In September 2017, the Department of Homeland Security (“DHS”) attempted to withdraw the Deferred Action for Childhood Arrivals (“DACA”) program, which deferred the deportation of individuals who arrived in the United States as children. DHS claimed President Obama’s creation of DACA in 2012 via an executive order was an illegal use of executive power.
DHS’s attempt to rescind DACA was challenged in courts across the country. In the Regents of the University of California v. Department of Homeland Security case, plaintiffs and individuals enrolled in the DACA program filed suit against DHS. In November 2018, a federal appeals court upheld the district court’s decision to issue a nationwide injunction against the federal government from rescinding the DACA program. This injunction allowed DACA to remain in effect pending further court decisions.
In June 2019, the Supreme Court agreed to hear an appeal of the Regents of the University of California decision, along with two similar cases. The Supreme Court agreed to consider two questions: (1) whether DHS’s decision to suspend DACA was subject to judicial review; and (2) whether DHS’s decision to suspend DACA was lawful.
On June 18, 2020, the Supreme Court issued its decision, finding first that DHS’s attempt to rescind DACA was subject to judicial review. As a result, the Supreme Court was able to consider the merits of DHS’s decision to rescind DACA. The Supreme Court held that DHS’s attempt to rescind DACA was arbitrary and capricious. Accordingly, the Supreme Court upheld the DACA program, and it remains in effect—at least for now. In its opinion, the Supreme Court made clear that its decision was based on procedural issues, stating, “We do not decide whether DACA or its rescission are sound policies. We address only whether the agency complied with the procedural requirement that it provide a reasoned explanation for its action.” It is possible that DHS could demonstrate in the future that it considered certain issues raised in the lawsuits and noted by the Supreme Court and provide a reasoned explanation for the policy change, thus, satisfying the procedural requirements and clearing the way for rescinding DACA as a matter of routine exercise of executive discretion.
Questions regarding the impact of this case on students in your schools can be directed to the attorneys in our Students/Special Education practice group.