Access to

Health Care in Yemen, A Complex

Humanitarian Emergency Setting: A

Descriptive Applied Geospatial

Analysis, The Lancet (Nov. 2020) .........................40

Maureen Taft-Morales, Haiti’s Political

and Economic Conditions, Cong.

Rsch. Serv., R45034 (Mar. 5 2020)................. 11, 15

Miriam Jordan, Trump Administration

Says That Nearly 200,000

Salvadorans Must Leave, N.Y. Times

(Jan. 8, 2018) ...........................................................10

Nasser Abdulkareem, New Fuel Crisis

Deepens Suffering for Hungry

Yemenis, Norwegian Refugee

Council (Oct. 16, 2019) ...........................................38

Nick Cumming-Bruce, Mass Rape, a

Weapon of War, Traumatizes South

Sudan, N.Y. Times (Mar. 11, 2016) ......................28

Omer Karasapan, Yemen’s Civilians:

Besieged on All Sides, Brookings

Inst. (Mar. 31, 2020) ...............................................36

Omer Karasapan, Yemen and COVID19: The Pandemic Exacts Its

Devastating Toll, Brookings Inst.

(June 15, 2020) ................................................. 39, 40

Peter J. Meyer, Honduras: Background

and U.S. Relations, Cong. Rsch.

Serv. 4 (Apr. 27, 2020) ............................................22

—ix—

Rodrigo Barraza, et. al., COVID-19 and

Vulnerability: A Multidimensional

Poverty Perspective in El Salvador,

U.N.D.P. Latin America and the

Caribbean (May 2020) ..............................................9

Saeed Kamali Dehghan & Ahmad

Algohbary, Yemen's Food Crisis: 'We

are Broken, We Either Die from

Bombing or the Hunger', The

Guardian (Feb. 8, 2017) .........................................39

Silva Mathema & Tom Jawetz, TPS

Can Promote Stability and Recovery

for Central American Countries Hit

by Recent Hurricanes, Ctr. for Am.

Progress (2020)..........................................................6

South Sudan: Events of 2019, Human

Rights Watch ...........................................................29

South Sudan: United Nations Arms

Embargo Must Remain in Place

After Surge in Violence Against

Civilians in 2020, Amnesty Int’l

(Nov. 30, 2020).........................................................27

Starvation Being Used as a Method of

Warfare in South Sudan - UN Panel,

U.N. Human Rights Council (Oct. 6,

2020) .........................................................................30

Sumaya Bakhsh, Yemen: The Man Who

Lost 27 Family Members in an Air

Strike, BBC News (Nov. 4, 2016) ..........................35

—x—

The M7.3 Honduras Earthquake of May

28, 2009, Earthquake Eng’g Rsch.

Inst. (Aug. 2009)......................................................19

U.N. Human Rights Council, Situation

of Human Rights in Yemen,

Including Violations and Abuses

Since September 2014 (Sept. 28,

2020) ................................................................ passim

U.N. Mission in South Sudan: Mandate ....................27

U.N. Population Fund, World

Population Dashboard: South Sudan...................29

Unrest in Haiti: Their Impact on

Human Rights and the State’s

Obligation to Protect All Citizens,

U.N. Human Rights (Jan. 18, 2021) .....................12

U.N. Security Council Resolution 2521

(May 29, 2020) .........................................................27

U.N. World Food Programme, Food

Security and Emigration: Why

People Flee and the Impact on

Family Members Left Behind in El

Salvador, Guatemala and Honduras

(Aug. 22, 2017) ..........................................................7

U.N. World Food Programme, Tropical

Storm Amanda Severely Impacts

Food Security of 340,000

Salvadorans (June 8, 2020) .....................................7

—xi—

U.N. World Food Programme, Yemen

Emergency (2021) ....................................... 37, 38, 39

U.S. Dep’t of State, Bureau of Consular

Affairs, El Salvador Travel Advisory

(Sept. 14, 2020)..........................................................8

U.S. Dep’t of State, Bureau of Consular

Affairs, Haiti Travel Advisory (Aug.

6, 2020) .....................................................................13

U.S. Dep’t of State, Bureau of Consular

Affairs, South Sudan Travel

Advisory (Feb. 22, 2021).........................................25

U.S. Dep’t of State, Office of the

Historian, A Guide to the United

States’ History of Recognition,

Diplomatic, and Consular Relations,

by Country, Since 1776: South

Sudan .......................................................................24

U.S. Dep’t of State, U.S. Embassy in

South Sudan, Statement on the

Recent Killings of Humanitarian Aid

Workers (Nov. 4, 2020) ...........................................31

U.S. Embassy in Haiti, Alerts and

Messages...................................................................12

When it Rains it Pours: The Devastating

Impact of Hurricanes Eta and Iota in

Honduras, Amnesty Int’l (Dec. 13,

2020) .........................................................................20

—xii—

World Report 2021: Yemen, Human

Rights Watch (2021) ...............................................35

Yemen, A Complex Humanitarian

Emergency Setting: A Descriptive

Applied Geospatial Analysis, The

Lancet (Nov. 2020), .................................................40

Yemen Crisis: Why is There a War, BBC

News (June 19, 2020) .............................................39

Yemen Data Project (Dec. 31, 2020) ...........................35

Yemen Overview, World Bank (Oct. 1,

2020) .........................................................................40

Yemen: Saudi-led Funeral Attack

Apparent War Crime, Human Rights

Watch (Oct. 13, 2016) .............................................36

Yemen: US-made Bomb Used in Deadly

Air Strike on Civilians, Amnesty

Int’l (Sept. 26, 2019) ...............................................36

Yemen War: Saudi-led Air Strike on Bus

Kills 29 Children, BBC News (Aug.

9, 2018) .....................................................................36

—xiii—

IN TEREST O F THE AMICU S CU RIAE

Oxfam America (“Oxfam”), amicus curiae, is a

global organization working to end the injustices of

poverty in sixty-seven countries, including the

Republic of El Salvador, the Republic of Haiti, the

Republic of Honduras, the Republic of South Sudan,

and the Republic of Yemen.1

Oxfam can offer unique insight into conditions

on the ground in El Salvador, Haiti, Honduras, South

Sudan, and Yemen because its aid workers have

worked in these countries to develop community

driven projects, educate individuals about their basic

rights, assist with evacuations, and coordinate

response efforts to humanitarian crises. Oxfam has

witnessed and chronicled the living circumstances in

these countries through its deep and decades-long

relationships with local civil society.

Oxfam

continually assesses security and living conditions in

the countries where it works, both to inform its

humanitarian responses and to exercise its duty of

care toward its staff. Understanding the conditions in

these countries will aid the Court in evaluating the

impact of its decision on stakeholders such as

Petitioners. Requiring Temporary Protected Status

(“TPS”) holders to return to the unsafe conditions

described below in order to adjust their immigration

status would put thousands of TPS holders at risk,

1 All parties have consented in writing to the filing of

this brief. No counsel for either party authored this

brief in whole or in part, nor did any party or other

person make a monetary contribution to the brief’s

preparation or submission.

increase strain on limited humanitarian resources,

and be contrary to the intent of the TPS statute. See

18 U.S.C. § 1254a(b)(1)(C).

IN TRO D UCTIO N AN D

SU MMARY O F ARG U MEN T

Congress created the TPS program to “shield

aliens already in the country from removal when a

natural disaster or similar occurrence has rendered

[their] removal unsafe.” 2 That intent is clear from the

TPS statute’s face: 8 U.S.C. § 1254a(b)(1)(C) provides

that TPS is meant for circumstances where

“extraordinary and temporary conditions in [a]

foreign state . . . prevent aliens who are nationals of

the state from returning to the state in safety.” 3

The Third Circuit held that petitioners’

“interpretation . . . undermine[d] the purpose of the

TPS statute.”4

But it is the government’s

interpretation of the statute, not Petitioners’, that

undercuts TPS’s purpose. Under the government’s

interpretation, to become a lawful permanent

resident, TPS holders should be required “to exit the

United States to seek an immigrant visa through

processing at a U.S. embassy or consulate in another

Sanchez v. Secretary United States Department of

Homeland Security, 967 F.3d 242, 247 (3d Cir. 2020)

(internal quotation marks omitted).

