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David Leopold’s Reaction to SCOTUS Refusal to Expedite Trump DACA Challenge

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The following is a statement from David Leopold, Partner/Chair, Immigration Practice Group, Ulmer & Berne LLP and former President, American Immigration Lawyers Association, following the Supreme Court’s decision not to expedite the administration’s challenge to DACA:

Today, the Supreme Court blocked the Trump Department of Justice’s (DOJ) attempt to game the judicial system in its effort to end DACA. The DOJ took the extraordinary step of trying to leap-frog over the 9th Circuit Court of Appeals and go directly to the Supreme Court to ask it to lift the injunction issued by a U.S. District Court Judge. DOJ wanted to effectively prohibit USCIS from accepting DACA applications and kill the program by March 5, 2018. The Supreme Court said “no”, declining to hear the DOJ appeal.

U.S. District Courts in the 9th and 2nd circuits have both issued injunctions partially enjoining the Trump administration from canceling DACA.  The injunctions, both issued on a nationwide basis, require the USCIS to continue to accept DACA applications from Dreamers who have (or have had) DACA and seek to renew their deferred action and employment authorization. Both lawsuits are in their early stages.

Because the Supreme Court shut down DOJ’s brazen effort to thwart procedure, th​e DACA lawsuits will now stay in the 9th and 2nd circuits. Briefing is set for early April in the 9th circuit case. Briefing has not yet been scheduled in the 2nd circuit case. This means that DACA will likely stay in place at least until early June, when an decision is expected from the 9th circuit. It’s also important to note that other challenges to Trump’s cancellation of DACA are pending in the District of Columbia and Maryland.  Other courts may also issue injunctions temporarily preventing the Trump administration from cancelling DACA.

It’s important to recall that the catalyst – Trump’s mean spirited cancellation of DACA in September 2017 – was a concocted threat by Texas Attorney General Ken Paxton​, in cahoots with Attorney General Jeff Sessions, to challenge DACA in the Texas immigration case, currently pending before Judge Andrew Hanen. Paxton was lead counsel in the case where Hanen famously enjoined the DAPA program in early 2015. ​(That program​ would have expanded deferred action to undocumented parents of U.S. citizens and increased DACA protections.​)​ Using the Paxton threat as a pretext, the Trump administration canceled DACA on September 5, 2017, claiming that it violated the constitution. Since Paxton has politicized immigration at every opportunity, ​t​he question then arises, what if Paxton now makes good on this threat and files a challenge to DACA before Judge Hanen, whose disdain for immigrants and deferred action is notorious?

​Ironically, the case blocking Trump’s attempt to end DACA relied on some of Hanen’s arguments about following the appropriate procedure. The good news is that even if Hanen issues an order enjoining DACA – which is now unlikely given that the Republicans tried and failed to get the Supreme Court to effectively end the program – such a decision by Hanen would conflict with two other U.S. district courts that issued nationwide injunctions temporarily keeping DACA in place.  A Hanen injunction against DACA would likely have to be resolved by the courts of appeals and may speed up the decisions in the 9th and 2nd circuits, but would otherwise likely have little to no effect on DACA.

​ ​Paxton outsmarted himself here.

The Court’s decision means that DACA remains on life support, although clearly in hospice, because eventually it will die due to Trump’s decision to cancel the program last fall – absent Congressional action. But as long as DACA is alive and kicking, DACA recipients who can, should apply for renewal of their status. That’s the law for now – and DHS and USCIS need to honor it.