9th Circuit keeps DACA in place, says decision to end program is likely ‘arbitrary and capricious’

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A federal appeals court on Thursday affirmed a nationwide injunction that bars the Trump administration from phasing out a program protecting immigrants brought to the country illegally as minors.

The 9th U.S. Circuit Court of Appeals at San Francisco said in its decision that the plaintiffs were likely to succeed on their claim that the rescission of the program was “arbitrary and capricious.” Politico, the Washington Post, USA Today, the Wall Street Journal, the Constitution Daily and the San Jose Mercury News have coverage.

The program is known as DACA, the acronym for Deferred Action for Childhood Arrivals. The 2012 program deferred deportation for immigrants and allowed them to obtain work permits. Immigrants in the program had to have clean criminal records and meet other educational or military service requirements.

President Donald Trump announced a wind down of DACA in September 2017. Then-Attorney General Jeff Sessions justified the decision based on the conclusion that DACA was an unconstitutional circumvention of Congress.

The 9th Circuit said it had the power to review the president’s decision, which was based on an incorrect assessment of what the law required. The implementation of the program in 2012 “was a permissible exercise of executive discretion,” the appeals court said.

Similarly, DACA could be rescinded as an exercise of executive branch discretion, the court said. But when the administration acts based on an erroneous view of the law, its action is arbitrary and capricious, according to the court.

The court also said the nationwide scope of the injunction was proper. “DACA is national immigration policy,” the court said, “and an injunction that applies that policy to some individuals while rescinding it as to others is inimical to the principle of uniformity.”

The court ruled in consolidated cases, including one filed by a group of states that included California.

The federal government had asked the 9th Circuit to rule by the end of October to allow the U.S. Supreme Court to review the case this term, according to the Wall Street Journal story. When the request for an expedited ruling went unheeded, the administration turned to the U.S. Supreme Court.

The Department of Justice asked the Supreme Court on Monday to consider the DACA issue in the California case, along with two other cases, before any appeals courts had ruled, BuzzFeed News reported at the time. The unusual request is called a petition for certiorari before judgment.

The administration took the same tack earlier this year when it sought direct Supreme Court review of the nationwide injunction entered by a San Francisco federal judge in the case. The Supreme Court turned down the DOJ’s request for certiorari before judgment but said, “It is assumed that the Court of Appeals will proceed expeditiously.”

The case is Regents of the University of California v. U.S. Department of Homeland Security.




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