9th Circuit Court Of Appeals Upholds Ban On President Trump’s Attempt To Repeal DACA

Summary: In 2017, the Acting Secretary of Homeland Security, Elaine Duke, issued a memorandum rescinding the memo that established DACA and setting forth a plan to phase it out. Recent rulings, however, have upheld the DACA program, creating legal barriers to the Trump Administration’s attempt to end it.

In 2012, the Obama Administration authored an Executive Branch Memorandum more commonly referred to as DACA, which stands for the Deferred Action for Childhood Arrivals. This memorandum was previously entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” and was issued by the then Secretary of Homeland Security, Janet Napolitano. Despite the fact that Congress rejected the program on multiple occasions during the normal legislative process, DACA created a non-congressionally authorized administrative program permitting “certain individuals who came to the United States as juveniles and meet several criteria…to request consideration of deferred action for a period of two years, subject to renewal, and eligibility for work authorization.”  

As outlined in the final version from June 15, 2012, DACA applies to individuals  “if they had come to the U.S. before their 16th birthday; were under age 31; had continuously resided in the United States since June 15, 2007; and were in school, graduated or had obtained a certificate of completion from high school, obtained a General Educational Development (GED) certificate, or were an honorably discharged veteran of the Coast Guard or Armed Forces of the United States.” Applicants are ineligible if they have been convicted of a felony or a significant misdemeanor.

Since its inception, hundreds of thousands of applicants have been granted DACA status. The Migration Policy Institute estimates that there are about 1.3 million people who fall under the criteria for DACA status and about 699,350 people who actually have it. The latter statistic has grown by almost 10,000 people since September 4, 2017, the day Acting Attorney General Jeff Sessions stated that DACA was “an unconstitutional exercise of authority by the Executive Branch.” Under the legal advice of the Attorney General, the Acting Secretary of Homeland Security issued a memorandum rescinding the June 2012 memorandum that established DACA and set forth a plan to phase out the program.

Though President Trump promised his supporters a new immigration plan, he has been faced with several legal complications of late. The most recent of which is the decision by the 9th Circuit Court of Appeals in Regents of the University of California v. DHS (“DACA II”). After considering whether to lift an injunction ordering the federal government to continue the DACA program, the 9th Circuit upheld the temporary order made on January 8, 2018 by Judge William Alsup of the U.S. District Court for the Northern District of California, preventing President Trump from repealing DACA and requiring the U.S. Citizenship and Immigration Services (USCIS) to continue accepting renewal applications for DACA status.

Following the decision, the government took the unusual step of seeking to bypass the review in the 9th Circuit and appeal directly to the U.S. Supreme Court. This legal mechanism is called a “cert. before judgment” and was filed January 18, 2018. This request is granted by the Supreme Court “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.” On February 26, 2018, the Supreme Court announced that it had “denied cert.” and the case must begin with the 9th Circuit Court of Appeals.

On November 8, 2018, upon review in the 9th Circuit, it was ruled that the “rescission of DACA—at least as justified on this record—is arbitrary, capricious, or otherwise not in accordance with law.” This ruling was made by a three-judge panel: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens. Judge Owens repeatedly questioned whether or not the motive to repeal DACA was racially charged. During litigation, Hashim Mooppan, the Justice Department counsel defending the Trump Administration’s attempt to end DACA, claimed that Trump’s inflammatory statements calling Mexicans “drug dealers, criminals, rapists” had nothing to do with the decision of Acting Secretary of Homeland Security Duke. In response to these claims, Judge Owens stated, “[r]ight, but the Acting Secretary ultimately reports to the President of the United States, and he has said all kinds of things that could be relevant in this litigation.”

Ultimately, the 9th Circuit found that the decision to end DACA was based “solely on a misconceived view of the law.” Affirming that the Executive Branch has power in the enforcement of our nation’s immigration laws, the 9th Circuit justified their ruling by finding: “Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public.”

This case is accompanied by two others, creating a trio of cases which challenged the recission of DACA by the Trump Administration. Following the District Court in California’s decision, a U.S. District Court in Brooklyn, New York similarly issued a preliminary injunction on February 13, 2018, requiring the government to accept DACA renewal applications. The government has since appealed the decision to the Second Circuit Court of Appeals. Oral arguments are tentatively scheduled for the week of January 22, 2019. The third case originates in the U.S. District Court for the District of Columbia. On April 24, 2018, Judge John Bates issued his decision that would reinstate DACA as it was before September 5, 2017, when USCIS was accepting first-time applications for DACA rather than just renewal applications.

Further pursuing their goal to end DACA, despite adverse rulings made in the federal courts, the Department of Justice has requested that the Supreme Court review the trio of cases which block President Trump’s plan to end the DACA program. On Monday, November 5, the Department of Justice said: “An immediate grant of certiorari is necessary to obtain an appropriately prompt resolution of this important dispute.” The Trump Administration has worked tirelessly to repeal the progress of the Obama Administration, yet has had little success in its efforts to end DACA. If they want to successfully terminate the program, they will need to take a different approach than their currently unsuccessful one.

