By Brad Petrishen
The former top lawyer for the city of Philadelphia, with more than 70 Liberians sitting behind him Wednesday in U.S. District Court in Worcester, argued that racial animus was behind President Donald J. Trump’s decision to not extend a program that has allowed Liberian refugees to stay in America for decades.
Sozi Pedro Tulante, the son of a Congolese immigrant, asked U.S. District Court Judge Timothy S. Hillman to allow a lawsuit seeking to extend the program filed on behalf of the Liberians to move forward over the objection of Department of Justice lawyers.
“We’ve alleged facts that are really concerning given who we are as a country,” Tulante said, alluding to disparaging statements Trump has made about refugees from African nations.
An estimated 4,000 Liberians, including some from Worcester, would face deportation should the program not be extended.
President Bill Clinton enacted the provision, called Deferred Enforcement Departure, in 1999, a time when Liberia was in the midst of prolonged armed conflict.
DED – which suspends the application of certain U.S. Immigration laws – can be authorized by the president if deemed necessary for U.S. foreign policy interests.
It does not provide a direct pathway to permanent legal status, advocates said Wednesday, placing beneficiaries in a state of constant uncertainty.
Since 1999, presidents have re-authorized DED for Liberians – the only nation that is currently protected under the program – based, the government wrote in court documents, “on concerns that returning thousands of individuals to a fragile nation could destabilize the region and harm United States foreign policy.”
Trump announced in March 2018 that he would not re-authorize DED, which was set to expire in March 2019, because conditions in the country had improved.
Fifteen Liberians, including multiple Worcester residents, filed a lawsuit in March 2019 in conjunction with several civil rights organizations seeking to extend DED.
They argued Trump’s true motive for not extending DED was racial animus – citing comments he has made about immigrants from African nations that have outraged many – and asked a judge to grant a preliminary injunction preventing him from ending the protection.
The day before an argument was to be held, Trump extended DED until March 2020. The plaintiffs withdrew their emergency motion, and the government filed a motion to dismiss the case that was the subject of Wednesday’s hearing.
Joshua M. Kolsky, a Department of Justice lawyer, argued Wednesday that the plaintiffs’ argument is both wrong and legally deficient.
Kolsky noted that a third party, the United Nations, closed its mission in Liberia after 15 years the same month Trump made his determination, with the UN Secretary-General saying the country was “on the cusp of a new era.”
The secretary-general said the country’s security situation “remained stable,” and that the country was “fully at peace with itself and with its neighbours.”
Trump’s decision to not extend DED was a reasonable one under the circumstances, Kolsky said. But even if one disagreed, he said, his executive discretion is outside the reach of the judicial branch.
Kolsky said Hillman could not order the president to perform an executive act, citing law that dates back to an 1866 Supreme Court ruling respecting the separation of powers.
Just as the court couldn’t order Congress to pass a law to protect Liberians, Kolsky argued, the court has no authority to order the president to use his discretionary powers.
Tulante countered that, accepting that logic, the president could hypothetically state that Liberians were a drain on resources who should “go back to their huts” before ending DED, and not be held accountable under the Constitution.
Judge Hillman specifically asked Kolsky, “for argument’s sake,” whether there was any “remedy” the court could order if, hypothetically, he agreed the decision was based solely on racial animus.
“There is no remedy that this court could order to redress the injury,” Kolsky replied, adding that the power to exercise executive authority is the president’s alone.
Judge Hillman asked lawyers for the plaintiffs what they ultimately would have him do, noting that, in essence, it appeared he was being asked to step “into the executive’s shoes.”
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