“The court has already once given DHS the opportunity to remedy these deficiencies — either by providing a coherent explanation of its legal opinion or by reissuing its decision for bona fide policy reasons that would preclude judicial review — so it will not do so again,” Bates said.
The plan to rescind the Deferred Action for Childhood Arrivals program, known as DACA and instituted by President Barack Obama, has also been put on hold by courts in California and New York. The U.S. Court of Appeals for the 9th Circuit in San Francisco is reviewing one such ruling after having heard oral arguments in May.
Bates gave the administration 20 days to decide whether it would appeal before he blocks the DACA rescission. The judge called the plan “virtually unexplained,” but said he wasn’t asserting that Nielsen didn’t have the authority to rescind it.
“The court simply holds that if DHS wishes to rescind the program — or to take any other action, for that matter — it must give a rational explanation for its decision,” the judge said. “A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do.”
According to the decision Friday, the memo from Nielsen included several justifications for scrapping DACA, including saying it is “critically important for DHS to project a message that leaves no doubt regarding the clear, consistent and transparent enforcement of the immigration laws.”
DACA was slated to be rescinded in September 2017 after Attorney General Jeff Sessions said the program was probably an “unconstitutional usurpation of Congressional authority,” DHS spokeswoman Katie Waldman said in an email.
“The DACA program that is hanging on due to court injunctions only provides protection for two years at a time and could end at any moment,” Waldman said. “The reason why we are in the current predicament is because Congress has failed to act and provide DACA recipients a permanent solution.”
DACA recipients nationwide allege that the plan to rescind their legal protections will result in close to 1 million people being forced from their homes and deported to nations they barely remember. Many of them have children and spouses who are U.S. citizens, meaning that thousands of families would be separated.