Ap­peals court rules against Trump DACA phase­out

Judge: Of­fi­cials cut cor­ners in eras­ing pro­gram

The Washington Times Daily - - POLITICS - BY STEPHEN DINAN

A fed­eral ap­peals court ruled Thurs­day that Pres­i­dent Trump and his team goofed in try­ing to can­cel the Obama-era DACA de­por­ta­tion amnesty for “Dream­ers,” say­ing that while they may have the power to erase the pro­gram, they must do it prop­erly.

The 9th U.S. Cir­cuit Court of Ap­peals said the ad­min­is­tra­tion cut cor­ners and gave an un­con­vinc­ing ex­pla­na­tion of why it thought it had to phase­out the De­ferred Ac­tion for Child­hood Ar­rivals pro­gram.

With­out a bet­ter ex­pla­na­tion, the de­ci­sion was ar­bi­trary — a vi­o­la­tion of fed­eral pro­ce­dural law, the court ruled.

“The ex­ec­u­tive wields awe­some power in the en­force­ment of our na­tion’s im­mi­gra­tion laws. Our de­ci­sion to­day does not curb that power, but rather en­ables its ex­er­cise in a man­ner that is free from le­gal mis­con­cep­tions and is demo­crat­i­cally ac­count­able to the pub­lic,” wrote Judge Kim McLane Ward­law, an Obama ap­pointee to the ap­peals court.

The de­ci­sion is likely to be ap­pealed to the Supreme Court. In­deed the Jus­tice Depart­ment ear­lier this month had asked the high court to hear a series of DACA cases even be­fore they were de­cided in lower courts, say­ing it was crit­i­cal for the jus­tices to tackle the mat­ter this term.

DACA is the 2012 pro­gram set up by Pres­i­dent Obama that granted a ten­ta­tive amnesty from de­por­ta­tion to hun­dreds of thou­sands of Dream­ers — im­mi­grants who came to the U.S. il­le­gally as chil­dren, grew up here, and in many cases don’t know their home coun­tries.

The pro­gram has al­ways been legally sus­pect and eight months af­ter Mr. Trump took of­fice, fac­ing the im­me­di­ate threat of a law­suit, the ad­min­is­tra­tion an­nounced it would at­tempt a phase­out.

That sparked a series of law­suits, and pro­duced a num­ber of rul­ings by judges who said the phase­out was poorly jus­ti­fied. At the same time, an­other court ruled the orig­i­nal DACA pro­gram it­self was likely il­le­gal.

As the cases move through the courts, the pro­gram re­mains in ef­fect, pro­tect­ing Dream­ers who’d al­ready been ap­proved. But it is not ac­cept­ing new ap­pli­ca­tions.

DACA de­fend­ers said the rul­ing is a ma­jor vic­tory for Dream­ers who’ve been afraid of hav­ing the pro­gram yanked out from un­der them.

“This ad­min­is­tra­tion has tried to strip away the pro­tec­tions that hun­dreds of thou­sands of im­mi­grants have re­lied on for years, and we hope this is a big step to­ward re­vers­ing that tra­jec­tory,” said Luis Cortes, one of the lawyers in the case, who is also a DACA re­cip­i­ent.

Mr. Trump dur­ing the 2016 cam­paign called DACA il­le­gal and un­con­sti­tu­tional.

Yet when he took of­fice he did not im­me­di­ately move to re­voke it. In­deed, then-Home­land Se­cu­rity Sec­re­tary John F. Kelly — now White House chief of staff — orig­i­nally ap­proved an ex­ten­sion of the pro­gram.

It was only af­ter fac­ing the threat of a law­suit by the state of Texas that the ad­min­is­tra­tion re­versed and tried to phase out DACA. The ap­peals court Thurs­day pointed to Mr. Kelly’s orig­i­nal ap­proval of DACA as ev­i­dence of its le­gal stand­ing.

Com­pli­cat­ing mat­ters for the gov­ern­ment is a 2014 opin­ion by the Jus­tice Depart­ment’s Of­fice of Le­gal Coun­sel, the ad­min­is­tra­tion’s chief le­gal over­seer, ar­gu­ing DACA-like pro­grams are le­gal.

That Obama-era opin­ion has not been re­scinded, and re­mains on the depart­ment’s web­site.

The judges in Thurs­day’s rul­ing also made clear their sup­port for the “Dream­ers” caught in the le­gal fight, call­ing any ef­forts to de­port them “cru­elty and waste­ful­ness.”

They said the “Dream­ers” were “trust­ing” the gov­ern­ment to keep the pro­gram in­tact — though when it was cre­ated, of­fi­cials had said it was tem­po­rary, con­ferred no per­ma­nent sta­tus and “may be re­voked at any time.”

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