By TIMOTHY DENTON
In a significant setback to the Trump administration, a federal judge issued a preliminary injunction against “Kristjen Nielsen, Donald Trump, et al.,” on Feb. 13, blocking further action against the plaintiffs in the Deferred Action for Childhood Arrivals (DACA) program.
Senior Federal Judge Nicholas Garaufis, ruling in Brooklyn for the Eastern District of New York, found that the administration was “wrong on the law, wrong on the facts, and acted arbitrarily and capriciously,” according to Karen Tumin, lead attorney for the plaintiffs in “Batalla, et al. v. Nielsen,” et al., on a conference call shortly after the ruling.
The issue is of enormous significance for local communities, because Nassau County has a large immigrant population. In addition, DACA applies to equally to immigrants from Ireland, Norway, and Russia, and not only to those from El Salvador or Haiti – the most common targets of the Trump administration.
The court was not ruling on whether or not the Trump administration had the authority to overturn DACA, but “whether they had offered legally adequate reasons for doing so,” the Garaufis wrote. “The court concludes that the Defendants have not done so.”
Trump’s executive order ending the program contended that the original order, issued by former president Obama in 2012, was unconstitutional. “Because that conclusion is erroneous, the decision to end the DACA program cannot stand,” the order stated. “This erroneous conclusion appears to have relied in part on the plainly incorrect factual premise that courts have recognized ‘constitutional defects’ in the somewhat analogous [DAPA] program.” Finally, the court found that the administration had acted in a way that was “internally contradictory,” according to the ruling, in that it continued to adjudicate individual renewal applications while simultaneously maintaining that the program as a whole was unconstitutional. “Any of these flaws would invalidate the DACA rescission as arbitrary and capricious.”
Garaufis wrote that the administration had attempted to amend its rationale for ending the program during the course of arguments. The defendants were afraid, they said, that Texas might seek to amend its complaint in an earlier case, “Texas v. United States,” to seek a nationwide injunction against DACA, and that the U.S. Supreme Court would affirm that injunction. In “Texas v. United States,” the Supreme Court gave a one-line ruling affirming lower court injunction that blocked the president’s of the DAPA program. “The Administrative Record does not support Defendants’ contention that they attempted to end the DACA program for that reason.” In any case, relying on so-called litigation risk was as arbitrary and capricious as the original argument.
Garaufis concluded that plaintiffs had satisfied the requirements for granting a preliminary injunction, prohibiting the defendants from rescinding the DACA program. Garaufis made clear in his ruling, however, what the decision did not do. It did not:
• Hold that the rescission of DACA was unlawful, saying that was a question that could not be decided at this stage of the proceedings;
• Hold that the defendants may not rescind the DACA program, saying the ordinary remedy for any deficiency in the administration’s original argument would be to “remand the decision to [the Department of Homeland Security] for reconsideration;”
• Require the defendants to grant any particular DACA applications or renewal requests;
• Prevent the defendants from revoking individual DACA recipient’s deferred action or work application.
• Tumin said the carefully worded decision complemented a decision by the federal court for the Northern District of California that was handed down on Jan. 9. That decision, “Board of Regents v. Nielsen, et al.,” covered much the same legal ground, with the additional arguments that a finding in favor of the defendants would cause irreparable harm to the plaintiffs and be against the public interest. The California court ordered the administration “to maintain the DACA program on a nationwide basis on the same terms and conditions as were in effect before the rescission on Sept. 5, 2017,” until such arguments could be decided at the next step.
These rulings are temporary, and in both cases, the judges expect plaintiffs will seek to make the injunctions permanent. According to Tumin, it is likely the Trump administration will seek to “jump over the federal courts” and go straight to the Supreme Court, where any ruling is final..
Tumin was cautiously optimistic about the possibility of overturning Trump’s these anti-immigrant policies. “The judge made clear that the original order by Obama was legal,” she said, “and that the arguments by the defendant were arbitrary and capricious. But to me,” she continued,” the most damning moment came when the judge said that, ‘these arguments do not even make sense within the context of [Trump’s] own universe.’”