SAN FRANCISCO (CN) – During a four-hour marathon hearing Wednesday, a federal judge hinted he may block the Trump administration from ending parts of the program that shields nearly 800,000 young immigrants from deportation.
“Instead of being productive members of society, they’ll be on the unemployment roll,” U.S. District Judge William Alsup said of immigrants permitted to work in the United States under the Obama-era Deferred Action for Childhood Arrivals, or DACA program.
In September, Attorney General Jeff Sessions announced the government would “wind down” the program, making DACA recipients ineligible to renew their statuses starting March 5, 2018. The program provided work permits and protection from deportation to those who came to the United States before the age of 16.
More than 12,000 DACA recipients, nicknamed “Dreamers,” have already lost their protected status since the Trump Administration’s Sept. 5 announcement, according to the Center for American Progress.
A coalition of state and local governments, joined by individual Dreamers and the University of California, sued to block the termination of DACA in federal court. They say decision-makers failed to consider important factors like economic consequences when rescinding the program in violation of the Administrative Procedure Act.
But the U.S. Department of Justice says enforcing immigration laws falls squarely within the realm of prosecutorial discretion, which courts lack jurisdiction to review.
“Congress intended to prevent courts from reviewing denials of deferred action,” Justice Department attorney Bret Shumate argued in court Wednesday.
But Alsup said unlike a case where the government decides to prioritize deporting one or a few individuals, “this is a nationwide program” that could fall within the court’s jurisdiction.
Drawing a parallel to enforcing marijuana laws, Shumate argued a federal prosecutor’s policy not to crack down on marijuana growers is the same type of decision subject to prosecutorial discretion and not reviewable by courts.
“But marijuana growers aren’t signing up and giving money and giving information,” Alsup said. “You can’t deny there’s a huge programmatic element of DACA.”
One of the arguments against ending DACA is that recipients relied on assurances that information provided in applications would not be used to target them or their families for deportation.
University of California attorney Jeffery Davidson said the government must offer a reasonable justification when it reverses major policies like DACA. That would also be the case if it “had marijuana growers register with the federal government, then reversed its policy, shut down farms and threw them in jail,” he said.
The federal government says it ended DACA to avoid litigation risk, based on threats by the state of Texas to challenge DACA’s legality in the same court that enjoined similar immigration programs.
In June 2016, a 4-4 split in the U.S. Supreme Court resulted in the upholding of a Fifth Circuit decision affirming a federal judge’s ruling that blocked the Deferred Action for Parents of Americans, or DAPA, program, along with a proposed DACA expansion. Department of Justice attorney Brad Rosenberg said Texas threatened to amend its federal lawsuit to challenge the original DACA program in that case as well.
“It’s reasonable to conclude there is a substantial litigation risk,” Rosenberg said.
But Alsup replied that unlike DAPA, which had not yet taken effect, the DACA program has been on the books for years. That is a critical component a judge would need to consider in any legal challenge, he said.
“The judge would have to consider the hardship to people who will lose their work authorizations,” Alsup said, adding the one line offered by the attorney general about litigation risk does not address other pertinent issues.
“This is one sentence in something that is much more complicated in trying to figure out if a judge would have enjoined a nationwide program without considering the relevant factors,” Alsup said.
Representing the plaintiffs, Davidson argued decision-makers failed to consider that more than 700,000 DACA recipients had enrolled in degree programs, took out student loans, accepted jobs, got married, had children, started businesses, and bought cars and homes, all relying on protections they were afforded under the DACA program.
“Zero consideration was given to the welfare of DACA recipients, their children and families, effects on employers and educational institutions, and effects on the economy and treasury,” Davidson said.
Rosenberg replied by quoting former President Barrack Obama’s words about DACA when it was enacted in 2012, noting that the program was intended to be “a temporary fix” to a problem that Congress failed to address.
“It was never intended to be permanent,” Rosenberg said. “Rescission is entirely consistent with the purpose of DACA.”
Davidson countered that “litigation risk” is a false pretext and that decision-makers failed to consider important aspects of the policy change, making the decision unlawful under the Administrative Procedure Act.
Alsup suggested that if he does issue a preliminary injunction, he would likely limit relief to blocking the government from deporting DACA recipients and revoking their work permits.
The plaintiffs had also asked the judge to restore their advanced parole privileges, which allows DACA recipients to re-enter the U.S. after traveling abroad.
After the hearing, Dulce Garcia, lead plaintiff in one of five lawsuits challenging the rescission of DACA, said most people don’t understand how important advanced parole is for immigrants. Tears welled up in Garcia’s eyes as she described how her boyfriend of 16 years cannot visit his dying 92-year-old grandfather in Mexico because of the decision to end DACA.
“They don’t understand how significant it is to abolish advanced parole,” she said.
Garcia, who came to the United States when she was four years old and earned a law degree at the University of California, San Diego, said she has been fasting for six days in solidarity with those who were arrested in Washington earlier this month for protesting the termination of the DACA program.
Garcia said she plans to continue fasting until she can convince U.S. Sen. Dianne Feinstein not to vote for a spending bill that omits protections for DACA recipients, as California’s other senator Kamala Harris has pledged to do.
Also on Wednesday, the Supreme Court ordered Alsup to stay discovery in the DACA suits until a ruling is issued on the government’s motion to dismiss. The Supreme Court also ruled Alsup “may not compel the government to disclose any document that the government believes is privileged without first providing the government with the opportunity to argue the issue.”
The high court stepped into the discovery dispute after the Ninth Circuit affirmed Alsup’s Oct. 17 ruling that directed the federal government to turn over all documents considered in its decision to the end DACA program.