On November 8, 2018, a federal appeals court upheld a trial court’s decision to issue a nationwide injunction against the federal government from rescinding the DACA program. For now, the DACA program will remain in effect, meaning that DACA program enrollees will have another temporary reprieve from deportation until further review by the courts.
President Obama created the Deferred Action for Childhood Arrivals program, or “DACA”, in June of 2012 through an executive order. DACA grants individuals deportation deferrals for two years so long as the individuals came into the country unwittingly before the age of 16 and meet certain military service or education targets. In September of 2017, the Trump Administration Department of Homeland Security (DHS) withdrew the DACA program, stating that the creation of DACA by executive order was an illegal use of executive power. In Regents of the Univ. of Calif. v. Dept. of Homeland Security (No. 18-15068), a number of plaintiffs, including state and local governments and individuals enrolled in the DACA program, filed suit against DHS for its decision to rescind DACA. A trial court in California originally granted the plaintiffs a preliminary injunction meaning that the courts enjoined DHS from removing DACA enrollees’ deferrals and protections. The court also made the injunction applicable nationwide.
On appeal, the Ninth Circuit Court of Appeals agreed with the trial court. The appellate court ruled that because DHS stated it was basing its rescission on an interpretation of law, the courts had the right to review the decision under the Administrative Procedures Act and the Immigration and Naturalization Act. The appeals court also held that the plaintiffs were likely to succeed on their claim that the decision to rescind DACA was arbitrary and capricious. The appellate court upheld the nationwide injunction because of the importance of having a uniform immigration system throughout the country.
The appeals court is allowing the plaintiffs’ claims that the DACA rescission was arbitrary and capricious and the plaintiffs’ claim of a due process violation based on the government’s sharing of information from DACA applications to proceed. However, the appeals court agreed to dismiss some of the plaintiffs’ other claims, including a claim for substantive due process and a claim that the DACA rescission should have been submitted to notice and comment procedures. The opinion is available at http://cdn.ca9.uscourts.gov/datastore/general/2018/11/08/18-15068%20Opinion.pdf.
On November 5th, three days before this Ninth Circuit appellate decision, DHS had requested that the U.S. Supreme Court review the trial court decision because, as DHS argued, the Ninth Circuit had taken too long to issue a decision. That petition for review is still pending. However, it is extremely rare for the Supreme Court to review a case before an appellate court has ruled on it. Now that the Ninth Circuit has issued a decision, DHS may opt to file another petition to review to the Supreme Court, this time on the basis of the Ninth Circuit’s judgment or simply amend its prior petition to include the Ninth Circuit’s new decision.