A second provisional order for relief granted in a separate DACA case

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    Default A second provisional order for relief granted in a separate DACA case

    http://forums.hannity.com/showthread...#post105928717

    The above is my thread on the first provisional order for relief issued last month in a separate case in California.

    http://lawprofessors.typepad.com/fil...apiopinion.pdf

    Above link is to the Memorandum Opinion and Order in the current cases.

    The case is actually two consolidated cases, Martin Jonathan Batalla Vidal, et al, Plaintiffs v Kirstjen M. Neilsen, Secretary, Department of Homeland Security, et al, Defendants and State of New York, et al, Plaintiffs v Donald Trump, President of the United States, et al, Defendants.

    Senior United States District Judge Nicholas G. Garaufis of the Eastern District of New York, sitting at Brooklyn, is presiding over this case.

    Today's (actually yesterday's) order grants a preliminary injunction against the phasing out of DACA.

    As with the California order, the injunction ONLY protects those individuals who already filed DACA applications and does NOT protect individuals who have not already applied.

    As with the California Case, this case relies heavily on the Administrative Procedures Act's requirement that agency regulations be the product of reasoned decision making and not be arbitrary or capricious in nature.

    I expect that the Second Circuit and Ninth Circuit will allow these respective injunctions to stand for the time being. I don't think the Supreme Court will grant review before judgement, as the DOJ is requesting and perhaps they are hoping that Congress will act and render both these cases moot.
    Last edited by Safiel; February 14th, 2018 at 1:53 am.

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    Interestingly, the Judge held that the Justice Department undisputedly has the power to end DACA. He relies upon a ruling made by then United States Circuit Judge John Roberts that even if the decision is proper, if the reasoning given for the decision is bad, the decision must fall. He states clearly that if the Justice Department comes back with an order that gives a proper reasoning for the termination of DACA, that order would stand.

    The quoted text comes up fairly early, about page 4 or 5, in the 55 page ruling.

    <Note to Mods: As a work of the Federal Government, the following quoted material is in the public domain. Attribution is given to Judge Garaufis.>

    Review under the arbitrary-and-capricious standard is generally limited to the agency'sstated rationale for its decision. State Farm. 463 U.S. at 43; Camp v. Pitts. 411 U.S. 138,143(1973) (per curiam), and to the "full administrative record that was before the [agency] at thetime [it] made [its] decision." Citizens to Preserve Overton Park. Inc. v. Volpe. 401 U.S. 402, 420 (1971) ("Overtoil Park"). The court "may not supply a reasoned basis for the agency'saction that the agency itself has not given." State Farm. 463 U.S. at 43 (citing SEC v. ChenervCorp.. 332 U.S. 194,196 (1947) ("Chenerv 11")): SEC v. Chenerv Corp.. 318 U.S. 80, 87 (1943)("Chenerv I"). Nor may the court uphold agency action based on "post hoc rationalizations ofagency action." State Farm. 463 U.S. at 50; see also Williams Gas Processing - Gulf Coast Co..L.P. V. FERC. 373 F.3d 1335,1345 (D.C. Cir. 2004) (Roberts, J.) ("It is axiomatic that [thecourt] may uphold agency orders based only on reasoning that is fairly stated by the agency inthe order under review; post hoc rationalizations by agency counsel will not suffice." (internalquotation marks and citation omitted)).

    The APA thus sometimes places courts in the formalistic, even perverse, position ofsetting aside action that was clearly within the responsible agency's authority, simply becausethe agency gave the wrong reasons for, or failed to adequately explain, its decision. E.g., StateFarm, 463 U.S. at 42-43, 48-56; Overton Park, 401 U.S. at 416,420. Based on the presentrecord, these appears to be just such cases.

    Defendants indisputably can end the DACA program. Nothing in the Constitution or theImmigration and Nationality Act, 8 U.S.C. 1101 et seq. (the "INA"), requires immigrationauthorities to grant deferred action or work authorization to individuals without lawfulimmigration status. The DACA program, like prior deferred-action and similar discretionaryrelief programs, simply reflected the Obama Administration's determination that DHS's limitedenforcement resources generally should not be used to deport individuals who were brought tothe United States as children, met educational or military-service requirements, and lackedmeaningful criminal records. (Mem. from Janet Napolitano, Sec'y, DHS, ExercisingProsecutorial Discretion with Respect to Individuals Who Came to the United States as Children
    The court makes clear, however, what this order is not.

