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Justice Dept. will appeal DACA ruling, asks to go directly to Supreme Court

Justice Department officials said Tuesday they are appealing last week's decision by a federal judge that blocked the Trump administration from ending Deferred Action for Childhood Arrivals, an Obama-era program that gave work permits to about 788,000 young people and protected them from deportation.

Officials announced that they were taking the "rare step" of asking the U.S. Supreme Court to intervene, leap-frogging over the 9th Circuit Court of Appeals by seeking a "direct review" by the court's nine justices.

Last week, U.S. District Court Judge William F. Alsup ordered the administration to resume accepting renewal applications for the program under the same terms and conditions that were in effect before Trump administration officials announced last September that they would wind down the program.

The decision is part of a lawsuit containing five consolidated cases, including one led by former Homeland Security Secretary Janet Napolitano, an ex-governor of Arizona who now serves as the president of the University of California.

In a news release, Attorney General Jeff Sessions attacked Alsup's decision and drew a comparison between DACA and a similar 2014 program created by the Obama administration to protect the parents of DACA recipients. The second program, known as Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA, allowed parents to seek their own work permits and protection from deportation.

"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 policy—to somehow be mandated nationwide by a single district court in San Francisco," Sessions said.

But Session's argument mischaracterized the Supreme Court's decision.

Following Obama's announcement of DAPA during a televised addressed in November 2014, immigration hardliners in 26 states, including Arizona and Texas, filed a lawsuit challenging the program. 

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In 2015, a judge in a Texas court agreed and blocked the program. Federal officials appealed, but failed to convince a panel of judges at the 5th Circuit Court of Appeals to allow the program to move forward. 

Months later, the case went to the Supreme Court, but with the absence of Justice Antonin Scalia, who died suddenly in February 2016, and the refusal by congressional Republicans to accept Obama's nomination of Merrick Garland to succeed Scalia, the court was deadlocked 4-4, leaving the lower court's injunction in place.

Sessions argued that the decision to wind-down DACA was within the secretary of Homeland Security's discretion and that the program was ended to "give Congress an opportunity to act on this issue" and "in light of ongoing litigation in which the injunction against DAPA had already been affirmed by the Supreme Court," he said.

"We are now taking the rare step of requesting direct review on the merits of this injunction by the Supreme Court so that this issue may be resolved quickly and fairly for all the parties involved," Sessions said.

On Friday, Homeland Security officials announced that U.S. Citizenship and Immigration Services was once again accepting renewal applications for DACA, writing that "until further notice, and unless otherwise provided in this guidance, the DACA policy will be operated on the terms in place before it was rescinded on Sept. 5, 2017."

Those who previously were granted deferred action can still request a renewal, however, USCIS is not accepting new request, nor will the agency accept "advanced parole" allowing DACA recipients to travel outside of the United States.

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Paul Ingram/TucsonSentinel.com

Protestors in Tucson decry the decision to end DACA.