Immigration: Ninth Circuit Ruling Affirms Injunction Maintaining DACA

On September 5, 2017, then-U.S. Attorney General Jeff Sessions announced that the government was terminating the Deferred Action for Childhood Arrivals (DACA) program. That same day, then–Acting Secretary of Homeland Security Elaine Duke issued a memorandum confirming the change. Multiple lawsuits challenging the Trump administration’s actions to terminate DACA were filed across the country. On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California issued a preliminary injunction requiring the federal government to maintain the DACA program on a nationwide basis.

On November 8, 2018, the Ninth Circuit issued a decision (hereafter DACA II) affirming the lawfulness of the preliminary injunction. The Ninth Circuit first ruled that Acting Secretary Duke’s decision to rescind the DACA program is reviewable under the APA, because the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. It also ruled that INA Section 1252(g) does not deprive courts of jurisdiction to review the DACA rescission order.

Immigration: District Court Issues Restraining Order on Trump Effort to Limit Asylum

On November 9, 2018, the Departments of Justice and Homeland Security published a Rule that placed an additional restriction on the right of asylum, namely that an asylum seeker would be ineligible for asylum if he or she entered the country in violation of a presidential Proclamation issued on or after that date. On the same day, President Trump issued a proclamation that suspended for 90 days the right of asylum seekers to enter the country across the U.S.-Mexico border except through officially designated ports of entry.

In response, various social service and legal organizations that assist immigrants filed a federal lawsuit in United States District Court (Northern District of California) against President Trump and others to seek a Temporary Restraining Order (TRO) to prevent the Rule from taking effect. On November 19, 2018, District Court Judge Jon S. Tigar issued a lengthy decision in which he scheduled a hearing on this matter for December 19, 2018, and imposed a nationwide TRO pending that hearing.

Travel Ban III: Supreme Court Reviews Travel Ban

On April 25, 2018 the Supreme Court of the United States heard oral arguments for the landmark case State Of Hawai’i And Ishmael Elshikh vs. Donald J. Trump, et al in which the State of Hawaii sued the federal government to stop the implementation of Executive Order No. 13,780. The executive order, which is titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”, is President Trump’s third attempt at a travel ban and it restricts the entry of foreign nationals from 6 specified Muslim countries and two non-Muslim majority nations  (Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad). Chad was later removed from the Travel Ban on April 11, 2018. It also suspends entrants from the United States refugee program for specified periods of time.

Update: Supreme Court Declines DACA Review

On February 26, 2018, the Supreme Court declined to hear the Trump Administration’s appeal to the decision for the DACA case in the Northern District of California. In an unusual step, called “certiorari before judgment,” the Department of Justice (DOJ) had not only appealed to the Court of Appeals for the Ninth Circuit, based in San Francisco, to review the Northern District of California’s decision, but simultaneously requested the Supreme Court to immediately take up the case, bypass the Ninth Circuit, and issue an emergency ruling on the merits. Certiorari before judgement has typically been used only in major cases involving national crises that require immediate resolution, such as in the cases Youngstown Sheet & Tube Co. v. Sawyer, when President Harry Truman attempted to seize control of the U.S. Steel industry for the war effort in Korea, or U.S. v. Nixon when President Richard Nixon’s refused a special prosecutor’s subpoena to turn over White House tape recordings.

Department of Justice Takes Issue with California “Sanctuary City” Laws

On March 6, 2018, the Department of Justice (DOJ) filed a complaint against the State of California in the Eastern District of California (United States of America v. California) over three new “Sanctuary City” laws signed by Governor Jerry Brown that took effect at the start of this year that limit the California police departments to cooperate, share information with, and transfer detained undocumented individuals to the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE). The DOJ’s Complaint relies on the broad authority of the Executive Branch to enforce immigration laws, as well as the Supremacy Clause of the Constitution that establishes, as the Complaint cites, “a state enactment is invalid if it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ Hines v. Davidowitz, 312 U.S. 52, 67 (1941), or if it ‘discriminate[s] against the United States or those with whom it deals,” South Carolina v. Baker, 485 U.S. 505, 523 (1988).’” The DOJ also cites that California does not generally apply similar laws that limit cooperation with other federal agencies, and thus the DOJ claims that these Sanctuary City laws are discriminatory toward the agencies that enforce compliance with federal immigration laws.

DACA Injunction and Department of Justice Reaction

On January 9, 2018, Judge William Alsup of the federal district court for the Northern District of California enjoined (i.e. stopped) the administration’s recession of the Deferred Action for Childhood Arrivals (DACA) program.

DACA allowed persons who entered the U.S. as children permission to work and pay taxes, return to the U.S. following departure, and stay in the U.S. without accruing unlawful presence. In September 2017, Attorney General Jeff Sessions, citing the threat of potential litigation concerning DACA and claiming that DACA was unconstitutional, directed the Acting Secretary of the Department of Homeland Security, Elaine Duke, to rescind DACA.

Travel Ban III: Update

On Friday, December 22, 2017, the Ninth Circuit Court of Appeals in Seattle affirmed in part and vacated in part the preliminary injunction order of the district court regarding the Trump Administration’s third travel ban attempt. This follows the U.S. Supreme Court’s order for a stay pending the resolution of the Ninth Circuit and Fourth Circuit appeals.

In their opinion, the judges concluded that the executive order conflicts with the Immigrant and Nationality Act’s “prohibition on nationality-based discrimination in the issuance of immigrant visas,” and that the “President’s issuance of the proclamation once again exceeds the scope of his delegated authority.”