DACA backers move to avert Supreme Court fight over records

Politico

By Josh Gerstein

November 19, 2017

DACA backers move to avert Supreme Court fight over records

Advocates for so-called Dreamers made an unexpected move Sunday to head off a looming Supreme Court battle over their demands for more records on the basis for President Donald Trump’s decision to end the program offering quasi-legal status and work permits to undocumented immigrants who arrived in the U.S. as children.

The attempt to shelve the records fight came just three days after a federal appeals court panel sided, 2-1, with those seeking more details on Trump’s move in September to wind down the Deferred Action for Childhood Arrivals program, also known as DACA.

The Justice Department had indicated it planned to file an emergency application at the Supreme Court on Monday in an attempt to block DACA supporters from getting access to a broad set of records about the administration’s deliberations, research and legal advice on the issue.

However, in a filing Sunday afternoon with a federal court in San Francisco, litigants pressing five separate lawsuits over the DACA cancellation asked U.S. District Court Judge William Alsup to lift his demand that the Trump administration place the internal records in the public court docket by Wednesday.

Lawyers for the DACA backers said they feared that their request for an injunction preserving the program could be delayed or derailed by litigation over the records consulted prior to the Sept. 5 announcement.

“Defendants’ continued pursuit of interlocutory review of the Court’s well-founded. … Orders is unfortunate and distracts from this Court’s effort to reach a prompt judgment on the merits,” the DACA supporters’ attorneys wrote. “However, the immediate and vital issue before the Court is Plaintiffs’ Motion for Provisional Relief, as that motion, if granted, will enjoin the Rescission of DACA and thereby avoid disruption in the lives of hundreds of thousands of people.”

One of those lawyers told POLITICO on Sunday night that those suing the Trump administration over the decision are not abandoning the fight for the records, but simply postponing it. Trump’s plan to stop renewing expiring DACA permits beginning March 5 adds to the urgency of the litigation, the attorney said.

“We are definitely not throwing in the towel, just taking it one step at a time. We have strong arguments in our motion for preliminary relief and want to ensure that a preliminary injunction is in place well before the March 5 deadline,” said the lawyer, who asked not to be named. “Our goal here is simply to sidestep the government’s efforts to create distractions and slow things down. We plan to aggressively pursue these documents as soon as the court enters an order on our injunction request.”

The new filing also says the Justice Department indicated that it was unable to meet Alsup’s Wednesday deadline and predicted it would need about three more weeks to finish the job.

A Justice Department spokesman declined to comment on the development.

While Alsup seems likely to acquiesce in the attempt to postpone the records fight, the Clinton appointee could decide the information is essential for the case to proceed. In that event, the Justice Department seems certain to seek emergency relief at the Supreme Court.

A similar fight has played out in a pair of lawsuits in federal court in Brooklyn, New York, mounting parallel challenges to the DACA cancellation. A 2nd Circuit Court of Appeals panel has halted discovery in that case pending a final ruling from that court. Despite the limited official record provided by the administration, litigation in those cases is proceeding toward a decision on blocking the scheduled wind-down of the immigration program.

Trump administration officials have said the administration decided to end the DACA program because it appeared to be unconstitutional and faced a threatened legal challenge from conservative states. However, immigrant rights advocates say those explanations are contrived and pre-textual.

While Attorney General Jeff Sessions has publicly insisted the program is unconstitutional, Trump muddied the waters by tweeting on the day of the September announcement that if Congress couldn’t pass legislation to address the Dreamers’ predicament by March 5, he would “revisit the issue.”

For more information, go to: www.beverlyhillsimmigrationlaw.com