Late Friday U.S. Department of Homeland Security Secretary Kirstjen M. Nielsen filed a memorandum in NAACP v. Trump, one of the several court challenges to President Trump’s September 4, 2017 cancellation of the Deferred Action for Childhood Arrivals (DACA) program, purportedly “clarifying the Department’s position” on its rescission of DACA. The memorandum is in response to the April 24, 2018 order of U.S. District Judge John D. Bates who ruled that the Trump administration’s cancellation of DACA violated the Administrative Procedures Act. Like other courts considering the issue, Bates ruled that USCIS must continue to accept DACA renewals. But unlike other courts, he also ordered the agency to accept applications from new DACA applicants. He then stayed his order for 90 days to give the Trump administration a chance to come up with a better legal explanation as to why it ended DACA.
Nielsen’s memorandum does not offer the better explanation Bates asked for. In fact it offers nothing new; just a restatement of DHS’s deficient legal justification for cancelling DACA in the first place that Judge Bates questioned. As reported by CNN’s Tal Koplan:
Friday’s filing largely reiterates the same legal arguments the judge found insufficient in the administration’s prior attempt, adding that because the program itself was designed as a discretionary exercise of immigration enforcement, the administration likewise has the discretion to end the program and resume that enforcement. The filing tees up a potential order to reinstate DACA.
Why would Nielsen respond to Judge Bates’ request for “a fuller [legal] explanation” for ending DACA with the same faulty argument?
That’s easy. His name is Judge Andrew Hanen.
Hanen, labeled by ThinkProgress as the “most viciously anti-immigrant judge in the country” now presides over a challenge to DACA brought by Texas Attorney General Ken Paxton. In a show of forum shopping Paxton, together with five other Republican Attorneys General, brought the case before Hanen in early May. Hanen is the same judge who blocked the Obama-era memorandum expanding DACA protections to the undocumented parents of US citizens.
The strategy is obvious: win a favorable ruling from Hanen blocking DACA and, likely, the 5th Circuit Appeals Court; create a conflict among the federal courts that have ruled Trump’s DACA cancellation violated the law and the national injunction which has kept DACA in place; get to the Supreme Court where they believe that the conservative majority will tilt their way and overrule the federal courts that have blocked Trump’s attempt to rescind DACA once and for all.
David Leopold, Chair, Immigration Law, Ulmer & Berne and former President/General Counsel of the American Immigration Lawyers Association, said:
The Trump administration shows a disturbing pattern and practice of going after children, even toddlers, to inflict its anti-immigrant nativist brand on America. Trump’s diabolical scheme of arresting, prosecuting and stealing the children of parents desperately fleeing horrific violence horrified the world. Forced to pull back from what was effectively the hostage taking of children for political gain, Trump has now pivoted to targeting Dreamers. The plan? Punt on the DACA case before Judge Bates, so that Judge Andrew Hanen in Brownsville, Texas can issue an order blocking DACA, setting up a race to the Supreme Court where Trump thinks he has an edge. Trump, Nielsen, Sessions and the Republicans know full well they don’t have the law on their side when it comes to DACA. Their only hope is to use the courts to move forward their ugly nativist agenda. For years Chief Justice Roberts has lamented the politicization of the Courts. I hope he’s paying attention to this charade.
Ur Jaddou, Director of DHS Watch and former USCIS Chief Counsel, said:
The Trump administration’s play is becoming very clear. Nielsen’s “memo” isn’t a legal document. It’s a political memo. Most lawyers would be wary to submit it to a federal district court in response to a federal judge’s request for a full legal explanation. But, not Nielsen. She and her colleagues are not worried about Judge Bates, because they believe they have an ace up their sleeve: Judge Andrew Hanen. He was the judge of choice for Paxton in the past, and he is now filling that same role for Jeff Sessions, Kirstjen Nielsen and Donald Trump. This is a ploy to use courts to fulfill Trump’s political agenda – and his administration is apparently confident that Hanen will once again be a willing participant. Meanwhile, Nielsen, who has spent the last month and a half separating families is now showing her complicity in seeking to end the futures of young people with DACA.
