Originally published by The New York Times
When President Trump announced his long list of immigration demands on Tuesday, it threw another wrench into the fraught negotiations over fixing the Deferred Action for Childhood Arrivals program, an Obama-era policy that until last month protected some young, undocumented immigrants from deportation.
But if the Washington deal-making drags on too long, it could be disrupted by a different force: a federal judge in Brooklyn who has sternly warned that should policy makers prove unable to repair the program, commonly known as DACA, he might have to do it.
In recent weeks, the judge, Nicholas G. Garaufis, has made a series of unusually forceful statements from the bench, calling the Trump administration’s approach to fixing DACA “cruel,” “heartless” and “unacceptable.” He has also offered praise for the 800,000 young immigrants who were shielded by the program, lauding them as people who pay rent, taxes and mortgages, and who “support their communities.”
Judge Garaufis has even professed confusion over Mr. Trump’s tweets about DACA, saying that the president’s apparent desire to save the program does not square with his government’s continued efforts to rescind it. But perhaps most forebodingly, the judge has stated several times that while he would prefer “the political branches” to resolve the issue, if that becomes impossible, he may have to impose his own solution.
A Democrat appointed by President Clinton, Judge Garaufis has found himself in a position to guide DACA’s fate because two linked lawsuits have landed in his courtroom. The suits, filed separately last month by a coalition of immigration lawyers and by more than a dozen state attorneys general, have challenged Mr. Trump’s repeal of DACA by arguing that it is an “arbitrary” exercise of power and betrays an “animus” toward Latinos. Similar suits have also been filed in California.
Judge Garaufis has acknowledged that he is unlikely to decide on the merits of the lawsuits until early next year. And he may find that the United States Appeals Court for the Second Circuit does not take kindly to his rhetoric or eventual decision.
But even though the case has only started moving forward, he and Magistrate Judge James Orenstein, a junior judge who is assisting him, have already hinted that they support the plaintiffs. The two jurists, who are working together to complete the case before March 5, when deportations could begin, have repeatedly taken to task — and even berated — the lawyers from the Justice Department who are arguing on the government’s behalf.
On Sept. 14, for example, Judge Garaufis urged the government lawyers to push back their Oct. 5 deadline for DACA recipients to reapply for protected status. But two weeks later, when the lawyers returned to court and told him that the deadline would remain, Judge Garaufis said he found that unacceptable “as a human being and as American.” Calling the decision “heartless,” he sarcastically remarked: “I’m just glad I was born in Paterson, N.J., not Mexico City.”
Judge Garaufis has a track record of weighing in with strong opinions on politically charged cases. In 2010, he ordered the New York Fire Departmentto revamp its hiring practices and bring on hundreds of minority applicants to remedy what he described as decades of discrimination. But three years later, a federal appeals court ruled that his order went too far and removed him from a portion of the case because he had “lost any semblance of neutrality.”
The DACA case has now entered its discovery phase. And on Wednesday, against the wishes of the government, Judge Orenstein ruled at another hearing that the plaintiffs could take depositions from two administration officials: Donald Neufeld, an associate director in the United States Citizenship and Immigrations Services, and Gene Hamilton, the deputy chief of staff for policy at the Department of Homeland Security.
In making his ruling, Judge Orenstein, like Judge Garaufis, had harsh words for the government lawyers, chiding them for writing poor briefs and for showing up in court unprepared.
On Wednesday, his target was Stephen M. Pezzi, a Justice Department trial lawyer, who has on occasion been unable to answer direct questions from the bench, saying that he first had to consult with officials in Washington. In a remarkably firm move, Judge Orenstein raised concerns that Mr. Pezzi and his colleagues might, through their delays, be engaging in a “calculated filibuster to avoid judicial review.” Clearly annoyed, he warned them not to do so.
“I don’t attribute this to bad faith at this point,” Judge Orenstein said, “but the record is building in a way that supports that inference.”
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