Federal Judge Gives DHS 90 Days to Rework DACA Rescission or Start Processing New Applications

DACA sign
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The U.S. District Court for the District of Columbia delivered another lower court ruling Tuesday demanding the Department of Homeland Security (DHS) continue the Obama administration’s amnesty for illegal aliens who entered the United States as children.

Judge John Bates, a George W. Bush nominee, goes even further than his Democrat-appointed counterparts in New York and California. In his 60-page opinion, Bates orders DHS to process new applications by illegal aliens seeking work authorization, social security numbers, and other benefits under the Deferred Action for Childhood Arrivals (DACA) program. DHS will, however, have 90 days to rework their reasoning before this order goes into effect.

Judge William Alsup of the Northern District of  California, in a ruling the Justice Department is appealing, only instructed DHS to continue renewing current DACA-protected illegals, as did Judge Nicholas Garaufis of the Eastern District of New York. Another federal district judge, Roger Titus of the District of Maryland, dismissed another similar suit by DACA supporters when it came before him last month, upholding the ending of the program.

The two joined lawsuits brought by the National Association for the Advancement of Colored People and the Trustees of Rutgers University. Like similar suits brought by open-borders advocates across the country, it alleges the Trump administration’s September recession of DACA is illegal under the Administrative Procedure Act (APA), the main federal law that governs agency actions. It is the government’s contention, based on rulings that struck down the similar Deferred Action for Parents of Americans (DAPA) program, that DACA is illegal, and their immediate end to DACA was intended to stop defending an illegal program. The plaintiffs in these cases contend that action is “arbitrary and capricious.”

Judge Bates entirely rejected the government’s reasoning, writing:

That legal judgment was virtually unexplained, however, and so it cannot support the agency’s decision. And although the government suggests that DACA’s rescission was also predicated on the Department’s assessment of litigation risk, this consideration is insufficiently distinct from the agency’s legal judgment to alter the reviewability analysis. It was also arbitrary and capricious in its own right, and thus likewise cannot support the agency’s action. For these reasons, DACA’s rescission was unlawful and must be set aside.

Rather than issue an injunction while the case is decided on the merits, as in the other two pro-DACA decisions, Judge Bates ruled that the rescission was a violation of the APA and, therefore, illegal. Bates vacated the DHS action on summary judgement, reinstating DACA entirely, but remanded to DHS, affording the agency an opportunity to restate their reasoning for the decision to end DACA. He was very clear about the implications of his opinion, explaining, “Vacatur of DACA’s rescission will mean that DHS must accept and process new as well as renewal DACA applications.”

Judge Bates, however, sided with the government on a secondary issue, refusing to issue an injunction blocking DHS from using information obtained from DACA applications in immigration enforcement. Judge Titus’s District of Maryland ruling upholding the end of DACA had granted plaintiffs this.

Given the multitude of suits concerning the exact issues in these cases, one or more of them will likely eventually find its way to the U.S. Supreme Court, which may render some or all of Tuesday’s ruling irrelevant.

The cases are NAACP v. Trump, No. 17-1907 and Trustees of Princeton Univ. v. United States, No. 17-2325 in the U.S. District Court for the District of Columbia.


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