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Nepalese Sanctuary Seekers Fighting to Stay in the U.S.

First, they had a violent civil war, then a devastating earthquake; now they have to overcome Trump.

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Sajjan Pandey first came to the Bay Area from Nepal in 2006, while the Nepalese civil war raged in his homeland. He's been legally working in the United States ever since, diligently paying his taxes and putting money into Social Security. He has built a life in the Bay Area and doesn't want to return to Nepal. But after 12 years of hard work, he's at threat of deportation to his birth country.

If Sajjan is forced to leave, he won't receive the retirement funds that he contributed into Social Security and had expected to start collecting this year. And as a politically involved man returning to Nepal from the United States, he fears he would be persecuted by the Nepal Communist Party, which holds the majority of seats in the Nepalese parliament.

"I have nightmares about what would happen if I have to go back to Nepal," he said, sitting recently at the dining room table in his Alameda condo.

Sajjan is one of around 9,000 Nepalese immigrants who are in the United States under what is known as Temporary Protected Status. The program was developed in 1990 to grant sanctuary to people whose countries were ravaged by armed conflicts or environmental disasters. It's only offered to people who were already in the United States when the status was conferred upon immigrants from their country.

Nepalese residents received Temporary Protected Status in 2015 after a devastating earthquake. In 2017, however, the Trump Administration announced plans to terminate the status for 98 percent of all such recipients, around 300,000 people from ten countries. If Nepalese residents are forced to leave, they'll be returning to a country still crippled by the earthquake and torn apart by a violent civil war that's left Nepal politically unstable.

Now 65 years old, Sajjan lives with his cousin, Anil Pandey, in an Alameda condo, and works at a nearby Chevron station. The cousins lead Motherland Nepal, an organization that helps Nepalese immigrants adjust to life in the Bay Area, something Sajjan had to do when he first arrived in the U.S. 12 years ago. He's one of around 5,000 Nepalese immigrants living in the Bay Area, according to 2015 Census Bureau data from the Pew Research Center. There are Nepalese communities in Berkeley and Richmond.

Temporary Protected Status is Sajjan's only hope for staying in the United States. He held work visas in the past, but couldn't get one as he neared retirement. It's difficult for older people with limited English skills like Sajjan to be hired by companies that would sponsor a work visa.

In March of 2018, Temporary Protected Status holders filed a class-action lawsuit, Ramos v Nielsen, against the Department of Homeland Security in federal court, arguing that the terminations for immigrants from Sudan, Nicaragua, Haiti and El Salvador were illegal. Sajjan is one of six plaintiffs in a subsequent case, Bhattarai v Nielsen, that added Nepal and Honduras to the list.

The complaints argue that the proposed terminations of Temporary Protected Status violate the U.S. Constitution's Equal Protection clause because they were motivated by racism and discrimination based on country of origin. President Trump has made derogatory remarks about the countries whose emigrants are protected under Temporary Protected Status.

The complaints also argue that the Trump Administration violated the Administrative Procedure Act by changing the decision-making process for terminating Temporary Protected Status. Unlike other administrations, Trump's Department of Homeland Security did not take intervening events and conditions into account when deciding whether to terminate protected status for immigrants from a country.

Plaintiffs in Ramos v Nielsen argue that the racism that inspired the administration to pressure the Department of Homeland Security to terminate Temporary Protected Status violated the Equal Protection Clause. In January 2018, when talking to lawmakers about immigration policies including Temporary Protected Status for Haiti and El Salvador, Trump described the affected nations as "shithole countries," suggesting instead that the U.S. should encourage immigration from places like Norway. Most Haitians are black and most Salvadorans are mestizo, where residents of Norway are predominantly white.

In February 2018, the president compared immigrants coming into the U.S. to snakes, using a story about a snake that was welcomed into a woman's home only to kill her, to describe what immigrants will do to America. And while talking to intelligence officials preparing for a meeting with Narendra Modi, the prime minister of India, he deliberately mispronounced "Nepal" as "nipple," while studying a map of the region.

The suits list emails that show the Trump Administration's influence on the Department of Homeland Security's decision to terminate Temporary Protected Status. In November 2017, Elaine Duke, the former acting secretary of Homeland Security wrote in an email to White House Chief of Staff John F. Kelly that her decision to terminate Temporary Protected Status for Nicaragua "is consistent with the President's position on immigration. ... This decision is really just a difference in strategy to get to the President's objectives."

