A federal judge on Friday criticized the Trump administration for a confusing and sluggish response to the Supreme Court’s decision last month invalidating the administration’s attempt to rescind the Obama-era program protecting so-called Dreamers.
During a telephone hearing, U.S. District Court Judge Paul Grimm said he was troubled that the Department of Homeland Security’s website has yet to be updated to account for the high court’s ruling on the Deferred Action for Childhood Arrivals program, better known as DACA.
Grimm also expressed concern about the government’s admission that some new DACA applicants have received letters in recent weeks saying their applications were denied because DHS isn’t accepting new applicants, even though the Supreme Court ordered the agency to return to the status quo in 2017, when it was accepting new applications.
Immigrant rights advocates are threatening to move to hold the government in contempt for defying the Supreme Court’s ruling and ensuing orders from other courts.
“That is a problem,” the judge said. “As for the inaccuracy on the website, that has to change and that should be able to change very quickly. … It creates a feeling and a belief that the agency is disregarding binding decisions by appellate and the Supreme Court.”
“There is a cost for not having these things clarified and the plaintiffs have borne the lion’s share of that cost thus far,” Grimm added.
Justice Department lawyer Stephen Pezzi said that despite indications to the contrary on DHS websites and in letters to applicants, new applications for DACA are being “held” and “placed into a bucket” while DHS officials decide on next steps for the DACA program.
Grimm, an appointee of President Barack Obama, sounded unsatisfied with that explanation.
“It is a distinction without a difference to say that this application has not been denied, it has been received and it has been put in a bucket,” the Greenbelt, Md.-based judge said.
A lawyer for DACA applicants and recipients, John Freedman, said the administration’s communications are sowing confusion.
“That puts applicants in doubt. It puts immigration lawyers in doubt. Nobody knows what’s going on,” Freedman said. “It reinforces impressions that … the administration, the defendants are not complying with the rule of law.”
While the Supreme Court’s decision last month rejected the Trump administration’s process for arriving at its 2017 decision to wind down the DACA program, the justices left open the option for the administration to make a fresh decision to modify or terminate the program, as long as the interests of DACA recipients and their families are factored in.
The DACA program, begun in 2012, offers quasi-legal status and work permits to so-called Dreamers — individuals who, as children, entered the U.S. illegally or overstayed visas here.
Trump administration officials have signaled that they are planning a new policy to address the status of the Dreamers, but there are signs officials may try to link the DACA changes with other immigration policy changes that will take some time to develop.
It remains unclear whether President Donald Trump will seek to upend or revamp the DACA program as he prepares to face voters in November. Doing so could win support from some elements of his political base, but polls have shown widespread support for finding a way for Dreamers to remain in the U.S. legally.
“There is an ongoing, active policy deliberation at the highest level of the Department of Homeland Security that has not yet run its course,” Pezzi told the judge. “Those decisions have not yet been made. … I am unable to get out in front of the agency about what comes next with the future of DACA.”
The hearing Friday also provided fresh evidence — for the second day in a row — of communication difficulties between DHS and the Justice Department attorneys who defend the agency in court.
Pezzi acknowledged that DHS websites “frankly, have some outdated and inaccurate information” about the status of DACA.
“That is something that is unfortunate and that is something that I’ve raised with the Department of Homeland Security and, frankly, will continue to raise,” Pezzi said.
After the attorney again referred to the current statements on the web pages as “regrettable” and said he was “working on” the issue, the judge cut in.
“I can help you out with that by giving you a deadline to give to them,” Grimm said.
“I’d appreciate that, your honor,” Pezzi replied.
The judge also said he wanted to make sure Pezzi was in contact with people with actual clout at DHS.
“I don’t want this done by an associate or assistant so far down in the pecking order that they have no real discretionary authority,” Grimm said. “It will be the decision-maker or decision-makers.”
Another point of confusion between the Justice Department and DHS involves DACA recipients’ ability to request permission to leave the U.S. temporarily without jeopardizing their status.
Prior to the Trump administration’s move to wind down DACA, recipients could get such “advanced parole,” but that was halted for those in DACA in 2017. Pezzi said that prior to Friday he believed that process had been restored after the Supreme Court decision, but that belief was likely wrong.
“Out of candor to the court, I need to clarify that I learned earlier today that my understanding on that may not be accurate,” Pezzi said, adding that some applications filed in recent weeks were rejected despite the high court’s directive to return to the 2017 status quo.
“Going forward, however, just in the last few hours it has been straightened out — at least prospectively,” said the attorney, who works in the Federal Programs Branch of Justice’s Civil Division.
The miscommunication appeared similar to a remarkable disclosure by government lawyers Thursday that they had made a series of inaccurate claims in litigation over a dispute involving New York travelers’ access to programs like TSA Precheck.
Lawyers from the U.S. Attorney’s Office in Manhattan said they learned last week that several representations DHS officials made in the case were untrue and those claims were then repeated in court briefs, which the Justice Department is now seeking to withdraw.
“Defendants deeply regret the foregoing inaccurate or misleading statements and apologize to the Court and plaintiffs for the need to make these corrections at this late stage in the litigation,” the government attorneys wrote.
Gov. Andrew Cuomo (D-N.Y.) called Friday for a criminal investigation into DHS officials over the misstatements.
In the DACA case, Grimm hasn’t spoken of any action that severe but he said Friday he’s open to considering a contempt motion from the plaintiffs in the case if DHS doesn’t show it’s complying with the Supreme Court decision. He ordered the lawyers involved in the case a week to get back to him with a proposal on what information DHS needs to make public about the status of new DACA applications and he gave the agency 30 days to correct its website.
However, the judge made clear he won’t allow the Trump administration to stall indefinitely while it crafts a new policy.
“We’re in a tough situation in terms of next steps,” Grimm said. ”There’s a point at which non-decision is a decision.”