THREE DAYS AFTER HALLOWEEN, the White House convened a Principals Committee meeting, which brings together the government’s most senior officials, in an attempt to ratchet up the pressure on Elaine Duke. Jim Nealon, the DHS assistant secretary who had infuriated Miller and Hamilton by dragging his feet months earlier, had pleaded with Duke in a memo to extend TPS for Honduras, El Salvador, and Haiti, arguing that eliminating the program would force 300,000 people “into the shadows” by taking away their legal right to live and work in the United States. But this time, Nealon was outflanked. Tillerson had sent his recommendation to end the TPS programs on the same day. And Duke was on the hot seat again to make a decision.
The agenda for the meeting at 9:15 a.m. in the White House Situation Room was distributed by Keith Kellogg, the retired Army lieutenant general who served as the executive secretary for the National Security Council. But there was little doubt that Miller was the driving force behind it. In previous administrations, similar meetings provided a neutral forum for the president’s top advisers to debate pressing issues. There was nothing neutral about Friday’s gathering. The first two sentences of the agenda’s two-page memo bluntly described the purpose of the discussion: “To coordinate the conditions and process for terminating temporary protected status (TPS) for aliens from El Salvador, Honduras, Nicaragua, and Haiti. The Acting Secretary of Homeland Security must make a decision by Monday, November 6, 2017.” Three days from now. After two paragraphs of background, the memo made it clear what Miller and the others thought. “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.”
Duke arrived at the Situation Room braced for what she knew was coming. It would be like the DACA debate all over again. The Trump loyalists saw her as an obstructionist standing in the way of the immigration policies that the president wanted to put in place. And they still thought she was an easy mark, someone who could be rolled. John Sullivan, the deputy secretary of state, was there in Tillerson’s place, and he made the case for ending the program. “Conditions do not warrant TPS extension,” Sullivan said, according to notes that Duke took of the meeting. Mercedes Schlapp, the White House strategic communications director, focused on the political impact of the decision. Termination of the TPS protections would put pressure on Congress to decide who gets to come into the United States based on the skills they bring, she said. Schlapp was also concerned about the impact that the decision could have on the midterm elections in 2018, according to Duke’s notes.
Then it was the attorney general’s turn. The law is clear, Sessions insisted. The administration “can’t keep certifying.” Duke told the group that she did not feel like she had enough time to make a decision, especially on Honduras. “Just bite the bullet,” the attorney general told her, suggesting that it would be legally suspect to make a different decision for each of the four countries. Think about what the American people would say if Duke extended the TPS programs, certifying the aliens to remain in the United States rather than be sent home, the attorney general pressed. The American people would want to know: “How did you let this happen?” That had been the case for years in previous administrations. “No one has the guts to pull the trigger,” Sessions said. Duke’s notes underlined the attorney general’s next comment two times: “Cannot certify.”
The intense discussion shifted to how Congress might react to the end of the TPS programs, which had broad, bipartisan support among lawmakers. On that point, Sessions was firm. The administration should pressure House Speaker Paul Ryan to pass a strong immigration bill that would include a more permanent solution for allowing many of the people from the four countries to stay in the United States, he said. But nothing will happen in Congress until the TPS program is ended, he told Duke. “Until we end the eligibility, amnesty vote is non-starter,” he said, according to Duke’s notes.
As she left the meeting, Duke was noncommittal, saying that she appreciated the input. She agreed that Nicaragua could easily handle the return of about 2,500 citizens who had been living in the United States. But it was clear to everyone around the table that Duke was still uncertain about the 85,000 Hondurans that would be sent home if she ended the TPS designation for that country.
Feeling under pressure like never before, she headed home to weigh her choices.
On Monday morning, Duke attended her usual intelligence briefing in the department’s SCIF, or Sensitive Compartmented Information Facility, where top secret material could be safely discussed. At the end of the meeting, she asked a top aide to stay behind. “I just can’t deal with this administration anymore,” she said, breaking down in tears. “What these people want to do is just wrong, and they’re pressuring me to do things I think are wrong, and I’m not going to do it the way they want me to.” Duke said she did not think ending TPS for Honduras abruptly was the right thing to do, and she expressed frustration with “the echo chamber in the White House and everyone being scared of the president.” Distraught and stressed, she told her aide: “I don’t know how long I can stay in this administration.”
By then, word of Duke’s indecision on Honduras had traveled across the globe, to Japan, where Kelly was traveling with Trump for meetings with Emperor Akihito and Prime Minister Shinzo¯ Abe. It was thirteen hours later there—the middle of the night. Kelly had been woken up by an aide, who described Duke as having refused to make a decision about Honduras. Kelly was furious. Not only should it have been clear to Duke what Trump wanted, but refusing to make a decision would saddle Nielsen, his close ally, with a controversial decision as one of her first acts after being confirmed as the secretary of homeland security. With the clock ticking toward the deadline at the end of the day on the East Coast, Kelly called Duke.
