Despite “grave misgivings” related to how the government is proceeding in the action, U.S. District Judge Nicholas Garaufis of the Eastern District of New York granted an interlocutory appeal request by the Trump administration in a pair of joint suits over its wind down of the Obama-era Deferred Action for Childhood Arrivals immigration policy.

Garaufis agreed, in part, with Department of Justice attorneys' request to ask the U.S. Court of Appeals for the Second Circuit to weigh in on an essential, contested element of the suits—whether the decision to rescind DACA was one “committed to agency discretion by law.”

The order comes shortly after a Second Circuit panel declined to grant the government's mandamus petition, returning the suit to Garaufis with instructions to consider the issue of interlocutory appeal.

In November, Garaufis ruled that the government's decision was not agency discretion, as the move fell outside the narrow class of decisions immune from review under the Administrative Procedure Act. “While the court has no misgivings about these conclusions,” Garaufis agreed with the defendants that “these issues are admittedly difficult and debatable.”

While precedent “clearly establishes” agencies' decision not to take enforcement action as “presumptively” beyond judicial review, Garaufis noted that the issue in the DACA recision suit created greater uncertainty.

“The rescission of that program is neither an enforcement decision nor a nonenforcement decision, but a non-nonenforcement decision,” the judge wrote. “Is such a decision simply another exercise of prosecutorial discretion, as defendants would have it …, or does it present special considerations not found in [the U.S. Supreme Court's 1985 decision Heckler v.] Chaney and other challenges to nonenforcement decisions, as this court has previously held?”

The question, then, was controlling, as the appellate court's decision could “at the least” gut plaintiffs' “substantive” APA challenges in their suits.

Even as he granted the government's request, Garaufis made clear his frustration at how long it's taken the government to request interlocutory appeal, as the court remained “deeply concerned” over the delays in the case. The judge noted plaintiffs' claims that 122 DACA recipients lose deferred action and work authorization a day. In March, current beneficiaries of the program will likewise begin to lose their ability to work and face the possibility of deportation.

“The prompt resolution of these cases is thus of profound importance not only to the approximately 800,000 DACA recipients, but also to their families, friends, employers, schools, and communities, and, indeed, to the nation as a whole,” Garaufis stated.

That it took the government more than six weeks to request interlocutory certification was “reprehensible,” according to Garaufis. “Despite its grave misgivings,” the court found that review “would materially advance resolution” of the action, while urging defendants to “seek expedited consideration of this appeal.”

A spokeswoman for the New York state Attorney General's Office, which leads the legal action in New York v. Trump, 17-cv-5228, said the office was looking “forward to pursuing our case to protect DACA grantees and New York's best interests.”

Spokespeople for the legal teams with Make the Road By Walk and the National Immigration Law Center could not be reached. They represent plaintiffs in the connected suit, Batalla Vidal v. Nielsen, 16-cv-04756.

A spokesman for the Justice Department could not be reached for comment.