Trump Rhetoric May Float DACA Appeal to Second Circuit

BROOKLYN, N.Y. (CN) – A federal judge who blocked the Trump administration from ending the immigration program commonly known as DACA granted the government permission to appeal Monday.

U.S. District Judge Nicholas Garaufis entered the injunction at issue in February, chiding the administration for failing to give a legally sufficient explanation of its decision to end DACA, which is otherwise known as Deferred Action for Childhood Arrivals.

Garaufis explained Monday that the order is ripe for appeal since there are “substantial grounds for disagreement” on his focusing his ruling on President Donald Trump’s racist rhetoric toward Latinos during his campaign.

“If … the court were required to disregard these pre-inauguration statements, it would likely (although not certainly) dismiss plaintiffs’ equal-protection claims, as Plaintiffs have not alleged that the president made comparably inflammatory and offensive statements about Latinos and especially Mexicans and Mexican-Americans after taking office,” the 7-page order states. (Parentheses in original.)

Monday’s order puts the ball in the Justice Department’s court now to request in the next 10 days permission for the appeal from the Second Circuit.

Justin Cox, an attorney for the plaintiffs with the National Immigration Law Center, said there is no legal precedent for courts not to consider Trump’s pre-inauguration statements.

“Of course, logically, it makes no sense whatsoever either,” Cox said in a phone interview Monday. “It’s not like when President Trump took the oath of office, this was a magical time where he was sprinkled with fairy dust and suddenly had great respect for the Constitution. I think we’ve all seen since January 2017 that that’s not at all true … instead, he has reaffirmed exactly who he is.”

For Cox,  “immigration is the one area where [Trump has] actually tried to keep his promises.”

“It makes no logical sense that we can’t look at what the president said before he was president in order to figure out what his intent was here, when he promised to do exactly this on the campaign trail,” Cox said.

As to whether the appeals court would grant an appeal, Cox said he could “see it going either way.”

Garaufis noted that other courts had considered Trump’s anti-Muslim comments while weighing arguments on the legality of his travel ban. Still others argued “that courts cannot or should not consider pre-inauguration statements as evidence of the true motives behind official action,” because candidates speak merely as private citizens before their elections.

The Ninth Circuit, in California, will hear arguments on similar DACA cases in May.

Last month, the Supreme Court denied the Justice Department’s bid to hear an emergency appeal of a federal judge’s finding that the Trump administration relied on a “flawed legal premise” when it attempted to rescind DACA last year.

A district judge in Washington, D.C., meanwhile ruled in favor of keeping the DACA program last week, saying the decision to rescind it “was unlawful and must be set aside.”

Garaufis ended his order Monday by emphasizing the weight and import of courts’ decisions on DACA.

“Finally, at the risk of stating the obvious, the court notes that these are not ordinary cases,” the judge concluded.

“Plaintiffs challenge a major change of nationwide immigration policy by the Executive Branch.”

Representatives for the office of Attorney Generay Eric Schneiderman’s office, Make the Road New York and the National Immigration Law Center, all plaintiffs or representing plaintiffs in the case, did not immediately respond to requests for comment Monday. Neither did the Department of Justice.

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