Isabella Caracta is a freshman from Piscataway, New Jersey, intending to major in Psychology and Global Health.

Balancing Presidential Powers: Appointment of Matthew Whitaker

Summary: The appointment of Chief of Staff to the Attorney General Matthew Whitaker as acting Attorney General after resignation of Jeff Sessions has raised questions about the constitutionality of the appointment. Although these questions stem from concern about Whitaker’s position on the Mueller probe, they are nonetheless legitimate, unanswered questions about the constitutionality of the president appointing someone not confirmed by the Senate to an office that answers only to the president.

On Wednesday, Nov. 7, 2018, Attorney General Jeff Sessions submitted his letter of resignation at the request of President Donald Trump. Then the President appointed Matthew Whitaker, Chief of Staff to Attorney General Sessions, to become the new acting Attorney General of the United States of America. The next day, Neal Katyal and George Conway III, husband of Kellyanne Conway, wrote an Opinion article in the New York Times claiming that the appointment of Whitaker to the position of Attorney General is unconstitutional under the Appointment Clause in Section 2, Article II of the United States Constitution.

Justification for the legality of the appointment can be drawn to the Federal Vacancies Reform Act (FVRA), which allows the president to appoint, in the cases of resignation, death, or incapacitation, another to fill that position for a limited time. It is not clear, however, whether the appointment of an individual as a principal officer, an officer that answers only to the president, must be someone that is confirmed by the Senate. FVRA does state that in the case where an individual is no longer able to fulfill the duties of their role, either the first assistant of the officer, a presidential appointed and Senate confirmed individual, or a presidential appointed and senior office of that agency may replace, for a limited time, the vacancy. According to this reading, the FVRA clearly permits the president to appoint someone such as Whitaker, who occupied a senior position as Chief of Staff to the Attorney General, to take up the office of the Attorney General.

This interpretation, however, may run contrary to the Appointments Clause of the Constitution, as the clause requires every principal officer be Senate confirmed. In United States v. Eaton, the Supreme Court permitted a diplomatic vice counsel to serve for a limited time and under special and temporary conditions as an acting principal officer. Therefore, it is not that the appointment of an individual to a principal officer’s position is without precedent. In a more recent case, however, Justice Thomas’s wrote a concurring opinion declaring that a president may never appoint an individual to fill the position of a principal officer no matter for how short a time unless confirmed by the Senate. However, as the opinion is merely a concurrence, the argument does not present any weight as legal precedence. An argument forwarded by the  Office of Legal Counsel classified the individual acting in the role of the principal officer as an inferior officer, and therefore does not need to confirmed by the Senate. On the other hand, Justice Thomas’s concurrence questions whether an appointment is temporary if they are to exercise all the powers of that office.

Even if the president has the power to appoint a non-Senate confirmed individual to the job of a principal officer, the Justice Department already has a statutory line of succession for when the Attorney General is no longer able to fulfill the duties of the office. The question now shifts to whether the more general FVRA supplant the more specific statute that details the line of succession. Generally, specific statutes override broader statutes. If this is indeed the correct interpretation, then the acting Attorney General should instead be the Senate-confirmed deputy Attorney General, Rosenstein, instead of Whitaker. The Office of Legal Counsel’s conclusions in 2007 diverge from those of conventional application of the law, instead ruling that FVRA does indeed give the president the powers to override the more specific statute of succession.

The constitutionality and legal implications of Whitaker’s appointment is important since he had called Robert Mueller’s investigations a “witch hunt.” Democrats have called for Whitaker to recuse himself, noting his past comments on the probe and several conflicts of interest. Should Whitaker not recuse himself, House Dems say they will summon him, by subpoena if necessary. The legal questions addressed above will be the focus of Democrats and the courts should Senate Democrats move forward with a lawsuit against the appointment of Whitaker. Whether the legal problem of succession will be resolved may hinge upon Whitaker’s actions; should he recuse himself from the Mueller probe, the Democrats will likely not pursue legal challenges to the appointment of a non-Senate confirmed individual to a principal office, and the questions regarding succession and the FVRA will still go unsolved.

Mochen Ma is a sophomore in Trinity, studying Political Science with concentrations in Security, Peace, and Conflict, and Political Theory.

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East Bay Sanctuary Covenant v. Trump: The Legality of President Trump’s Asylum Ban


Summary: Civil rights groups have filed a federal lawsuit on behalf of East Bay Sanctuary Covenant, Al Otro Lado, Innovation Law Lab, and the Central American Resource Center in Los Angeles that challenges the asylum ban signed by President Trump on the morning of November 9th. This lawsuit charges the Trump administration for violating the 1965 Immigration and Nationality Act, as well as the 1946 Administrative Procedure Act. President Trump’s invocation of national security powers could overhaul long-standing asylum laws that would lead to the deportation of thousands of refugees seeking protection from persecution.

Less than six hours after President Trump signed a proclamation preventing immigrants who illegally enter the U.S. from applying for and receiving asylum, civil rights groups began legal recourse. The American Civil Liberties Union, Southern Poverty Law Center, and Center for Constitutional Rights filed a complaint in the US. District Court for the Northern District of California. They allege that the Trump administration’s new asylum ban is illegal, because it violates both the U.S.’s immigration law as well as the federal statute that determines how administrative agencies can issue new rules.

