Protection upheld: S.F. judge’s ruling means DACA program won’t be terminated next week.
The Supreme Court’s rejection of President Trump’s unusual request to grant immediate review of the DACA case means the program protecting nearly 700,000 young, undocumented immigrants from deportation will almost certainly remain in place for at least a year.
Trump had ordered the program terminated March 5 unless Congress extended it. However, a San Francisco federal judge’s ruling that found no legal justification for ending the Deferred Action for Childhood Arrivals program — and the high court’s refusal Monday to hear an expedited appeal — means the government will be unable to start deportation proceedings against any of the undocumented immigrants covered by it.
The justices, without recorded dissent, denied the Justice Department’s request to bypass a federal appeals court and hear the administration’s appeal. The Supreme Court has not granted direct review of a federal judge’s ruling for nearly 30 years and has reserved the procedure for crucial tests of executive authority, like President Richard Nixon’s effort to withhold the Watergate tapes from a special prosecutor.
The DACA case will now return to the standard appellate process, starting in the Ninth U.S. Circuit Court of Appeals in San Francisco.
Directed by the Supreme Court in Monday’s order to “proceed expeditiously,” the Ninth Circuit may hold a hearing by June. But even a quick ruling by the appeals court would need additional months to reach the high court, which may also have to consider similar cases from New York, Maryland and Washington, D.C.
Most likely, “the Supreme Court won’t render a decision until June of 2019,” said Stephen Yale-Loehr, a Cornell University law professor and author of a reference book on immigration law. “That means another year and a half of uncertainty for DACA recipients.”
In the meantime, the court action “provides us protection from Trump’s deportation force,” Eliana Fernandez, a DACA recipient and a plaintiff in the New York lawsuit, said in a conference call by supporters of the program. Fernandez, who entered the United States at age 14 and now is a homeowner, legal services worker and a mother of two U.S. citizen children, called the president’s order “an attack on me, my family and my community.”
White House spokesman Raj Shah said the DACA program was “clearly unlawful” and predicted eventual victory in the courts.
DACA, established by President Barack Obama’s executive order in 2012, allows two-year reprieves from deportation and work permits to immigrants who entered the U.S. without authorization before age 16, have lived in the U.S. for at least five years, attended school or served in the military, and have no serious criminal records.
Trump issued his repeal order in September, but his administration has allowed current recipients to apply for renewals of their status until March 5. The court order eliminates that deadline.
Legislation to prolong DACA has stalled in Congress, with the parties divided over Trump’s demands to substantially reduce legal immigration and fund his proposed wall on the U.S.-Mexico border in exchange for continuing the program.
Immigration agents, meanwhile, have escalated arrests of undocumented migrants far from the nation’s borders, prompting Oakland Mayor Libby Schaaf ’s recent warning of an impending sweep in the Bay Area.
James Schwab, spokesman for U.S. Immigration and Customs Enforcement, said in a statement that ICE does not “target aliens indiscriminately” but “no longer exempts classes or categories of removable aliens from potential enforcement,” referring to a previous policy that focused on immigrants with criminal records.
DACA recipients, however, are not subject to deportation.
On Jan. 9, in response to lawsuits by DACA recipients and institutions that included the University of California, U.S. District Judge William Alsup of San Francisco ruled that the Trump administration had offered no rational explanation for abolishing the program and disrupting the lives of 689,000 young people.
He rejected the Justice Department’s argument that Obama had exceeded his authority, and noted that past administrations had granted deferrals of deportation to other groups of undocumented immigrants. Another federal judge in New York issued a similar ruling this month.
Rulings from federal courts in California and eight other Western states are normally appealed to the Ninth U.S. Circuit Court of Appeals, a court with a majority of Democratic appointees that has been a frequent target of Trump’s vitriol. The president renewed his attack Monday, telling a group of visiting governors that “nothing’s as bad as the Ninth Circuit.”
In seeking immediate Supreme Court review, the Justice Department said in a Jan. 18 filing that a Ninth Circuit appeal would require “many months of delay” and force the government “to retain in place a discretionary policy that sanctions the ongoing violation of federal law by more than half a million people.”
Government lawyers asked the justices to take up the case and issue a ruling by the end of the court’s term in June. They did not, however, include a request to suspend Alsup’s ruling during their appeal so that Trump’s March 5 deadline could take effect.
“If they thought it was so important to bypass the Ninth Circuit, I don’t know why they didn’t ask for a stay,” said Yale-Loehr, the Cornell law professor. He also noted that the Trump administration could use the normal federal rule-making process to adopt regulations eliminating DACA, after public notice and comment, but has not done so.
Justice Department spokesman Devin O’Malley said the agency was not surprised by Monday’s order.
“While we were hopeful for a different outcome, the Supreme Court very rarely grants” review at this stage, he said — “though in our view it was warranted for the extraordinary injunction requiring the Department of Homeland Security to maintain DACA. We will continue to defend DHS’ lawful authority to wind down DACA in an orderly manner.”
The case is Department of Homeland Security vs. UC Regents, 17-1003.