3 Id.

4 Sanchez, 967 F.3d at 247.

—2—

country.”5 “Such processing usually takes place in the

alien’s home country.”6 Of course, to qualify for TPS

in the first place, the individual’s home country must

have been deemed “unsafe” by the Department of

Homeland Security.7

Violence and natural disasters in El Salvador,

Haiti, Honduras, South Sudan, and Yemen have

exacerbated the humanitarian crises that occasioned

their initial designation as TPS countries. The

government’s interpretation leaves only one viable

path for TPS holders to become lawful permanent

residents: they must return to the dangerous

conditions in their home countries, putting their lives

at risk and increasing the strain on the limited

resources of aid organizations such as Oxfam. It is

hard to imagine a result that is more at odds with

TPS’s purpose of “prevent[ing]” its beneficiaries “from

returning to” their disaster-ridden home countries.8

5 Ramirez v. Brown, 852 F.3d 954, 964 (9th Cir. 2017).

6 Id.

7 See 8 U.S.C. § 1254a(b)(1).

8 See id. § 1254a(b)(1)(C).

—3—

ARG U MEN T

EL SALVADOR’S CONTINUING

STRUGGLE WITH THE IMPACT OF

NATURAL DISASTERS HAS MADE THE

COUNTRY UNSAFE FOR THE RETURN

OF TPS HOLDERS.

The Department of Homeland Security

designated El Salvador under the Temporary

Protected Status Program in 2001 for a period of 18

months due to the destruction caused by three

earthquakes that El Salvador suffered in January and

February 2001.9

The earthquakes immediately

displaced almost 20 percent of El Salvador’s

population and caused an estimated $2.8 billion of

destruction to

housing, infrastructure, and

agriculture.

Since the 2001 TPS designation, DHS has

extended El Salvador’s TPS designation 11 times,

most recently in 2016.11 In extending El Salvador’s

9 66 Fed. Reg. 14,214 (Mar. 9, 2001).

10 Id.

Extending Temporary Protected Status for El

Salvador: Country Conditions and U.S. Legal

Requirements, Ctr. for Latin Am. & Latino Studies

10–24, (Dec. 2017), https://tinyurl.com/34nkw9sh; 81

Fed. Reg. 44,645 (July 8, 2016).

—4—

TPS designation, DHS considered country conditions

beyond the repercussions of the 2001 earthquakes. 12

For example, the 2010 extension cited

destruction from Tropical Storm Stan in 2005, the

eruption of the Santa Ana volcano in 2005,

earthquakes in 2006, and Hurricane Ida in 2009.

DHS found that these disasters displaced thousands

of Salvadorans, destroyed public infrastructure, and

contributed to food insecurity by destroying crops. 13

Separately, the 2010 extension also cited “a public

security crisis that threatens to undermine sustained

development and

confidence in

democratic

governance, as well as increasing levels of violent

crime” as a rationale for the TPS designation. 14 In

2013, DHS considered the effects of another 7.4

magnitude earthquake in 2012 and additional tropical

storms in 2011 and 2012, noting that “[a]lthough over

a decade has passed, affected areas of El Salvador are

still rebuilding from the devastating 2001

earthquakes.

Reconstruction efforts have been

further complicated by sluggish economic growth and

by more recent natural disasters.” 15 Finally, in 2016,

DHS found that El Salvador was experiencing a

devastating drought that led to $400 million of lost

Extending Temporary Protected Status for El

Salvador: Country Conditions and U.S. Legal

Requirements, Ctr. for Latin Am. & Latino Studies 3

(Dec. 2017), https://tinyurl.com/34nkw9sh.

13 75 Fed. Reg. 39,556 (July 9, 2010).

14 Id.

15 78 Fed. Reg. 32,418 (May 30, 2013).

—5—

crops and food insecurity, combined with a mosquito

borne disease outbreak, lack of access to basic

infrastructure such as clean water and electricity, and

increasing levels of unemployment and violent

crime.16

Environmental disasters have

increased food insecurity and

poverty in El Salvador.

Since DHS’s last extension of El Salvador’s TPS

designation in 2016, the conditions within El Salvador

have not materially improved. El Salvador is ranked

among the countries in the world most at risk from

natural disasters, due both to the frequency at which

they occur in the region as well as the country’s

inadequate ability to respond and rebuild. 17 In 2020

alone, El Salvador was hit by four major storms:

tropical storms Amanda and Cristobal, and

hurricanes Eta and Iota. These storms displaced over

12,000 residents and destroyed 42,000 hectares of

crops, leaving hundreds of thousands of Salvadorans

without adequate nutrition.18

Tropical Storm

Amanda, which hit El Salvador on May 31, 2020, left

16 81 Fed. Reg. 44,645 (July 8, 2016).

Claire Ribando Seelke, El Salvador: Background

and U.S. Relations, Cong. Rsch. Serv. 12 (July 1,

2020).

18 Silva Mathema & Tom Jawetz, TPS Can Promote

Stability and Recovery for Central American

Countries Hit by Recent Hurricanes, Ctr. for Am.

Progress 3 (2020), https://tinyurl.com/w26j8p6k.

—6—

almost 340,000 people in severe food insecurity. 19

These destructive storms came on the heels of a severe

drought that lasted three years (2014–2016) and that

had already pushed Salvadorans into poverty and food

insecurity.20

Salvadorian TPS holders would

face the threat of violent crime.

In addition to regular environmental disasters,

El Salvador is experiencing high levels of violence

related to gangs, drug traffickers, and its own security

forces.21

The country has the highest rate of

femicide—that is, murder because the victim is a

woman—in the world.22 Although homicide rates

dropped significantly in 2020, El Salvador still has a

large and active gang population.23 Gangs are known

U.N. World Food Programme, Tropical Storm

Amanda Severely Impacts Food Security of 340,000

Salvadorans

(June

2020),

https://tinyurl.com/3dbabape.

U.N. World Food Programme, Food Security and

Emigration: Why People Flee and the Impact on

Family Members Left Behind in El Salvador,

Guatemala and Honduras 5–6 (Aug. 22, 2017).

Claire Ribando Seelke, El Salvador: Background

and U.S. Relations, Cong. Rsch. Serv. 5–6 (July 1,

2020).

Femicide and International Women’s Rights: An

Epidemic of Violence in Latin America, Glob. Ams.

Rep. (2021), https://tinyurl.com/3sdpx32j.

23 El Salvador: Events of 2020, Human Rights Watch,

https://tinyurl.com/yh4yzbvy.

—7—

to kill, rape, “disappear,” and displace those who

stand in their way, and security forces are also

accused of committing human rights violations,

including extrajudicial killings.24

One study

estimated that crime and violence cost El Salvador

almost six percent of its GDP, and high crime rates

significantly hamper economic development in the

country.25 In light of these conditions, the U.S. State

Department has issued a Level Three travel warning

urging Americans to reconsider travel to El Salvador

due to violent crime and gang activity. 26 To make

matters worse, individuals who return to El Salvador

from the United States are often singled out for

kidnapping, extortion, and other forms of violence by

gangs and state actors. Human Rights Watch

reported that 138 Salvadorians forcibly deported to El

Salvador from the United States were killed between

2013 and 2019, a number that is likely an

undercount.27

24 Id.

Claire Ribando Seelke, El Salvador: Background

and U.S. Relations, Cong. Rsch. Serv. 11 (July 1,

2020).

