Trump admin complains about ‘casual approach’ of lower court judge ordering ‘extra-record discovery’ in immigration case after winning SCOTUS stay

The Trump administration is complaining to a federal judge in California about the work done by one of their assistant judges — and hoping to get a different result — in a hot-button immigration case.

In March, Senior U.S. District Judge Edward Chen, a Barack Obama appointee, enjoined the government from ending the program known as Temporary Protected Status (TPS) for Venezuelans. This iteration of the program was initiated in 2021 by the Biden administration and allowed the covered immigrants — who fled political persecution — to remain in the U.S. and work legally for a limited period of time.

Last month, the U.S. Supreme Court lifted the injunction issued by the lower court, allowing the government to terminate the protected legal status of more than 600,000 Venezuelan immigrants, all of whom now face imminent removal from the country.

But the plaintiffs in the case are not giving up by any means; litigation on the merits is still ongoing at the district court level.

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Earlier this month, the National TPS Alliance, a nonprofit group, submitted a 35-page motion for summary judgment in an effort to short-circuit the issues and return a quick victory in their favor. If successful, this would end the case before the lower court.

And, though a win on a motion for summary judgment would not render the high court’s stay inoperative — the justices stayed the injunction pending an appeal with the Ninth Circuit Court of Appeals — Chen could fashion a permanent injunction or other relief.

To that end, the summary judgment effort also contains extra arguments for discovery, which has been an ongoing process throughout the litigation. The plaintiffs want information related to why the Trump administration canceled the TPS program and what was used to justify the policy change.

The plaintiffs also accused the government of failing to abide by their preexisting discovery obligations.

In short, discovery has become an intense sideline skirmish in the litigation over the past two weeks. Chen, in turn, assigned U.S. Magistrate Judge Sallie Kim to oversee the discovery process going forward; magistrate judges are used by district judges to assist with administrative tasks, as needed, and have the same jurisdiction as the court itself. The magistrate judge often handles discovery and can issue other minor orders, as well as reports and recommendations.

Last week, Kim issued an order granting in part a motion by the plaintiffs to compel production of certain documents. In ruling for the TPS Alliance, the judge said the government could not rely on the “deliberative process privilege” to withhold the documents in question.

From the court’s ruling, at length:

Here, the arguments in support of nondisclosure are particularly weak. Defendants have not explained specifically how disclosure of the documents in question “would cause embarrassment on the part of the author or give rise to confusion on the part of the public.” Instead, Defendants’ statements are general in nature. The only specific argument that Defendants make is that the issue in this case is “the subject of public controversy,” … [T]his argument could apply to any situation in which a party seeks documents otherwise protected by the deliberative process privilege, and that the subject matter is controversial shows that the information is serious and relevant.

Now, the Trump administration says Kim got it all wrong.

In an 8-page motion for relief, the government explains the present discovery battle in sharp detail.

“Specifically, Judge Kim ordered Defendants to produce all documents for which Defendants claim only the deliberative process privilege by June 13, 2025,” the motion notes. “Judge Kim reviewed 25 bellwether documents submitted by the parties in camera, concluding that ‘the documents designated under the deliberative process privilege qualify for that privilege’ and ‘Defendants provided declarations showing that the documents in question are deliberative in nature.’ Notwithstanding the propriety of the privilege, Judge Kim held that application of the deliberative process privilege was inappropriate in this case.”

The documents, the government explains, were found by the court to be “relevant to Plaintiffs’ claims of racial animus,” relevant to claims that the conduct is serious, and relevant to claims that the government’s conduct is at issue.

Still, the government claims, Kim’s order should be overturned.

“Kim’s order improperly treats the deliberative process privilege as easily overridden,” the motion argues. “Ninth Circuit precent requires document-by-document, context-specific balancing of interests before compelling disclosure. The blanket abrogation of the privilege across all documents fails to apply this legal standard and constitutes legal error. Judge Kim faulted Defendants for not requesting a ‘granular review’ on the documents.”

In other words, the Trump administration says the bulk disclosure order, based on the 25 documents in question, was too general because it did not result from a specialized review process.

The government also says the magistrate judge did not use two analytical frameworks for determining whether the claimed privilege does, in fact, apply. One of those frameworks is a balancing test from case law; one is a statutory standard. In each case, the government says, the judge has to consider things from the government’s perspective. And here, the government claims, the judge did not adequately do so.

“Kim’s casual approach to the chilling effect that removing the privilege would have on frank discussion would preclude any government agency from successfully asserting the deliberative process privilege,” the motion argues.

The government also says the magistrate relied too much on the TPS Alliance’s claim that there is a racial motivation for the policy.

“Plaintiffs have repeatedly stated that the discovery they seek is necessary for their summary judgment briefing,” the motion goes on. “Kim’s reliance on Plaintiff’s equal protection claim to justify lifting the deliberative process privilege wholesale was inapt particularly where this Court delayed briefing on the constitutional claims to take place after any decision regarding the Court’s jurisdiction by the Ninth Circuit and any further review thereof.”

And, trying a kitchen-sink approach, the government also says the basic fact of discovery is verboten in light of the Supreme Court stay.

From the motion, at length:

Finally, all discovery is inappropriate here, where the Supreme Court has granted Defendants’ application for a stay of this Court’s postponement order. Defendants have requested that the Court stay discovery in these proceedings in light of the Supreme Court’s order granting Defendants’ application for a stay and pending the outcome of the jurisdictional questions currently before the Ninth Circuit. Given that the Supreme Court has stayed this Court’s postponement order, it is clear error for the Court to order Defendant to turn over all documents properly withheld as privileged until after the Ninth Circuit and the Supreme Court have weighed in on Defendants’ jurisdictional arguments. Of particular concern here, not only has this Court ordered extra-record discovery beyond completion of the administrative record, but Judge Kim has now ordered disclosure of all deliberative material before these threshold issues have been fully reviewed.

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