A panel of U.S. appeals court judges appeared to give a cool reception Tuesday to a government lawyer who urged them to overturn a preliminary injunction by a federal judge in San Francisco that protected undocumented young immigrants from deportation.
Deputy Assistant U.S. Attorney General Hashim Mooppan sought to persuade the three judges of the 9th U.S. Circuit Court of Appeals that courts don't have the power to review last year's decision by the Trump administration to end Deferred Action for Childhood Arrivals, known as DACA.
The preliminary injunction was issued in response to five lawsuits, including one filed by Santa Clara County together with the Service Employees International Union.
Mooppan contended that closing the program was within the discretion of the executive branch, outside the purview of the courts.
"Rescinding DACA was a discretionary enforcement decision," he told the court.
But Judges Kim Wardlaw and Jacqueline Nguyen questioned him closely about why the court shouldn't be able to review the action, while the third judge, John Owens, indicated he was concerned about whether the action violated the constitutional guarantee of equal treatment.
Nguyen also asked how much the court should take into account that DACA recipients have been relying on the program for more than five years.
"You've got thousands of people who have built their lives around the benefits conferred by this program," she said.
The panel took the case under submission after hearing an hour and 15 minutes of arguments in its Pasadena courtroom. It will issue a written ruling at a later date.
DACA, established by President Barack Obama in 2012, has enabled nearly 700,000 undocumented immigrants who arrived in the United States as children to apply for renewable two-year work permits and postponements of deportation.
The government is appealing a preliminary injunction issued by U.S. District William Alsup of San Francisco in January. It requires the government to continue granting renewals for existing DACA recipients but does not require acceptance of new applications.
Alsup ruled in five lawsuits filed in federal court in San Francisco and San Jose to challenge the cancellation of DACA. They were filed by the University of California; the state of California and three other states; the city of San Jose; six individuals; and Santa Clara County, together with the Service Employees International Union.
At least five other lawsuits were filed in other courts around the country after the Trump administration announced in September it would phase out DACA beginning in March.
Alsup's preliminary injunction is the first to go before a federal appeals court.
Another federal trial judge in Brooklyn, New York, issued a similar nationwide preliminary injunction in February in a lawsuit filed by 16 states led by New York.
Arguments in that case are expected to be heard by the New York-based 2nd U.S. Circuit Court of Appeals this summer.
Conflicting rulings by the various courts would increase the likelihood that the Supreme Court will eventually decide the dispute.
In the meantime, if one injunction is upheld at the circuit level, it will remain in force nationwide even if the other one is not affirmed, according to lawyers for the University of California.