PASADENA, Calif. (CN) – A Ninth Circuit panel signaled Tuesday it is unlikely to overturn one of three nationwide injunctions that blocks the Trump Administration from wiping out a program that shields some 700,000 young immigrants from deportation.
A Department of Justice lawyer argued the injunction issued by U.S. District Judge William Alsup in January should be struck down because courts are not allowed to interfere with the executive branch’s prosecutorial discretion.
“Deciding to zealously enforce the law does not exceed the constraints imposed by Congress,” Justice Department lawyer Hashim Mooppan said.
But Ninth Circuit Judge Kim Wardlaw questioned whether the Deferred Action for Childhood Arrivals (DACA) program is purely an immigration enforcement policy or something more.
“You’re characterizing the decision to rescind as a decision to enforce, but actually your opposing counsel would characterize it as a decision to undo an entire program that had all these other benefits,” Wardlaw said.
The Obama-era DACA program allows immigrants who arrived in the U.S. before age 16 to apply for protection from deportation. It also gives those individuals, nicknamed Dreamers, the right to live and work legally in the United States.
Mooppan argued that any benefits attached to the program don’t change the fact that it is primarily an immigration enforcement policy.
“It’s a policy of prosecutorial discretion,” he argued, adding the Obama administration described it as such when it first launched the program in 2012.
But DACA supporters say that line of reasoning undercuts the Trump administration’s justification for ending the program: litigation risk. The Department of Homeland Security claims the program had to end because the attorney general concluded it was unlawful and likely to be struck down in court.
Wardlaw asked: “Isn’t that just trading one set of litigation for another?”
Mooppan replied that not going after undocumented immigrants presents greater legal challenges than prosecuting them. That’s because DACA could be considered an abdication of the Department of Homeland Security’s duty to enforce the law, he said.
“It is the government’s position that DACA exceeds the scope of prosecutorial discretion,” he said.
But when it comes to immigrants’ reliance on the program to provide permanent benefits, the panel seemed more willing to side with the Justice Department.
Mark Rosenbaum, a lawyer representing six Dreamers, argued the DACA program “created core liberty interests” that his clients relied on when they entered the program.
“Was it promised or mutually understood that the DACA program would go on indefinitely,” Wardlaw asked.
Ninth Circuit Judge Jacqueline Nguyen agreed that “the express limitations” of the program undercut the plaintiffs’ reliance argument, but she also acknowledged, “the more time that passes, the greater reliance interests. Now you have thousands of people who have built lives by the benefits conferred by this program.”
When Alsup granted the injunction in January, he concluded that ending the program would “tear authorized workers from our nation’s economy” and lead to a loss of jobs and health insurance that could further strain the country’s emergency healthcare services.
Rosenbaum said the Justice Department offered no words to challenge Alsup’s finding that ending DACA would cause irreparable injury to Dreamers and go against the public interest.
Addressing claims that President Donald Trump’s bigoted views played a role in the decision to end DACA, Mooppan argued the plaintiffs must show that the decision maker, then-acting Homeland Security Secretary Elaine Duke, acted with discriminatory intent.
Ninth Circuit Judge John B. Owens challenged that argument.
“The acting secretary ultimately reports to the president of the United States, and he has said all kinds of things that could be relevant in this litigation,” Owens said.
During the presidential campaign, Trump infamously referred to Mexicans as “rapists” and “criminals” and made other disparaging comments about Latino immigrants.
Owens suggested the panel would likely receive some guidance from the Supreme Court when it issues a decision on challenges against Trump’s travel ban. In that case, opponents of the travel ban also cited Trump’s comments as evidence of his intent to discriminate against Muslims.
Mooppan urged the panel not to wait for a decision from the Supreme Court, which is expected by the end of June. He said the Justice Department is eager to stop “being forced to maintain a policy that gives affirmative sanction to 700,000 aliens and a policy we think is illegal.”
All three judges who heard the DACA appeal on Tuesday were appointed by Democrats. Nguyen and Owens were appointed by President Barrack Obama. Wardlaw was appointed by President Bill Clinton.
California is one of four states that challenged the decision to end DACA. Maine, Maryland, Minnesota, the University of California System, the City of San Jose, Santa Clara County, Service Employees International Union Local 521, and individual immigrants also sued to stop the DACA rollback.
Earlier this month, Texas and six other states made good on threats to sue the federal government over the DACA policy, claiming the program was intended to circumvent the will of Congress.
Two other judges in Brooklyn and Los Angeles also granted nationwide injunctions earlier this year to stop the Trump Administration from ending DACA. Another judge in Washington D.C. said he would also enjoin the Trump administration if it cannot “better explain its view that DACA is unlawful” by July 23.
A judge in Maryland, however, dismissed a lawsuit challenging the termination of DACA in March, finding courts lack jurisdiction to review such decisions.