9th Circuit Court of Appeals hears DACA appeal while new arrivals face family-separation policy


A three-judge panel with the U.S. Court of Appeals for the 9th Circuit on Tuesday questioned the government’s rationale for terminating the DACA program that offered a reprieve from deportation to immigrants who came to the United States illegally as children, with one judge inquiring whether officials had yet considered re-justifying the decision to make it more legally sound. Appeals court hears arguments on DACA — but offers few clues on how it might rule:

The 9th Circuit is the first appellate court to hear oral arguments on whether the Trump administration’s decision to end the Deferred Action for Childhood Arrivals program, commonly known as DACA, can pass legal muster.

The judges — two appointed by President Barack Obama and one by President Bill Clinton — asked skeptical questions of both sides, and it was difficult to determine how they might rule.

The judges inquired about whether the judiciary could rightly second-guess what the government characterizes as an exercise of prosecutorial discretion, and whether the government might — as one lower court judge suggested — consider providing more solid legal reasoning for coming to the decision it did. They also asked about whether the government might have violated the due-process rights of DACA recipients whose lives could be upended.

A federal judge in San Francisco — weighing bids to save DACA from the states of California, Maine, Maryland and Minnesota; California’s university system; and individual DACA recipients — had blocked the administration from ending the program, at least temporarily. The ruling was largely based on the judge’s conclusion that the decision to end it was arbitrary and based on flawed legal reasoning.

The 9th Circuit panel’s eventual ruling is unlikely to have any immediate, practical effect on the DACA program and its hundreds of thousands of recipients. That is because two other federal district court judges in the District of Columbia and New York have also blocked the administration from winding down the program. Those cases run through different appellate circuits and would not be directly affected by the 9th Circuit’s decision.

To change the status quo, the administration would have to run the table or win at the Supreme Court, where — short of legislation or other government action — the case is likely to be decided.

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Texas and six other states in recent weeks sued to end the DACA program, and the case is before the same federal judge (who blocked the DAPA program after a lawsuit by that and other states). His ruling could hasten the Supreme Court’s taking up the case if it conflicts with others around the country.

Congress could resolve the DACA issue today by voting on a compromise DACA bill that can pass Congress. GOP congressional leadership has been blocking any vote. A discharge petition in the House seeking a “queen of the hill” procedure has not yet attracted enough signatures to force a vote in the House.

Meanwhile, new immigrants arriving at the border are seeing their families split apart under a new policy by Attorney General Jeff Sessions. Trump administration preparing to hold immigrant children on military bases:

The Trump administration is making preparations to hold immigrant children on military bases, according to Defense Department communications, the latest sign the government is moving forward with plans to split up families who cross the border illegally.

According to an email notification sent to Pentagon staffers, the Department of Health and Human Services (HHS) will make site visits at four military installations in Texas and Arkansas during the next two weeks to evaluate their suitability to shelter children.

[Three of the bases are in Texas — the Army’s Fort Bliss, Goodfellow Air Force Base and Dyess Air Force Base. Little Rock Air Force Base in Arkansas also will be evaluated, according to the Pentagon communications and HHS.]

The bases would be used for minors under 18 who arrive at the border without an adult relative or after the government has separated them from their parents. HHS is the government agency responsible for providing minors with foster care until another adult relative can assume custody.

The email characterized the site visits as a preliminary assessment. “No decisions have been made at this time,” it states.

An official at HHS confirmed the military site visits, speaking on the condition of anonymity because the plans are not yet public. The official said that HHS currently has the bed space to hold 10,571 children.

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[F]acilities are at 91 percent capacity, the HHS official said, and the Trump administration’s crackdown plans could push thousands more children into government care. The official said that DHS has not provided projections for how many additional children to expect.

Trump officials say they are moving forcefully to halt a sharp increase in the number of families crossing the border illegally this spring, many of whom are Central Americans seeking asylum. U.S. border agents in March and April arrested more than 100,000 people who crossed the border illegally, the highest monthly totals since President Trump took office.

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Homeland Security Secretary Kirstjen Nielsen and Attorney General Jeff Sessions say the government will take the extraordinary measure of filing criminal charges against anyone who crosses the border illegally, including parents traveling with their children. In most cases, that means adults will be held at immigration jails to await court dates while their children are sent into foster care.

“If you’re smuggling a child, then we’re going to prosecute you, and that child will be separated from you, probably, as required by law,” Sessions said in a speech last week.

“If you don’t want your child separated, then don’t bring them across the border illegally,” he added. “It’s not our fault that somebody does that.”

Children held in HHS custody spend an average of 45 days in the government’s care, the HHS official said, and they are provided with educational and recreational opportunities. The agency conducts background checks on potential sponsors for the minors, and in 85 percent of cases the children are released to a parent or other adult relative already present in the United States, the official said.

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The use of military bases to hold immigrant children is not without precedent. At the peak of the 2014 child-immigration crisis, the Obama administration used bases in Oklahoma, Texas and California to house more than 7,000 children over a period of several months.

Critics of the family-separation practices denounce the practice as inhumane and cruel, saying it inflicts additional trauma on families fleeing from Central America’s bloody gang wars. Many have applied for refugee status.