DREAMers’ court win could be short-lived
Advocates brace for eventual reversal of Tuesday ruling that preserves DACA
A legal victory for DREAMers hoping to stay in the United States under the Deferred Action for Childhood Arrivals (DACA) program may prove to be shortlived, immigration experts said Wednesday.
Late Tuesday, a federal judge in California ruled President Trump acted improperly by ending DACA, which has protected from deportation nearly 800,000 undocumented immigrations who were brought to the United States as children.
“The chances of (the ruling) being overturned are very strong,” said Peter Boogaard, a former official under President Obama, who created the program in 2012. Boogaard now works for FWD.us, an advocacy group created by technology giants that support DACA.
U.S. District Judge William Alsup, who was appointed to the bench by President Clinton, ruled that the Trump administration provided flawed legal reasoning for ending the program.
White House press secretary Sarah Huckabee Sanders called Alsup’s ruling “outrageous” and said DACA was an “unconstitutional action.”
When Trump decided to phase out DACA in September, Attorney General Jeff Sessions and the Department of Homeland Security (DHS) argued that they were doing so because Obama had overstepped his authority in establishing the program. They argued that only Congress could create such protections for so many undocumented immigrants.
Alsup disagreed, ruling DACA is legal and ordered DHS to restart the program, which is scheduled to come to an end March 5 unless Trump and Congress can find a compromise for renewing it.
“Courts review the reasons agencies provide for making decisions all the time,” said Michael Tan, an attorney at the ACLU’s Immigrants’ Rights Project who was not involved in the California lawsuit. “In this case, the decision to end DACA was based on a legal error. That’s not a legitimate basis for ending the program.”
The Justice Department could quickly appeal the ruling to the 9th U.S. Cir- cuit Court of Appeals in San Francisco, which has repeatedly ruled against Trump’s travel ban for a group of Muslim-majority nations.
If Trump loses the appeal, the next step would be the Supreme Court, which now has a 5-4 majority appointed by Republican presidents.
Another option, according to Washington, D.C., immigration attorney Andrew Pincus, is for the administration to rescind its order terminating DACA and immediately implement a new one using a different legal argument.
“The administration can come back the next day and say, ‘OK, we’re going to invalidate DACA for these other reasons,’ ” Pincus said. “There would be another lawsuit, but that would then be a difficult lawsuit to win.”
So much legal uncertainty remains that immigration advocacy groups are warning DACA enrollees not to rush to submit their applications for renewing protections for the maximum 2-year period. Since the program began phasing out in the fall, those whose protections expired had been unable to renew.
Marielena Hincapié, executive director of the National Immigration Law Center, a group that represents immigrants in court, said Alsup’s ruling doesn’t mean the federal government will start processing new applications “today, or even in the very near future.” She said there is no new process for applying yet.
The ruling provided a rare moment of agreement on immigration in Washing- ton, where Republicans and Democrats said they should continue moving forward with negotiations on a bill that would renew DACA in exchange for improved enforcement to curb illegal entry into the country.
Huckabee said Wednesday that Trump will continue working with Congress to craft a permanent solution for DREAMers.
Rep. Ileana Ros-Lehtinen, R-Fla., said the ruling should “not undercut the urgency” for Congress to pass a law. And Senate Minority Leader Charles Schumer, D-N.Y., said he agreed with the White House that they should continue moving forward.
“A court case is no guarantee of lasting security; a higher court can quickly overturn it,” Schumer said on the Senate floor. “The only way to guarantee legal status for DREAMers is to pass DACA protections into law and do it now.”
“The administration can come back the next day and say, ‘OK, we’re going to invalidate DACA for these other reasons.’ ” Andrew Pincus Immgration attorney