The Hill
By Lydia Wheeler
May 15, 2018
A California-based federal appeals court on Tuesday appeared unlikely to toss out a lower court order that forces the Trump administration to maintain the Obama-era Deferred Action for Childhood Arrivals (DACA) program nationwide.
At least two of the three judges on the 9th Circuit Court of Appeals seemed to agree the acting secretary of Homeland Security’s September decision to rescind the program violates the immigrants’ rights to equal protection of the laws.
“Let’s say I think your equal protection claim is strong,” Judge John Owens, an appointee of President Obama’s, said after starting out a hypothetical in which he asked one of the challengers’ attorneys if the court could uphold the lower court’s injunction on that argument.
Judge Jacqueline Nguyen, another Obama appointee, meanwhile, noted that hundreds of thousands of people have come to rely on the program, which has provided young people who were brought into the country illegally as children the opportunity to live and work in the U.S.
“To what extent do we look at the reliance issue in analyzing these issues?” she asked.
Attorney Mark Rosenbaum, who argued on behalf of the individual DACA recipients, told Nguyen he loved the question because it goes to the heart of the way the program works.
“They said that you could walk freely, but they did not say you could walk freely with the risk that by doing so you are handing over the keys to effectively remove you from the country,” he said.
In addition to individual DACA recipients, the states of California, Maine, Maryland and Minnesota and the University of California regents are also challenging the policy change, which has been blocked by three separate district court judges.
Deputy Assistant Attorney General Hashim Mooppan faced a difficult challenge in convincing the court to strike down the nationwide injunction. All three judges on Tuesday’s panel were appointed by Democratic presidents.
Mooppan argued that the Department of Homeland Security was well within its rights to end DACA, given the agency’s broad discretion over federal immigration policies.
But Judge Kim McLane Wardlaw, an appointee of President Clinton, noted that when former Homeland Security Secretary John Kelly rescinded the Obama-era Deferred Action for Parents of Americans (DAPA) program, one of the reasons he gave was that it had not gone into effect.
“Whereas with respect to DACA, clearly it’s gone into effect, yet nowhere does the acting secretary give any weight to that fact,” she said. “It seemed to weigh a lot to Director Kelly so I’m trying to understand that.”
Mooppan said there’s nothing in the Immigration and Nationality Act that requires the Department of Homeland Security to consider peoples’ reliance on the program.
“I would point your honor to the fact the DACA policy doesn’t consider costs at all. There’s not one word in the DACA policy about what costs there are with potentially allowing 700,000 illegal aliens to work in this country despite the fact that there’s an act of Congress that says they’re not supposed to work,” he said.
“There is not one word in DACA that considers whether it’s legal despite the serious concerns about the legality.”
Attorneys for the challengers were quick to use Mooppan’s own words against him in arguing for the injunction to be upheld.
“The record reflects not one word of consideration for the 700,000 DACA recipients, not one word of consideration about the welfare of their families, including their 200,000 U.S. citizen children, not one word of consideration about the schools they attend, their employers or even the national economy,” said Jeffrey Davidson, who argued on behalf of the University of California plaintiffs.
Not all the judges, however, appeared convinced that the administration’s decision was arbitrary and capricious in violation of the Administrative Procedure Act. They also grappled with whether the court even has jurisdiction to review the agency’s decision and if they should consider President Trump’s tweets.
Without the 9th Circuit’s immediate intervention, the administration has argued in court briefs that the lower court’s injunction could remain in place for months, if not more than a year, while an appeal is heard, given the court’s calendar.
Lawsuits to keep the program in place have been brought in New York, Maryland and the District of Columbia. The state of Texas, meanwhile, has filed a lawsuit in federal district court arguing the DACA program should be struck down as unlawful.
“What happens if the Texas court declares DACA unlawful and you have four or five other decisions saying the rescission of DACA is unlawful?” Wardlaw asked Mooppan.
He said this is one of many reasons why nationwide injunctions are not appropriate for courts to issue.
“It puts the government in this sort of conflicting position where we could be faced with injunctions going both ways,” he said.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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