26 U.S. Dep’t of State, Bureau of Consular Affairs, El

Salvador Travel Advisory

https://tinyurl.com/4yawt34s.

(Sept.

14,

2020),

Deported to Danger: United States Deportation

Policies Expose Salvadorans to Death and Abuse,

Human

Rights

Watch

(Feb.

2020),

https://tinyurl.com/6h5ux9n4.

—8—

***

In short, although decades have passed since

the earthquakes that prompted the original TPS

designation, El Salvador still has not recovered. One

study estimates that costs to rebuild from recurring

natural disasters in El Salvador amount to more than

$35 million per year.28 By 2018, 28 percent of

households live in multidimensional poverty, which is

equivalent to 2.2 million people,29 and this situation is

deteriorating with the pandemic. The return of TPS

holders seeking to adjust their status would put them

at risk of violence, poverty, and food insecurity. Not

only is this unsafe for El Salvadorian TPS holders, but

it threatens to increase the strain on El Salvador’s

resources and that of aid organizations. As one

Salvadoran TPS recipient put it, “[t]here is nothing to

go back to in El Salvador . . . [t]he infrastructure may

Extending Temporary Protected Status for El

Salvador: Country Conditions and U.S. Legal

Requirements, Ctr. for Latin Am. & Latino Studies 30

(Dec. 2017), https://tinyurl.com/34nkw9sh.

Rodrigo Barraza, et. al., COVID-19 and

Vulnerability:

Multidimensional

Poverty

Perspective in El Salvador, U.N.D.P. Latin America

and

the

Caribbean

(May

2020),

https://tinyurl.com/y84bf5fz.

—9—

be better now, but the country is in no condition to

receive us.”30

II.

HAITIAN TPS HOLDERS WOULD

RETURN TO A STATE OF INCREASING

VIOLENCE AND A LACK OF FOOD AND

VITAL HEALTHCARE

INFRASTRUCTURE.

Haiti was originally designated for TPS after

the 2010 earthquake that killed thousands, destroyed

critical infrastructure, and left millions without

adequate food, water, and housing.31 Since then,

Haiti’s TPS designation has been extended four times:

in October 2012, March 2014, August 2015, and May

2017.32 The first three extensions were based on

continuing

homelessness,

severely

damaged

infrastructure, food insecurity, political instability,

and violent crime.33 Unfortunately, these conditions

have persisted. The Congressional Research Service

has recognized that “Haiti is still recovering from the

devastating 2010 earthquake, as well as Hurricane

30 Miriam Jordan, Trump Administration Says That

Nearly 200,000 Salvadorans Must Leave, N.Y. Times

(Jan. 8, 2018), https://nyti.ms/2EmEtKl.

31 See 75 Fed. Reg. 3,476 (Jan. 21, 2010).

32 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); 82 Fed. Reg. 23,830 (May 24, 2017).

33 See 77 Fed. Reg. 59,943; 79 Fed. Reg. at 11,810–11;

80 Fed. Reg. at 51,583–84.

—10—

Matthew in 2016.”34 Furthermore, U.S. Ambassador

to Haiti, Michele J. Sison, declared a disaster in the

country on December 16, 2019 “due to the complex

emergency”35 consisting of growing threats of

violence, lack of healthcare, and food insecurity,

among other life-threatening conditions.

Violent crime and civil unrest in

Haiti have intensified in recent

years.

Haiti is currently facing “one of its worst

outbreaks of violence since 1986.” 36

Persistent

poverty and tensions related to public calls for an end

to political corruption have led to widespread protests

that have often resulted in violence and other human

rights violations. Between September and November

2019, over 42 people were killed and hundreds were

injured during Haitian political demonstrations. 37

The United Nations Office of Human Rights found

that “the number of human rights violations and

abuses against the rights to life and security of [a]

person” increased by 333 percent from July 2018 to

Maureen Taft-Morales, Haiti’s Political and

Economic Conditions, Cong. Rsch. Serv., R45034

(Mar. 5, 2020), https://tinyurl.com/989h4wff.

35 Fact Sheet #1: Haiti – Complex Emergency, USAID

5 (Jan. 19, 2021), https://tinyurl.com/2qp9dnmo.

Haiti: Events of 2020, Human Rights Watch,

https://tinyurl.com/5mmjfc3y.

Maureen Taft-Morales, Haiti’s Political and

Economic Conditions, Cong. Rsch. Serv., R45034

(Mar. 5 2020), https://tinyurl.com/989h4wff.

—11—

December 2019.38 Political unrest is expected to

intensify as calls for mass protests have grown. In the

first six weeks of 2021, the U.S. Embassy in Haiti has

already issued four security alerts regarding political

demonstrations in Port-au-Prince.39 The U.N. Office

of Human Rights warned that poverty and political

tensions in Haiti will lead to a “pattern of public

discontent followed by violent police repression and

other human rights violations.” 40

Violent crime has increased alongside the

threat of political violence. Humanitarian staff have

reported an increase in kidnappings and gang-related

violence in Port-au-Prince since late November

2020.41 From January 2020 to August 2020, the

United Nations Integrated Office in Haiti reported

“944 intentional homicides, 124 abductions, [] 78 cases

of sexual and gender-based violence,” and 159 deaths

that resulted from gang violence.42 In February 2021,

38 Unrest in Haiti: Their Impact on Human Rights and

the State’s Obligation to Protect All Citizens, U.N.

Human

Rights

(Jan.

18,

2021),

https://tinyurl.com/mzxnja9u.

U.S. Embassy in Haiti, Alerts and Messages,

https://tinyurl.com/5ebtdhc6.

40 Marta Hurtado, Press Briefing Notes on Haiti, U.N.

Human

Rights

(Jan.

https://tinyurl.com/4japhpfk.

19,

2021),

41 Fact Sheet #1: Haiti – Complex Emergency USAID

2 (Jan. 19, 2021), https://tinyurl.com/2qp9dnmo.

Haiti: Events of 2020, Human Rights Watch,

https://tinyurl.com/5mmjfc3y.

—12—

school closures were ordered, not because of COVID19, but rather an “epidemic” of kidnapping-for-ransom

that began in 2020.43 These security concerns have

been recognized by the U.S. State Department, which

classifies Haiti as a “Level 4: Do Not Travel” country

due to “crime, civil unrest, kidnapping, and COVID19.”44

Ten years after the 2010

earthquake, Haiti still lacks

sufficient healthcare

infrastructure.

The 2010 earthquake destroyed much of Haiti’s

healthcare infrastructure, including hospitals and

clinics. Over 10 years later, the country has yet to

recover. For example, Haiti has not completed

construction on its flagship general hospital in Portau-Prince, and a 2019 study found that Haiti had only

124 intensive care beds and 64 ventilators prior to the

onset of the COVID-19 pandemic.45 Haiti’s public

health system faced a chronic lack of resources before

the pandemic, and shortages of fuel, clean water,

Harold Isaac et al., Haiti Braces for Unrest As a

Defiant President Refuses to Step Down, N.Y. Times

(Feb. 9, 2021), https://tinyurl.com/bc5vwk55.

U.S. Dep’t of State, Bureau of Consular Affairs,

Haiti

Travel

Advisory

(Aug.

2020),

https://tinyurl.com/3befts6f (emphasis omitted).

45 Jessica Obert, Coronavirus in Haiti: Weakened by

Past Disasters, the Country Was Already in Crisis, The

New

Humanitarian

(Apr.

20,

2020),

https://tinyurl.com/ruhce2jd.

