SAN FRANCISCO (CN) — The Ninth Circuit on Thursday refused to overturn a judge’s order that the Trump administration turn over all the records they considered in ending the Deferred Action for Childhood Arrivals program that shields young immigrants from deportation.
In an Oct. 20 mandamus petition, the Department of Justice said the federal government should not have to disclose all the documents seen by those who advised acting Secretary of Homeland Security Elaine Duke on her Sept. 5 decision to end the DACA, or “Dreamers” program.
The records were requested in discovery for five related lawsuits challenging the Trump administration’s decision to terminate the Obama-era DACA program on March 5, 2018.
The three-judge Ninth Circuit panel found that U.S. District Judge William Alsup made no clear legal error by requiring disclosure of all nonprivileged materials considered by Duke and her advisers.
“Put bluntly, the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible, as the district court concluded,” the panel wrote.
Ninth Circuit Judges Kim McLane Wardlaw and Ronald Gould were Bill Clinton appointees, Judge Paul Watford was appointed by President Obama.
The Department of Justice claimed that materials unrelated to litigation risk — the stated reason for ending the program — are irrelevant and need not be included in the administrative record supporting Homeland Security’s decision.
But the Ninth Circuit panel said the administrative record includes “all materials ‘considered by agency decision-makers,’ not just those which support or form the basis for the agency's ultimate decision,” citing the 1989 Ninth Circuit ruling, Thompson v. U.S. Dept. of Labor.
“We agree with the district court that ‘it strains credulity’ to suggest that the Acting Secretary decided to terminate DACA ‘without consulting one advisor or subordinate within DHS,’” the panel wrote.
It also rejected arguments that White House documents are shielded by executive privilege, citing the U.S. Supreme Court ruling in Cheney v. United States District Court (2004).
“We do not read Cheney as imposing a categorical bar against requiring DHS to either include White House documents in a properly defined administrative record or assert privilege individually as to those documents,” the panel wrote.
The 18-page order indicates it was written by Judges Wardlaw and Gould. There is no dissent.
The judges also lifted a temporary stay in the DACA lawsuits that went into effect on Oct. 24.
Those challenging the decision to end DACA include the University of California, the City of San Jose, Santa Clara County, and the states of Maine, Minnesota, Maryland, and lead plaintiff California – home to more than 200,000 Dreamers, more than any other state.
In October, Alsup authorized the depositions of up to 20 high-ranking officials, including the acting secretary of the Department of Homeland Security and former White House officials. The Ninth Circuit did not address that issue because no challenges to specific deposition requests have been reached in U.S. District Court yet.
California Attorney General Xavier Becerra praised the ruling in a statement Thursday.
“Tonight’s ruling takes us one step closer to holding the Administration accountable for its decision to rescind DACA. Our DACA Dreamers deserve to know we will fight for them at every turn for their rights and opportunities, so they may continue to contribute to America.”
The Department of Justice and the University of California did not immediately return emailed requests for comment Thursday afternoon.
Follow @NicholasIovino
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