Trump’s policy to restrict asylum for people crossing from Mexico and Central America has been implemented incredibly quickly. Just over the last few weeks, Trump’s intense focus on preventing the migrant “caravan” from entering the U.S. has lead to a drastic increase in restrictions against immigrants applying for asylum. Under the current Immigration and Nationality Act of 1965, immigrants who enter the U.S. legally or illegally are allowed to apply for asylum. However, they can still be subject to specific restrictions.

The Trump administration is attempting to use a two-part strategy to legally bar a vast number of immigrants who are attempting to enter the U.S. from Central America. First, the Trump administration added a restriction to who could seek asylum and who was subject to a presidential entry ban, similar to the one signed in 2017. Second, President Trump signed an entry ban on people who attempted to enter the U.S. from Mexico without going through official ports of entry. As a result of these two strategies, anyone who attempts to cross into the U.S. without going through official ports of entry from November 10th, 2018 to February 8, 2019 will not be eligible for asylum. Instead, they’ll only be eligible for an alternative process called withholding of removal or protection under the Convention Against Torture.

Someone who attempts to enter the U.S. from Mexico between official ports of entry would still be granted an interview with an asylum officer, but under Trump’s asylum ban the officer would no longer be required to screen for a “credible” fear of persecution due to race, religion, national origin, political opinion, or membership in a social group. Instead, the officer would only have to screen for “reasonable” fear, which is a much higher standard that requires a determination that persecution is more likely than not, instead of a significant possibility. The use of “reasonable” fear in asylum determinations is incredibly rare, and is only saved for people who have already been deported but have returned again or people who have committed a serious crime in their home country. The impact that the distinction between “credible” and “reasonable” has on people who pass asylum interviews and receive court dates is drastic: 75 percent of all asylum seekers pass credible fear interviews, and only about 25 percent pass reasonable fear interviews.

People who no longer pass the reasonable fear interview will be deported summarily, but people who do pass still aren’t eligible for asylum, only withholding of removal or protection under the Convention Against Torture. Although these two options would both allow the individual to stay in the U.S. legally, it’s much more difficult to receive and it doesn’t present a pathway to permanent residence in the U.S.

Because the number of asylum applicants in the U.S. has soared from five thousand in 2008 to ninety-seven thousand in 2018, a large number of people would be affected by the new policies. Thousands of asylum seekers from Central America could be immediately turned away and sent back to their home country, where they could likely be subject to the exact persecution that they were initially trying to escape.

The Trump administration attempts to justify this new policy by arguing that most asylum seekers are using credible fear screening in order to illegally sneak into the U.S. The administration believes their claims are fraudulent or don’t provide proof of persecution that would reach legal standards of asylum. Instead, these immigrants simply apply for asylum in order to be legally allowed to remain and work in the U.S. as they wait for their court date, then disappear before the date in order to remain in the U.S. illegally.

The Trump administration argues that the low approval rates of asylum applications is evidence that most asylum claims are not only insufficient, but also malicious in its attempts to defraud the system. In fiscal year 2016, the last year for which full statistics are available, 26 percent of all asylum cases decided in court resulted in absentia order, otherwise known as an order of deportation due to the defendant missing court. However, a CLINIC/ASAP report discovered that most families that missed court dates did so due to confusion, bad information, or unclear directions. Families weren’t purposefully missing court dates because they knew that their cases wouldn’t be approved – they were simply lost in the system due to bureaucratic insufficiencies.

President Trump also alleges his new immigration policy is crucial because the current system is overwhelmed; as a result, asylum seekers can wait days, or even weeks at the U.S.- Mexico border in order to present themselves to U.S. border inspectors.

However, despite all of the Trump administration’s arguments for why this policy is necessary, critics argue that President Trump’s asylum ban is still a violation of two distinct U.S. laws – the 1965 Immigration and Nationality Act, and the 1946 Administrative Procedure Act. This is because using the Immigration and Nationality Act, Congress was very specific and clear: entering without inspection is not a basis to categorically deny asylum to refugees. Nevertheless, President Trump’s order categorically denies asylum to any immigrant who crosses in to the U.S. between ports of entry. While Trump is granted powers to fill in legislative gaps left by Congress in order to execute policy, neither he nor his administration have the right to override their clear commands, which is exactly what they’re trying to do.

Furthermore, pursuant to the Administrative Procedure Act, there’s a high bar for Presidents to skip the regulatory review process. However, critics argue that President Trump has not yet reached that high bar, because the Trump administration signed the proclamation without proper procedural steps and without good cause.

Because the Trump administration will surely appeal any ruling that it might receive, this case is almost certain to end up in the Supreme Court. If President Trump’s policy was to stand, thousands of refugees would be forced to return home – back to a place of danger, mistrust, and potential persecution. Regardless, Trump will not hesitate to overhaul the current immigration system at every opportunity he has.

Ellen Wang is a sophomore from Dallas, Texas, pursuing a major in Economics and a double minor in Political Science and Biology.