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Eli Kantor is a labor, employment and immigration law attorney. He has been practicing labor, employment and immigration law for more than 36 years. He has been featured in articles about labor, employment and immigration law in the L.A. Times, Business Week.com and Daily Variety. He is a regular columnist for the Daily Journal. Telephone (310)274-8216; eli@elikantorlaw.com. For more information, visit beverlyhillsimmigrationlaw.com and and beverlyhillsemploymentlaw.com


Thursday, December 21, 2017

Supreme Court sets guidelines for DACA legal fight

By Josh Gerstein
December 20, 2017
Supreme Court sets guidelines for DACA legal fight

The Supreme Court on Wednesday issued what appeared to be a compromise ruling that laid out guidelines for lower courts as they wrestle with legal issues stemming from the Trump administration’s decision to wind down the immigration program providing quasi-legal status and work permits to so-called Dreamers.

Less than two weeks ago, the justices split, 5-4, along ideological lines as they halted a lower court’s orders requiring federal officials to assemble and disclose a large volume of documents related to the decision announced in September to end the Deferred Action for Childhood Arrivals program, also known as DACA.

However, there was no recorded dissent on Wednesday as the high court instructed lower courts to hold off demanding any more documents from federal agencies until a ruling is reached on the Trump administration’s effort to dismiss five lawsuits pending in California that challenge the move to end DACA.

The unsigned, four-page Supreme Court opinion said U.S. District Court Judge William Alsup erred when he ordered the Department of Homeland Security and the Justice Department to turn over more documents related to the move and to round up an even larger set for possible disclosure.

“Under the specific facts of this case, the District Court should have granted respondents’ motion” to stay an expansion of the record in the case until the federal government’s “threshold arguments” to dismiss the suits were resolved, the Supreme Court ruling said.

The high court’s opinion went on to suggest that “narrower amendments to the record” may be appropriate, and to suggest that the original process ran roughshod over the administration’s right to explain why its legal opinions and deliberative memos should not be made public.

“The District Court may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue,” the Supreme Court wrote.

Attorney General Jeff Sessions issued a statement hailing the decision.

“The discovery order in the DACA cases was dramatically intrusive and premature, and I am pleased with tonight’s decision that the district court’s order was ‘overly broad,'” Sessions said, although the court’s opinion actually said that the government had presented “serious arguments that at least portions of the District Court’s order was overly broad.”

“Make no mistake, this was a crucially important ruling, and the fact it was granted by a unanimous Supreme Court cannot be overstated. We will continue to defend the Trump Administration’s lawful actions,” Sessions added.

However, California Attorney General Xavier Becerra — who brought one of the suits challenging the DACA cancellation decision — painted the Supreme Court ruling as a defeat for the administration because the justices did not shut down the possibility that the challengers are entitled to more information.

“Today the Supreme Court has essentially told us that no one — not even the president — can hide the facts,” Becerra said.

The apparently unanimous resolution of the meta-dispute was something of a surprise because a preliminary Supreme Court ruling, on Dec. 8, triggered a sharp dissent from Justice Stephen Breyer and the court’s three other Democratic appointees that was dismissive of the government’s stance.

“In my view, the Government’s arguments do not come close to carrying the heavy burden that the Government bears in seeking such extraordinary relief,” Breyer wrote then. “This Court is thus poorly positioned to second-guess district courts’ determinations in this area.”

The reason for the change of stance by Breyer and the court’s other liberals is unclear, but the fact that the Supreme Court’s new opinion is largely a procedural road map and not a final ruling on what records DACA supporters are entitled to may have led to the consensus decision.

“This is a much narrower compromise, probably to avoid a fight over what kind of relief the government should be entitled to at this preliminary stage,” said Stephen Vladeck, a law professor at the University of Texas. “All they’re saying is that the lower courts jumped over arguments they should have resolved first, without saying anything about how those arguments should have been resolved.”

The Supreme Court’s ruling came on the same day that Alsup, the district court judge, heard three hours of argument in his San Francisco courtroom on the motion to dismiss the five lawsuits challenging the decision to end DACA. He issued no immediate ruling, but the judge and the plaintiffs have said that moving the cases along quickly was imperative because the Trump administration has said that DACA recipients whose permits expire after March 5 will not be able to renew them.

Two broad challenges to the DACA rescission are also pending before another federal judge, in Brooklyn.

The White House and congressional leaders are negotiating over legislation to replace DACA with a legal status for at least some of those who are or were covered by the program. Any legislative compromise is likely to include some border security-related measures aimed at meeting President Donald Trump’s promises to crack down on illegal immigration.

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

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