SAN FRANCISCO — Nov 8, 2018, 8:25 PM ET

Appeals court rules against Trump on DACA immigrant policy


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A U.S. appeals court blocked President Donald Trump on Thursday from immediately ending an Obama-era program shielding young immigrants from deportation, saying the administration's decision was based on a flawed legal theory.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously kept a preliminary injunction in place against Trump's decision to end the Deferred Action for Childhood Arrivals program.

Lawsuits by California and others challenging the administration's decision will continue in federal court while the injunction stands.

The U.S. Supreme Court could eventually decide the fate of DACA, which has protected about 700,000 people who were brought to the U.S. illegally as children or came with families that overstayed visas. Earlier this week, the Trump administration took the unusual step of asking the Supreme Court to take up the case even before any federal appeals courts had weighed in. It was the second time the administration sought review of its DACA decision by the Supreme Court.

In Thursday's ruling, 9th Circuit Judge Kim Wardlaw said California and other plaintiffs were likely to succeed with their claim that the decision to end DACA was arbitrary and capricious.

The Department of Homeland Security moved to end the program last year on the advice of just-fired Attorney General Jeff Sessions, who determined DACA to be unlawful because, he said, President Barack Obama did not have the authority to adopt it in the first place.

That was incorrect, Wardlaw wrote, noting that the federal government has a long and well-established history of using its discretion not to enforce immigration law against certain categories of people. Examples include President Dwight D. Eisenhower's decision in 1956 to extend "immigration parole" to 30,000 Hungarian refugees otherwise unable to remain in the U.S. and President Ronald Reagan's "Family Fairness" program, which allowed certain relatives of illegal immigrants who had been granted amnesty to likewise remain in the country.

While the federal government might be able to end DACA for policy reasons under its own discretion, it can't do so based on Sessions' faulty belief that the program exceeds federal authority, the court held.

"We hold only that here, where the Executive did not make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious," Wardlaw wrote. "The government is, as always, free to reexamine its policy choices, so long as doing so does not violate an injunction or any freestanding statutory or constitutional protection."

That said, the judges also declined to dismiss claims that the government's action might violate the constitutional rights of DACA recipients. The disproportionate effect the decision would have on Latinos might be unconstitutionally discriminatory, the court said, and the plaintiffs had also made a credible claim that it would violate due process for the government to turn around and use information they provided when they enrolled in DACA in deportation proceedings.

The Trump administration has said it moved to end the program last year because Texas and other states threatened to sue, raising the prospect of a chaotic end to DACA. The administration cited a 2015 ruling by another U.S. appeals court that blocked a separate immigration policy implemented by Obama.

The 9th Circuit disagreed with the New Orleans-based 5th U.S. Circuit Court of Appeals and said one of its conclusions did not apply to DACA.

An email to the U.S. Department of Justice was not immediately returned.

Trump's decision to end DACA prompted lawsuits across the nation, including one by California. A judge overseeing that lawsuit and four others ruled against the administration and reinstated the program in January.

U.S. District Judge William Alsup rejected the argument that Obama had exceeded his power in creating DACA and said the Trump administration failed to consider the disruption that ending the program would cause.

The administration then asked the 9th Circuit to throw out Alsup's ruling.

During a hearing in May, Deputy Assistant Attorney General Hashim Mooppan argued that the courts could not review the administration's decision to end DACA. The 9th Circuit rejected that notion.

The administration has been critical of the 9th Circuit and took the unusual step of trying to sidestep it and have the California DACA cases heard directly by the U.S. Supreme Court. The high court in February declined to do so. It again asked the Supreme Court on Monday to take up the case after warning that it would seek review by the high court if the 9th Circuit did not issue a ruling by Oct. 31.

Federal judges in New York and Washington also have ruled against Trump on DACA.


Associated Press writer Gene Johnson contributed from Seattle.

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  • Mydogrules

    It was the 9th Circus Court of Appeals. They are wrong more than they're right.

  • Samit3456

    DEMS leaders are wrong in telling their supporters to confront and harass Republican leaders. If I was a Republican leader, I would hire the toughest to protect my family and privately tell their boss to shoot the women between the legs so their production ends if they even so much as threaten my family. SELF DEFENCE and TOTAL DEFENCE FROM FUTURE LIBERAL BIRTHS.

    There is a saying: You need iron to cut iron. So "Violence to quell violence" thanks to Maxime Walters. My family's safety at any cost.

  • Tony Radcliffe-Hung

    Here's the thing:

    Obama tried for an entire term specifically and repeatedly asking Congress to come up bipartisan immigration reform. A gang of 8 was formed to work on the legislation. The GOP refused to put it through.

    So in his second term, after again being put off by Congress, he created DACA.

    The decision here has nothing to do with Trump's power to override a former presidential order. He absolutely has that power. What he cannot do, according to the very first parts of our Constitution (and he was told as much in advance of doing it) is take away something from people who have already been given it. In other words, he cannot retroactively take something away. He can stop it from today forward. Or tomorrow forward. He cannot go into yesterday.

    So 700,000 kids who were already on DACA are protected by the Constitution. Trump's whims (and the hatred of those who support him in this) can't legally or Constitutionally affect them.

  • Mydogrules

    There was no rational or legal reason to enact DACA in the first place. Obama did it for purely political reasons: To gain favor with hispanics before the 2012 election. Trump was right to revoke it, and eventually the SCOTUS will agree. That is all.

  • colloguy

    In most cases these are children that were brought here by decision of their parents so it would be hard to argue they themselves broke any law.
    Add to that they have been here for a long time in many cases, hence they are as much American's culture, language and otherwise and any other American.

  • Grrrrrr

    On a lighter note... A federal Judge halted KeystoneXL pipeline construction until a revised study can be done... and knowing how the government works, will take a few years...

    How's all that winning working out for you Republicans? Will Super Kavanaugh swoop in and save the day?

  • CaptnBlynd

    Deferred until when? This is not an amnesty act so when does the penalty come due? While I can feel sympathy for the children involved, the parents must be punished for the crime. Allowing the children to stay is the reward they committed the crime to achieve.
    I have lived thru poverty in this nation going from difficult to literally unlivable. Illegal competition for everything from low cost housing to jobs. The lowest levels of our economy cannot bear the constant increase in competition at their level.
    Without any form of punishment, the crime will continue. With reward, it will continue to escalate, perhaps even faster. "They are poor and hungry" so are many here. Give our starving masses the protection of law which is theirs by right. Deport illegal aliens.

  • James

    9th court is a very liberal court and honestly there is nothing wrong with that. However there must be balance, does the current US immigration laws(not what you feel is right, but what is in writing is) support what, at least the basics what Trump is promoting? (BTW I do not mean completely.) Do people that want to come here have to follow the current laws on the books (EO's that might violate the current laws are not valid no matter what party/president it comes from)? Asylum has a very narrow qualification ramp, and most of the people coming here do not meet it(a be it some do and they should be let in). Anyone else no matter the point of origin should be readily denied and should be required to follow the current laws of the land(no matter how unfair you feel it is) until changed.