- The Washington Times - Thursday, November 8, 2018

A federal appeals court ruled Thursday that President Trump and his team goofed in trying to cancel the Obama-era DACA deportation amnesty for “Dreamers,” saying that while they may have the power to erase the program, they must do it properly.

The 9th U.S. Circuit Court of Appeals said the administration cut corners and gave an unconvincing explanation of why it thought it had to phaseout the Deferred Action for Childhood Arrivals program.

Without a better explanation, the decision was arbitrary — a violation of federal procedural law, the court ruled.

“The executive wields awesome power in the enforcement of our nation’s immigration laws. Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public,” wrote Judge Kim McLane Wardlaw, an Obama appointee to the appeals court.

The decision is likely to be appealed to the Supreme Court. Indeed the Justice Department earlier this month had asked the high court to hear a series of DACA cases even before they were decided in lower courts, saying it was critical for the justices to tackle the matter this term.

DACA is the 2012 program set up by President Obama that granted a tentative amnesty from deportation to hundreds of thousands of Dreamers — immigrants who came to the U.S. illegally as children, grew up here, and in many cases don’t know their home countries.

The program has always been legally suspect and eight months after Mr. Trump took office, facing the immediate threat of a lawsuit, the administration announced it would attempt a phaseout.

That sparked a series of lawsuits, and produced a number of rulings by judges who said the phaseout was poorly justified. At the same time, another court ruled the original DACA program itself was likely illegal.

As the cases move through the courts, the program remains in effect, protecting Dreamers who’d already been approved. But it is not accepting new applications.

Thursday’s ruling not only concluded Mr. Trump and his team cut corners in the phaseout, but the three-judge panel also said the president was animated by racial hostility.

The judges pointed to Mr. Trump’s Twitter messages and to the fact that most of those affected are Hispanic as evidence that the policy is biased. The judges did not appear to parse through the fact that most illegal immigrants are Hispanic.

DACA defenders said the ruling is a major victory for Dreamers who’ve been afraid of having the program yanked out from under them.

“This administration has tried to strip away the protections that hundreds of thousands of immigrants have relied on for years, and we hope this is a big step toward reversing that trajectory,” said Luis Cortes, one of the lawyers in the case, who is also a DACA recipient.

The Justice Department said it was disappointed in the 2-to-1 ruling by the three-judge panel, but said at least now the Supreme Court has a case it can use to decide the issues.

“The Justice Department will continue to vigorously defend its position on this matter, and looks forward to vindicating that position before the Supreme Court,” spokesman Steven J. Stafford said.

Mr. Trump during the 2016 campaign called DACA illegal and unconstitutional.

Yet when he took office he did not immediately move to revoke it. Indeed, then-Homeland Security Secretary John F. Kelly — now White House chief of staff — originally approved an extension of the program.

It was only after facing the threat of a lawsuit by the state of Texas that the administration reversed and tried to phase out DACA. The appeals court Thursday pointed to Mr. Kelly’s original approval of DACA as evidence of its legal standing.

Complicating matters for the government is a 2014 opinion by the Justice Department’s Office of Legal Counsel, the administration’s chief legal overseer, arguing DACA-like programs are legal.

That Obama-era opinion has not been rescinded, and remains on the department’s website.

The judges in Thursday’s ruling also made clear their support for the “Dreamers” caught in the legal fight, calling any efforts to deport them “cruelty and wastefulness.”

They said the “Dreamers” were “trusting” the government to keep the program intact — though when it was created, officials had said it was temporary, conferred no permanent status and “may be revoked at any time.”

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