Judge: DACA Legal Advice Must Be Made Public

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Immigrant rights supporters hold giant letters reading "Dream Act" as they protest on Oct. 13 in Miami. | Lynne Sladky/AP Photo





Judge: DACA legal advice must be made public


By Ted Hesson and Josh Gerstein



10/17/2017 07:07 PM EDT



A federal judge in California on Tuesday ordered the Trump administration to turn over emails, letters, memos and other materials related to its decision to end the Deferred Action for Childhood Arrivals program.

The order by U.S. District Judge William Alsup, based in San Francisco, also appears to cover legal advice about winding down the program, which grants quasi-legal status and work permits to so-called Dreamers.


Acting in a series of lawsuits filed over the decision, the judge said the administration had waived its attorney-client privilege by claiming the decision was driven by concerns that the program is unconstitutional.


“Defendants argue that [the Department of Homeland Security] had to rescind DACA because it exceeded the lawful authority of the agency,” Alsup wrote. “They cannot, therefore, simultaneously refuse to disclose the legal research that led to that conclusion. Plaintiffs are entitled to challenge whether this was a reasonable legal position and thus reasonable basis for rescission. In making that challenge, plaintiffs are entitled to review the internal analyses that led up to this change in position.”


The Justice Department released a one-page opinion from Attorney General Jeff Sessions calling the program “an open-ended circumvention of immigration laws that was an unconstitutional exercise of authority by the Executive Branch.”


But Alsup said that was not enough.




“Defendants have waived attorney-client privilege over any materials that bore on whether or not DACA was an unlawful exercise of executive power and therefore should be rescinded,” the judge concluded.

In September, the acting homeland security secretary, Elaine Duke, rescinded the memo that established the DACA program, which offered a degree of protection to undocumented immigrants brought to the U.S. at a young age.


Plaintiffs in five separate lawsuits over the DACA termination — including one brought by former DHS Secretary Janet Napolitano in her new capacity as president of the University of California — have demanded that the administration hand over documents related to the decision.

On Tuesday, Alsup ordered the federal government to supply the materials that Duke used to reach her decision, as well as documents consulted by other government officials who advised her.
At the same time, the judge demanded that the administration supply all materials considered by former DHS Secretary John Kelly — now the White House chief of staff — when he decided in a February memo to leave the program intact.


Alsup, a Bill Clinton appointee, ordered the defendants to provide the information by Oct. 27.


Justice Department spokespeople did not immediately respond to a request for comment.





http://www.politico.com/blogs/under-...-advice-243889

DHS ordered to turn over DACA deliberations


By Tal Koppan, CNN

Updated 6:44 PM ET, Tue


STORY HIGHLIGHTS

• The judge said an appeal must be filed "very promptly"
• The order came after a Monday hearing in which the government pleaded its case

Washington (CNN)A federal judge has ordered President Donald Trump's administration to reveal internal deliberative documents that went into the decision to rescind the Deferred Action for Childhood Arrivals (DACA) program, a partial victory for groups challenging the rescission in a California federal court.

Judge William Alsup on Tuesday ordered the government turn over the records by October 27 and said they must appeal "very promptly" if they desire to do so.


The order comes as a product of several lawsuits that are being heard together in the Northern District of California, including challenges from the University of California and its president, DACA author and former Department of Homeland Security Secretary Janet Napolitano, the state of California and local jurisdictions. All have challenged the administration's right to end DACA, an Obama-era program that protected young undocumented immigrants brought to the US as children, without lengthier procedural steps, and have sued to block the sunset of the program. Recipients with permits expiring by March 5 were allowed to renew, but the two-year protections will begin running out March 6.

The case is being heard on an expedited track due to the deadline, and DHS had submitted a record of documents regarding the administration's decision-making that only contained publicly released documents, including statements and letters.


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The groups challenged that record arguing the administration should turn over all of its internal deliberations as well. The sides argued about the challenge in a hearing on Monday, and the government turned over a sizable stack of documents to the judge to review in private before making his ruling.


On Tuesday, the judge mostly agreed with the groups, ordering the administration to give the court "all emails, letters, memoranda, notes, media items, opinions and other materials directly or indirectly considered in the final agency decision to rescind DACA," under certain conditions.


Alsup said the documents would be required if they were "actually seen or considered" in any capacity by acting DHS Secretary Elaine Duke, materials considered by others who gave Duke advice in writing or verbally, comments and questions from Duke to others and their responses, and materials considered directly or indirectly by former DHS Secretary John Kelly before a February decision not to rescind DACA.


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The judge did partially side with the administration, though, in saying documents from the Department of Justice and White House only need to be included if personnel gave advice to Duke, and the order does not include lower levels of the administration.


"These are intended as practical limits on what would otherwise be a bone-crushing expedition to locate needles in haystacks," Alsup said.
The judge privately reviewed the file of documents that the government was resisting turning over in the case after the hearing Monday, giving specific instructions to the government as to which of those documents should be turned over.


The government had resisted providing the nonpublic documents to the court, claiming all internal deliberations were privileged material.


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Alsup did not buy that argument and in his 14-page order on Tuesday said the materials he is ordering released are necessary for "accurate fact finding."


The Trump administration has repeatedly justified its decision to end DACA by citing a threat to sue over the policy from conservative states led by Texas. Because the Justice Department believed a court might overturn DACA immediately, the administration has said, the agencies decided to offer a sunset and time for Congress to make the executive program permanent.


The judge repeatedly expressed incredulity that advice given to Duke was not substantial, and was also unconvinced that the sole impetus for the decision was a threatened lawsuit.


"It is simply not plausible that DHS reversed policy between February and September because of one threatened lawsuit (never actually filed) without having generated any materials analyzing the lawsuit or other factors militating in favor of and against the switch in policy," Alsup wrote.




http://www.cnn.com/2017/10/17/politi...nts/index.html

Related:

Judge Wants to See Documents on Decision to End DACA


https://www.alipac.us/f12/federal-ju...d-daca-351820/