—13—

equipment, medicine, and staff have only grown more

severe. In fact, Haiti’s hospitals have faced increased

strain due to “repeated strikes and staffing shortages

due to violence against health workers, low or unpaid

wages, and the risks of COVID-19.”46 Shortages of

resources have caused medical staff to make difficult

decisions, such as turning patients away. 47 Since

November 2019, Doctors Without Borders has treated

1,795 trauma patients in its Tabarre hospital, which

represented only 28 percent of all patients who sought

care at the hospital for traumatic injuries.48

Haitians continue to struggle with

poverty-related conditions such as

scarcity of food, water, housing,

and economic opportunities.

Haiti is the poorest country in the Western

Hemisphere and one of the poorest countries in the

world. It ranks 170th out of 189 countries on the

Human Development Index, which is “a summary

Haiti: Treating Trauma Patients Affected by

Chronic Violence, Doctors Without Borders/Medecins

Sans

Frontieres

(Dec.

17,

2020),

https://tinyurl.com/4dka7fwh.

47 Jessica Obert, Coronavirus in Haiti: Weakened by

Past Disasters, the Country Was Already in Crisis, The

New

Humanitarian

(Apr.

20,

2020),

https://tinyurl.com/ruhce2jd.

Haiti: Treating Trauma Patients Affected by

Chronic Violence, Doctors Without Borders/Medecins

Sans

Frontieres

(Dec.

17,

2020),

https://tinyurl.com/4dka7fwh.

—14—

measure of average achievement in key dimensions of

human development: a long and healthy life, being

knowledgeable and hav[ing] a decent standard of

living.”49 Almost 60 percent of the population lives

under the national poverty line of $2.41 per day, and

almost 25 percent live under the national extreme

poverty line of $1.23 per day.50 In fact, almost a third

of Haiti’s GDP comes from remittances from Haitians

working in the United States.51 Returning to Haiti

would not only leave TPS holders with limited

economic opportunities but would also threaten to

further weaken Haiti’s struggling economy.

In addition to limited economic opportunities,

TPS holders forced to return to Haiti to adjust their

immigration status would face shortages of basic

resources necessary for survival. Over a “third of the

population lacks access to clean water[,] and two thirds ha[ve] limited or no sanitation.” 52 In February

2021, 42 percent of the Haitian population (around

four million people) faced high acute food insecurity—

meaning that they were in urgent need of aid—and

this number is expected to increase to 46 percent

U.N.

Development Programme,

Development

Index

(HDI)

https://tinyurl.com/4868rwah.

Human

(2020),

Maureen Taft-Morales, Haiti’s Political and

Economic Conditions, Cong. Rsch. Serv., R45034 4

(Mar. 5, 2020), https://tinyurl.com/989h4wff.

51 Id. at 16.

Haiti: Events of 2020, Human Rights Watch,

https://tinyurl.com/5mmjfc3y.

—15—

(around 4.4 million people) by June 2021. 53 These

issues are further exacerbated by chronic sociopolitical instability and COVID-19, which have

reduced access to food, increased food prices, and

reduced household purchasing power. 54

***

If Haitian TPS holders were required to return

to Haiti to adjust their immigration status, they

would face life-threatening conditions that are

predicted to get worse: an expanding threat of violent

crime and violent civil unrest, increasing food

insecurity, diminished healthcare infrastructure that

has been further taxed by a global pandemic, and

growing poverty. Requiring TPS holders to face such

unsafe conditions in a country where many of them

have no remaining ties would be a dangerous result

and contrary to TPS’s purpose of ensuring that TPS

holders can return to their home countries in safety.

53 IPC

Haiti Alert September 2020, Integrated Food

Security

Phase

Classification,

https://tinyurl.com/jfxrhj98 .

IPC Acute Food Insecurity Analysis: Haiti,

Integrated Food Security Phase Classification (Sept.

2020), https://tinyurl.com/1i15jvfp.

—16—

III.

HONDURAS CONTINUES TO BE

RAVAGED BY NATURAL DISASTERS

THAT HAVE EXACERBATED

DANGEROUS LIVING CONDITIONS.

In October 1998, Hurricane Mitch slammed

into the coast of Honduras, bringing with it torrential

rains and winds topping 250 kilometers-per-hour.55

The storm soon overtook the entire nation, causing

immense devastation. In a matter of days, 5,657

Hondurans had been killed and another 12,272

injured.56 The rains caused extensive flooding and

mudslides in each of the country’s 18 departments,

ultimately destroying two-thirds of the nation’s roads

and bridges, 70 percent of its crops, and tens of

thousands of homes.57 Approximately 1.4 million

people—nearly one out of every five Hondurans—

were left homeless.58

Months later, Attorney General Janet Reno

determined that, in light of Hurricane Mitch,

Honduras was “unable, temporarily, to handle

adequately the return of [its] national[s]” living in the

55 See 78 Fed. Reg. 20,123 (Apr. 3, 2013) (hereinafter

2013 Honduras TPS Extension)

56 See 79 Fed. Reg. 62,170 (Oct. 16, 2014) (hereinafter

2014 Honduras TPS Extension)

See 68 Fed. Reg. 23,745 (May 5, 2003); 2013

Honduras TPS Extension; 2014 Honduras TPS

Extension.

See Activities in Honduras in Support of the

Hurricane Mitch Reconstruction Program, U.S.

Geological Survey, May 2002.

—17—

United States.59 She thus designated the country for

the Temporary Protected Status program on January

5, 1999.60

Honduras has yet to recover from

the 1998 hurricane.

The after-effects of Hurricane Mitch continued

to inflict “substantial disruption to living conditions”

in Honduras over the following decades. 61 And to

make matters worse, the storm was just the first in a

series of natural disasters that would decimate

Honduras.62 For example, in October 2001, almost

three years after Hurricane Mitch’s landing,

Honduras was struck by yet another storm, Hurricane

Michelle.63 Though not as severe, Michelle “affected

more than 50,000 people and damaged 1,300 houses”;

in combination with Mitch’s lingering effects, Michelle

“produced major problems of food insecurity,

unemployment, and displacement” and “weakened

the country to such an extent that subsequent

smaller scale disasters . . . had a much greater

impact.”64 Thus, seven years later, in October 2008,

59 64 Fed. Reg. 524 (Jan. 5, 1999).

60 Id.

61 65 Fed. Reg. 30,438

23,269 (May 8, 2001).

(May 11, 2000); 66 Fed. Reg.

62 See 76 Fed. Reg. 68,488 (Nov. 4, 2011) (hereinafter

2011 Honduras TPS Extension).

63 See 67 Fed. Reg. 22,452 (May 3, 2002).

64 67 Fed. Reg. 22,451 (May 3, 2002); 2011 Honduras

TPS Extension.

—18—

when Tropical Depression Sixteen brought a period of

extreme rain, more than half of the country’s roads

were destroyed by flooding.65 The following year, in

May 2009, a 7.3 magnitude earthquake further

damaged houses, bridges, and water systems. 66 A

year later, in May 2010, Tropical Storm Agatha made

landfall, causing more destruction to the country’s

infrastructure, and leaving thousands more

Hondurans without homes.67 In 2011, another series

of floods overtook much of the country’s Pacific region,

killing 29 people, harming major export plantations,

and causing approximately $205 million in losses. 68

The floods of 2011 were followed by a severe drought

in the spring of 2012.69 In 2013, a quarter of the

country’s coffee crops—one of its main exports—were

damaged by climate-related rust fungus.70 Parts of

2014 brought yet more drought, leading to more crop

failures and thus food shortages throughout the

country.71 And 2014 also brought extreme rains,

drastically increasing the prevalence of mosquito 65 Id.

