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Deputy Secretary of Defense Ashton Carter escorts Liberian President Ellen Johnson Sirleaf through an honor cordon at the Pentagon in Arlington, Va., May 16, 2013.

Liberians have had protected immigration status in the United States for decades. In 2019, Trump announced that he would be terminating this protected status, leaving the thousands of Liberians already in the country suddenly undocumented.

Nonprofit organizations African Communities Together and UndocuBlack Network, along with several Liberian nationals who currently have protected immigration status, sued, represented by the Lawyers Committee for Civil Rights.

Yesterday, a federal judge in Massachusetts dismissed the lawsuit, saying the court has no authority to order the president to extend protected status to Liberian immigrants -- even if Trump's decision was based on unconstitutional racial bias.

So that's just great.


Deferred Enforced Deportation for Liberians

Due to civil war, Ebola, a dire economy, and continuing troubles in the nation, every president since George H.W. Bush has given protected status to Liberian immigrants coming to the United States. There are two ways for an administration to give special protected status to immigrants from a particular country or region -- Temporary Protected Status (TPS) and Deferred Enforced Departure (DED).

As described by the court in yesterday's order:

Four previous Administrations have granted humanitarian relief to Liberians lawfully residing in the United States through Temporary Protected Status ("TPS") and DED. TPS is a statutory status that the Secretary of the Department of Homeland Security ("DHS") may extend to foreign nationals who cannot return to their country of origin due to armed conflict, natural disaster, or temporary conditions. See 8 U.S.C. § 1254a(b)(1). DED is a temporary, discretionary stay of removal granted to foreign nationals from designated countries generated by the President. Unlike TPS, DED does not have a statutory basis; it emanates from the President's constitutional authority to conduct foreign relations.

In 1991, George H.W. Bush's administration gave protected status to Liberian nationals, citing the country's ongoing civil war. Every administration since extended those protections, through TPS and/or DED. In March 2018, Donald Trump announced his intent to terminate DED for Liberians.

According to a memorandum from the White House:

Liberia is no longer experiencing armed conflict and has made significant progress in restoring stability and democratic governance. Liberia has also concluded reconstruction from prior conflicts, which has contributed significantly to an environment that is able to handle adequately the return of its nationals. The 2014 outbreak of Ebola Virus Disease caused a tragic loss of life and economic damage to the country, but Liberia has made tremendous progress in its ability to diagnose and contain future outbreaks of the disease.

We assume White House staff edited out any racial slurs or references to "shithole countries" from the memorandum announcing the decision.

Just before Liberians' DED was set to expire, Trump reversed course, extending DED for Liberians in the US. The memorandum extending DED stated:

Upon further reflection and review, I have decided that it is in the foreign policy interest of the United States to extend the wind-down period for an additional 12 months, through March 30, 2020. The overall situation in West Africa remains concerning, and Liberia is an important regional partner for the United States. The reintegration of DED beneficiaries into Liberian civil and political life will be a complex task, and an unsuccessful transition could strain United States-Liberian relations and undermine Liberia's post-civil war strides toward democracy and political stability. Further, I understand that there are efforts underway by Members of Congress to provide relief for the small population of Liberian DED beneficiaries who remain in the United States. Extending the wind-down period will preserve the status quo while the Congress considers remedial legislation.

It was definitely not written by Trump itself, as it also recognized the special relationship the United States has with the west African nation.

The relationship between the United States and Liberia is unique. Former African-American slaves were among those who founded the modern state of Liberia in 1847. Since that time, the United States has sought to honor, through a strong bilateral diplomatic partnership, the sacrifices of individuals who were determined to build a modern democracy in Africa with representative political institutions similar to those of the United States.

However, DED for Liberians is still set to expire on March 31, 2020, and Trump has not expressed any intent to extend DED past that date.

Since the 1980s, Liberia has been devastated by violence, civil war, and finally an Ebola outbreak. More than 250,000 civilians have been killed in armed conflict in the country. In 2014, the Ebola epidemic hit Liberia, infecting over 10,000 people. The country's economy has not recovered from either catastrophic event.

Nonetheless, Trump has decided to end DED and make Liberians, many of whom have been in this country for decades, suddenly undocumented and eligible for deportation. A lot of Liberians who came here legally as children will suddenly be undocumented. These are people who know no other life than life here. They are as American as anyone else -- they simply lack the paperwork to prove it.

Lawsplainin'

The Lawyers Committee for Civil Rights filed suit in March, asking the US District Court in Massachusetts to require Trump to extend DED status to Liberians. They argued that Trump's decision was made because of racism -- a likely case, given he has called African nations and Haiti "shithole countries" and suggested that the US should look for immigrants who special skills, like being Norwegian.

Judge Timothy Hillman, an Obama appointee, seemed sympathetic to the plaintiffs but dismissed the suit, saying the court doesn't have the authority to force the president to take affirmative action to protect Liberians from deportation. Judge Hillman found that there was "no available remedy that it can award which will have a substantial probability of redressing the Individual Plaintiffs' injury." In his view:

Even assuming the Court could declare the termination decision void as the product of an unlawful process and/or enjoin enforcement of it, DED only continues if the President renews it. DED, in other words, will still expire on March 31, 2020, absent any affirmative action by President Trump. And this Court lacks the authority to compel the President to take that action. The authority for the DED program comes from the executive branch's constitutional power to conduct foreign affairs, and "the conduct of foreign affairs" is a realm entrusted to the President.

In 2018, another court had denied a motion to dismiss in a case challenging the end of TPS for Haitians. Here, however, the judge distinguished DED from TPS, because TPS exists through an act of Congress, while DED is at the sole discretion of the executive branch.

Given the inherently executive nature of DED, the Court does not see any way it may lawfully compel the President to act under these circumstances. Thus, the Court is compelled to grant the motion to dismiss[.]

What now?

Somewhere between 1,000 and 3,600 Liberians are currently in the US under DED. They have lives and families here, but no path to citizenship.

The DREAM and Promise Act, passed by the House last summer, would make DED and TPS holders lawful permanent residents if they lived in the US for at least three years before the bill is enacted and meet other requirements. However, despite broad bipartisan support for the DREAM Act, it has been dead on arrival in Mitch McConnell's Senate.

Assuming Republicans continue to refuse to act on the DREAM and Promise Act in the Senate, Liberians with DED will have to hope that Trump again reverses course and again extends DED for Liberian nationals.

If Trump doesn't choose to extend DED for Liberians and the courts refuse to intervene, families will be torn apart and people who know no life outside of the US will be deported to a country they have never known.

[Order / Trump Memo 1 / Trump Memo 2]

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Jamie Lynn Crofts
Jamie Lynn Crofts is sick of your bullshit. When she’s not wrangling cats, she’s probably writing about nerdy legal stuff, rocking out at karaoke, or tweeting about god knows what. Jamie would kindly like to remind everyone that it’s perfectly legal to tell Bob Murray to eat shit.
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