The Justice Department on Tuesday announced plans to appeal a federal judge’s ruling that directed the federal government to restart the Deferred Action for Childhood Arrivals (DACA) program, saying the nationwide injunction defies “both law and common sense.”

The DACA litigation is playing out as Congress nears a deadline to reach a budget deal or face a government shutdown.

Key developments:

  • The Justice Department said it will appeal U.S. District Judge William Alsup’s Jan. 9 ruling, which directed the government to “maintain the DACA program on a nationwide basis on the same terms and conditions” as those that were in place before the administration moved on Sept. 5 to end DACA. The government complied with the ruling, and U.S. Citizens and Immigration Services said Saturday it had “resumed accepting requests to renew a grant of deferred action under DACA” for individuals who were previously granted deferred action under DACA whose benefits expired after Sept. 5, 2017.
  • The Justice Department said Tuesday it would take the unusual step of asking the Supreme Court to review the decision rather than the Ninth Circuit Court of Appeals, which would normally hear the appeal. “It defies both law and common sense for DACA—an entirely discretionary non-enforcement policy that was implemented unilaterally by the last administration after Congress rejected similar legislative proposals and courts invalidated the similar DAPA (Deferred Action for Parents of Americans and Lawful Permanent Residents) policy—to somehow be mandated nationwide by a single district court in San Francisco,” Attorney General Jeff Sessions said in a statement.
  • DACA is at the heart of ongoing budget negotiations, with some Democrats saying they will not vote to fund the government beyond Friday if protections for DACA recipients are not included as part of an agreement. A budget shutdown would affect a number of government functions that are considered “nonessential,” including the E-Verify program, the Conrad 30 waiver for J-1 physicians, the Special Immigrant Religious Workers program, and the EB-5 regional center investor program.

BAL Analysis: Last week’s ruling on DACA was welcomed by supporters of the program, but, as expected, the administration is moving to appeal the decision. The decision to ask the Supreme Court for a review indicates how serious the administration is about dismantling the program, at least as it exists in its current state. DACA’s supporters in Congress continue to work on a legislative fix, though it is not clear a deal will be reached by Friday, the deadline for passing a new funding bill. A government shutdown would affect a number of immigration programs and processes, as BAL outlined in this FAQ.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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