- The Washington Times - Tuesday, April 24, 2018

A federal judge delivered another blow to President Trump’s attempt to roll back the Obama-era DACA program, ruling Tuesday that last year’s revocation was illegal and the entire program could have to be restarted.

That goes beyond other judges, who had also ruled the phaseout illegal but had only ordered Homeland Security to accept renewal applications from people who’d already been awarded DACA before. Judge John D. Bates’s ruling would require a full restart, meaning even illegal immigrant “Dreamers” who’d never been approved before would now be able to apply for DACA.

The judge imposed a 90-day delay on his own ruling to give the government a chance to reargue its case, but for now the ruling stands as the most severe blow yet to Mr. Trump’s phaseout.

Judge Bates said the government never gave an adequate justification for revoking DACA, so its decision seemed “arbitrary and capricious” — which makes it illegal under the Administrative Procedures Act.

“The Department’s decision to rescind DACA was predicated primarily on its legal judgment that the program was unlawful. That legal judgment was virtually unexplained, however, and so it cannot support the agency’s decision,” he wrote in his 60-page ruling.

He added: “It was also arbitrary and capricious in its own right, and thus likewise cannot support the agency’s action. For these reasons, DACA’s rescission was unlawful and must be set aside.”

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The ruling came a day before the Supreme Court is slated to hear oral arguments in another major immigration case involving Mr. Trump’s travel ban.

That case could end up setting precedent for how judges view DACA, sanctuary cities and a host of other major immigration cases winding their way through the courts.

Immigration activists cheered Tuesday’s decision but the Justice Department said it will continue to defend the phaseout.

“DACA was implemented unilaterally after Congress declined to extend benefits to this same group of illegal aliens. As such, it was an unlawful circumvention of Congress,” said Devin O’Malley, a department spokesman.

DACA was created by then-Homeland Security Secretary Janet Napolitano in 2012. She issued a memo ordering the government to grant “deferred action” to illegal immigrants brought to the U.S. as children who’d worked toward completing schooling. Deferred Action meant they were given work permits and Social Security cards, giving them the chance to get driver’s licenses and some taxpayer benefits.

The permits lasted for two years, but could be renewed indefinitely.

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But the program had always been on rocky ground, with one federal judge ruling it illegal — though deciding he didn’t have jurisdiction to hear the case. A federal appeals court also questioned the validity of the program when President Obama tried to expand DACA in 2014.

In September Mr. Trump’s Justice and Homeland Security departments, citing that appeals court ruling and the threat of more lawsuits, said they could no longer defend DACA, and said the program should be phased out.

Activists called the decision cruel, and launched a multitude of lawsuits, sparking a feverish battle in the federal courts, which have produced widely varying decisions.

A judge in Maryland last month ruled the Trump phaseout legal. But two other judges in California and New York had previously ruled it illegal. Those two judges had ordered the administration to again begin processing renewals — but had refused to require a full restart that included brand new DACA applications.

Both the New York and California rulings have been appealed to circuit courts.

The Justice Department had sought to short-circuit those appeals and asked the Supreme Court to take the case directly, but the justices in February refused, leaving the case back in the hands of the circuit courts.

While the rulings have been a blow to Mr. Trump, they’ve also ended up hurting Dreamers by sapping the urgency of Congress to take up a more permanent reform. Judge Bate’s ruling to restart even brand new applications, if it stands, could be the final blow to members of Congress who say they want a solution.

As of the most recent numbers through March 31, 693,850 people were protected by DACA. But thousands were about to begin to lose protections because they hadn’t applied for renewals.

Judge Bates gave a roadmap to the administration Tuesday for how it could justify its phaseout. He said the government could offer a “coherent” argument for how DACA conflicts with immigration law, or that it violates the president’s constitutional duty to “take Care that the Laws be faithfully executed.”

One prominent law professor, Josh Blackman, has repeatedly urged the Justice Department to make both of those arguments to the courts, but the government’s lawyers have yet to do so. Judge Bates noted Mr. Blackman’s stance in his ruling, but pointedly said the government failed to raise that defense, and it wasn’t his place to make those arguments for the government.

Mr. Blackman, on Twitter, said Judge Bates may have helped the administration by pointing out those issues.

“This is a huge victory for DOJ. By providing a modified justification, this can save the case on appeal,” said Mr. Blackman, a professor at South Texas College of Law.

Judge Bates was appointed by President George W. Bush to the U.S. District Court for the District of Columbia.

He did grant the administration one victory by refusing to order U.S. Citizenship and Immigration Services, the government agency that handles DACA applications, not to share data on recipients with deportation officers.

The judge said he accepted the government’s assurances that no such sharing is happening, except in exceptional cases, so there is no need to issue an order. There, he also stands in contrast with other courts which have issued information-sharing injunctions.

Judge Bates, in his ruling, also weighed in on terminology, saying he accepted complaints of those who consider the term “illegal” to be offensive, and he would instead adopt the terminology of immigrant-rights activists.

“The court will use the term ‘undocumented,’ ” he proclaimed — though he acknowledged that both the Supreme Court and the government use “illegal.”

• Stephen Dinan can be reached at sdinan@washingtontimes.com.

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