Court – again – puts brakes on administration plan to overturn DACA

President Donald Trump’s decision last year to end the DACA program, since blocked by the courts, led to protests across the country, including this one outside of ICE headquarters in Phoenix. (Photo by Tynin Fries/Cronkite News)

WASHINGTON – A federal appeals court Thursday rejected a Trump administration request to move forward with its plan to end the Obama-era DACA program, saying the deferred deportation plan should stay in effect while legal challenges are pursued.

The decision by a three-judge panel of the 9th U.S. Circuit Court of Appeals upholds a lower court, which ruled that courts – not the Department of Homeland Security – should decide whether DACA was enacted unlawfully.

The Deferred Action for Childhood Arrivals program protects 689,000 immigrants who were brought to this country illegally as children and who have a clean record since. It does not change their citizenship status, but does defer their deportation for two years at a time and allows them to get work permits and driver’s licenses, among other benefits.

Then-Attorney General Jeff Sessions announced last year that the Deferred Action for Childhood Arrivals program was created by executive order from President Barack Obama “without proper statutory authority” and that it should be rescinded as a result.

But when advocates challenged that reversal, the government argued that its decision was an administrative, not a legal one, and not subject to court review. A federal district court, backed up Thursday by the circuit court, said the government can’t have it both ways.

“The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose ‘province and duty’ it is ‘to say what the law is,'” Circuit Judge Kim McLane Wardlaw wrote in Thursday’s opinion.

A request for comment on the ruling was not immediately returned by the Justice Department.

The decision was welcomed by Tucson immigration attorney Mo Goldman, who called it “just great news for all the people who have DACA who have existing pending applications or ones that they intend to file for renewals.”

But Andrew Arthur, a fellow at the Center for Immigration Studies, which advocates for lower immigration, blasted the circuit court’s decision. He said it would require that the president recuse “himself from a significant policy decision.”

“I certainly disagree with the 9th Circuit’s decision,” Arthur said. “By the court’s standard, which alleged that the executive branch was motivated by animus when dealing with immigration, it would be impossible for the Trump administration to ever rescind DACA.”

But Wardlaw specifically said that Thursday’s ruling does not intrude on the president’s authority.

“The executive wields awesome power in the enforcement of our nation’s immigration laws,” Wardlaw wrote. “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.”

The decision is far from the end of the case. It just said that the district court has the authority to hear the challenge to the administration’s plan to overturn DACA, and that the deferred deportation program should remain in place while the case is heard.

In rejecting the administration’s claim that DACA was unlawful from its inception, Wardlaw wrote that the government has long had the “inherent authority to allocate resources and prioritize cases” when it has limited ability to deport all the immigrants here illegally.

“In sum, the reality is (and always has been) that the executive agencies charged with immigration enforcement do not have the resources required to deport every single person present in this country without authorization,” Wardlaw wrote.

The court also rejected the government’s argument that the decision to block rescission of DACA nationwide was too broad, saying that immigration laws need to be enforced uniformly and not differently from court district to court district.

Goldman said there is still a long way to go before a final settlement of the case, that he and others expect will ultimately be decided by the Supreme Court. While it will help those already in the system, he noted that it will not help those who were too young to apply for DACA status before, since immigration officials are only processing DACA renewals, but not new applications.

“I was at a DACA clinic on Tuesday night and I had just started filling out an application for a young woman,” Goldman said. “It came to my realization right after I got to the first page … that she is not renewing her DACA that she had actually just turned old enough to file and she couldn’t even do it.”

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