See The M7.3 Honduras Earthquake of May 28,

2009, Earthquake Eng’g Rsch. Inst. (Aug. 2009),

https://tinyurl.com/4s6zcuw8.

See Dozens Dead in Central America Tropical

Storms,

NBC

News

(June

2010),

https://tinyurl.com/juu97934.

68 See 2014 Honduras TPS Extension.

69 See 2013 Honduras TPS Extension.

70 See 2014 Honduras TPS Extension.

71 Id.

—19—

borne diseases, such as dengue and chikungunya. 72

This influx of disease in turn strained the country’s

hospital system; by 2015, public hospitals were barely

able to provide medical treatment for common

illnesses.73 The combination of the environmental

and health emergencies took its toll on Honduras’

economy: by 2016, over “65 percent of the population

[was] living in poverty.” 74

This onslaught of environmental disasters and

the damage they wrought “exacerbated the persisting

disruptions caused by Hurricane Mitch” and led the

United States to extend Honduras’ TPS designation

thirteen times between 1999 and 2016. 75

Tragically, in November 2020, natural disaster

struck Honduras yet again: Tropical Storm Eta and

Hurricane Iota “devastated large swathes of

Honduras.”76 The Sula Valley region, the major

agricultural center for Honduras, was hit the hardest.

According to official figures, approximately 4.7 million

people were affected by Eta and Iota, and thousands

of houses were flooded with up to two meters of water,

72 See 81 Fed. Reg. 30,331 (May 16, 2016).

73 Id.

74 Id.

75 Id.

76 When it Rains it Pours: The Devastating Impact of

Hurricanes Eta and Iota in Honduras, Amnesty Int’l

(Dec. 13, 2020), https://tinyurl.com/hh6lrmju.

—20—

resulting in the loss of all household assets. 77 A total

of 927 roads were affected, and more than seventy-two

bridges damaged, with sixty-two destroyed, according

to the International Federation of Red Cross and Red

Crescent Societies.78 The estimated damage is near

$2 billion.79

Honduras is plagued by extreme

violence and impunity.

Along with the environmental destruction,

Honduras’ society has begun tearing apart at the

seams. Violent crime, gang activity, and human

trafficking is now widespread throughout the

country.80 The nation’s murder rate is among the

highest in the world 81 , and it has the second highest

rate of femicide, second only to El Salvador.82 “The

level of violence affecting women in El Salvador and

Honduras exceeds the combined rate of male and

female homicides in some of the 40 countries with the

Honduras: Hurricane Eta and Iota – Emergency

Appeals No. MDR 43007 Operation Update No. 2, Int’l

Fed’n of Red Cross and Red Crescent Soc’ys (Jan. 21,

2021), https://tinyurl.com/nrsjzc22.

78 Id.

79 Id.

See Honduras: Events of 2019, Human Rights

Watch (2020), https://tinyurl.com/1e2yxfpl.

81 Id.

Femicide and International Women’s Rights: An

Epidemic of Violence in Latin America, Glob. Ams.

Rep. (2021), https://tinyurl.com/3sdpx32j.

—21—

highest murder rates in the world, such as Ecuador,

Nicaragua and Tanzania.”83

The most recent

presidential election was tainted by “irregularities

and deficiencies” so severe that international groups

expressed doubt over the results. 84 And human rights

abuses abound: citizens are routinely tortured and

killed extrajudicially, criminal elements intimidate

the media, and indigenous and other minority

communities are faced with constant threat. 85 These

societal ills, in combination with the unending stretch

of natural disasters, have turned Honduras into one

of the world’s most vulnerable countries. Indeed,

mere weeks ago, thousands of Hondurans received

widespread international attention when they fled the

country by foot, headed north towards Guatemala and

Mexico. One of the migrants, “[a] light blue cloth face

mask hang[ing] from her chin, [and] several bags and

children . . . at her feet,” explained why the group had

fled: “We are leaving” Honduras, she said, “because

we don’t want to suffer further.” 86

83 Id.

See Peter J. Meyer, Honduras: Background and

U.S. Relations, Cong. Rsch. Serv. 4 (Apr. 27, 2020),

https://tinyurl.com/pdhjyc83.

See Honduras: Events of 2019, Human Rights

Watch (2020), https://tinyurl.com/1e2yxfpl.

Jason Beaubien, Migrant Caravan: Thousands

Move Into Guatemala, Hoping To Reach U.S., NPR

(Jan. 18, 2021), https://tinyurl.com/n27x8jl5.

—22—

***

Interpreting the TPS statute in the manner

proposed by the government would do the

unthinkable: it would send TPS immigrants, who

have lived peaceful and productive lives in this

country, back to a country where life is so fraught with

danger that its people are doing anything they can to

leave.

IV.

SOUTH SUDANESE TPS HOLDERS

WOULD RETURN TO RAMPANT

VIOLENCE AND A HUMANITARIAN

CRISIS.

South Sudan is a country born out of decades of

civil war with northern Sudan and for which

sustained peace and reliable government institutions

remain elusive. Displacement and food insecurity are

rampant amidst ongoing violence that targets

civilians. Compounding the problem, the distribution

humanitarian

aid

remains

almost

insurmountable challenge.

South Sudanese

refugees now number over two million, creating “the

largest refugee crisis in Africa, and the third largest

87 See South Sudan: In Focus, Cong. Rsch. Serv. (Oct.

28, 2019), https://tinyurl.com/38gmpjs5; see also

South Sudan Refugee Crisis, USA for UNHCR,

https://tinyurl.com/3wmz8xh5.

—23—

in the world.” 88 “Amid increasing violence and

deteriorating conditions, the situation in South Sudan

has escalated to a full-blown humanitarian

emergency.”89

South Sudan became independent from its

neighbor to the north, the Republic of Sudan

(commonly known as “Sudan”) in 2011, after decades

of civil war.90 Unfortunately, violence has continued

to plague the new country and its 64 tribal groups. 91

Months after its independence, DHS recognized the

dangers facing South Sudanese from “ongoing armed

conflict” and widespread food insecurity, among other

problems, and designated the country for TPS

protection.92 For similar reasons, DHS extended

South Sudan Refugee Crisis, USA for UNHCR

https://tinyurl.com/3wmz8xh5.

89 Id.

90 U.S. Dep’t of State, Office of the Historian, A Guide

to the United States’ History of Recognition,

Diplomatic, and Consular Relations, by Country,

Since

1776:

South

Sudan,

https://tinyurl.com/7y8ozp0f.

Jennifer Williams, The Conflict in South Sudan,

Explained,

Vox

(Jan.

2017),

https://tinyurl.com/3dby963o.

92 See 76 Fed. Reg. 63,629 (Oct. 13, 2011) (hereinafter

2011 South Sudan TPS Designation).

—24—

South Sudan’s TPS status in 2013,93 2014,94 2016,95

2017,96 2019,97 and, most recently, November 2020.98

Even now, the conditions in South Sudan are such

that the U.S. Department of State advises Americans

to “not travel to South Sudan due to COVID-19, crime,

kidnapping, and armed conflict. . . . Violent crime,

such as carjackings, shootings ambushes, assaults,

robberies, and kidnappings is common through South

Sudan, including Juba.” 99

Ongoing armed conflict in South

Sudan makes safe return

impossible.

