Trump loses in court on DACA

Rul­ing al­lows Dream­ers to con­tinue mak­ing ap­pli­ca­tion re­newals

Northwest Arkansas Democrat-Gazette - - NATIONAL - ROBERT BARNES

WASH­ING­TON — A fed­eral ap­peals court ruled Thurs­day that Pres­i­dent Don­ald Trump can­not im­me­di­ately end the pro­gram that shields from de­por­ta­tion young peo­ple who were brought to the coun­try as chil­dren and are now in the U.S. il­le­gally.

The unan­i­mous de­ci­sion by a three-judge panel of the U.S. Court of Ap­peals for the 9th Cir­cuit makes it more likely that the Supreme Court will set­tle the ques­tion. The Trump ad­min­is­tra­tion has asked the jus­tices to add it to the docket for this term.

The De­ferred Ac­tion for Child­hood Ar­rivals pro­gram was cre­ated in 2012 by Pres­i­dent Barack Obama and has pro­tected nearly 700,000 peo­ple brought to this coun­try as chil­dren.

The Trump ad­min­is­tra­tion moved to dis­man­tle DACA in 2017. Then-At­tor­ney Gen­eral Jeff Ses­sions ad­vised the Depart­ment of Home­land Se­cu­rity to end the pro­gram, say­ing it was prob­a­bly un­law­ful and that it could not be de­fended in court.

But a num­ber of courts around the coun­try have ruled that the ad­min­is­tra­tion’s rea­son­ing was in­cor­rect and have kept the pro­gram in place. Like the other courts, the panel Thurs­day did not ques­tion the ad­min­is­tra­tion’s power but faulted its ap­proach.

“To be clear: we do not hold that DACA could not be re­scinded as an ex­er­cise of Ex­ec­u­tive Branch dis­cre­tion,” Judge Kim McLane Ward­law said in the opin­ion. “We hold only that here, where the Ex­ec­u­tive did not make a dis­cre­tionary choice to end DACA — but rather acted based on an er­ro­neous view of what the law re­quired — the rescis­sion was ar­bi­trary and capri­cious un­der set­tled law.”

The panel of judges, all nom­i­nated by Demo­cratic pres­i­dents, flatly re­jected the ad­min­is­tra­tion’s po­si­tion that courts lacked the power to re­view the ex­ec­u­tive branch’s im­mi­gra­tion ac­tions.

“The govern­ment may not si­mul­ta­ne­ously both as­sert that its ac­tions are legally com­pelled, based on its in­ter­pre­ta­tion of the law, and avoid re­view of that as­ser­tion by the ju­di­cial branch, whose ‘prov­ince and duty’ it is ‘to say what the law is,’” Ward­law said, bor­row­ing the lan­guage of the land­mark Mar­bury v. Madi­son de­ci­sion.

Ward­law said the Obama ad­min­is­tra­tion was within its pow­ers to en­act DACA be­cause it had to make a choice about how to di­rect lim­ited re­sources in de­port­ing mi­grants and de­cided to spare those who came as chil­dren, had not com­mit­ted crimes and were stu­dents or in the mil­i­tary.

“The re­al­ity is (and al­ways has been) that the ex­ec­u­tive agen­cies charged with im­mi­gra­tion en­force­ment do not have the re­sources re­quired to de­port ev­ery sin­gle per­son present in this coun­try with­out au­tho­riza­tion,” she said.

And while the opin­ion does not pur­port to de­cide the wis­dom of the pol­icy, Ward­law was clearly sym­pa­thetic.

“It is no hy­per­bole to say that Dulce Gar­cia em­bod­ies the Amer­i­can dream,” is how she be­gins the opin­ion, telling the story of a woman brought to this coun­try by her par­ents as a 4-year-old who now has a thriv­ing law prac­tice in San Diego.

“Rec­og­niz­ing the cru­elty and waste­ful­ness of de­port­ing pro­duc­tive young peo­ple to coun­tries with which they have no ties, the Sec­re­tary of Home­land Se­cu­rity an­nounced a pol­icy in 2012 that would pro­vide some re­lief to in­di­vid­u­als like Gar­cia, while al­low­ing our com­mu­ni­ties to con­tinue to ben­e­fit from their con­tri­bu­tions,” Ward­law said.

The panel’s de­ci­sion keeps in place an in­junc­tion from the lower court that al­lows pro­gram re­cip­i­ents to re­new their ap­pli­ca­tions. Ac­cord­ing to Cal­i­for­nia At­tor­ney Gen­eral Xavier Be­cerra, more than 187,000 peo­ple “have re­gained or ex­tended their DACA pro­tec­tions as a re­sult of the court’s in­junc­tion, and hun­dreds of thou­sands of ad­di­tional Dream­ers are el­i­gi­ble to do so.”

The ad­min­is­tra­tion’s ac­tions on DACA were prompted by a threat by Texas and other states to sue to end the pro­gram.

The states had been suc­cess­ful in stop­ping an ex­ten­sion of a dif­fer­ent pro­gram pro­posed by Obama, called the De­ferred Ac­tion for Par­ents of Amer­i­cans and Law­ful Per­ma­nent Res­i­dents pro­gram.

The ad­min­is­tra­tion had been im­pa­tiently await­ing the 9th Cir­cuit’s de­ci­sion on DACA, af­ter oral ar­gu­ments last spring. It sent a let­ter to the cir­cuit last month, say­ing that if the de­ci­sion was not handed down by Oct. 31, it would ask the Supreme Court to take up the is­sue.

It filed that re­quest with the Supreme Court last week, but the jus­tices have not acted upon it yet.

The case is Re­gents of the Uni­ver­sity of Cal­i­for­nia v. Depart­ment of Home­land Se­cu­rity.

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