The discretion the Secretary of Homeland Security exercised when she terminated the Temporary Protected Status of Haitian nationals is the discretion the Immigration and Nationality Act has always vested in the Secretary alone. 8 U.S.C. § 1254a provides that the Secretary “may” terminate a country’s designation when she determines that the conditions in the foreign state “no longer support” the designation’s continuation. The statute does not require the Secretary to defer. The statute does not require the Secretary to consult. The Secretary determines. The Secretary has determined. The Supreme Court of the United States confirmed the breadth of the discretion in Trump v. Hawaii, 585 U.S. 667 (2018), and had confirmed it across the prior century — in Chae Chan Ping v. United States, 130 U.S. 581 (1889), in Fong Yue Ting v. United States, 149 U.S. 698 (1893), in Knauff v. Shaughnessy, 338 U.S. 537 (1950). The doctrine extends, by the structure of the case, to every lesser measure by which the political branches execute the order the sovereign holds over the alien within the territory.
The apostle carries the architecture into the house of faith. “Let every soul be subject unto the higher powers,” Romans 13:1 declares. “For there is no power but of God: the powers that be are ordained of God.” The second verse finishes the sentence: “Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.” Peter takes the same counsel into the household. “Submit yourselves to every ordinance of man for the Lord’s sake,” 1 Peter 2:13. “Whether it be unto the king, as supreme, or unto governors, as unto them that are sent by him for the punishment of evildoers, and for the praise of them that do well.” The apostle and the statute speak with one voice.
The parallel discretion the President exercised under the Refugee Act is the mirror architecture. 8 U.S.C. § 1101 et seq. vests in the President the discretion to designate which class of persons outside the United States is “of special humanitarian concern to the United States” and accordingly to be admitted. The President’s designation of the Afrikaner class of South Africa is the exercise of the discretion the Refugee Act vests in him. The cap on Afrikaner admissions has been raised; the qualifications of the class have been processed. The Afrikaner refugee is the class the Refugee Act was designed to reach.
The two discretions are distinct in statute and coherent in design. The Secretary has determined the conditions in Haiti permit the safe return of Haitian nationals. The President has determined the Afrikaner class satisfies the Refugee Act’s design. The two standings are distinct. The two determinations are coherent. The wall runs where the statute runs.
Acts 17:26 names the architecture its scriptural form. Paul told the Athenians, on the Areopagus, that God “made from one man every nation of mankind to live on all the face of the earth, having determined allotted periods and the bounds of their habitation.” The bounds are not the legislation’s invention. The bounds are the order the legislation recognizes.
While the steel bands sounded on Eastern Parkway yesterday morning, the household the parade celebrated had begun to separate from the children the parade had raised.
She was thirty-four in the year the prior administration extended the Temporary Protected Status to the Haitian nationals who had fled the territory the gang coalition Viv Ansanm had been assembling. She had worked the night shift in the homes the agency had assigned her across the borough — the labor the borough’s elderly population had depended upon for the care the nursing home system could not afford. The home health aide was the work the visa permitted and the work the city afforded. The families whose parents she served paid the agency; the agency paid her. The arrangement had held for the seven years the visa was renewed. Her two daughters were born at the hospital three blocks from the apartment. The daughters were American citizens by birth. The daughters attended the public school the borough funded. The daughters had never seen Haiti.
One of her cases had progressed to advanced dementia. The client’s daughter had moved the parent into her own home in Staten Island. The home health aide rode the express bus each morning and returned each evening. The client’s daughter depended on the aide to lift the patient from the bed, to bathe the patient, to feed the patient the pureed food the throat could swallow, to turn the body every two hours so the skin over the patient’s hips did not break down, to administer the drops the prescription required for the glaucoma the specialist had diagnosed. The aide was the continuity that permitted the patient to remain in the daughter’s home rather than in the nursing home the Medicare copay would have bankrupted the family to afford.
The federal officers had detained the home health aide’s husband the prior month. He had been a TPS holder of longer standing than she — a construction subcontractor whose work permit the prior decade had not questioned. The federal officers had conveyed him to the detention center in Newark. The Office of Field Operations had removed him on the charter it flies to Cap-Haïtien twice weekly. He had not been heard from since. The daughters asked for their father. The home health aide did not answer.
The notice the Department of Homeland Security sent reached her in the month the parade had been announced. The notice informed her that the designation under which she had been admitted had been terminated, that the country from which she had departed had been determined by the Secretary no longer to prevent the safe return of its nationals, and that she was required to depart the United States by the date the notice specified. The date fell in the calendar quarter when the West Indian Day Parade would have been marching down Eastern Parkway.