Much of the current violence in South Sudan

dates back to a 2013 rift between the president, Salva

Kiir Mayardit, and vice president, Riek Machar,

93 See 78 Fed. Reg. 1,866 (Jan. 9, 2013).

94 See 79 Fed. Reg. 52,019 (Sept. 2, 2014) (hereinafter

2014 South Sudan TPS Extension).

95 See 81 Fed. Reg. 4,051 (Jan. 25, 2016).

96 See 82 Fed. Reg. 44,205 (Sept. 21, 2017) (hereinafter

2017 South Sudan TPS Extension).

97 See 84 Fed. Reg. 13,688 (Apr. 5, 2019) (hereinafter

2019 South Sudan TPS Extension).

98 See 85 Fed. Reg. 69,344 (Nov. 2, 2020) (hereinafter

2020 South Sudan TPS Extension).

U.S. Dep’t of State, Bureau of Consular Affairs,

South Sudan Travel Advisory (Feb. 22, 2021),

https://tinyurl.com/5d9wqnb8

(italics

added,

boldomitted).

—25—

which quickly turned into an all-out civil war.100 Both

sides engaged in mass violence and ethnically

targeted killings.101 This included “[r]eports … that

[government] security forces conducted house to

house searches and arrested hundreds of civilians in

Juba and elsewhere. Witnesses claimed that some of

those arrested were summarily shot in the street,

while others were hauled to overcrowded jails.” 102

In 2018, the parties signed a peace agreement,

which led to the formation of a new, unity coalition

government on February 21, 2020.103

The new

government has yet to put a stop to continued strife

between armed groups across the country. To the

contrary, “[b]oth [the U.S. Department of State] and

the United Nations reported that the intensity of

intercommunal violence increased in 2019 and 2020,

as localized competition for resources was exacerbated

by adverse weather conditions and struggles for

dominance along ethnic, tribal, and subclan lines.” 104

Out of recognition of the ongoing crisis in the country,

in March and May 2020, the U.N. Security Council

again extended the UN Mission in South Sudan’s

(“UNMISS”) mandate and renewed sanctions and an

100 South Sudan: In Focus, Cong. Rsch. Serv. (Oct. 28,

2019), https://tinyurl.com/38gmpjs5; see 2014 South

Sudan TPS Extension.

101 See 2014 South Sudan TPS Extension.

102 See 2014 South Sudan TPS Extension.

103 See 2020 South Sudan TPS Extension.

104 Id.

—26—

arms embargo against the country.105 Though the

government of South Sudan argued “that the conflict

has been resolved,” Amnesty International reported

that “government soldiers were shooting civilians,

burning their homes, raping women and girls, and

displacing tens of thousands of people from their

villages in the southern part of the country.” 106

Violence targeting civilians, and in

particular women and children, is

prevalent.

The “incidents of armed groups attacking

civilians” has “consistently [been] the leading form of

violence throughout the conflict.” 107 Between April

and June 2020, “UNMISS reported more than 417

attacks against civilians . . . with a minimum of 1,620

civilians harmed,” which “is a near quadrupling of

civilians attacked from the same period in 2019.” 108

U.N. Security Council Resolution 2521 (May 29,

2020), https://tinyurl.com/psetzgec; U.N. Mission in

South

Sudan:

Mandate,

https://tinyurl.com/u3kmu222.

105

106 South Sudan: United Nations Arms Embargo Must

Remain in Place After Surge in Violence Against

Civilians in 2020, Amnesty Int’l (Nov. 30, 2020),

https://tinyurl.com/1rcpw14o.

107 See 2020 South Sudan TPS Extension.

Julie Gregory & Aditi Gorur, Data Overview:

Violence Against Civilians in South Sudan, Stimson

Ctr. (Oct. 13, 2020), https://tinyurl.com/14n48bob.

108

—27—

Sexual and gender-based violence is often

employed as a weapon of war in South Sudan. 109 “A

2016 U.N. survey found that 70% of the women in the

[UNMISS] camp in Juba had been raped since the war

began.”110 There have also been widespread reports of

mass rapes to terrorize civilians. 111 As one example

reported by The New York Times, “First they killed

her husband. Then, the South Sudanese woman said,

government soldiers tied her to a tree and forced her

to watch as at least 10 of them raped her 15-year-old

daughter.”112

Yet another aspect of the horrific impact to

civilians is the abuse of children, who are “routinely

abducted and forced to join fighting forces.” 113

UNICEF reported in December 2017 that 19,000

children had been conscripted by armed groups since

the conflict started.114 The forcible use of children by

government and rebel groups continued even after the

109 2017 South Sudan TPS Extension; South Sudan:

In Focus, Cong. Rsch. Serv. (Oct. 28, 2019),

https://tinyurl.com/38gmpjs5.

110 South Sudan: In Focus, Cong. Rsch. Serv. (Oct. 28,

2019), https://tinyurl.com/38gmpjs5.

Nick Cumming-Bruce, Mass Rape, a Weapon of

War, Traumatizes South Sudan, N.Y. Times (Mar. 11,

2016), https://tinyurl.com/1teguuzs.

111

112 Id.

113 2019 South Sudan TPS Extension.

114 Id.

—28—

2018 peace agreement.115 Beyond the risk of being

recruited as child soldiers, “[t]he conflict has deprived

children of education and basic health services, and

left them at risk of being killed, abducted, [and]

sexually assaulted.” 116

There is a humanitarian crisis in

South Sudan due to the desperate

need for aid and difficulty in

providing it.

Millions of South Sudanese require housing,

food, and other humanitarian aid. In a country of just

over eleven million,117 “[s]even million people require

humanitarian assistance, most of whom faced acute

food shortages.”118 The humanitarian crisis has only

been exacerbated by the COVID-19 pandemic, as well

as the related decline in oil prices, given that South

Sudan’s economy is oil-dependent.119

South Sudan: Events of 2019, Human Rights

Watch, https://tinyurl.com/j4n49oj9.

115

116 2017 South Sudan TPS Extension.

U.N. Population Fund,

Dashboard:

South

https://tinyurl.com/dhukubsy.

117

World

Population

Sudan,

South Sudan: Events of 2019, Human Rights

Watch,

https://tinyurl.com/j4n49oj9

(emphasis

added).

118

Amina Lahreche & Niko Alfred Hobdari, Four

Things to Know About How Fragile States Like South

Sudan Are Coping With COVID-19, Int’l Monetary

Fund (Nov. 20, 2020), https://tinyurl.com/449ql9xb.

119

—29—

South Sudan is one of the most food insecure

countries in the world. “Ongoing violence, flooding,

resultant population displacement, and disrupted

trade, markets, and cultivation activities have

exacerbated food insecurity and humanitarian

needs.”120 In October 2020, U.N. Commission on

Human Rights in South Sudan Chair Yasmin Sooka

reported: “It is quite clear that both Government and

opposition forces have deliberately used the

starvation of civilians as a method of warfare in these

States, sometimes as an instrument to punish nonaligning communities.” 121 Altogether, “approximately

51 percent of South Sudan’s total population . . . may

face Crisis (IPC 3) or worse levels of acute food

insecurity and require urgent food assistance.” 122

It is extremely difficult for South Sudanese to

access humanitarian aid. Among other reasons,

“[s]easonal rains, violence, and government

restrictions hinder aid efforts.” 123 Complicating those

issues is the fact that, as of 2011, South Sudan had

120 Food Assistance Fact Sheet - South Sudan, USAID

(Mar. 30, 2020), https://tinyurl.com/3fcsc4kz.

121 Starvation Being Used as a Method of Warfare in

South Sudan - UN Panel, U.N. Human Rights Council

(Oct. 6, 2020), https://tinyurl.com/yhqxpa66.

122 Food Assistance Fact Sheet - South Sudan, USAID

(Mar. 30, 2020), https://tinyurl.com/3fcsc4kz.

123 See South Sudan: In Focus, Cong. Rsch, Serv, (Oct.

28, 2019), https://tinyurl.com/38gmpjs5; see also

South Sudan Refugee Crisis, USA for UNHCR,

https://tinyurl.com/3wmz8xh5.

