NY Judge Slams Feds For ‘Ignoring’ Justices’ DACA Revival
Law360 (November 18, 2020, 8:08 PM EST) — A New York federal judge rebuked the Trump administration Wednesday for refusing to reinstate DACA, saying the administration was “ignoring” court orders that preserved the immigration program while trying to “run out the clock” on the president’s remaining time in office.
U.S. District Judge Nicholas G. Garaufis chastised the government for failing to revive the Deferred Action for Childhood Arrivals program, which provides deportation relief and work permits to young authorized immigrants brought to the U.S. as children, after the U.S. Supreme Court ruled in June to preserve it.
Instead, in the wake of that ruling, the U.S. Department of Homeland Security issued another memo curtailing DACA, including by shortening the renewal period and barring first-time applicants, spurring another round of litigation in Judge Garaufis’ courtroom.
“The court is really troubled by the fact that the Supreme Court’s decision has … not provided the impetus on the part of the executive branch to adhere to the plain import of that decision,” he told the government’s lawyer at a hearing Wednesday.
He also accused the department of attempting to delay the case to avoid having to reinstate DACA before President Donald Trump leaves office in January, and set an expedited briefing schedule that would require the government to turn around a response brief the week of Thanksgiving.
DHS has already “essentially said it will receive this order in the same way that it received the [Supreme Court] decision: by ignoring it,” Judge Garaufis said in court, pointing to a recent DHS press statement that called him an “activist judge” whose reasoning has “been thoroughly discredited,”
“You’re entitled to your own opinions, you’re not entitled to manufacture your own law. And I’m deeply concerned that the whole point of this exercise on the part of the government, as for the [Supreme Court] decision, is to run out the clock,” he said. “I’m deeply disappointed that that appears to be the situation.”
The judge went on to question whether the government was acting “in good faith” before the court.
“It’s very important that we adhere to the decision of the Supreme Court in good faith, and I’m afraid that the hostility of the executive branch demonstrates that it is not acting in good faith in this case,” he said.
The attorneys had gathered Wednesday morning to discuss their next steps days after Judge Garaufis struck down its latest attempt to end DACA, finding that acting Homeland Security chief Chad Wolf had not been properly appointed and thus was not legally serving in his role when he issued the contested memo.
Attorneys for the DACA recipients and the New York-led coalition of states, which had challenged the DACA limits, told the court Wednesday that they plan to request injunctive relief in light of its ruling.
Judge Garaufis is one of several federal judges who have concluded that the promotions of Wolf, and his predecessor Kevin McAleenan, violated the department’s rules of succession, and who have invalidated their immigration actions under that basis.
Facing a litany of legal challenges arguing that Wolf lacked the authority to issue immigration changes, the Trump administration has sought to remedy its succession troubles by issuing subsequent ratification orders.
The government told the court that, in September, the department had Peter Gaynor, head of the Federal Emergency Management Agency who, under the challengers’ reasoning, should have been next in line to be acting DHS secretary, revise the succession order to name Wolf as acting DHS secretary after Wolf was formally nominated for the role.
However, the government later told the court it had made “an inadvertent factual inaccuracy” when retelling that sequence of events, after learning that Wolf’s formal nomination was actually sent to the Senate after Gaynor signed the new delegation order.
On Tuesday, DHS announced that Gaynor had again revised the succession order the weekend before, this time after Wolf’s nomination was sent to the Senate.
At Wednesday’s hearing, Judge Garaufis said the “purpose of this little exercise that they did over the weekend” appeared to be to further delay proceedings. The judge had already ruled that the Gaynor delegation order “had no legal effect” regardless of whether it was signed before or after Wolf’s nomination was submitted.
“It’s a sad, I would say, and inappropriate use of executive alleged executed authority in order to deny DACA recipients, and those who seek to be DACA recipients, the ability to pursue their rights in light of the Supreme Court’s decision,” the judge said at Wednesday’s hearing.
The government’s lawyer, Stephen M. Pezzi of the U.S. Department of Justice, insisted that the Tuesday delegation announcement “had nothing to do with DACA and nothing to do with this litigation.” However, he also said that he did not have the authority to agree not to raise any arguments on appeal in this case based on the recent delegation order.
Attorneys for the DACA challengers will file their request for specific relief by Nov. 24, and the federal government’s response is due Dec. 1.
The immigrants are represented by Karen C. Tumlin, Muneer I. Ahmad, Marisol Orihuela, Michael J. Wishnie, Maria Camila Bustos, Armando Ghinaglia and Edgar A. Melgar of Yale Law School’s Jerome N. Frank Legal Services Organization, Trudy S. Rebert, Araceli Martínez-Olguín and Mayra B. Joachin of the National Immigration Law Center, and Paige Austin of Make the Road New York.
The states are represented by the attorneys general of New York, Massachusetts, Washington, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia and the District of Columbia.
The federal government is represented by Galen N. Thorp, Stephen M. Pezzi and Rachael L. Westmoreland of the DOJ’s Civil Division, and Joseph A. Marutollo of the U.S. Attorney’s Office of the Eastern District of New York.
The cases are Batalla Vidal et al. v. Nielsen et al., case number 1:16-cv-04756, and State of New York et al. v. Trump et al., case number 1:17-cv-05228, in the U.S. District Court for the Eastern District of New York.
–Editing by Adam LoBelia.
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