    This order does not hold that the rescission of DACA was unlawful. Thatquestion is for summary judgment, not motions for a preliminary injunction. CfHamilton Watch Co. v. Benrus Watch Co.. 206 F.2d 738, 742 (2d Cir. 1953)("[A] preliminary injunction ... is, by its very nature, interlocutory, tentative,provisional, ad interim, impermanent, mutable, not fixed or final or conclusive,characterized by its for-the-time-beingness.").

    This order does not hold that Defendants may not rescind the DACAprogram. Even if the court ultimately finds that Defendants' stated rationale forending the DACA program was legally deficient, the ordinary remedy is for thecourt to remand the decision to DHS for reconsideration. See Chenerv 1. 318 U.S.at 94-95. On remand, DHS "might later, in the exercise of its lawful discretion,reach the same result for a different reason." FEC v. Akins. 524 U.S. 11, 25(1998).

    This order does not require Defendants to grant any particular DACAapplications or renewal requests. Restoring the DACA program to the statusquo as of September 4, 2017, does not mean that every DACA recipient whorequests renewal of his or her deferred action and work authorization will receiveit. The DACA program identified "criteria [that] should be satisfied before anindividual is considered for an exercise of prosecutorial discretion." (2012DACA Memo at 1.) It did not require immigration officials to defer actionagainst any individuals who met these criteria; to the contrary, the 2012 DACAMemo stated that DHS would exercise prosecutorial discretion "on an individualbasis" and would not "provide any assurance that relief will be granted in allcases." (Id at 2-3.) Preserving the status quo means only that Defendants mustcontinue considering DACA applications and renewal requests, not that they mustgrant all such applications and requests. (See U.S. Citizenship & ImmigrationServs., Frequently Asked Questions at Q6 (Apr. 25,2017) ("Apr. 25 DACAFAQs"), Ex. 41 to State Pis. Mot. (Dkt. 97-2, No. 17-CV-5228) at ECF p. 186.)

    This order does not prevent Defendants' from revoking individual DACArecipients' deferred action or work authorization. Under the 2012 DACAMemo, DHS may terminate a DACA recipient's deferred action "at any time,with or without a Notice of Intent to Terminate, at [its] discretion." (Apr. 25DACA FAQs at Q27.) Maintaining the status quo does nothing to alter that.

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    Significantly, the Supreme Court did NOT act on the government's unusual request of an emergency order vacating the District Court's order's of relief.

    Therefore, both order's of relief will stay in effect for the time being.

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    Insanity, how about this for sound reasoning, US law dictates they be deported.
    Self appointed forum Mark Zuckerberg, feel free to ask me if any news story is real or fake.

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    Quote Originally Posted by zantax View Post
    Insanity, how about this for sound reasoning, US law dictates they be deported.
    The Administrative Procedures Act is also law and dictates the conditions under which the Executive Branch may engage in rule making, as well as giving the courts jurisdiction to review under certain conditions.

    The Trump Administration can fix this and should fix this, as the court suggests, by issuing a second order in compliance with the APA.

    Rather than wasting time on appealing the current case, the Trump administration should save time by issuing a compliant second order.

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    And make no mistake about it. The Judge gave the Trump Administration a clear path forward on revoking DACA. They merely must get the administrative details correct.

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    Quote Originally Posted by Safiel View Post
    And make no mistake about it. The Judge gave the Trump Administration a clear path forward on revoking DACA. They merely must get the administrative details correct.
    considering everyone who signed up for DACA(for lack of a better phrase) gave up their address, work, cell phone, favorite pizza joint, etc. The US government finding em wont be an issue. the massive raids going after em though might be a PR nightmare

    TBD

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    Quote Originally Posted by mobiusptc View Post
    considering everyone who signed up for DACA(for lack of a better phrase) gave up their address, work, cell phone, favorite pizza joint, etc. The US government finding em wont be an issue. the massive raids going after em though might be a PR nightmare
    Actually, it is more likely that they would be quietly picked up at their residences.

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    Quote Originally Posted by Safiel View Post
    Actually, it is more likely that they would be quietly picked up at their residences.
    i think that is what ICE wants, i do not think however the proponents of Dreamers and their defenders would allow that to happen, just my opinion. all it would take is a couple of Elian Gonzales type of pictures

    TBD

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