The Department of Homeland Security stood by the decision to end the Deferred Action for Childhood Arrivals program last September in a court filing Friday evening – setting up a potential court duel over the future of the program this summer.
In the filing, Homeland Security Secretary Kirstjen Nielsen said she stands by the department’s legal reasoning behind the decision to end DACA last September and reiterated that the government believes it has the authority to do so.
In a related filing in a separate appellate court Friday night, the government asked a panel of judges to reverse a previous judge’s order to reopen the program to renewals.
The memo was requested by a federal judge who ordered that the program be reinstated in full but gave the Trump administration 90 days to better explain its decision to end DACA – a program that had protected nearly 800,000 young undocumented immigrants brought to the US as children from deportation.
The Trump administration announced the termination of DACA last year, saying it believed the courts would overturn the program under a legal challenge to it, but initially called on Congress to act.
Friday’s filing largely reiterates the same legal arguments the judge found insufficient in the administration’s prior attempt, adding that because the program itself was designed as a discretionary exercise of immigration enforcement, the administration likewise has the discretion to end the program and resume that enforcement. The filing tees up a potential order to reinstate DACA.
The filing also said the Justice Department intends to continue to pursue an appeal to any court order that would restore DACA in full, and almost simultaneously the administration filed a request in its separate case before the 9th US Circuit Court of Appeals to reverse a California federal judge’s order to reopen DACA to renewals. That case has already been argued in court and is awaiting the appellate panel’s decision.
“The Justice Department continues to maintain that the Department Homeland Security acted well within its lawful authority to rescind DACA in an orderly manner, and today’s memo responds to a court order by providing further explanation of why the decision to rescind DACA was, and remains, entirely proper,” a Justice Department spokesperson said in a statement. “Promoting and enforcing the rule of law is vital to protecting a nation, its borders and its citizens. The Justice Department will continue to vigorously defend this position.”
Though DACA renewals have already resumed under previous court orders, Judge John Bates’ decision would order that DACA be restored not only in the form of renewal applications, as it is currently, but also in total – meaning new people would be able to apply.
In April, Bates was the third judge to say the Trump administration had failed to adequately justify its decision to end DACA.
The filing on Friday comes as a judge in Texas is considering a request by a handful of red states to completely overturn DACA as unconstitutional. He is widely expected to rule that way, setting up potentially conflicting judicial orders and paving the way for a Supreme Court showdown.
CNN reported in April that 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 – which eventually came to fruition this spring as the program was reopened – meant it was likely a court would immediately throw out DACA entirely.
CNN’s Laura Jarrett contributed to this report.