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DOJ petitions Supreme Court to block order requesting DACA materials

[JURIST] The US Department of Justice (DOJ) [official website] on Friday petitioned [text, PDF] the US Supreme Court [official website] to block an order [text, PDF] from Judge William Alsup of the US District Court for the Northern District of California [official website], to produce additional documentation regarding suspension of the Deferred Action for Childhood Arrivals (DACA) [official website] program, which gives undocumented immigrants brought into the US as children, status known as Dreamers, protection from deportation.

The order requested the government turn over a complete administrative record regarding the DACA program, including its decision to suspend the program [JURIST report] and materials relating to arguments to keep it. The decision would require [JURIST report] documents to be made public and various privileges to be breached. Alsup wrote that the argument to rescind DACA due to it exceeding "lawful authority of the agency" cannot simply be accepted without "disclos[ing] the legal legal research that led to that conclusion." According to the DOJ, that means producing hundreds of thousands of documents that would require a lot of man power.

According to the petition, the decision to suspend the DACA program is discretionary and not subject to judicial review under the Administrative Procedure Act (APA) [text, PDF]. Additionally, the government argues that even if it were the court could review the decision it has no authority to request deliberative materials regarding to the program under the APA. The government provides case law to support their assertion, which provides:

[T]he focal point for judicial review should be the administrative record already in existence, not some new record made initially in the reviewing court. [Since] it is not the function of the court to probe the mental processes of the agency, deliberative materials form no part of the administrative record.

[Accordingly, t]he district court's sweeping expansion of the administrative record — in the face of the acting secretary's contemporaneous and reasonable explanation for her decision — directly contradicts this court's precedents. The district court's error in ordering discovery and vastly expanding the administrative record is particularly manifest in light of the nature of the agency's decision: a policy determination ... to wind down, in orderly fashion, a previous policy of prosecutorial discretion that itself created no substantive rights.

The DOJ is also seeking a writ of mandamus to overturn the judge's decision, arguing that it is in direct violation of clearly establish administrative law.

The Trump administration's decision to disband DACA could affect nearly 800,000 young undocumented immigrants. No new undocumented immigrants may register under DACA, and the immigrants whose DACA documents were about to expire had to renew by October 5, 2017. According to the administration's press release, current DACA recipients generally will not be impacted until after March 5, 2018, which will give "Congress the opportunity to consider appropriate legislative solutions."

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