Dreamers Face Crucial Test as Trump Urges Court to Undo Policy

(Bloomberg) -- The future of kids brought into the U.S. by their undocumented parents faces a crucial test in a federal appeals court in California.

The Trump administration seeks to knock down one of a trio of lower-court decisions that have barred the government from ending the program for so-called Dreamers that allowed the children to stay in the country.

On Sept. 5, Trump unveiled a plan to end Deferred Action for Childhood Arrivals by March, an edict that was first blocked in January by a San Francisco federal judge. The U.S. Court of Appeals for the Ninth Circuit is reviewing that ruling at a hearing Tuesday in Pasadena, California. A three-judge panel will hear from from the Justice Department and attorneys representing six Dreamers, four states, two cities and a university. An immediate decision from the judges is unlikely.

Undoing the Obama administration’s DACA program has been an evolving policy priority for President Donald Trump over the past year. After initially expressing empathy for beneficiaries threatened with deportation, Trump’s position soured as negotiations with Democrats over a political solution sputtered.

Trump administration attorneys are arguing that the Department of Homeland Security exercised its authority to issue policy directives under the purview of the Administrative Procedures Act. Even if the lower court’s decision is upheld, the Trump administration believes the nationwide injunction is “overbroad,” according to court filings.

On the Dreamers side, lawyers will continue to claim that Trump’s proposed change in policy threatens imminent harm to about 700,000 DACA beneficiaries. They also will point to the government’s plans to instantly end DACA, instead of applying a notice and comment period.

DHS personnel will “deny applications without exception, which would in turn suspend the employment authorizations of hundreds of thousands of people, eliminate their access to advance parole and expose them to arrest and deportation,” according to an appeals court filing by the University of California.

That point could become central to the case, since the Obama administration similarly skipped that part of the policy-making process. The government argues that if the former administration avoided the notice period when enacting the program, the current one may may do so when ending it.

Twenty entities are supporting the Dreamers, including law professors, former federal immigration agents and historians alleging discriminatory intent behind Trump’s action.
One organization filed a so-called friend of the court filing in support of the administration -- the Immigration Reform Law Institute, a law firm that aims to protect Americans from the “negative effects of mass migration.”

On April 1 Trump tweeted, “NO MORE DACA DEAL,” while demanding that Republicans “go to Nuclear Option” in Congress. Three federal courts -- San Francisco, Brooklyn and Washington -- have blocked him from enforcing his executive order.

Whether the bench sides with the president or with the kids, the hearing will probably serve as an introduction to arguments ultimately headed to the U.S. Supreme Court. The nation’s highest court already rejected the government’s unusual motion to take the case directly from the underlying court, citing the appeals process.

The case is Regents of University of California v. U.S. Department of Homeland Security, 17-cv-05211, U.S. District Court, Northern District of California (San Francisco).

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