Here is last week's installment on this topic, for ready reference. And an earlier one, on the merits. [There are dozens; search "DACA", in upper left.]
So, now it's on to the Supremes, which will take it up on this record -- which spells near-certain death to Trump's chances of overturning the nationwide injunction, in my estimation. His people would do better to start over, creating a new written record of some more plausible grounds for his actions. Here's a bit -- and the full 99 page PDF Ninth Circuit opinion, just entered and published, in San Francisco:
. . . .It is no hyperbole to say that Dulce Garcia embodies the American dream. Born into poverty, Garcia and her parents shared a San Diego house with other families to save money on rent; she was even homeless for a time as a child. But she studied hard and excelled academically in high school.
When her family could not afford to send her to the top university where she had been accepted, Garcia enrolled in a local community college and ultimately put herself through a four-year university, where she again excelled while working full-time as a legal assistant. She then was awarded a scholarship that, together with her mother’s life savings, enabled her to fulfill her longstanding dream of attending and graduating from law school. Today, Garcia maintains a thriving legal practice in San Diego, where she represents members of underserved communities in civil, criminal, and immigration proceedings.
On the surface, Dulce Garcia appears no different from any other productive — indeed, inspiring — young American. But one thing sets her apart. Garcia’s parents brought her to this country in violation of United States immigration laws when she was four years old. Though the United States of America is the only home she has ever known, Dulce Garcia is an undocumented immigrant.
Recognizing the cruelty and wastefulness of deporting productive young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide some relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions. Known as Deferred Action for Childhood Arrivals, or DACA, the program allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action — a revocable decision by the government not to deport an otherwise removable person from the country. . . .
The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose “province and duty” it is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The government’s decision to rescind DACA is subject to judicial review. And, upon review, 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. We therefore affirm the district court’s grant of preliminary injunctive relief. . . .
Um. . . ya' ought-ta' start ova', 45. Jes' sayin'. . .
नमस्ते
2 comments:
Shortly after I wrote the above, Homeland Security Sec. Nielsen purported to bar all asylum seekers at our southern border, by rule:
https://www.justice.gov/opa/pr/doj-and-dhs-issue-new-asylum-rule
A few words, if I may — the very nature of an “asylum” determination must be indivualized, and based on specific factual findings.
What her (45 parroted) proposed rule ignores is that other sections of the as subsequently amended statute (and rules) plainly grant a due process right to an individualized hearing — on the claim of persecution and/or credible fear of harm, if returned.
Once again, the written record is devoid of any explanation of how 45 is going to harmonize these twin commands.
It will be enjoined shortly in the USDC for California; that injunction will be upheld on appeal.
These chuckleheads cannot comprehend how the APA works.
I guess that’s lucky for our side: the side that takes Lady Libery’s inscription (By Emma Lazarus) to heart.
Onward. Ever. . . Onward.
After a little more reading, we will (in the coming TRO hearing) likely also argue forcefully that a prior (1967 Protocol ratification) and US signature to a 1951 UN Convention on Refugees completely forecloses 45's right to rule-make in this specific, narrow area. Such a treaty is essentially on a par with our Constitution, in terms of legal heirarchy.
That United Nations 1951 Convention (and 1967 Protocol) defines a refugee as a person "who is unable or unwilling to return to his or her home country, and cannot obtain protection in that country, due to past persecution or a well-founded fear of being persecuted in the future. . . on account of race, religion, nationality, membership in a particular social group, or political opinion."
Congress incorporated this definition into U.S. immigration law in the Refugee Act of 1980.
Congress did not explicitly ever change. . . that portion of the law. [And it is not clear that COngress could, acting alone -- in view of the UN protocol.]
Moreover, the Supremes have never been asked to directly rule on the issue of "a blanket ban upon asylum seekers" -- as a group. But that is what 45 just claimed (through his mouthpiece Nielsen) to do, by mere rule-making. The "credible fear" individualized hearing process is simply. . . antithetical. . . to a blanket purported rule.
This effort is. . . thus (once again!) strictly political theater -- for his xenophobic base. It will never withstand careful judicial scrutiny.
Namaste.
Post a Comment