DOJ Looks to Fast Track DACA Litigation

By Heather Ham-Warren | October 19, 2018

Since Attorney General Jeff Sessions announced — over a year ago — the Trump administration’s plans to phase out the Deferred Action for Childhood Arrivals (DACA) amnesty program by March 2018, the program has been resurrected numerous times by activist judges.

Earlier this year, multiple courts ruled against the Trump administration’s decision to wind down the DACA program and even ordered the administration to continue to process new applications. In August 2018, in court papers filed by the Justice Department, U.S. Citizenship and Immigration Services (USCIS) said that if they are forced to restart the DACA program completely, it would slow down approval for legal immigrants seeking admission to the U.S. The agency also predicted a surge of some 50,000 new DACA applications from illegal aliens who were eligible for the program but were prevented from enrolling after the administration rescinded it last year.

The court accepted the government’s rationale that a full restart would overwhelm USCIS and determined that the administration would not be required to process new applications. However, the administration must keep processing renewals for people already participating in the DACA program—as it is currently required to do by other court rulings.

In January, in an attempt to expedite the process and minimize uncertainty, Solicitor General Noel J. Francisco asked the Supreme Court to add the case to its 2018 docket. The request was unusual because the justices usually wait for an appeals court to act before accepting a case, and because it was late in the game for the court to add cases to its oral argument calendar, which ends in April. Ultimately, the request was denied.

Interestingly, on Wednesday, with Brett Kavanaugh officially on the bench, the Justice Department signaled that it might again ask to expedite lawsuits concerning Trump administration positions through the lower courts in order to get them before the Supreme Court’s newly formed five-justice conservative majority.

In a letter to the Ninth Circuit, the Department of Justice Department urged the lower court to rule on the legality of dismantling the DACA program by October 31st, or the government would take the case straight to SCOTUS. “This Court heard oral argument in the case on May 15,” Wednesday’s letter, written by the DOJ attorney Mark B. Stern, reads, referring to the Ninth Circuit. “We respectfully write to inform the Court that, in order to ensure review by the Supreme Court during its current term, we intend to again petition the Supreme Court for writ of certiorari before judgment to review the district court’s preliminary injunction order and related orders in the event that this Court does not issue its judgment by Wednesday, October 31.”