In two written opinions issued last week, the U.S. District Court in Northern California has ordered the temporary reinstatement of the Deferred Action for Childhood Arrivals (DACA) program while pending further litigation. The DACA program was rescinded by President Donald Trump on September 5, 2017, and the University of California; the states of California, Minnesota, Maine, and Maryland; the city of San Jose, the county of Santa Clara and the Service Employees International Union Local 521; and six individual DACA recipients, filed lawsuits challenging the rescission.  The five lawsuits were consolidated and heard together by U.S. District Court Judge William Alsup. (There are additional lawsuits challenging the rescission of the DACA program being litigated in New York and the District of Columbia, with none of those lawsuits yet to reach any decisions.)

In the first order issued last Tuesday, Judge Alsup reviewed the history, beginning in 1975,  of the use of “deferred action” to provide discretionary relief from deportation to both groups and individuals by the Department of Homeland Security (DHS), and the specific establishment of the DACA program by President Obama in 2012. Judge Alsup noted that both Congress and the U.S. Supreme Court had recognized and referred to deferred action status. The Department of Justice (DOJ) had provided its legal analysis that such a program was within the discretionary authority of the DHS to establish immigration enforcement priorities, including who NOT to pursue for deportation. It also is significant that the Secretary of Homeland Security in 2012, Janet Napolitano, is currently the President of the University of California, which is the named lead organizational plaintiff in one of the four consolidated lawsuits being heard by Judge Alsup.

Judge Alsup noted that President Trump’s first Secretary of Homeland Security (now White House Chief of Staff) John Kelly twice reviewed and twice left the DACA program in place while reviewing all immigration policies from the prior administration in February 2017 and in formally rescinding the 2014 Deferred Action for Parents of Americans (DAPA) program in June 2017. There has been extensive litigation already about whether the DHS needed to provide additional documentation to the plaintiffs (and the court) about the rationale for rescinding the program, beyond a short memorandum by current Attorney General Jeff Sessions stating that there was no statutory authority for the program and citing the injunction and subsequent litigation against the DAPA program, which blocked its implementation. The DOJ and DHS resisted such discovery and instead identified but withheld 84 documents from the plaintiffs and the court, claiming executive privilege. The court ordered the DOJ and DHS to provide the documents (which the Ninth Circuit Court of Appeals upheld on emergency appeal) but in an extraordinary ruling in early December, the U.S. Supreme Court overturned that discovery order (with four justices dissenting).

In his opinion and order, Judge Alsup first finds that the court has jurisdiction over the case and that the plaintiffs have standing to bring the legal challenges (except for two states not having standing on one claim). The court then finds that Attorney General Sessions’ memorandum cannot reverse decades of agency practice and policy, recognition by Congress and the U.S. Supreme Court of DHS’ authority to provide deferred action, and the DOJ’s prior legal analysis; and that Sessions had made a “mistake in law”. Judge Alsup also rejects the federal government’s post-hoc rationalization that it was seeking to minimize litigation risks since the states that had successfully challenged the DAPA program had threatened to now challenge the DACA program as well.

Finally, Judge Alsup finds that the plaintiffs are likely to succeed in their argument that the rescission was arbitrary, capricious, and abuse of discretion, or otherwise not in accordance with law (in violation of the Administrative Procedure Act); that the DACA recipients and plaintiffs would suffer irreparable harms from the implementation of the rescission; and that the balance of equities and public interest favor the plaintiffs. Judge Alsup notes the irony of President Trump’s tweets in support of the DACA recipients, while his administration’s actions have created the harms he tweets against. Accordingly, the court orders the provisional reinstatement of the DACA program, pending full litigation of all the claims, which is unlikely to be completed by March 5, 2018, when current DACA recipients would begin to lose their protection from deportation and work authorizations.

In a follow-up order issued last Friday, Judge Alsup dismissed some claims and is ordering further litigation on the remaining claims (denying the federal government’s motion to dismiss those claims). In this second order, Judge Alsup relies even more explicitly on the President’s statements and tweets as relevant to the litigation, including as evidence of impermissible racial animus towards Mexicans (who are 93 percent of DACA recipients), which would support the plaintiffs’ claims of racial discrimination in violation of the equal protection clause of the Fourteenth Amendment.

The Trump administration has yet to file an appeal, or seek a stay, of these district court orders at the Ninth Circuit Court of Appeals (and all the way to the U.S. Supreme Court), but it is certain to do so (the district court itself identifies a number of issues that would be subject to appeal).

Meanwhile, on Saturday, the U.S. Citizenship and Immigration Services (USCIS) announced that it would resume acceptance of renewals of DACA status (for those whose status had technically lapsed after the September 5 rescission announcement), but would not be accepting any new applications for the DACA program. The announcement is also available on the USCIS website in Spanish.

Given the ongoing Congressional proposals and negotiations about the status of DACA recipients and President’s Trump’s racist statements about Haitians and Africans on Thursday, there will continue to be more developments about the future of these hundreds of thousands of young immigrants.


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