—30—

“fewer than 100km of paved roads in [the country].”124

In addition, government and other armed forces have

targeted aid workers. As of 2018, “for the third

consecutive year, South Sudan was the most

dangerous place for delivering humanitarian

assistance, according to the United Nations.” 125 In

total, “124 aid workers—most of whom were South

Sudanese—have lost their lives in the line of duty”

since the conflict began in 2013. 126 Given these

challenges, humanitarian aid organizations have a

hard time delivering the basic aid that so many South

Sudanese desperately require.

***

South Sudan remains an incredibly dangerous

country with severe and unmet humanitarian needs.

South Sudanese TPS holders returning to the country

would be in grave danger due to the ongoing and

severe threat of violence to civilians, and in particular

to women and children. In light of these conditions, it

would be inhumane to require South Sudanese TPS

holders to return to the country to adjust their

immigration status.

124 2011 South Sudan TPS Designation.

125 2019 South Sudan TPS Extension.

126 U.S. Dep’t of State, U.S. Embassy in South Sudan,

Statement on the Recent Killings of Humanitarian Aid

Workers (Nov. 4, 2020), https://tinyurl.com/25fkwah5.

—31—

YEMENI TPS HOLDERS WOULD

RETURN TO VIOLENT CIVIL WAR AND

SEVERE SHORTAGES OF FOOD AND

HEALTHCARE.

For over six years, Yemen has been plagued by

armed conflicts of multiple internal militant groups

and foreign nations. Collectively, these conflicts have

eroded the country’s central governance, devastated

its infrastructure, killed hundreds of thousands, and

caused such vast, profound suffering that conditions

in Yemen are “now considered the world’s worst

humanitarian crisis.” 127

Yemen is in the middle of a civil war in which

regional actors have intervened. The conflict traces

its origins to 2011 Arab spring uprisings and the

failed transition from the longtime rule of President

Ali Abdullah Saleh to the internationally recognized

government of President Abdu Rabbu Mansour

Hadi.128 Around the same time, Ansar Allah, “a

predominantly Zaydi Shia revivalist political and

insurgent movement,” known colloquially as the

“Houthis,” started seizing territory in northern

Yemen.129 In September 2014, the Houthis captured

the capital, Sana’a, and in March 2015, after Hadi had

fled Yemen and asked for international intervention,

127 Jeremy M. Sharp, Yemen: Civil War and Regional

Intervention, Cong. Rsch. Serv. (Dec. 8, 2020),

https://tinyurl.com/un6xn5z9.

128 Id. at 1.

129 Id. at 3.

—32—

Saudi Arabia headed a military coalition comprised of

its Arab partners with the aim of restoring Hadi’s

rule.130 The initial combatants have since engaged in

a “missile war,” with the Saudi coalition launching

airstrikes and the Houthis deploying a variety of

missiles, drones, and anti-personnel mines.131 The

internationally recognized government of Yemen also

imposed heavy restrictions on the movement of goods

and people, which have evolved over time but largely

remain to this day.132 The dependence of Yemen’s

current civilian population on dwindling imports, the

splintering of Yemen’s government ministries and

central bank, and the destruction of Yemen’s

purchasing power have coalesced to push basic

commodities and public services out of the reach of

millions of Yemenis.133

Yemen first received its TPS designation on

September 3, 2015 due to “ongoing armed conflict,”

which had then internally displaced 1.3 million,

rendered 12.9 million food insecure, and damaged

homes, hospitals, schools, roads, airports, the electric

power grid, and the water supply.134 Even in these

early days, dislocated Yemenis cited medicine and

treatment for malnutrition, malaria, diarrhea,

130 Id.

131 Id.

132 See id. at 10–11.

133 See id. at 8.

134 80 Fed. Reg. 53,319 (Sept. 3, 2015).

—33—

chronic health conditions, and respiratory diseases as

their most pressing need.135

Since then, the conflict has fragmented:

numerous Yemeni parties, many with the backing of

foreign states seeking to advance their own strategic

interests in the country, have competed for money,

power, and resources.136 Personal incomes and the

availability of public services have continued to

decline as the devaluation of the Yemeni riyal has

accelerated.137

Yemen’s TPS designation was

therefore extended in the intervening years, with the

most recent extension issued on March 4, 2020 due to

both the unceasing armed conflict and “extraordinary

and temporary conditions” on the ground.138

Yemen continues to suffer from

chronic violence, especially against

civilians.

Beyond the casualties of combatants, the

conflict in Yemen has featured staggering brutality

135 Id.

136 Jeremy M. Sharp, Yemen: Civil War and Regional

Intervention, Cong. Rsch. Serv. (Dec. 8, 2020),

https://tinyurl.com/un6xn5z9.

137 Declan Walsh, The Tragedy of Saudi Arabia’s War,

N.Y.

Times

(Oct.

https://tinyurl.com/9ktja7kz.

26,

138 85 Fed. Reg. 12,313 (Mar. 4, 2020).

—34—

2018),

upon civilians.139 By the end of 2020, 130,000

Yemenis had been killed in the conflict. 140 The Yemen

Data Project, a non-profit independent data collection

project, has tallied over 22,000 Saudi-led coalition air

strikes since March 2015, resulting in over 18,500

civilian casualties.141 About a third of coalition

airstrikes have hit civilian objects, such as residential

homes, hospitals, schools, farms, food stores, markets,

mosques, bridges, water wells, civilian factories, and

detention centers,142 in addition to sites of weddings 143

and communal meals.144 Some of the most notorious

airstrikes have landed on a funeral hall in an attack

139 U.N. Human Rights Council, Situation of Human

Rights in Yemen, Including Violations and Abuses

Since

September

2014

(Sept.

28,

2020),

https://tinyurl.com/6c55h3x3.

140 Jeremy M. Sharp, Yemen: Civil War and Regional

Intervention, Cong. Rsch. Serv. (Dec. 8, 2020),

https://tinyurl.com/un6xn5z9.

Yemen Data Project

https://tinyurl.com/h6a8y32p.

141

(Dec.

31,

2020),

142 World Report 2021: Yemen, Human Rights Watch

(2021), https://tinyurl.com/8s3udn28.

143 Declan Walsh, The Tragedy of Saudi Arabia’s War,

N.Y.

Times

(Oct.

https://tinyurl.com/9ktja7kz.

26,

2018),

Sumaya Bakhsh, Yemen: The Man Who Lost 27

Family Members in an Air Strike, BBC News (Nov. 4,

2016), https://tinyurl.com/yt57z3bj.

144

—35—

that killed at least 110 Yemenis,145 a cholera

treatment center established by Doctors Without

Borders146 and a school bus returning from a picnic.147

After a bomb blast on a private residence, leaving six

dead, one surviving family member told Amnesty

international, “We buried them the same day because

they had turned into severed limbs. There were no

corpses left to examine.” 148

Houthi fighters have also inflicted considerable

suffering on civilians. The U.N. Human Rights

Counsel described how Houthis exacerbated Yemen’s

food insecurity by laying mines and explosives in

grain mills, near fishing sites, and on pasture land

where farmers and children herd livestock.149

Houthis have attempted to impose burdensome

Yemen: Saudi-led Funeral Attack Apparent War

Crime, Human Rights Watch (Oct. 13, 2016),

https://tinyurl.com/yyydjzsf.

145

146 Omer Karasapan, Yemen’s Civilians: Besieged on

All Sides, Brookings Inst.

https://tinyurl.com/3x37zcmu.

(Mar.

31,

2020),

147 Yemen War: Saudi-led Air Strike on Bus Kills 29

Children,

BBC

News

https://tinyurl.com/y42rjpyx.

(Aug.

