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Trump Administration Seeks SCOTUS Cert in DACA Suits

U.S. Department of Justice building in Washington, D.C. Photo: Diego M. Radzinschi /ALM

The Trump Department of Justice sought Monday to have the U.S. Supreme Court step in to put a halt to legal battles in three jurisdictions over the decision to wind-down an Obama-era immigration program in 2017.

In a writ of certiorari before judgment, DOJ attorneys announced the move seeking the high court's intervention in cases before the U.S. Court of Appeals for the Second, Ninth and D.C. circuits. All three circuits have decisions from lower courts that concluded the rescission of the Deferred Action for Childhood Arrivals "either is or likely is unlawful," according to the DOJ's filing.

"Those decisions are wrong and they warrant this court’s immediate review," the government stated.

In a statement issued via Twitter, New York State Attorney General Barbara Underwood, who leads a suit by more than a dozen state plaintiffs challenging the DACA recession, said the DOJ "has shown a remarkable lack of respect for the judicial process by repeatedly seeking to skip over the lower courts and, rather, go straight to the Supreme Court."

As it stands, New York's suit is bound to another suit filed by private parties in the Second Circuit, up on interlocutory appeal from the U.S. District Court for the Eastern District of New York. As the DOJ filing noted, the Second Circuit is expected to file petitions for writs from all three jurisdictions "to ensure that the court has an adequate vehicle in which to resolve the questions presented in a timely and definitive manner."

Part of the DOJ's urgency comes from nationwide preliminary injunctions issued by U.S. District Judge Nicholas Garaufis of the Eastern District of New York and U.S. District Judge William Alsup of the Central District of California. Both injunctions halted the recession process, even while allowing the Department of Homeland Security to cease enrolling new DACA recipients.

The DOJ argued in its brief that its decision to dismantle the DACA program was supported by a 2015 order in United States v. Texas, out of the Fifth Circuit. That decision, by upholding a lower court's injunction, effectively put an end to DACA sister programs. The underlying logic of Texas has been used by the DOJ and other executive agencies and departments to attack DACA, which they claim suffers from the same legal infirmities identified by the Fifth Circuit.

A DOJ spokesman did not return a request for comment.

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