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DOJ Fights Orders To Hand Over DACA Docs At 9th Circ.

DOJ Fights Orders To Hand Over DACA Docs At 9th Circ.

A Justice Department attorney asked the Ninth Circuit at a hearing to block orders by California and New York federal judges requiring it to produce a broad range of internal documents detailing how the government decided to phase out the Deferred Action for Childhood Arrivals program, saying the orders are unduly burdensome.

DOJ attorney Hashim M. Mooppan told the panel that acting Secretary of Homeland Security Elaine Duke made her decision to end the program based on “litigation risk.” He said a lawsuit in Texas federal court brought by several states challenging DACA’s legality seemed an eminent threat, and the administration decided it would be better to phase out the program with a “wind-down period” than to let an injunction immediately end it.

He said the plaintiffs in the underlying New York and California cases were only entitled to access the materials that informed Duke’s decision, not every document reviewed by her subordinates. He said there was no need for the district court to view the requested documents in camera, as U.S. Circuit Judge Kim Wardlaw suggested, because not every internal deliberation factored into the decision to end DACA.

“This is a legal policy judgment where all the materials are likely to be exactly what we have represented them to be, which is internal deliberative advice from subordinates and other agencies about litigation risk from DACA,” he said.

The mandamus action came after New York and California courts ordered the Trump administration to produce a broad range of internal documents detailing how the government decided in September to end the Obama-era program that provides deportation relief and work permits to unauthorized immigrants who came to the U.S. as children. The government has produced 14 documents during discovery, the plaintiffs say, many of which are available on the internet.

In four cases brought by the state of California, the University of California, the city of San Jose and several DACA recipients, U.S. District Judge William Alsup ordered the U.S. Department of Homeland Security to produce emails, notes, internal memos and other documents. The judge found the government kept out “highly relevant materials” from the record, noting the lack of a paper trail for how DHS decided to change course and recommend an end for the program.

In New York, U.S. District Judge Nicholas G. Garaufis reached a similar conclusion in two related cases challenging the rescission that were brought by 15 states and others. He was unconvinced the court’s review should be confined to an “administrative record,” holding that the plaintiffs’ claims, which include alleged violations of the Administrative Procedure Act and the due process clause, call for a look at a broad range of documents.

At the hearing, U.S. Circuit Judge Paul Watford said he thought the lower courts’ decisions were “plainly wrong,” characterizing the discovery orders as saying the government must hand over “everything any subordinate saw who gave advice to acting the secretary.” He challenged Michael J. Mongan of the California Department of Justice to cite case law supporting that.

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