TODAY’S 9TH CIRCUIT COURT
DECISION ON DACA. What does it mean for those with DACA?
By Christopher Kerosky, Esq.
Today the Ninth Circuit Court of Appeals in San Francisco told
the Trump Administration it acted without legal basis when it sought to closed
down DACA.
Here’s a summary of where DACA stands now and where things go
from here:
The Fight over DACA and
today’s Decision.
On
September 5, 2017, Donald Trump announced the rescission of the DACA
program. Those who have DACA status were to begin to lose their status on
March 5, 2018, but a San Francisco District Court judge ordered the government
to continue renewals. While that case
was pending, two other federal judges issued similar injunctions against Trump.
Earlier
this year, the Administration asked the U.S. Supreme Court to expedite its
review of these rulings but the Supreme Court refused. In the meantime, the San Francisco judge’s
decision was appealed to the Ninth Circuit Court of Appeals.
Today, that
Court ruled in favor of the DACA recipients and against the Trump Administration. The decision of the three-judge panel was
unanimous. While this is not a final
decision, it affirms the lower court’s injunction requiring the administration
to keep the program open for renewals.
"We conclude that plaintiffs are likely to succeed on their claim
that the rescission of DACA -- at least as justified on this record -- is
arbitrary, capricious, or otherwise not in accordance with law," reads the
opinion.
What does this
mean for DACA?
This decision means the San Francisco federal judge’s order
requiring the Trump Administration to continue DACA renewals will remain in
place for the indefinite future. The Administration will now have to seek
reversal in the U.S. Supreme Court. That
begins with a Petition for Certiorari requesting that the high court take the
case. That will likely come soon. There probably is sufficient time for the Supreme
Court to consider this case in its current term. A decision would likely then come at the end
of its term in June 2019.
With the current composition of the Court, a ruling in favor
of DACA recipients is unlikely. Earlier
this year in its ruling on the Muslim Ban, the Supreme Court granted the Trump
Administration wide latitude over executive action on immigration issues. Now the Court is even more likely to endorse
these powers since Brett Kavanaugh has joined the bench.
For now, persons who already have DACA can continue filing
renewals. We recommend that applicants
do so 150 days before their DACA expires.
Unfortunately,
new applicants are still not eligible.
Will this week’s election results lead to DACA
legislation?
The
current Congress failed to act on DACA this year. After devoting a week to debating solutions
for DACA holders, the Senate did not approve any of several proposals it
considered. None of the proposals received the 60 votes necessary to
become law in the Senate, largely due to the efforts of the Trump
Administration to oppose all proposals except one that would eliminate much of
family sponsorship and slash legal immigration in half.
A vote
for a Dream Act law never occurred in the current House of
Representatives.
That will
almost certainly change now that the Democrats will control the House in
January. The new House of
Representatives will likely pass a law offering a path to permanent residence
for DACA holders. Then it will be up to
the Senate to consider a bill already approved by the House.
Hopefully,
before a decision by the U.S. Supreme Court in June, political pressure can be
brought to bear to force the Senate and Trump to finally approve DREAM Act
legislation that has been considered by Congress since 2006 but never passed.
********************************************************************
CHRISTOPHER
A. KEROSKY is a partner with Wilson Purves in the law firm of KEROSKY PURVES
& BOGUE, with offices located in
San Francisco, Santa Rosa, Ukiah, Napa, Walnut Creek, San Jose and
Sacramento. Mr. Kerosky has been an
attorney licensed to practice law in California for 25 years. He is a graduate of UC Berkeley (Boalt Hall)
School of Law and a former trial lawyer for the Civil Division of the U.S.
Department of Justice in Washington D.C.
For 9 years, he has been honored as one of Northern California’s top
lawyers by San Francisco Magazine, “Super Lawyers” edition. Mr. Kerosky speaks Spanish and
Polish and has also working knowledge of Russian.
WARNING: The article above is not intended to be a substitute
for legal advice. We recommend that you get competent legal advice specific to
your case.
