Ninth Circuit Panel Upholds DACA Injunction

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By George Khoury, Esq. on November 08, 2018 1:50 PM

In a recent panel decision out of the Ninth Circuit Court of Appeals, the district court issued injunction staying the full rescission of DACA was upheld.

Despite the federal government's pleas for the Supreme Court to intervene ahead of the circuit court, and the federal government's assertion that the injunction forces the government to violate federal law, the Ninth Circuit panel all agreed that the plaintiffs had satisfied the likelihood of success on the merits factor, at least as to the equal protection claim.

Reviewing Rescission

One of the bigger arguments that the panel dealt with involved whether or not the courts even had the authority to review the executive agency decision to rescind a prior executive policy or rule.

Clearly, as the appellate court upheld the lower court's injunction, it agreed that the courts do have that authority, particularly when the stated basis is based upon misstatements of the law, for example, specifically claiming that DACA was enacted illegally, when in fact it was not.

The court opinion leads off with the story of the lead plaintiff, who was brought to this country undocumented at the age of 4, and went on to put herself through college and law school, and is now a productive member of society thanks to DACA.

What's Next?

Whether the federal government will request an en banc review, or just petition for cert., has yet to be announced, but it is expected that one or the other, or both will occur.

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