DACA may have won a court victory Tuesday night, but the decision only makes the legal path forward murkier.
The complexity only adds to the likelihood DACA will remain intact for many months if not longer, despite President Donald Trump’s initial plan to begin its termination in early March.
A federal judge in Washington became the third judge to say the Trump administration has failed to adequately justify its decision to end the Deferred Action for Childhood Arrivals program, which protects young undocumented immigrants who came to the US as children. Judge John Bates, however, went further than judges who have preliminary put the end of the program on hold and ordered the administration to renew DACA permits, by ordering the administration to begin accepting new applicants unless it can issue a new memo justifying its decision that satisfies him within 90 days, at which point the ruling will take effect.
But rather than provide clarity on the future of DACA, the ruling only adds layers of complexity to an existing morass in the courts about the program’s future.
“This further muddies the litigation on this issue,” said Stephen Yale-Loehr, an immigration attorney with Miller-Mayer and Cornell Law School professor. “Overall it’s a pretty murky area for everyone involved, there’s no certainty for DACA recipients, or employers, or the government, in terms of what’s going on.”
Before Bates’ ruling on Tuesday, two appellate courts were already considering cases on DACA, the 9th Circuit and 2nd Circuit. The case in the 9th Circuit, out of California, is farther along, with oral arguments scheduled for May.
In both cases, a district court judge, one in California and one in New York, has issued a nationwide ruling that the rescinding of DACA last September is not likely to pass muster legally, ordering the Department of Homeland Security to resume considering renewal applications for the two-year work permits and protections from deportations.
The Supreme Court has already declined an administration request to leapfrog those courts and consider the DACA rescission immediately.
So even before the ruling, DACA was likely to remain intact for months. Once the 9th Circuit hears arguments it could issue a ruling at any time, and it could preserve or overturn the lower court’s decision. But even if it were to overturn the decision – something court experts find unlikely – the judge’s ruling out of New York would remain operative nationwide, so it would take the 2nd Circuit also overturning that region’s case – another outcome considered unlikely – to result in DACA being terminated. The odds of both courts ruling that DACA can be terminated immediately in the next few months is slim, experts say.
It is likely the cases will eventually end up before the Supreme Court once the appeals process runs its course, but that would almost certainly take place in the next term, October at the earliest, and a court ruling of that magnitude could take months to complete.
On top of that existing case patchwork, Tuesday’s ruling adds a new wrinkle. Bates, a Republican appointee nominated by President George W. Bush, went farther than the previous judges in two respects. First, he issued an opinion not just as a preliminary move while the case is decided on its merits – he issued a judgment on the actual merits of the case, meaning if his order was finalized in 90 days, it would be permanent, not preliminary, subject to appeal.
Second, because of that, Bates effectively overturned the administration’s move on DACA itself – meaning that the program will be restored in full including new applications unless the Justice Department and DHS issue a new memo that he determines is adequate.
Bates was heavily skeptical in his decision of the administration’s reasoning that a threat to sue the DACA program brought by Texas and a handful of other states meant it was likely a court would immediately throw out DACA entirely. In a statement reacting to the ruling, the Justice Department doubled down on that reasoning and has not offered any other justification for ending the program since September.
The next steps only get more complicated. If DHS were to issue a new memo rescinding DACA, lawyers could argue the 9th Circuit and 2nd Circuit cases are moot and that challenge process would need to start over, similar to what has happened with the President’s travel ban cases. But it’s not guaranteed the courts will accept that argument.
If Bates finalizes his order, it could mean the resumption of DACA in its entirety as the other cases make their way through the courts, though that, too, would likely end up before the circuit court overseeing DC.
Timeline for resolution
The complicated legal situation means the future of DACA likely won’t be resolved for months if not a year.
“If you were in Las Vegas, where you would put the odds on a final decision on this iteration of DACA is May 2019,” said Leon Fresco, an immigration attorney who used to work in the Obama administration Justice Department. “There is basically no chance that the DACA program writ large is gone any time before middle of 2019.”
Fresco said the odds of the government winning at the 9th Circuit, 2nd Circuit and DC Circuit were “1 million to one.”
“There’s just no chance,” Fresco said. “If (the administration) thought they had a chance, yesterday’s opinion lays it to rest.”
The administration still has reason to believe it may win before the Supreme Court, where the addition of Justice Neil Gorsuch by Trump could break a previous 4-4 split on a related – but different – deferred action case in favor of the Trump administration. But Fresco estimated given the timeline for the Supreme Court likely scheduling arguments next fall, a decision would be unlikely before the following spring. If a new memo were to restart litigation over, that could delay that process.
“The question on DHS’ side is do they want to try to slow down the rumble to the Supreme Court taking their time on this decision, or do they want to take their chances that Gorsuch and (swing vote Justice Anthony) Kennedy will go their way?” Fresco said. “At some point you have to make an analysis as to where this is more likely to end. And do you think you are likely to win now in the Supreme Court, or do you want to take the time making a new memo?”