The potential appeals are piling up at the U.S. Court of Appeals for the Second Circuit in the battle over the Trump administration's wind-down of the Obama-era Deferred Action for Childhood Arrivals immigration policy playing out in Brooklyn federal court.

Earlier this week U.S. District Judge Nicholas Garaufis of the Eastern District of New York granted the Department of Justice's motion to certify for interlocutory appeal an earlier partial denial of the government's motion to dismiss by the court. In doing so, the government is poised to try and bring the number of appeals before the circuit court already out of the DACA action to three.

The most recent appealable instance hinged on the decision in March by Garaufis to allow the individual plaintiffs' equal protection claims to go forward in Batalla Vidal v. Nielsen, 16-cv-04756. As the judge's order notes, that claim relies heavily on President Donald Trump's statements on the campaign trail that the plaintiffs argue were derogatory toward Latinos generally and Mexican immigrants in particular.

The government argued that this presents a controlling question of the law that the Second Circuit should get to weigh in on. Garaufis agreed with the government, and noted that, were he to be required to disregard Trump's statements made before he became president, it would likely, but not certainly, result in the individual plaintiffs' equal protection claims being dismissed, since none of Trump's in-office statements have been alleged to be “comparably inflammatory and offensive.”

Garaufis goes on to note that other courts have taken other opinions on the issue. The Northern District of California, for example, in its DACA suit was in line with Garaufis' thinking on the issue when it ruled to allow that suit, filed by the state's university system, to go forward. He contrasted that with a recent Maryland federal court decision, which sided with the government in dismissing the suit brought by so-called Dreamers, which included equal protection concerns similarly predicated on Trump's rhetoric on the campaign trail.

However, since orders, not issues, are appealable, the full scope of the motion and order denying the government's motion to dismiss is up for review by the Second Circuit, should it grant the government's interlocutory appeal.

Before this week, the government already had one appeal at the circuit, over Garaufis granting a nationwide preliminary injunction over the government's planned recession of the DACA program, which doubled up on a similar injunction already in place in the matter before the Northern District of California. Briefings are currently underway in this matter before the Second Circuit.

Additionally, the government has a motion for interlocutory appeal pending before the circuit over Garaufis' earlier denial of the government's motion to dismiss on subject-matter jurisdiction.

A DOJ representative did not respond to a request for comment on Garaufis' order.

A representative at the National Immigration Law Center, which is representing the Batalla Vidal plaintiffs, did not respond to a request for comment.