A three-judge federal appeals panel on Friday expressed skepticism over the Trump administration’s reasoning for terminating the Obama-era Deferred Action for Childhood Arrivals program.
The hearing in the US Court of Appeals for the District of Columbia Circuit centered around the administration’s rationale to end DACA, not the legality of the DACA program itself.
“Your starting premise here is respectively wrong,” Judge Harry Edwards said to the Justice Department lawyer, urging him to explain how the administration came to the conclusion that DACA should be rescinded.
Judge Thomas Griffith repeatedly said he was “frustrated” with the government’s argument, which evolved from initial memos about the legality of the program to factoring in other reasons to end it.
The plaintiffs in the case include the NAACP, Princeton University and Microsoft.
Last year, the district court for the District of Columbia blocked the plan to end the program. Judge John Bates called the move “arbitrary and capricious.”
How and why the administration decided to terminate DACA, which shields undocumented immigrants who came to the US as children from deportation and allows them to work legally in the country, has been at the core of the argument.
In January, the 2nd US Circuit Court of Appeals grappled with what authority the Trump administration has and doesn’t have to terminate the program. It has not yet issued a decision. And late last year, the 9th US Circuit Court of Appeals upheld a ruling blocking the phase out.
The Trump administration announced the end of DACA in September 2017. Then-Attorney General Jeff Sessions argued in a letter to then-Department of Homeland Security Acting Secretary Elaine Duke that the program was created “without proper statutory authority.” Duke, citing Sessions’ letter, rescinded the program. Protections under that plan would have begun to end March 2018. But the program, while not taking new applicants, has continued to stay in effect as a result of court rulings.
Last February, District Court Judge Nicholas Garaufis issued a nationwide injunction requiring that the administration continue to allow beneficiaries to apply for renewal, becoming the second federal judge at the time to intervene in the attempt to cease the program.
On Friday, judges pressed Justice Department attorney Mark Stern about a memo from DHS Secretary Kirstjen Nielsen that was a result of a DC district court ruling to provide further explanation on the program’s termination. In it, Nielsen backs Duke’s memo and adds that “the DACA policy properly was-and should be-rescinded, for several separate and independently sufficient reasons.”
In his line of questioning, Griffith latched on to the additional reasons Nielsen alluded to in her memo.
“To look at the attorney general’s letter that’s all based on law, you look at the Duke memo, that’s all based on law. We don’t start seeing this argument until the Nielsen memo and that’s puzzling to me,” Griffith said.
“It’s frustrating to me, why it would take three bites of the apple before the type of reasoning that we’ve said for a long time needs to be apparent emerges to the floor,” he added.
Some 700,000 recipients are currently enrolled in the DACA program. While recipients have continued to apply for renewal, the number of recipients have dropped, according to the Center for American Progress: from 704,000 in July 2018 to 687,000 as of December 2018.
The Supreme Court has not said whether it’ll take up DACA, providing some reprieve to recipients who can continue to apply for renewal.