Current recipients of the Deferred Action for Childhood Arrivals program will continue to receive the protections of the Obama-era program for now, a federal appeals court ruled Thursday.
The US Court of Appeals for the 9th Circuit upheld a nationwide injunction preventing the Trump administration from rescinding DACA for current recipients.
Several district courts have reached the same conclusion, but Thursday’s decision is the first time a federal appeals court has weighed in on the Trump administration’s efforts to end the program.
The Justice Department already asked the Supreme Court to take up the question of whether the Trump administration could end the program. Thursday's ruling makes it more likely, though by no means certain, that the justices will do so.
Writing for the court, Judge Kim Wardlaw said that then-acting Homeland Security secretary Elaine Duke was incorrect when she decided to end DACA because she had concluded that it was illegal.
Reviewing the record and immigration enforcement history, the court held that “DACA was a permissible exercise of executive discretion.”
Specifically, Wardlaw wrote that “deferred action has been a feature of our immigration system — albeit one of executive invention — for decades; has been employed categorically on numerous occasions; and has been recognized as a practical reality by both Congress and the courts.”
Because the court concluded that DACA was not illegal, it held that challengers to the decision to end DACA on that basis “are likely to succeed in demonstrating that the rescission must be set aside.”
As other judges have stated in their opinions, Wardlaw also noted that the decision is not one declaring that the Trump administration could not end DACA.
“To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion,” she wrote. “We hold only that here, where the Executive did not make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious under settled law.”
The government had asked the trial court to dismiss all of the claims brought by the challengers, and the 9th Circuit went through each of the claims in Thursday's decision.
In upholding the injunction, the appeals court held that the challengers were likely to succeed on their claims under the Administrative Procedure Act (APA) that the decision was "arbitrary and capricious" — the standard used for finding agency decisions to be unlawful. The court rejected a second APA claim that the rescission would not be allowed without providing a period for outside notice and comment.
Some DACA recipients alleged that they had an interest in their DACA status that should be protected by the courts under due process guarantees. The appeals court, like the court below, rejected that claim.
The 9th Circuit, however, refused to dismiss a second due process claim in which some challengers claimed a protected interest in the government's prior assertions that information collected for DACA would not be used for enforcement purposes.
Finally, the court also held that "plaintiffs have stated a plausible equal protection claim," noting plaintiffs' allegations that "the rescission of DACA disproportionately impacts Latinos and individuals of Mexican heritage, who account for 93% of DACA recipients."
The three-judge panel was unanimous in affirming the trial court's decision, but one judge offered different reasoning for why he would do so.
Judge John Owens was more skeptical of the challengers' arguments and disagreed with the majority's ruling on the APA "arbitrary and capricious" claim, but he did agree that plaintiffs have "some" likelihood of succeeding in their equal protection claim.
Owens also agreed with the ultimate decision to keep the injunction in place, writing, "The extraordinary practical impact of allowing DACA's rescission to take effect before a final adjudication of its legality far outweighs the minimal practical impact of keeping the program in place a bit longer."
Judge Jacqueline Nguyen, the third judge on the panel, joined Wardlaw's opinion for the court.
Earlier this week, the Justice Department attempted to skip the appeals courts altogether, asking the Supreme Court to take up the issue so that it could be decided this term — meaning a decision on the legality of the effort to rescind the program likely would be decided by June. The Supreme Court has yet to take any action on that request.
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