Duke added, in a draft memo, "This conclusion is the result of an America-First view of the TPS decision."

"TPS termination is just one piece of a broad constellation of efforts by the Trump Administration to make life so much more difficult for immigrants who are not white or European," said Minju Cho, a lawyer with Asian Americans Advancing Justice, one of five organizations representing the plaintiffs in Bhattarai v Nielsen. "Our constitution is clear that this kind of racial animus is unlawful," she said. "Not even the president can get away with that."

After the lawsuits were filed, the court found enough evidence in support of the complaints to extend protected status for all affected recipients for at least 120 days after any decision is reached. Bhattarai v Nielsen is on hold right now because it's so similar to Ramos v Nielsen that the decisions in both lawsuits will probably be made together. A decision is expected some time after Oct. 4.

Many Temporary Protected Status countries are still dangerous places to be. The lawsuits argue that if the Trump Administration had not changed the process for deciding when to terminate Temporary Protected Status, the decision would have been difficult to justify.

"Other administrations would have extended TPS for Nepal and other TPS countries because they would have recognized that conditions aren't safe enough for people to return," Cho said.

Indeed, the Obama administration extended Temporary Protected Status for Nepal in 2016, because of continual natural disasters and civil unrest. Since then, conditions in the country have remained challenging. The plaintiffs say returning to Nepal would be dangerous and economically difficult for many.

The Maoists who later joined the Communist Party fought a civil war with the Nepalese government, then a constitutional monarchy, from 1996 to 2006. Around 17,000 Nepalese died in the conflict. The Communists are now the country's dominant party, and although a peace agreement was reached, they use violent techniques to maintain control.

Dili Bikram Thapa, a cook at the Mountain View restaurant Everest Cuisine, was a chef and photographer in Nepal. He doesn't have Temporary Protected Status and lives in the U.S. with a work visa. But his experiences with political persecution are familiar to many Temporary Protected Status recipients.

In 2008, Maoists showed up at his photography studio in Hariyon and asked him to join their party and give them money. When he refused, they assaulted him. Thapa fled to Kathmandu, but the Maoists found him again in 2016. That time they beat him so badly that he was hospitalized. He left Nepal for the U.S.

Thapa has scars between and beneath his deep-set brown eyes, where his attackers hit him. Since moving to America, he hasn't seen his wife, son, or daughter. Having been an active member of the Nepali Congress, which fought the Maoists in the civil war and continues to oppose the Communists in the Nepalese parliament, Thapa says he is a target and will be attacked if he returns to Nepal.

Dip Jyoti Karki also is a Nepalese immigrant with a work visa seeking political sanctuary. Like Thapa, he'd been a member of the Nepali Congress during the civil war. He was hospitalized after an encounter with the Maoists and had to escape Nepal to Singapore in 2007, according to his brother, Everest Cuisine owner Prince Yubaraj Karki. Dip returned to Nepal to get married in 2015, but he was threatened by Maoists again. Fearing for his safety, he fled to the U.S. a week after his marriage, and hasn't seen his wife ever since.

Prince said Nepal is only safe if you're a member of the Maoists, or stay far away from politics. "I'd definitely get in trouble if I was in Nepal," he said.

Besides the political turmoil that would make returning to the country dangerous for many, the nation's infrastructure is still in shambles. In the 2015 earthquake, around 9,000 people died, 20,000 people were injured, and 600,000 homes were destroyed. Rebuilding has been slow, and many Nepalese are still living in tents and makeshift shelters. In a recent video call from Kathmandu, where he just spent a month working as the president of Motherland Nepal, Sajjan's cousin and roommate Anil said the government is failing to help people recover. Subsequent flooding hasn't helped. In July, monsoonal rains inundated the country and turned the capital city of Kathmandu's streets into rivers.

"It was really hard," said Anil, who was in Kathmandu at the time. "I saw people being swept away in front of my eyes. All of them were crying and waving for help, and I couldn't do anything. I just stood outside in my rain coat and watched."

Damage from the recent flood, which destroyed many fields of crops, would make it an especially hard time for 9,000 Nepalese Temporary Protected Status holders to go back to their birth country.

"There are no houses for them to return to," Anil said. "There's no food."

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