Government Challenges Order Banning Automatic DACA Revocations

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By Laura D. Francis

The Trump administration is appealing another adverse ruling related to the Deferred Action for Childhood Arrivals program.

The Justice Department wants the Ninth Circuit Court of Appeals to review of a February decision that ordered the Department of Homeland Security to stop automatically terminating immigrants’ DACA protections when they receive a “notice to appear” in removal proceedings. More than 400 DACA recipients have since been identified as having lost their protections in this manner.

The DACA program provides deportation protection and work permits to young, undocumented immigrants who came to the country as children. But several DACA recipients say they’ve received NTAs after being accused of crimes they didn’t commit—crimes that would render them ineligible for DACA.

The appeal is the second in the U.S. Court of Appeals for the Ninth Circuit related to the administration’s actions surrounding the DACA program.

The first appeal challenges a court order finding that the DHS’s September 2017 decision to end the program likely was unlawful. The appeals court is set to hear oral arguments in that case in May, after which it could go to the U.S. Supreme Court.

The Supreme Court earlier rejected the DOJ’s request for a direct appeal from a federal judge’s order requiring the DHS to accept DACA renewal applications. But the justices signaled they might be willing to take up the case once it makes its way through the lower courts.

Due Process

Following his February order, Judge Philip S. Gutierrez of the U.S. District Court for the Central District of California said the case challenging automatic DACA terminations could proceed as a class action. DACA recipients have the right to notice and the opportunity to respond before their protections are revoked, Gutierrez said.

Gutierrez’s rulings are based on his finding that the decision to revoke an immigrant’s DACA protections isn’t completely discretionary, and the DHS must follow its own standard operating procedures.

Even if the administration isn’t successful on appeal, however, relief available to the DACA recipients may be limited.

A separate federal judge upheld a DACA termination decision where the DHS did provide prior notice and the opportunity to respond, even though the immigrant disputed the underlying allegations. As long as the DHS followed the correct procedure, it didn’t matter that the immigrant claimed he didn’t commit the offense that formed the basis for the revocation, the court found.

The case is Inland Empire–Immigrant Youth Collective v. Nielsen, C.D. Cal., No. 5:17-cv-02048, notice of appeal filed 4/26/18.

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