9th Circuit Trump appointee blasts SF district judge in immigration case

A lively oral argument session Wednesday morning before a 9th U.S. Circuit Court of Appeals panel in Pasadena elicited contrasting views -- and a pointed critique from one judge -- over whether a district court had permissibly blocked Trump administration decisions to rescind protected immigration status for roughly 300,000 individuals and render them removable.

The Department of Homeland Security in late 2017 and early 2018 announced it would wind down the Congress-created Temporary Protected Status -- or TPS -- that enabled immigrants from Haiti, Sudan, Nicaragua and El Salvador to legally work and reside in the United States after devastating natural disasters or armed conflict made conditions in those nations dire.

A group of TPS beneficiaries filed suit last year claiming the department's decision violated both the Administrative Procedures Act and the Equal Protection Clause, the latter based on claims that heads of the department acted with animus that was evidenced by statements made by President Donald Trump. Ramos v. Nielsen, 18-16981 (9th Cir., filed Mar. 12, 2018)

U.S. District Judge Edward M. Chen of San Francisco agreed, granting a preliminary injunction based on "serious questions" the plaintiffs raised regarding both claims.

On Wednesday, 9th Circuit Judge Ryan D. Nelson, a Trump appointee, quickly made his displeasure clear about the propriety of the lower court's ruling, even suggesting that were the case remanded it perhaps should be sent to a different judge.

"As I look through this, the district court made so many errors, violated the law in so many ways, is there a point at which we say on remand to the district court, if we vacate this injunction, 'We think this should be sent to a different judge because there were so many errors that occurred here that we do not think justice warrants sending it back to the same district court judge?'" a piqued Nelson asked.

Among Nelson's concerns were Chen's orders for the government to supplement its administrative record, and the district judge's reliance on certain of those additional materials in reaching his decision.

Arguing for the plaintiffs, Ahilan Arulanantham, senior counsel with the ACLU of Southern California, said Chen's discovery orders had been justified and rendered after proper deliberation.

"The argument that we had on the motion to dismiss ... is a discussion of all of this; I made an argument for why we're entitled to the discovery under the Equal Protection Clause," Arulanantham said. "[Chen] ruled in our favor on that question."

Nelson also worried that Chen's ruling put the circuit court in a position of needing to affirm that the president expressed antipathy toward immigrants from the four countries at issue.

"We're an Article III court and you're asking us to make a determination that the president, as a legal matter, has animus," Nelson said, a framing to which his panel colleague Morgan Christen quickly objected.

"We're not," she said. "We're reviewing a decision made by a district court."

Arulanantham concurred that the case's review standard was a deferential one.

"We're not asking this court to find that the [DHS] secretaries acted out of animus, or even that the president did," Arulanantham said. "We're saying that reasonable people can differ on this subject."

"The premise of clear error review is that there might be two reasonable readings of the evidence; their reading might even be more plausible," Arulanantham added. "The question is, 'Is the district court's reading also plausible?"

Arguing for the government, U.S. Department of Justice attorney Gerard Sinzdak stressed that expressly temporary programs have an end date.

"It's consistent with common sense, that Congress here created a temporary program based on temporary and extraordinary conditions, that it would make sense those conditions don't exist 20 years later," Sinzdak said.

Judge Consuelo Callahan was the third member of the panel.