Judge Permits Government to Appeal DACA Lawsuit

APRIL 30, 2018



A federal judge in Brooklyn gave permission to the government on Monday to appeal his recent decision that allowed two lawsuits seeking to preserve a program that shields some undocumented young adults from deportation to cite President Trump’s “racially charged language” against Latinos.

The decision by the judge, Nicholas G. Garaufis, presents an opportunity for the United States Court of Appeals for the Second Circuit to weigh in on a central legal question in the case that has divided federal courts in the past several months: Can controversial statements that Mr. Trump made on the campaign trail be used in litigation against his actions as president?

At the end of March, Judge Garaufis, who sits in Federal District Court in Brooklyn, handed down an order permitting a coalition of immigration lawyers and a group of Democratic state attorneys general to continue with two linked lawsuits challenging the repeal of a program known as DACA, or Deferred Action for Childhood Arrivals. In his order, Judge Garaufis noted that Mr. Trump’s use of “racial slurs” and “epithets” — both as a candidate and from the White House — suggested there was evidence that the move to end DACA in September was based on an animus toward Latinos that violated the equal protection clause of the Constitution.

The government subsequently asked the judge’s permission to file what is called an interlocutory appeal — a form of relief that can be sought before a legal matter has been fully completed. Judge Garaufis’s order did not conclusively determine that Mr. Trump violated the equal protection clause by ending DACA. But it did find that his statements about Mexico sending “criminals” and “rapists” to the United States and his verbal attacks on an American-born jurist of Mexican descent created “a plausible inference” that anti-Latino bias had played a part in his decision making.

“District courts have split,” Judge Garaufis wrote, “over whether the president’s campaign-trail statements support the plausible inference that the rescission of the DACA program was motivated by unlawful discriminatory animus.” He added that courts have been similarly divided about Mr. Trump’s campaign statements related to his contentious travel ban, which was just considered by the United States Supreme Court.

In their arguments before the Supreme Court, lawyers for the government contended that Mr. Trump’s pre-election remarks should not be used in the travel ban case because “campaign statements are made by a private citizen before he takes the oath of office.” The Second Circuit must first accept the DACA case for review before it makes any decision on the relevance of Mr. Trump’s comments in that matter.

Should the Second Circuit overturn Judge Garaufis’s ruling from March and decide that Mr. Trump’s campaign trail remarks fall outside the scope of the DACA case, Judge Garaufis said that he would “likely (although not certainly)” have to dismiss the plaintiffs’ equal-protection claims, severely narrowing their attack on the program’s repeal. Judge Garaufis also said that if the appeals court overturned him it would “substantially” restrict “the scope of discovery” that the immigration lawyers and the state attorneys general could seek.

https://www.nytimes.com/2018/04/30/n...-brooklyn.html