Courthouse News Service

Ninth Circuit Takes Up Feds’ Dismantling of DACA

June 13, 2019 June 14, 2019

PASADENA, Calif. (CN) – A Justice Department attorney told a Ninth Circuit panel Thursday that although existing immigration laws may not outline when the federal government can remove protections for immigrants in deportation proceedings, the government still has broad discretion to do so.

After the Trump administration announced in 2017 that it would rescind Deferred Action for Childhood Arrivals (DACA) protections for young immigrants, the American Civil Liberties Union filed a federal class action to block the plan, which the group says was done without notice or an opportunity for DACA recipients to respond.

A federal judge in Los Angeles granted a nationwide block of the rescission of DACA, which protects immigrant youth from deportation and allows them to work and go to school in the United States.

The federal government appealed, arguing in court papers that the court lacked jurisdiction over the immigrants’ claims because they arose from policies codified in the Administrative Procedure Act.

Assistant U.S. Attorney Jeffrey Robins told a Ninth Circuit panel Thursday that the government has broad prosecutorial discretion in DACA cases, including on decisions to strip protections from recipients or initiate deportation proceedings against them when they are no longer “a low priority.”

Robbins told the panel that the injunction should be lifted because the lower court incorrectly interpreted federal policy on when recipients should be notified that their DACA status was revoked.

“Nothing requires that notice be given,” Robbins said, adding U.S. Immigration and Customs Enforcement or U.S. Customs and Border Protection agents have always had discretion to determine when a DACA recipient’s status is revoked.

U.S. Circuit Judge Kim McLane Wardlaw, a Bill Clinton appointee, said she was doubtful that federal policy allows ICE agents to “speed up” determinations that a DACA recipient is now seen as an enforcement priority.

“I know a lot about this and this sounds new to me,” Wardlaw said.

U.S. Circuit Judge Jay Bybee, a George W. Bush appointee, told Robbins that federal policies do not clearly explain what authority any agency has to strip DACA recipients of protections when a notice to appear is issued.

“Your argument doesn’t match up with the regulations. It seems to me that the government does whatever it darn well pleases,” Bybee said, adding the government’s promise of DACA protections “feels like a hollow promise.”

Katrina Eiland, an attorney for appellee Inland Empire Immigrant Youth Collective, said the injunction should remain since class members lack criminal convictions or other circumstances that would disqualify them from DACA under existing policies.

The injunction doesn’t prevent the government from pursuing deportation of any class member – nor does it challenge discretion to determine DACA status – but rather requires immigration agencies to follow the proper DACA policies.

Eiland said the government’s actions appear “arbitrary” since current policy allows DACA protections to be stripped when a recipient is deemed a public safety threat or when they don’t respond to a notice to appear.

In court papers opposing the government’s appeal, attorneys for young immigrants said the Ninth Circuit panel should decide whether U.S. Citizenship and Immigration Services violated its own policy of keeping its DACA termination decision “separate and independent” from the notices to appear issued by ICE or CPB agents.

“It is USCIS’s determination that is subject to the agency’s own nondiscretionary rules – rules that can and should be enforced in court,” the group’s opposition said.

U.S. Circuit Judges John Owens, a Barack Obama appointee, rounded out the panel, which did not indicate when it will rule.