Judge Blocks Trump Administration From Rescinding DACA
January 9, 2018

A California district court judge barred the Trump administration from rescinding DACA, calling Attorney General Bigot Jefferson Beauregard Sessions III's decision "arbitrary and capricious."

In a 49-page ruling, Judge --- ruled that the plaintiffs (DACA recipients and groups employing and educating them) were likely to succeed on the merits of their claim that the recission was "arbitrary and capricious" after requiring DACA applications to meet a series of requirements to qualify for the program.

This was a particularly strong part of the ruling (PDF), given Sessions' claim that DACA was "illegal" without offering any actual explanation for why he thought so.

In short, what exactly is the part of DACA that oversteps the authority of the agency? Is it the granting of deferred action itself? No, deferred action has been blessed by both the Supreme Court and Congress as a means to exercise enforcement discretion.

Is it the granting of deferred action via a program (as apposed to ad hoc individual grants)? No, programmatic deferred action has been in use since at least 1997, and other forms of programmatic discretionary relief date back to at least 1956.

Is it granting work authorizations coextensive with the two-year period of deferred action? No, aliens receiving deferred action have been able to apply for work authorization for decades.

Is it granting relief from accruing “unlawful presence” for purposes of the INA’s bars on reentry? No, such relief dates back to the GeorgeW. Bush Administration for those receiving deferred action.

Is it allowing recipients to apply for and obtain advance parole? No, once again, granting advance parole has all been in accord with pre-existing law.

Is it combining all these elements into a program? No, if each step is within the authority of the agency, then how can combining them in one program be outside its authority, so long as the agency vets each applicant and exercises its discretion on a case-by-case basis?

The judge even used Trump's tweets against him:

This is good, but it is not a final outcome, even if it was upheld all the way to the Supreme Court. Congress has to act. They have to pass a clean DREAM Act and put an end to the band-aid fixes for children brought here by their parents.

At the least, it may stop a few DACA recipients from losing their deferred status, which is good. But Congress needs to act, and they need to act now.

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