A third federal judge has rejected the Trump administration’s justification for winding down the program protecting immigrants who came to the U.S. illegally as children.

U.S. District Court Judge John Bates said on Tuesday that the Department of Homeland Security’s legal explanation for the decision to end the Deferred Action for Childhood Arrivals program, or DACA, was too flimsy and, ultimately, unpersuasive.


“DACA’s rescission was arbitrary and capricious because the Department failed adequately to explain its conclusion that the program was unlawful,” Bates wrote in his 60-page opinion , released on Tuesday evening. “Neither the meager legal reasoning nor the assessment of litigation risk provided by DHS to support its rescission decision is sufficient to sustain termination of the DACA program.”

Bates, who was appointed by President George W. Bush, is the first Republican appointee to rule against President Donald Trump’s move to wind down DACA. Two district court judges appointed by President Bill Clinton — one in San Francisco and one in Brooklyn — previously came to similar conclusions. They also entered injunctions requiring the administration to continue accepting renewals while litigation continued.

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One judge in Maryland, also a George W. Bush appointee, upheld the basic thrust of the administration’s decision to end the program.

The Trump administration tried to bypass the usual appeals process and take one of those district court rulings directly to the Supreme Court, but in February the justices declined to take up the case before a ruling from at least one appeals court.


Trump announced in September that he planned to phase out the program, allowing renewals through March 5 of this year but then refusing to issue new permits. The arrangement would have resulted in about 700,000 people having their work permits and quasi-legal status expire over a two-year period.

The administration said the move was necessary to head off a lawsuit threatened by conservative state attorneys general who managed to block an expansion of the program under President Barack Obama. Bates, however, made clear on Tuesday that he did not find that to be a credible reason for the wind-down of DACA.

“The agency’s prediction regarding the outcome of threatened litigation over DACA’s viability — specifically, that the district court in the Texas litigation would immediately halt the program without any opportunity for a wind-down — was so implausible that it fails even under the deferential arbitrary and capricious standard,” Bates wrote. “DACA’s rescission will therefore be set aside.”

Bates is also opening up the possibility that the Trump administration could be ordered to take new DACA applications, something no other judge has required. Bates said in his decision on Tuesday that if DHS didn’t come up with a new, better explanation for the rescission within 90 days, the entire program would be restored.

A Justice Department spokesman, Devin O’Malley, said the administration remained convinced that its actions were lawful.


“Today’s order doesn’t change the Department of Justice’s position on the facts: DACA was implemented unilaterally after Congress declined to extend benefits to this same group of illegal aliens. As such, it was an unlawful circumvention of Congress,” O'Malley said. “The Department of Homeland Security therefore acted within its lawful authority in deciding to wind down DACA in an orderly manner. … The Justice Department will continue to vigorously defend this position, and looks forward to vindicating its position in further litigation.”

Bates’ new ruling came on a pair of suits: one brought by the National Association for the Advancement of Colored People, the American Federation of Teachers and the United Food and Commercial Workers Union, and another brought by Princeton University, Microsoft and a DACA recipient.

