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Appeals court judges question Trump move to end DACA

Updated 9:16 PM ET, Tue May 15, 2018

(CNN) - A federal appeals court in California grappled on Tuesday with a case regarding the Trump administration's legal justifications for terminating DACA, the Obama-era program that protects young undocumented immigrants who came to the United States as children from deportation.

The three-judge panel of the 9th US Circuit Court of Appeals seemed concerned about how the Trump administration decided to unwind the DACA program, whether the move had violated the equal protection rights of the recipients and if the court should take presidential tweets and statements in consideration as they considered the case.

Although the Trump administration announced plans to phase out the program last September, three judges in different districts across the country have temporarily blocked the government from doing so and ordered that renewals under the program should continue while the cases play out in court.

At issue is not the legality of the program, but how the government chose to wind it down. Supporters of the roughly 700,000 "Dreamers" who could be impacted, say the administration's actions were arbitrary and in violation of federal law.

Last fall the challengers won the first round when Judge William Alsup, of the United States District Court for the Northern District of California, issued a preliminary nationwide injunction and ordered that renewals under the program continue.

After the ruling, a furious President Donald Trump tweeted: "It just shows everyone how broken and unfair our Court System is when the opposing side in a case (such as DACA) always runs to the 9th Circuit and almost always wins before being reversed by higher courts." The 9th Circuit blocked several versions of the President's travel ban and is considered a more liberal court.

Judge Jacqueline Nguyen on Tuesday expressed some concern that "thousands" of DACA recipients had now built their lives on the program. Judge Kim Wardlaw queried whether the court should take presidential tweets and statements into account. And Judge John Owens also questioned whether the court had the jurisdiction to hear the case or if it should be left to the political branches, calling it his "main concern."

All three judges were nominated by Democratic presidents.

Plaintiffs in the case include California Attorney General Xavier Becerra who is representing a handful of states, as well as the University of California and individual DACA recipients .

Michael Mongan, the deputy solicitor general of California said the administration hadn't shown "its homework" and it was necessary to do so before terminating the program. "They've got to explain" what they are doing, he said.

Deputy Assistant Attorney General Hashim Mooppan told the court that policy decisions belonged in the hands of the political branches and should not be "judicially second-guessed." He said the Trump administration sought to reset enforcement priorities in phasing out the program and has broad discretion to do so.

In court papers, Mooppan also argued the DACA move applies equally to persons of all ethnicities, although like most immigration policies, has a certain disproportionate impact on Latinos from Central and South America. He also told the judges the lower court's nationwide injunction was overbroad and the lower court should have tailored the injunction to the named plaintiffs. He also said the administration hadn't decided, in another case, whether to issue a new memo explaining the plan to cut DACA.

"We are actively considering what to do," Mooppan said.

This story has been updated to state Michael Mongan is the deputy solicitor general of California.


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