National News

Judge Permits Government to Appeal DACA Lawsuit

Posted April 30, 2018 7:21 p.m. EDT

A federal judge in Brooklyn gave permission to the government on Monday to appeal his recent decision that allowed two lawsuits seeking to preserve a program that shields some unauthorized young adults from deportation to cite President Donald Trump’s “racially charged language” against Latinos.

The decision by the judge, Nicholas G. Garaufis, presents an opportunity for the 2nd U.S. Circuit Court of Appeals, in New York, to weigh in on a central legal question in the case that has divided federal courts in the past several months: Can controversial statements that Trump made on the campaign trail be used in litigation against his actions as president?

At the end of March, Garaufis, of the U.S. District Court in Brooklyn, handed down an order permitting a coalition of immigration lawyers and a group of Democratic state attorneys general to continue with two linked lawsuits challenging the repeal of a program known as DACA, or Deferred Action for Childhood Arrivals. In his order, Garaufis noted that Trump’s use of “racial slurs” and “epithets” — both as a candidate and from the White House — suggested there was evidence that the move to end DACA in September was based on an animus toward Latinos that violated the equal protection clause of the Constitution.

The government subsequently asked the judge’s permission to file what is called an interlocutory appeal — a form of relief that can be sought before a legal matter has been fully completed. Garaufis’ order did not conclusively determine that Trump violated the equal protection clause by ending DACA. But it did find that his statements about Mexico sending “criminals” and “rapists” to the United States and his verbal attacks on an American-born jurist of Mexican descent created “a plausible inference” that anti-Latino bias had played a part in his decision-making.

“District courts have split,” Garaufis wrote, “over whether the president’s campaign-trail statements support the plausible inference that the rescission of the DACA program was motivated by unlawful discriminatory animus.” He added that courts have been similarly divided about Trump’s campaign statements related to his contentious travel ban, which was just considered by the U.S. Supreme Court.

In their arguments before the Supreme Court, lawyers for the government contended that Trump’s pre-election remarks should not be used in the travel ban case because “campaign statements are made by a private citizen before he takes the oath of office.” The 2nd Circuit must first accept the DACA case for review before it makes any decision on the relevance of Trump’s comments in that matter.

Should the 2nd Circuit overturn Garaufis’ ruling from March and decide that Trump’s campaign trail remarks fall outside the scope of the DACA case, Garaufis said that he would “likely (although not certainly)” have to dismiss the plaintiffs’ equal-protection claims, severely narrowing their attack on the program’s repeal. Garaufis also said that if the appeals court overturns him it would “substantially” restrict “the scope of discovery” that the immigration lawyers and the state attorneys general could seek.