(Bloomberg) -- President Donald Trump’s plan to dismantle the DACA program suffered yet another setback as a federal judge set a road map for enrolling new undocumented immigrants.
The administration must begin accepting new applications to the Obama-era program after 90 days if it can’t come up with a better reason to end deportation protections for the children of undocumented immigrants. When the decision to end the program for so-called Dreamers was announced in September, the Justice Department cited “unconstitutional” executive overreach by former president Barack Obama.
U.S. District Judge John Bates on Tuesday became the third federal judge to bar the administration from carrying out its 2017 plan to rescind Deferred Action for Childhood Arrivals. The order out of Washington reinforces decisions by San Francisco and Brooklyn federal judges blocking Trump from dismantling the program, while outlining a path to reinstate DACA that will require the Department of Homeland Security to consider not only renewals, but new applicants.
In his order, Bates wrote that the administration’s move “was virtually unexplained," so its determination that the program was unlawful couldn’t be justified. Without an explanation, the U.S. “must accept and process new as well as renewal DACA applications,” he wrote.
Bates, appointed by President George W. Bush, called Trump’s decision to rescind the program “arbitrary and capricious.” Trump announced his plan to end DACA in September, but delayed its implementation until March to give Congress time to come up with a permanent fix. Talks to extend the program, created in 2012 by Obama, got bogged down in budget negotiations, and DACA has emerged as a symbolic stand-in for the debate over illegal immigration that’s been at a stalemate in Washington for more than a decade. A sizable majority of Americans support giving Dreamers legal status, opinion polls have shown.
The Justice Department said Tuesday it would continue to seek an end to the program.
“Today’s order doesn’t change the Department of Justice’s position on the facts: DACA was implemented unilaterally after Congress declined to extend benefits to this same group of illegal aliens,” Justice Department spokesman Devin O’Malley said in a statement. “The Department of Homeland Security therefore acted within its lawful authority in deciding to wind down DACA in an orderly manner. Promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens.”
The program allows certain undocumented immigrants brought to the U.S. as children before 2007 to apply for renewable, two-year permits that shield them from deportation and let them work legally. They must have no significant criminal record and be enrolled in high school or have a diploma or the equivalent. It doesn’t provide a path to permanent residency or citizenship.
As many as 1.3 million people were immediately eligible when the program was established, according to the Migration Policy Institute. Of those, about 800,000 have enrolled. Another 400,000 would be eligible if they met the education requirements. About 230,000 more are younger than the minimum age of 15, but will become eligible if they get a high school diploma or equivalent.
States led by California are among those challenging the Trump administration’s bid to end DACA, saying it could lead to “irreversible, life-altering consequences” for hundreds of thousands of people.
A group including the National Association for the Advancement of Colored People, Princeton University and Microsoft Corp. sued in November to save the program that allowed Dreamers to remain and work in the U.S. They argued the government had violated the Administrative Procedure Act, which mandates that repeal of government regulations be preceded by public notice and an opportunity for comment.
In January, a San Francisco federal judge blocked the Trump administration from ending DACA, rejecting the government’s argument that the courts can’t review whether the president improperly decided to terminate the program. The decision will be reviewed by the Ninth Circuit Court of Appeals in San Francisco at a hearing set for May 15.
In February, the U.S. Supreme Court rejected a Trump administration appeal aimed at ending deportation protections. The Justice Department had asked the high court to take the unusual step of bypassing an appeals court and granting fast-track review of a federal trial judge’s decision.
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