She did not depart. The home health aide’s two daughters were American citizens by the place of their birth. The home health aide had been assigned to the client’s daughter for the four years the dementia had required. The client’s daughter asked the aide whether she would stay. The home health aide said she would stay as long as she could. She continued the Staten Island case through the autumn. The agency did not ask her to leave. The client’s daughter did not ask her to leave. The home health aide rode the express bus each morning through the months the home health agencies of the borough had been losing their Haitian aides at the rate the geriatricians had begun to count.
In February of the year the parade returned, the home health aide left the apartment at four in the morning for the shift the agency had scheduled at a different client’s home in the Bronx. The housing voucher had not been paid for in the three months the voucher had been conditional upon the documentation the termination had voided. The landlord had begun the eviction proceeding the housing court required. The daughters had been moved to the grandmother’s two-bedroom apartment in the same borough.
The federal officers stopped her at the checkpoint the transit police had set up at the subway station that morning. The federal officers identified her. The federal officers searched her. The federal officers found the documentation the termination had voided and the documentation the prior month’s raid had not reached. The federal officers conveyed her to the holding facility the borough’s ICE field office maintains. The federal officers processed her for removal. The Office of Field Operations removed her on the charter it had scheduled for Cap-Haïtien that week.
The client’s daughter telephoned the agency that afternoon. The agency told the daughter that the home health aide had been detained. The client’s daughter telephoned the aide’s number. The number did not answer. The daughter telephoned the patient’s geriatrician and asked the geriatrician to recommend a temporary replacement. The geriatrician told the daughter that the borough’s home health agencies had lost, by the geriatrician’s count, a tally of their Haitian aides in the preceding six months, and that the replacement list the agency had maintained had been empty since the prior month. The client’s daughter did not find a replacement. The client’s daughter moved the parent to the nursing home the Medicare copay had not been designed for.
The nursing home’s aides did not know which pureed food the throat could swallow. The nursing home’s aides did not turn the body every two hours. The nursing home’s aides did not administer the glaucoma drops at the hour the prescription required. The parent who had been bathed, fed, turned, and medicated in the daughter’s home for the four years the dementia had required was the parent the nursing home received when the borough’s Haitian aides had been removed. The geriatricians of the borough had been recording the same transfer across their caseloads in the months the aide corps had been depleted.
The receiving-country officers in Cap-Haïtien fingerprinted her. The receiving-country officers photographed her. The receiving-country officers did not provide transit to the family the cousin had said would receive her. The cousin had been displaced from the cousin’s home by the gang affiliate Viv Ansanm had commandeered. The cousin had not been heard from in the months before the charter arrived. The home health aide had no money. The home health aide had no phone. The home health aide had no address. The home health aide stood on the curb of the airport the charter had delivered her to, in the territory the affiliates Viv Ansanm command, in the country the Secretary had determined could safely receive her. The community organizer who had documented the cohort’s situation had recorded the year the prior terminations had taken effect as the year in which the cohort had no valid way of living or supporting themselves upon return.
The two American daughters remain in the grandmother’s two-bedroom apartment. The eldest daughter is eight. The younger daughter is five. The grandmother is sixty-seven. The eldest daughter and the younger daughter are American citizens by birth and will remain American citizens by birth. The mother is in Cap-Haïtien. The father is in Cap-Haïtien. The daughters are in the borough.
She stands outside the covenant the parade celebrated. The Haitian marching community that organized Lespri Ayiti marched yesterday down Eastern Parkway under the standing the Secretary had assigned it. The Temporary Protected Status was the privilege the prior administration had extended and the present administration had withdrawn. The withdrawal is the order the bounds require.
Paul told the Athenians on the Areopagus that God “made from one man every nation of mankind to live on all the face of the earth, having determined allotted periods and the bounds of their habitation.” The Haitian stands within the bounds her nationality assigned her. The Afrikaner has been brought within the bounds the Refugee Act’s discretion determined to extend. The home health aide whose care the borough’s elderly depended upon stands where the bounds have placed her. The two American daughters stand within the bounds the soil conferred. The wall does not extend to the parent whose privilege has been revoked. The parent has been returned to the bounds her nationality assigned her, and to the territory the affiliates Viv Ansanm commands, and to the curb of the airport the charter delivered her to. The standing has been read; the bounds hold.