According to U.S. government lawyers, President Donald Trump’s decision to dismantle the Obama administration’s Deferred Action for Childhood Arrivals program is really a matter of mercy.
On one side of dueling filings before U.S. District Judge Nicholas Garaufis of the Eastern District of New York in parallel suits opposing just such a move, attorneys for the Department of Justice point to the victory by 26 state’s attorneys general in blocking the implementation of a similar policy that would have extended protections to the parents of those protected under DACA.
The U.S. Court of Appeals for the Fifth Circuit left an injunction in place after affirming that the program, Deferred Action for Parents of Americans, was “manifestly contrary” to the Immigration and Nationality Act. A split U.S. Supreme Court effectively left the injunction in place.
“Armed with this victory, the states threatened to amend their complaint to challenge not just DAPA, but DACA as well, arguing that it suffers from the same infirmities,” the government’s Oct. 27 brief, signed by DOJ trial attorney Stephen Pezzi, stated.
Given what the government views as considerable exposure to the DACA program, the acting secretary of Homeland Security, whose department administers the program, was left with two options, the government contends: continue litigating what “in all likelihood result in a nationwide injunction abruptly ending the policy, plunging its nearly 800,000 recipients into uncertainty,” or an orderly wind down to “minimiz[e] the disruption to current recipients.”
The DHS has opted for the latter, the government contends, and it is completely within its rights to do so. Garaufis is asked, then, to dismiss the suit for lack of jurisdiction and, despite plaintiffs’ arguments to the contrary, the failure to state a claim.
On Wednesday, plaintiffs representing a coalition of states fighting DACA’s demise alongside a private plaintiff directly impacted by the decision filed their opposition to the dismissal. The filings are the next stage in the litigation that now spans both the district and appellate circuit courts.
Hanging over all right now is a mandamus petition by the government at the U.S. Court of Appeals for the Second Circuit, that’s waiting Garaufis’ ultimate ruling on jurisdiction and justiciability in the suits. Despite Garaufis’ expressed concern over a pending deadline for DACA applicants, the suits now are entangled in a process that could see—depending now on Garaufis’ ruling on the motions—the cases take another step up the ladder of the federal court system.
In their opposition motion Wednesday, the plaintiffs, led by the state attorneys general, argued that the critical issue of judicial review remained with the district court.
Defendants argument is that the Administrative Procedure Act and Immigration and Nationality Act bar the judiciary from reviewing the policy determinations of executive branch agencies.
“Agencies are always free to change course on policy matters so long as they provide a rational explanation,” the defendants state in their motion to dismiss.
They point back to their argument regarding the impending litigation after the Fifth Circuit’s injunction on DAPA. The U.S. attorney general reviewed the legal arguments and found that “DACA was likewise unlawful” due to the “evident similarities between DACA and the policy that expanded DACA and created DAPA.” DHS’ reasoning, then, does not subject DACA participants to a potential abrupt halt should litigation take its likely course, amounts to more than enough for the APA exemption to apply to the district court now.
Immigration issues are particularly non-reviewable, the government argues, echoing part of its presentation before the Fifth Circuit. It quoted a number of suits that place responsibility for immigration issues squarely in the hands of the executive branch, which has numerous unique factors and responsibilities, such as foreign policy concerns, that go into its policymaking process.
“Such determinations are thus presumptively unreviewable,” the government contends. “[A]ny attempt to judge the policy would quickly entangle this court in the sort of complex and discretionary balancing that has been entrusted by Congress to the executive branch.”
The government couldn’t be more wrong, the plaintiff states argue.
Defendants improperly construe both the APA and the INA, according to plaintiffs. The DACA situation “bears no resemblance to the individualized enforcement decisions on which defendants rest their claims of APA unreviewability,” while the INA only precludes review of certain agency decisions around commencing proceedings, adjudicating cases or executing removal orders.
“[T]he decision to rescind DACA amounts to none of those types of actions,” plaintiff states contend.
In a separate opposition motion, the private plaintiffs personally affected by the rescission of DACA, called the government’s “ theory of jurisdiction-stripping” dangerously broad.
“This court is not being asked to interfere with or block an individual removal proceeding or deportation, nor to set deferred action priorities for federal immigration officials,” they stated. “Yet defendants attempt to dramatically expand narrow restrictions on judicial review of decisions of that nature to cut off any judicial review of all actions related to deferred action.”
Garaufis has not set a deadline for either the government’s response to the plaintiffs, nor has he scheduled a hearing for arguments.