Angling for Circuit Split, Feds Defend DACA Rollback

RICHMOND, Va. (CN) – The Trump administration prevailed this year in only one of the many lawsuits it faced for trying to end a deportation-deferral program for qualifying young immigrants. Fighting to keep that win, attorneys for the government argued Tuesday at the Fourth Circuit that the decision to end DACA is not judicially reviewable.

Short for Deferred Action for Childhood Arrivals, the Obama-era program adopted in 2012 allowed about 800,000 undocumented youth to get permits so they could work here. The announcement of a DACA rollback in September 2017 by then-Attorney General Jeff Sessions sparked challenges across the country, but U.S. District Judge Roger Titus in Maryland became the only judge to find that the court lacked jurisdiction to hear one such case.

Despite injunctions from the Ninth Circuit and other courts that have kept DACA in place, a lawyer for the Department of Justice told the Richmond, Va.-based appellate panel on Tuesday that it must affirm.

“DHS is vested with enforcement discretion and DACA was a nonenforcement of a policy,” said Hashim Mooppan, using abbreviations for the Department of Homeland Security as well as the immigration program. 

Mooppan argued that DACA stopped Homeland Security from deporting people who fell within the policy’s criteria. 

“The decision to rescind is a question of to enforce or not to enforce,” Mooppan said.

Mooppan also made the point that those who won DACA benefits entered into the program with full knowledge that it could be ended at any time. 

But lawyers for the challengers, led by a group called CASA, pointed to the findings of other courts that racial animus motivated the government to abruptly rescind the program. 

Emily Dillingham with Arnold & Porter emphasized that DACA participants submitted vast amounts of personal information to enroll in the program, only to have the government turn around and use that same information to target them for removal. 

“Given what the government was trying to do, it was not unreasonable to say that personal information wouldn’t be used again [DACA recipients],” she said. 

The argument faced pushback, however, from U.S. Circuit Judge Julius Richardson, the newest member of the Fourth Circuit and a Trump appointee. 

“They took that risk,” he said. 

Though CASA’s lawyers have urged the court to consider the bigoted statements from President Trump, who has publicly described Mexican immigrants as criminals and rapists, Mooppan argued that the comments failed to prove racial animus. 

“Those comments were from a third party,” the lawyer said.

U.S. Circuit Judge Robert King was skeptical, however, of that argument.

“The third party was the president of the United States,” said King, a Clinton appointee.

Pointing to the injunctions from the Ninth Circuit and other courts that kept DACA in place, U.S. Circuit Judge Albert Diaz, an Obama appointee, pushed Mooppan on the possibility of creating a circuit split.

Mooppan meanwhile urged the Fourth Circuit not to rush out a ruling, noting that the Justice Department is working to have the Supreme Court take up the Ninth Circuit’s ruling in the separate DACA case.

“[You] will have guidance soon,” Mooppan said. 

The court also heard arguments on behalf of CASA from John Freedman with Arnold and Porter.

Freedman tried to differentiate CASA’s challenge based on the group’s demand for documents from the federal agencies that were involved in ending the program.

“The record has never been completed,” Freedman said.

The judges did not indicate when they plan to rule.

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