Just make a decision, he barked on the call, which included Zach Fuentes, Kelly’s deputy, and Tom Bossert, the president’s homeland security adviser. Kelly told Duke that she would be criticized no matter what she decided—it came with the job. No one knew that better than Kelly. He knew what it meant to be a cabinet secretary, and he was careful not to tell Duke what to do. But it was clear to Duke what “make a decision” meant. Kelly and the rest of the administration wanted the programs to be terminated, with a final date set for the immigrants to be sent back to their countries of origin. She was refusing to toe the line.
Just before 3:30 Monday afternoon, Duke sent an email to Kelly informing him of her TPS decisions. The deadlines for El Salvador and Haiti were still a few weeks away, so the fate of those programs did not have to be decided yet. She would terminate TPS for Nicaragua, she told Kelly, giving people in that country twelve months to return home. But Honduras was different. TPS for that country would be extended for six months under a formal “no decision” that she would issue that day. “Much of the documentation I received within the last 5 days is conflicting and I have not had sufficient time to deconflict it,” she wrote to Kelly. Duke insisted that even her “no decision” would send a tough message to the Hondurans that the program would eventually be terminated, but with a clear plan about how to deal with the consequences. “By not affirmatively extending, I’m stating that I’m not satisfied that the country conditions remain—but not yet sure how to best end TPS for this country,” she wrote. Taken together, she argued in the email, her decisions “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.” In a news release, the Department of Homeland Security explained that Duke believed “additional information is necessary regarding the TPS designation for Honduras, and therefore has made no determination regarding Honduras at this time. As a result of the inability to make a determination, the TPS designation for Honduras will be automatically extended for six months.”
Duke had stood her ground on Honduras, refusing to make what she considered a rushed judgment. But when word leaked a few days later about the call from Japan, Kelly was furious all over again. The news stories suggested that Kelly had pressured Duke to terminate TPS for Honduras. At 3:14 a.m., he took out his iPad and sent an email to the senior staff. “The reporting on my phone call with Secretary (Acting) Duke is foolishness,” he wrote. “The conversation revolved around ‘make a decision.’ That the decision on TPS was entirely hers.” He was clearly frustrated that the conversation had leaked out. “Only Elaine can set the record straight. I hope she does.” He added: “I will be calling the Honduran president today to correct this poorly sourced article.”
Duke was contrite. In a response to Kelly a few hours later, she apologized for all “this noise” about the telephone call. “Unfortunately, I think you are getting inaccurate information on me and positions,” she wrote in an email to Kelly, alluding to the description of her as refusing to make a decision, “which is probably why you were woken up in the first place.” Kelly responded quickly, sending a short note back, this time from Da Nang, Vietnam, where Trump was by then. “Am with you. I think it’s best if you set the record straight.” Sarah Sanders agreed and advised Duke to paper over any internal discord. In an email to Duke, she wrote, “if you are willing, I think best way to end it is for you to go on record saying what took place on call and that you and gen Kelly as well as rest of administration working together, etc.”
In a statement that evening, Duke called the press reports “seriously flawed,” and said that Kelly had “consistently reiterated that, as the Acting Secretary, the current decisions were mine to make and should be done in accordance with the existing law. At no time did he pressure me to terminate TPS for Nicaragua, Honduras or El Salvador.” And she denied reports that she had offered to resign.
“I have no plans to go anywhere and reports to the contrary are untrue,” Duke said.
But Duke’s resistance was effectively over, and she soon informed Kelly that she intended to resign once Nielsen was confirmed to replace her.
On November 20, Duke announced that she had decided to terminate the TPS program for Haiti, doing what Kelly had hesitated to do six months earlier. “Acting Secretary Duke determined that those extraordinary but temporary conditions caused by the 2010 earthquake no longer exist. Thus, under the applicable statute, the current TPS designation must be terminated,” DHS wrote in its announcement. On December 5, the Senate confirmed Nielsen to lead the department permanently, handing responsibility for the future TPS decisions to her.
Days later, the new secretary received a call from Jim McGovern, a twenty-one-year Democratic congressman from central Massachusetts. McGovern had worked for longtime Democratic representative Joe Moakley in the late 1980s. At Moakley’s request in 1989, he had traveled to El Salvador to lead a congressional inquiry into the killings of six Jesuit priests by the U.S.-backed Salvadoran military. A framed copy of an honorary degree from Central American University in San Salvador is on display in McGovern’s office. In 1990, McGovern had helped write the original TPS legislation providing protection for Salvadorans fleeing the violence in their country, and in the years since, the Massachusetts congressman had become the leading advocate for the program.
