Appeals Court Strikes Trump Administration’s Efforts to End DACA

On Thursday, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit unanimously upheld a ruling that President Trump is not permitted to immediately end the Deferred Action for Childhood Arrival (“DACA”) program brought under the Obama administration in 2012—keeping the present nationwide injunction in place.  As we previously reported here, in September of 2017, the Trump administration sought to end DACA after the state of Texas and several other states threatened to sue to force and end of the program that allows undocumented immigrants who came to the U.S. before the age of 16 and met certain criteria to enjoy a period of deferred deported action. In response, a number of courts throughout the country ruled the administration’s reasoning to end the program was incorrect and DACA has remained in place.

The legality of DACA is not at issue – rather, the courts are examining how the administration made its decision to end DACA. “To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion,” Judge Kim McLane Wardlaw said in the opinion. “We hold only that here, where the [the Trump Administration] did not make a discretionary choice to end DACA — but rather acted based on an erroneous view of what the law required — the rescission was arbitrary and capricious under settled law.”

The Justice Department had already asked the Supreme Court to review the district court’s injunction, arguing that the Obama administration has allowed “700,000 aliens to remain in the United States even though existing laws provided them no ability to do so.” Now that the 9th circuit has upheld the district court’s injunction, it is much more likely that the Supreme Court justices will agree to review the case.

Proposal to Modernize Recruitment Requirement of H-2A Program

As many of you already know, the H-2A program allows U.S. employers to hire foreign workers for temporary or seasonal positions due to there being a lack of U.S. workers to fill the positions. One of the many complaints regarding the recruitment process is that employers must, among other things, first recruit U.S. workers through print newspaper advertisement, which many have argued is outdated and costly. Now, the Trump Administration is proposing that rather than advertising job opening to U.S. workers through print, employers would satisfy the recruitment requirement by posting jobs to an online database that will be hosted by the U.S. Department of Labor (“DOL”).

The Administration reasoning is that electronic job postings are cheaper and could reach more U.S. workers than newspaper advertisements and would save U.S. employers millions in newspaper advertising. Counter-arguments are that some U.S. employers may lack technology or internet access to place electronic advertisements described in the proposed rule. The DOL and U.S. Department of Homeland Security have asked the public for feedback regarding this proposal to replace newspaper recruitment requirement with online recruitment. You can find the proposed rule here and the public is invited to submit written comments until December 10, 2018.

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