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IMPORTANT DEVELOPMENT REGARDING DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA)

DACA is the Obama-era program that protects young, undocumented immigrants from deportation.

Many DACA recipients have lived most of their lives in the U.S., and graduated from college. Some were high school valedictorians. Many own homes, and are the parents of U.S.-born children, who are American citizens.

On September 5, 2017. Attorney General Jeff Sessions announced that the Trump administration would terminate the program starting in March 2018. California Attorney General Xavier Becerra brought the San Francisco lawsuit, joined by the attorneys general for Maine, Maryland and Minnesota, as well as the University of California, DACA recipients and others.

California is home to the largest group of DACA recipients — about 200,000 people. On January 9, 2018, U.S. District Judge William Alsup, issued a preliminary injunction, finding that the plaintiffs — a collection of DACA recipients, universities and states — would suffer irreparable harm if the administration moved forward with plans to terminate the program in March 2018 before the case is resolved. In his 49 page order, Judge Alsup did not rule on the merits of the case, but he said that the plaintiffs were likely to succeed on their claims that the decision was “arbitrary and capricious” and would suffer irreparable harm — immigrants could lose their jobs, and companies and universities could lose valuable students and workers — if the Trump administration ended DACA before the legal dispute is resolved.

Judge Alsup opined, “We seem to be in the unusual position wherein the ultimate authority over the agency, the Chief Executive, publicly favors the very program the agency has ended,” the judge wrote. “For the reasons DACA was instituted and for the reasons tweeted by President Trump, this order finds that the public interest will be served by DACA’s continuation.” The tweet from President Donald Trump, that Judge Alsup was referring to, is as follows:

Donald J. Trump ✔@realDonaldTrump Does anybody really want to throw out good, educated and accomplished young people who have jobs, some serving in the military? Really!….. 5:28 AM – Sep 14, 2017

Homeland Security official rescinded DACA in the fall of 2017, stating that it suffered from “constitutional defects” that were similar to problems federal judges had pointed out in rulings blocking a related Obama-era program, Deferred Action for Parents of Americans (DAPA). Based on those decisions, the Trump administration reasoned that DACA was illegal from the outset and that President Obama exceeded his authority when he rolled it out the program 2012. Judge Alsup called that reasoning “flawed,” “post hoc” and “capricious.” The Obama administration hadn’t overreached, he wrote in his 49 page order. In fact, he wrote, the Trump administration’s position wasn’t even based on a policy change but a “mistake of law.” “The main, if not exclusive, rationale for ending DACA was its supposed illegality. But determining illegality is a quintessential role of the courts,” Judge Alsup wrote. In other words, it’s not up to the administration to decide whether one of its predecessor’s policies is illegal. That’s the U.S. Supreme Court’s job, and the high court hasn’t ruled on DACA’s legality.

If the Supreme Court were to rule on DACA and find that it was constitutionally sound, “then a policy supported as high up as our chief executive has been the victim of a colossal blunder,” the judge wrote, again referencing the president’s tweets. If nothing else, Judge Alsup wrote in his ruling, the plaintiffs were entitled to “learn of all flaws, if any more there be, lurking” behind the DACA decision. He noted that the plaintiffs had suggested the administration had terminated the program so it could be used as a bargaining chip to demand funding for a border wall. And again, he cited the president’s Twitter feed as evidence. “A presidential tweet after our hearing gives credence to this claim,” Judge Alsup wrote.

The December 29, 2017 tweet from Trump is: “The Democrats have been told, and fully understand, that there can be no DACA without the desperately needed WALL at the Southern Border and an END to the horrible Chain Migration & ridiculous Lottery System of Immigration etc.”

Finally Judge Alsup ordered that safeguards against deportation must remain in place for the nearly 690,000 people in the DACA program, while a legal challenging to ending the program, proceeds. While while the lawsuit is pending, anyone who had DACA status as of September 5, 2017, can renew it.

The Trump administration, not surprisingly, has indicated that it will challenge Judge Alsup’s ruling. Meanwhile, Massachusetts, New York, Washington and other states are seeking a similar preliminary injunction in federal court in Brooklyn, part of a separate lawsuit on behalf of DACA recipients.