DACA Must Be Fully Restored, Judge Orders Again

by Bamidele Ogunberu Posted on August 3rd, 2018

Washington, D.C., USA: U.S. District Judge John Bates in Washington, D.C., has ruled for the second time that the Trump administration’s move to end the Deferred Action for Childhood Arrivals (DACA) immigration program is unlawful. The government didn’t offer sufficient reasoning the first time around, according to Bates, and the second attempt didn’t fare any better.

A new memo from Department of Homeland Security Secretary Kirstjen Nielsen, the judge said, “fails to provide an adequate justification for the decision to rescind DACA.”

Bates wrote in a ruling Friday in merged cases brought by the NAACP and Princeton University, among other plaintiffs:

“The court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the court simply holds that if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision.”

And Bates wrote: “A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do. The court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside.”

The full opinion is worth a read. Bates offers a roadmap for what to do—and what not to do—when an agency tries to change positions from one administration to the next.

“It is not up to Secretary Nielsen—or even to this court—to decide what she should or should not consider when reversing agency policy. Rather, the requirements are set by the [Administrative Procedure Act], as interpreted by the Supreme Court: ‘When an agency changes its existing position, it … must … be cognizant that long-standing policies may have ‘engendered serious reliance interests that must be taken into account.’”

Bates said he’ll keep his ruling on ice for 20 days, giving the U.S. Department of Justice a chance to take it up on appeal.

DACA, a program created in 2012 by President Barack Obama, gives immigrants who were brought to the United States by their parents as children renewable, two-year work permits and protection from deportation – allowing them to pursue educational and vocational goals in the country they grew up in.

Earlier this year, Bates, a George W. Bush appointee, became the third federal judge to reject Trump’s explanation for ending the program, ruling at the time that the decision by the Justice Department that the program was unlawful was “virtually unexplained.”

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Bamidele Ogunberu

Bamidele Ogunberu

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