Trump Administration Appeals to High Court on Injunction Restoring DACA

By Mark Walsh — January 19, 2018 2 min read
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President Donald Trump’s administration on Thursday night filed an appeal asking the U.S. Supreme Court to immediately review a federal district judge’s nationwide injunction that restored the Deferred Action for Childhood Arrivals program.

As Congress rancorously debates a long-term solution to the issue of immigration relief for teenage and young adult undocumented immigrants, the administration is moving aggressively to overturn the judge’s order that blocks the 2017 process to rescind the Obama-era DACA program.

The DACA debate is being followed closely by K-12 schools and colleges. Under the DACA program, federal authorities exercise their discretion not to deport undocumented immigrants who were brought to the United States before age 16 and who were under age 31 as of June 15, 2012. Other provisions include one requiring DACA applicants to have been enrolled in school, graduated from high school, obtained a GED, or been honorably discharged from the U.S. military.

“In terminating DACA, the administrative record failed to address the 689,800 young people who had come to rely on DACA to live and to work in this country,” U.S. District Judge William Alsup of San Francisco said in his Jan. 9 order granting the nationwide injunction that essentially restored DACA for now. “The administrative record includes no consideration to the disruption a rescission would have on the lives of DACA recipients, let alone their families, employers and employees, schools and communities.”

The administration has filed an appeal with the U.S. Court of Appeals for the 9th Circuit, also in San Francisco. But in his filing in U.S. Department of Homeland Security v. Regents of the University of California, U.S. Solicitor General Noel J. Francisco called for the Supreme Court to bypass the appeals court’s review.

“The district court has entered a nationwide injunction that requires DHS to keep in place a policy of non-enforcement that no one contends is required by federal law and that DHS has determined is, in fact, unlawful and should be discontinued,” Francisco says in the appeal to the Supreme Court.

The DACA program is “materially indistinguishable” from two later programs the Obama administration created, an expanded DACA and the Deferred Action for Parents of Americans and Lawful Permanent Residents. Those latter programs were blocked by a federal district court in Texas, a ruling upheld by the U.S. Court of Appeals for the 5th Circuit, in New Orleans.

In 2016, the Supreme Court deadlocked 4-4 on the fate of DAPA and expanded DACA, affirming the appeals court ruling without setting a national precedent.

Francisco said in the brief that the Homeland Security Department’s decision to rescind DACA was a matter of agency discretion and was proper in light of its view that the program was likely illegal.

The challengers of the decision to rescind DACA, which include the University of California as well as the states of California, Maine, Maryland, and Minnesota and other plaintiffs, will likely file a response to the administration’s appeal in short order.

A version of this news article first appeared in The School Law Blog.