2018),

148 Yemen: US-made Bomb Used in Deadly Air Strike

on Civilians, Amnesty Int’l

https://tinyurl.com/263b23kk.

(Sept. 26,

2019),

149 U.N. Human Rights Council, Situation of Human

Rights in Yemen, Including Violations and Abuses

Since September 2014 9 (Sept. 29, 2020),

https://tinyurl.com/2v99s4sa.

—36—

bureaucratic requirements to hamper humanitarian

operations.150 They have requisitioned schoolhouses

to store weapons and detained educators who

“refus[ed] to collaborate with Houthi child

recruitment efforts.”151 Such efforts have placed boys

into combat roles, leading to injury or death, and

compelled girls to become recruiters, spies, guards,

and medics, some of whom were further subjected to

sexual assault or involuntary early marriage.152 In

addition to the forced disappearances and arbitrary

detention of Yemeni citizens, human rights activists,

lawyers, and journalists, parties to the conflict have

tortured their victims with solitary confinement,

sexual violence, suspension for prolonged periods of

time, compelled crawling on glass, removal of finger

nails, electrocution, burning, beating, and mock

executions.153

The civil war has exacerbated food

insecurity.

Yemen’s civil war

has

led to

154

“unprecedented” level of hunger.

Yemen already

depended on importing 90 percent of its food supply, 155

150 Id.

151 Id at 13.

152 Id.

153 Id at 11.

154 U.N.

World Food Programme, Yemen Emergency

(2021) https://tinyurl.com/x4e8xxkd.

155 80 Fed. Reg. 53,319 (Sept. 3, 2015).

—37—

so the shelling of civilian food stores, 156 cyclical fuel

crises,157 and restrictions imposed by both the Saudiled coalition and the recognized government 158 only

brought the country closer to mass starvation. Even

with humanitarian assistance, 16 million Yemenis,

about half the population, are food insecure, and

among that number, “nearly 5 million are acutely food

insecure.”159 A U.N. World Food Program survey

found that “almost one third of families have gaps in

their diets, and hardly ever consume foods like pulses,

vegetables, fruit, dairy products or meat.” 160 Indeed,

one media report found that families in displacement

camps resorted to “eating boiled tree leaves.”161 And

a woman, struggling to take care of two

156 U.N. Human Rights Council, Situation of Human

Rights in Yemen, Including Violations and Abuses

Since September 2014 7 (Sept. 29, 2020),

https://tinyurl.com/2v99s4sa.

Nasser Abdulkareem, New Fuel Crisis Deepens

Suffering for Hungry Yemenis, Norwegian Refugee

Council (Oct. 16, 2019), https://tinyurl.com/xdf3vjad.

157

158 See Jeremy M. Sharp, Yemen: Civil War and

Regional Intervention, Cong. Rsch. Serv. (Dec. 8,

2020), https://tinyurl.com/un6xn5z9; Declan Walsh,

The Tragedy of Saudi Arabia’s War, N.Y. Times (Oct.

26, 2018), https://tinyurl.com/9ktja7kz.

159 U.N.

World Food Programme, Yemen Emergency

(2021), https://tinyurl.com/x4e8xxkd.

160 Id. (emphasis in original).

AP Report: Yemen’s Food Donations Are Being

Snatched From the Starving, PBS NewsHour (Dec. 18,

2018), https://tinyurl.com/rkmm6t69.

161

—38—

grandchildren, told the Guardian, “[W]e . . . buy

ourselves some flour and then eat it with water …

Either we die from the bombing or from the

hunger.”162 Conditions like these have resulted in

85,000 children dying from malnutrition near the end

of 2018,163 with one million pregnant or lactating

women and two million children requiring treatment

for acute malnutrition in the opening days of 2021. 164

What is more, the U.N. expects the number of people

enduring famine in Yemen to triple by June of this

year.165

The conflict has weakened Yemen’s

healthcare infrastructure.

The conflict in Yemen has also decimated the

country’s healthcare system, making the treatment of

basic diseases, malnutrition, and injuries challenging,

ultimately driving an increase in the critical caseload.

Only around half of public health facilities are fully

Saeed Kamali Dehghan & Ahmad Algohbary,

Yemen's Food Crisis: 'We are Broken, We Either Die

from Bombing or the Hunger', The Guardian (Feb. 8,

2017), https://tinyurl.com/8m7c2c5c.

162

Yemen Crisis: Why is There a War, BBC News

(June 19, 2020), https://tinyurl.com/usxu649z.

163

164 U.N.

World Food Programme, Yemen Emergency

(2021), https://tinyurl.com/x4e8xxkd.

165 Id.

—39—

functional;166 about 20 percent of Yemen’s 333

districts lack medical doctors;167 and essential

medications and equipment are unavailable or in

short supply.168 The World Bank has observed that

an “estimated 20.5 million people [lack] safe water

and sanitation, and 19.9 million [lack] adequate

healthcare.”169 Consequently, “mass outbreaks of

preventable diseases, such as cholera, diphtheria,

measles, and Dengue Fever” have plagued Yemen, 170

whose malnourished population and remaining

under-equipped hospitals are in a precarious position

to contend with the COVID-19 pandemic.

***

Today, with 3.6 million internally displaced

and 24.1 million in need of aid,171 “Yemen remains a

tortured land, with its people ravaged in ways that

Omer Karasapan, Yemen and COVID-19: The

Pandemic Exacts Its Devastating Toll, Brookings Inst.

(June 15, 2020), https://tinyurl.com/37kmt4f5.

166

167 Id.

Kent Garber et al., Estimating Access to Health

Care in Yemen, A Complex Humanitarian Emergency

Setting: A Descriptive Applied Geospatial Analysis,

The

Lancet

(Nov.

2020),

https://tinyurl.com/u3knuud7.

168

Yemen Overview, World Bank (Oct. 1, 2020),

https://tinyurl.com/scvkatmh.

169

170 Id.

171 85 Fed. Reg. 12,313 (Mar. 4, 2020).

—40—

should shock the conscience of humanity.” 172 The

government’s interpretation of the TPS statute would

lead to an absurd result: Yemeni nationals living

under a TPS designation seeking to adjust their

status would have to return to the very country

conditions that justified Yemen’s TPS designation in

the first place. Yemen is a raging battlefield where

violence and deprivation far eclipse the humanitarian

assistance that can be offered. It cannot have been

the intent of Congress to require Yemeni TPS holders

to return under these circumstances.

CO N CLUSIO N

Because the government’s interpretation would

require TPS holders to return to the unsafe conditions

described above and because such a result is contrary

to the purpose of the TPS statute, the Court should

reverse the holding of the court of appeals.

Respectfully submitted,

Diana Kearney

Legal and Shareholder

Advocacy Advisor

OXFAM AMERICA

1101 17th Street, NW

Suite 1300

Washington, DC 20036-4710

diana.kearney@oxfam.org

Emily Johnson Henn

Counsel of Record

COVINGTON & BURLING LLP

3000 El Camino Real

5 Palo Alto Square, 10th Floor

Palo Alto, CA 94306-2112

ehenn@cov.com

(650) 632-4715

172 U.N. Human Rights Council, Situation of Human

Rights in Yemen, Including Violations and Abuses

Since

September

2014

(Sept.

28,

2020),

https://tinyurl.com/6c55h3x3.

—41—

Juliana Goldrosen

Andrew S. Gove

Jenna L. Zhang

COVINGTON & BURLING LLP

Salesforce Tower, 415

Mission Street, Suite 5400

SAN FRANCISCO , CA 941052533

Ethan A. Sachs

Nandini Singh

COVINGTON & BURLING LLP

One CityCenter,

850 Tenth Street, NW

Washington, DC 20001-4956

COUNSEL FOR AMICUS CURIAE

—42—

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.