The Trump administration will likely appeal a judge’s decision to offer a temporary reprieve to nearly 700,000 Dreamers, but its chances of success are questionable considering the appeal would be before the U.S. Court of Appeals for the Ninth Circuit, which President Trump has vowed to dismantle after it blocked two of his Muslim ban executive orders.
A federal judge in California on Tuesday ordered the Department of Homeland Security (DHS) to maintain the Deferred Action for Childhood Arrivals (DACA) program, pending the outcome of legal challenges to the Trump administration’s decision to end the program.
U.S. District Court Judge William Alsup ordered the Trump administration to “maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017.”
President Obama created the DACA program in 2012 as part of his efforts to protect young immigrants who were brought to the United States as children without authorization. The DACA program permits enrollees to defer deportation and reside in the United States legally for two years, after which they would have to apply for a renewal. DACA allows young undocumented people to work, attend school, obtain driver’s licenses, and participate in the economy through payment of income tax.
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The Trump administration in September 2017 issued a rescission memo that ended the program, claiming that Obama had illegally created the program and that it was an overreach of executive power.
The rescission memorandum said that the administration would not be accepting any new DACA applications as of the date of the memorandum (September 5) but would still accept renewal applications until 30 days after the date of the memorandum, October 5.
The administration is not accepting any new applications, nor is it accepting any renewal requests for childhood arrivals, according to the U.S. Citizenship and Immigration Services website as of the date of this publication. The administration will still consider on a case-by-case basis DACA requests received from residents of the U.S. Virgin Islands and Puerto Rico, which were recently ravaged by hurricanes.
The Trump administration argued that the first step on the road to deportation is the dismantling of DACA, therefore the dismantling of DACA is shielded from judicial review. The administration relied on a statutory provision of the Immigration and Nationality Act (INA). That provision, Section 1252(g), says that courts do not have jurisdiction to hear claims on behalf of undocumented people arising from the attorney general’s decision to do any one of three things: commence removal proceedings, adjudicate removal cases, or execute removal orders.
Plaintiffs responded that their claims do not relate to any of the three discrete actions detailed in the statutory provision; they are not challenging a specific removal, but rather the cancellation of the DACA program writ large.
Alsup rejected the administration’s argument, citing a 1999 Supreme Court case, Reno v. American Arab Anti-discrimination Committee (AADC). In that case, the U.S. Supreme Court ruled that Section 1252(g) referred only to the three discrete actions detailed in the statute—commencement of removal proceedings, adjudication of removal cases, or execution of removal orders. The Court emphasized that “[i]t is implausible that the mention of three discrete events along the road to deportation was a shorthand way of referring to all claims arising from deportation proceedings.”
Judge Alsup noted that the Ninth Circuit Court of Appeals has held that Section 1252(g) does not prohibit judicial review of actions that occur prior to any decision to commence proceedings.
And because the Trump administration’s rescission of DACA is an action that occurred prior to any decision to commence removal proceedings of any particular undocumented person, the rescission is not covered by Section 1252(g) and is therefore subject to judicial review.
The rescission memo prompted almost immediate litigation. Five lawsuits were filed on behalf of various individual plaintiffs, universities, and cities, with each claiming that the Trump administration’s DACA rescission irreparably harms them. The first of the lawsuits, brought by The Regents of the University of California on its own behalf, on behalf of its students, and on behalf of Janet Napolitano, former head of DHS and current president of the university. The UC plaintiffs allege that they have “invested considerable resources in recruiting students and staff who are DACA recipients, and that these individuals make important contributions to the university.”
Three of the four other lawsuits, one filed by the states of California, Maine, Maryland, and Minnesota; one filed by the City of San Jose; and one filed by the County of Santa Clara and the Service Employees International Union Local 521 all make similar allegations: that they employ DACA recipients and would be irreparably harmed if those employees left the workforce due to the considerable resources invested in those employees and that city and state economies would be irreparably damaged.
The fourth lawsuit, filed by individual DACA recipients who work and study in the fields of law, medicine, education, and psychology, alleges that the termination of DACA would frustrate their professional goals and accomplishments. The DACA recipients allege that they relied on the government’s representation that the information they provided under the program would not be used for purposes of immigration enforcement.
Based on the plaintiffs’ claims, Judge Alsup ruled that the irreparable harm that plaintiffs would face combined with the plaintiffs’ likelihood of success on the merits of the case at trial warranted a nationwide injunction.
With regard to likelihood of success on the merits, Judge Alsup rejected the defendants’ claim that the DACA program was illegal, citing a determination by the Department of Justice’s Office of Legal Counsel that “programmatic deferred action is a permissible exercise of DHS’s enforcement discretion.”
As long as “immigration officials retain discretion to evaluate each application on an individualized basis,” then DACA is permissible, Alsup wrote in his opinion, noting that the practice of deferred action dates back decades and that Congress has long been aware of the practice and has never acted to limit it.
It is unclear what the political fallout from the decision will be. The White House called the decision “outrageous,” according to CNN.
“An issue of this magnitude must go through the normal legislative process. President Trump is committed to the rule of law, and will work with members of both parties to reach a permanent solution that corrects the unconstitutional actions taken by the last administration,” White House press secretary Sarah Sanders said in a statement.
Immigrant rights activists are concerned that the injunction will lead Republicans and Democrats to drag their feet when it comes to finding a legislative solution to protect DACA recipients, according to the New York Times.
“This is not a win for us,” Camille Mackler, director of immigration legal policy at the New York Immigration Coalition, told the Times.
“We’re obviously glad that this is going to provide some relief, but what we really need is a clean Dream Act.”