A federal judge hearing a case concerning the Trump administration's phaseout of the Deferred Action for Childhood Arrivals immigration program issued a blistering critique of what he called the President's "recurring, redundant drumbeat of anti-Latino commentary."
"It's not just an ad hoc comment that was overheard on an open mic," Judge Nicholas G. Garaufis said Tuesday in a Brooklyn courtroom. "It's not just that somebody at INS said something derogatory about Mexicans. This came from the top."
"It's extreme, it's recurring, it's vicious," he added.
Garaufis' comments came during a case brought by DACA participants and 16 states challenging how the administration decided to terminate the program. The Trump administration is seeking to dismiss the challenge, arguing that the attorney general and the Department of Homeland Security had concluded that the Obama-era program was unlawful and announced in September that it should be unwound in an orderly fashion.
Last month, a judge in California, hearing a similar case, temporarily blocked the administration's attempt to bring the program to a close. Justice Department lawyers are appealing that decision to the Supreme Court.
'Most of people that I ran into in Norway when I was there were white'
Lawyers from the National Immigration Law Center and the states are asking the Brooklyn-based Garaufis, a Bill Clinton appointee, for a similar injunction, arguing that the decision to terminate DACA was illegally "infected" by animus.
"Would the same outcome have been reached if the group of affected young people had been children and young adults from Norway, instead of children and young adults primarily from Mexico?" argued Colleen Melody, a lawyer for the state of Washington.
The question seemed to refer to President Donald Trump's reported comments made behind closed doors in a meeting with senators earlier this month. At the meeting, according to a source, Trump began to ask why people from Haiti and more Africans were wanted in the US and added that the US should get more people from countries like Norway.
The mention of Norway triggered a response from Garaufis. He said he'd recently visited Norway, and he asked Justice Department lawyer Stephen Pezzi to give him the name of the US secretary of homeland security.
"The current secretary is Kirstjen Nielsen," Pezzi responded.
"I just wish to point out," the judge said, "that my observation was that most of people that I ran into in Norway when I was there were white."
Another administration lawyer, Brett Shumate, argued that if the motion to block the DACA decision succeeded, a similar argument could be brought "anytime a government takes a decision with a statistically disparate impact on Latinos."
Shumate stressed that when the President has spoken about DACA recipients he has been "generally supportive," and the lawyer reiterated that the program had been an orderly wind-down consistent with the law and the Constitution.
After the hearing, a Department of Justice spokesperson said that despite the judge's harsh comments, "We remain confident in our argument that the Department of Homeland Security had the lawful authority to rescind DACA."
The judge did not say when he would rule but lawyers for the DACA participants asked him to move quickly and issue an injunction that would be broader than the California order because it would give those who had never applied to the program a chance to do so. The California injunction cleared the way only for individuals who had already been part of the program to renew.
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