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Tuesday November 13th, 2018 7:37PM

Appeals court rules against Trump on DACA immigrant policy

By The Associated Press
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SAN FRANCISCO (AP) — A U.S. appeals court blocked President Donald Trump on Thursday from immediately ending an Obama-era program shielding young immigrants from deportation, saying the administration's decision was based on a flawed legal theory.

A three-judge panel of the 9th U.S. Circuit Court of Appeals unanimously kept a preliminary injunction in place against Trump's decision to end the Deferred Action for Childhood Arrivals program.

Lawsuits by California and others challenging the administration's decision will continue in federal court while the injunction stands.

The U.S. Supreme Court could eventually decide the fate of DACA, which has protected about 700,000 people who were brought to the U.S. illegally as children or came with families that overstayed visas. Earlier this week, the Trump administration took the unusual step of asking the Supreme Court to take up the case even before any federal appeals courts had weighed in. It was the second time the administration sought review of its DACA decision by the Supreme Court.

In Thursday's ruling, 9th Circuit Judge Kim Wardlaw said California and other plaintiffs were likely to succeed with their claim that the decision to end DACA was arbitrary and capricious.

The Department of Homeland Security moved to end the program last year on the advice of just-fired Attorney General Jeff Sessions, who determined DACA to be unlawful because, he said, President Barack Obama did not have the authority to adopt it in the first place.

That was incorrect, Wardlaw wrote, noting that the federal government has a long and well-established history of using its discretion not to enforce immigration law against certain categories of people. Examples include President Dwight D. Eisenhower's decision in 1956 to extend "immigration parole" to 30,000 Hungarian refugees otherwise unable to remain in the U.S. and President Ronald Reagan's "Family Fairness" program, which allowed certain relatives of illegal immigrants who had been granted amnesty to likewise remain in the country.

While the federal government might be able to end DACA for policy reasons under its own discretion, it can't do so based on Sessions' faulty belief that the program exceeds federal authority, the court held.

"We hold only that here, where the Executive did not make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious," Wardlaw wrote. "The government is, as always, free to reexamine its policy choices, so long as doing so does not violate an injunction or any freestanding statutory or constitutional protection."

That said, the judges also declined to dismiss claims that the government's action might violate the constitutional rights of DACA recipients. The disproportionate effect the decision would have on Latinos might be unconstitutionally discriminatory, the court said, and the plaintiffs had also made a credible claim that it would violate due process for the government to turn around and use information they provided when they enrolled in DACA in deportation proceedings.

The Trump administration has said it moved to end the program last year because Texas and other states threatened to sue, raising the prospect of a chaotic end to DACA. The administration cited a 2015 ruling by another U.S. appeals court that blocked a separate immigration policy implemented by Obama.

The 9th Circuit disagreed with the New Orleans-based 5th U.S. Circuit Court of Appeals and said one of its conclusions did not apply to DACA.

An email to the U.S. Department of Justice was not immediately returned.

Trump's decision to end DACA prompted lawsuits across the nation, including one by California. A judge overseeing that lawsuit and four others ruled against the administration and reinstated the program in January.

U.S. District Judge William Alsup rejected the argument that Obama had exceeded his power in creating DACA and said the Trump administration failed to consider the disruption that ending the program would cause.

The administration then asked the 9th Circuit to throw out Alsup's ruling.

During a hearing in May, Deputy Assistant Attorney General Hashim Mooppan argued that the courts could not review the administration's decision to end DACA. The 9th Circuit rejected that notion.

The administration has been critical of the 9th Circuit and took the unusual step of trying to sidestep it and have the California DACA cases heard directly by the U.S. Supreme Court. The high court in February declined to do so. It again asked the Supreme Court on Monday to take up the case after warning that it would seek review by the high court if the 9th Circuit did not issue a ruling by Oct. 31.

Federal judges in New York and Washington also have ruled against Trump on DACA.

___

Associated Press writer Gene Johnson contributed from Seattle.

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