Haitian TPS: Plaintiffs’ Attorneys Fight Back Against Emergency Stay Request Before the Washington D.C. Appeals Court

Attorneys for five Haitian plaintiffs in Miot v. Trump filed their opposition brief Monday before the U.S. Court of Appeals for the D.C. Circuit.

The 31-page document, accompanied by the full transcript of the February 12 hearing before Judge Ana C. Reyes, constitutes the plaintiffs’ response to the government’s emergency stay request filed on February 6.

The stakes are significant. If the three-judge panel—Judges Justin R. Walker, Florence Y. Pan, and Bradley N. Garcia—grants the government’s requested stay, Judge Reyes’s order protecting more than 350,000 Haitian TPS beneficiaries will be lifted, and deportations could begin immediately.

The plaintiffs’ brief is built around two central arguments: first, the balance of harms strongly favors TPS beneficiaries; second, the plaintiffs have a strong likelihood of prevailing on the merits.

From the outset, the plaintiffs’ attorneys describe the case in concrete terms: “All the Government seeks is to deport Haitians more quickly,” they write. “If a stay is granted, these lawful immigrants will face immediate deportation to a country described as a ‘maelstrom of disease, poverty, violence (including sexual violence) and death.'”

The attorneys reference a recent incident to illustrate the nature of the risk: “Just two weeks ago, the bodies of four Haitian women deported from the U.S. several months earlier were found decapitated and dumped in a river. If the district court’s order is stayed, many others will likely suffer a similar fate.”

The brief draws heavily on the government’s own statements during the February 12 hearing. Department of Justice attorney Dhruman Sampat acknowledged before Judge Reyes that if the stay were granted, “nothing would prohibit DHS and ICE from showing up” at beneficiaries’ homes to place them in removal proceedings. The declaration filed by ICE Assistant Director Liana Castano confirms that “if the termination had not been stayed, DHS would have acted” to enforce the decision.

The attorneys highlight a point that Judge Reyes herself drove home during the hearing: once deported to Haiti, TPS beneficiaries would have no legal means of returning to the United States, even if they ultimately prevailed in court. TPS allows individuals to remain in the U.S. but confers no right of entry. When Judge Reyes asked whether there was a legal pathway back, Sampat admitted: “I can’t think of one on the spot.”

On the question of harm to the government, the brief is categorical. The attorneys note that Haiti has been designated for TPS since 2010 and that “hundreds of thousands of Haitian TPS holders have lived in our midst for nearly two decades without problem. There is no sudden emergency requiring their immediate expulsion.”

The attorneys note that in previous Haitian TPS cases, the government did not seek an emergency stay, nor did it seek one in the Supreme Court’s Venezuelan TPS case. This, they argue, undermines claims of irreparable harm.

The brief devotes its second half to demonstrating that the plaintiffs have a strong likelihood of success on the merits. On the central question of whether courts have jurisdiction, the attorneys note that the statutory provision invoked by the government to block judicial review — Section 1254a(b)(5)(A) — applies only to the substance of the Secretary’s determination, not the process by which she reached it. Eight different federal courts have adopted this interpretation without exception.

“Section 1254a(b)(5)(A) does not prevent courts from reviewing and setting aside agency action that is procedurally deficient,” the judges concluded in the HECA case.

The attorneys point out that Secretary Noem did not consult federal agencies as required by law. The “consultation” amounted to a two-sentence email exchange. Her conclusion that “there are no extraordinary and temporary conditions in Haiti that prevent Haitian nationals from returning in safety” is contradicted by the entire administrative record. The State Department itself issued a Level 4 advisory — the highest level — warning against all travel to Haiti, applicable to “all parts of Haiti.”

Regarding the national interest invoked by Secretary Noem, the attorneys advance a structural argument: the Secretary has terminated all 12 TPS designations that have come up for review since the Trump administration took office. Accepting her definition of the national interest would amount to “effectively repealing the TPS statute” — something that lies beyond her authority.

The brief dedicates its final pages to the equal protection question. The attorneys argue that Secretary Noem’s decision was motivated, at least in part, by racial animus. They recall that President Trump accused Haitians of “eating the dogs” and “eating the cats” of Americans just months before the first attempt at revocation, and that he vowed to revoke Haitian TPS and “send them back to their country.” As for Secretary Noem, she described Haitians and nationals of eighteen other nonwhite countries as “leeches,” “entitlement junkies,” and “foreign invaders.”

The brief is accompanied by the full transcript of the February 12 hearing — 59 pages of proceedings before Judge Reyes. This document, now part of the appellate record, contains the exchanges in which the government acknowledged, point by point, the concrete consequences of a stay. It also includes Judge Reyes’s statement, reading aloud the death threats she has received and declaring: “My colleagues and I will continue to uphold our oath to act without fear or favor. We will not be intimidated.”

The appeals court panel must now rule. The deadline for the government’s reply brief is February 19. The panel’s decision will determine whether the 350,000 Haitian TPS beneficiaries retain their protections for the duration of the appeal — or whether they face immediate deportation to a country that the U.S. government itself deems too dangerous for travel.

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