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Appeals Court Considers Trump's Racial Bias in Attempt to End DACA
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16 May 2018 05:36 PM EST

By Laura Tucker, Staff writer; Image: Gavel (Image source: Public domain)


Donald Trump's efforts to end the Deferred Action for Childhood Arrivals program has landed in an appeals court. Being that the President has been known to make critical remarks of some immigrants, the court is taking into consideration his own racial bias in his wish to put an end to DACA.

This program was announced in 2012. It allows people who were brought to the U.S. illegally as children a chance to stay in the country legally. They can receive a deferred action from deportation and be eligible for a work permit. Because of a similar proposed policy called the DREAM Act, people who take advantage of DACA are often referred to as Dreamers.

In January a San Francisco-based US District Court judge, William Alsup, ruled Trump's decision to end DACA was illegal and likely to be stopped abruptly by the courts. He found Attorney General Jeff Sessions' announcement regarding ending DACA to be "based on a flawed legal promise." Later, federal judges in Brooklyn and Washington, D.C. decided the same.

The White House considered taking the issue directly to the Supreme Court but decided instead to take the usual process through the appeals court, landing the issue of whether or not to lift an injunction that ordered the government to continue DACA in front of a three-judge 9th Circuit Court of Appeals panel.

Judge John Owens repeatedly questioned if racial bias played a part in wanting to end DACA. He asked his questions with regards to the Constitution, asking about "equal protection" claims.

A lawyer representing the Dreamers launched into a discussion of Trump's comments of immigrants. "The president, both before and after he took office, referred to individuals from the very countries they're coming from as drug dealers, as druggies, as criminals, as bad individuals," said Mark Rosenbaum of Public Counsel.

This was argued by Hashim Mooppan, the Justice Department lawyer. He believed Trump's earlier statements weren't relevant to the decision by the court to order that DACA continue, as the decision to end the program was made by Elaine Duke, the acting secretary of homeland security at the time.

"They have to have clear evidence of discriminatory intent," said Mooppan. "They don't have a single allegation in their complaint about the acting secretary's motives in this case. The acting secretary is the decision-maker here."

"Right, but the acting secretary ultimately reports to the president of the United States, and he has said all kinds of things that could be relevant in this litigation," replied Judge Owens.

"They haven't cited any case," continued Mooppan, that showed "you can impute to a Cabinet secretary individual motives based on the statements of the president of the United States."

"I don't think we've ever had this situation before," countered Owens. "We're on new ground here."

Judge Jacqueline Nguyen stated, "The more time that passes, the greater the reliance interest because now you've got thousands of people who have built their lives around the benefits conferred by this program," and Rosenbaum added, "I love that question."

"Before the institution of DACA was made, there was a 32-page decision and memo by the Office of Legal Counsel," pointed out Judge Kim Wardlaw. "Yet, the decision to rescind appears to be based entirely on this letter from Attorney General Sessions."

This gave Mooppan the chance to argue that while the Obama administration dispensed a long legal opinion supporting its decision to expand the protections of undocumented immigrants in 2014, there wasn't a written opinion issued when they launched the program in 2012. Justice Department lawyers said verbally that it was lawful.

While Owens raised questions of racial bias, he also questioned Alsup's ruling. He suggested decisions to end such a program aren't subject to the type of review that government actions are.

Owens also allowed that the 9th Circuit court might want to wait to issue a final decision until the Supreme Court rules on Trump's travel ban policy, which has also been hotly contested. The Court is to decide on the relevance of Trump's many tweets and comments concerning Muslims.

Being that the DACA decision has been before so many different courts, there have been different rulings as to whether the government is required to admit new applicants in the program. Wardlaw asked what the White House will do if the judge in a lawsuit launched by Texas and other states to block new enrollments makes a decision that doesn't agree with the others. 

"This is one of many reasons why nationwide injunctions are not an appropriate thing for courts to issue," replied Mooppan. "It puts the government in this conflicted position where we can be faced with the injunctions going both ways." Ultimately, he said it's something they "are still figuring out."




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