In a letter to Duke in mid-September signed by 115 of his colleagues, McGovern had argued that terminating TPS would “needlessly tear apart families” and would “likely bring destabilizing consequences throughout the region.” When he placed the phone call to Nielsen from his office in the Cannon House Office Building, McGovern was hopeful that he might convince her to change her mind. But the conversation did not start off well.
Nielsen told McGovern that the devastating 2001 earthquake in El Salvador no longer justified extending TPS for that country. The department’s lawyers, she said, had concluded that the program must be terminated. “That’s ridiculous,” McGovern said, demanding to see her legal analysis. The law was written to give the secretary wide latitude to consider the overall conditions in the countries, he said. And the drug and gang violence in El Salvador has made the country even more dangerous than it was during its long and brutal war in the 1980s. Nielsen was unmoved, echoing the line that other Trump officials had repeatedly seized on: “You know, Temporary Protected Status means temporary,” she told McGovern. “The key word in that is ‘protected,’ ” responded McGovern, who later recalled his frustration with Nielsen as the call went on. She was pleasant and polite, but unmoved by McGovern’s arguments. “Clearly she had no idea about the statute. There was not a lot of familiarity with the law, let me put it that way. It was frustrating. I said, ‘This is crazy, this is cruel.’ ” McGovern tried to explain the potential impact on Salvadorans who had lived in the United States for years, recalling one man who told him he could never take his thirteen-year-old daughter, an American citizen, back to El Salvador if he was deported. Ending TPS for El Salvador would mean many families would be separated.
“I thought maybe there was room for some reconsideration,” McGovern recalled later. “But clearly there wasn’t.”
On January 8, 2018, Nielsen ended TPS for the 200,000 Salvadorans living in the United States. The official announcement said that she based the decision on “careful consideration of available information” and had concluded that “under the applicable statute, the current TPS designation must be terminated.” Nielsen made a virtually identical announcement about Honduras on May 4, finally satisfying the administration’s desire to declare an end to TPS for all four of the major countries. In the months that followed, the administration made no effort to reach out to Congress to put in place new legislation to permanently protect the recipients of TPS. “If they really wanted us to legislate or remedy this, maybe they would work with us,” McGovern said during an interview in his office in early 2019. “Maybe they wouldn’t end TPS until we had something in place. How do you treat human beings like this?”
Duke announced her intention to retire from government on February 23, 2018, even as the beneficiaries of TPS and their children began suing the department. One lawsuit alleged that the decision to end TPS for Haiti violated the due process clause of the Constitution’s Fifth Amendment by discriminating against Haitian immigrants on the basis of race and ethnicity. Another lawsuit argued that the government’s reasons for ending TPS were little more than “pretext for invidious discrimination and belied by well-established facts.” A third cited Trump’s remarks that “all Haitians have AIDS” as evidence that the TPS decisions were based on an underlying racial animus. Still a fourth claimed that the administration’s interpretation of the TPS statute for El Salvador, Haiti, Nicaragua, and Sudan was arbitrary and capricious. Before 2018 ended, a federal judge overseeing the fourth case imposed a nationwide injunction, forcing the Trump administration to put the termination of TPS on hold until the legal issues were resolved.
The plaintiffs “have presented a substantial record supporting their claim that the Acting Secretary or Secretary of DHS, in deciding to terminate the TPS status of Haiti, El Salvador, Nicaragua and Sudan, changed the criteria applied by the prior administrations, and did so without any explanation or justification in violation of the Administrative Procedure Act,” wrote Judge Edward M. Chen, an Obama appointee on the federal bench in Northern California. It was clear from his ruling that Judge Chen was receptive to the argument that the TPS decisions had been marred by the same kind of political agenda that had caused judges to order a halt to other Trump immigration policies.
“There is also evidence that this may have been done in order to implement and justify a pre-ordained result desired by the White House,” he wrote. “Plaintiffs have also raised serious questions whether the actions taken by the Acting Secretary or Secretary were influenced by the White House and based on animus against non-white, non-European immigrants in violation of Equal Protection guaranteed by the Constitution.” He said the issues “are at least serious enough to preserve the status quo.”
To the top officials at the Justice Department and DHS, the rulings were nonsensical. The TPS statute literally had the word temporary in its title. Lawyers in the department were certain that the Supreme Court would never uphold the lower court rulings. It was, they told the White House, another example of judges imposing their own ideology about immigration on a straightforward legal question. Still, it was infuriating to have to tell Trump that the courts had once again stepped in to prevent him from following through on his promises. Devin O’Malley, a spokesman for Sessions, issued a blistering statement, saying that the judge’s ruling “usurps the role of the executive branch in our constitutional order” and promising to “fight for the integrity of our immigration laws and our national security.”