Case No. 18-587 | 9th Cir.
Preview by Boseul (Jenny) Jeong, Online Editor
This case is about the Deferred Action for Childhood Arrivals (“DACA”) policy. The case arose in the aftermath of this Court’s decision in United States v. Texas, 136 S. Ct. 2271 (2016). The Court held that the Department of Homeland Security (“DHS”)’s discretionary enforcement policies, including an expansion of the DACA policy, were likely unlawful. Following the decision, in 2017, DHS determined that the original DACA policy would also be held unlawful on the same grounds, and thus instituted an “orderly wind-down” of the DACA policy. Brief for the Petitioners at I, DHS v. Regents of the Univ. of Cal., Nos. 18-587, 18-588, 18-589 (U.S. filed Aug. 19, 2019). And now it seeks this Court’s ruling on (1) whether DHS’s decision to wind down the DACA policy is judicially reviewable, and (2) whether DHS’s decision to wind down itself is unlawful, or in other words, arbitrary and capricious. Two other cases (Trump v. NAACP, McAleenan v. Vidal) are consolidated with this case.
DHS first argued that “a decision to rescind a policy of nonenforcement” is up to agency discretion and thus the lower court’s application of the arbitrary and capricious standard was wrong. Id. at 14. According to DHS, the decision had a policy rationale and even if some legal rationale was implicated, that alone is not enough to make it judicially reviewable. DHS also argued that the rescission was based on reasonable grounds because (1) a policy that is almost materially indistinguishable was held unlawful; (2) DHS, as a policy matter, wanted to let Congress decide on these significant issues; and (3) DHS on its own decided that DACA is unlawful. DHS also added that it has additional policy goals of exercising its discretion on a case-by-case basis and discouraging illegal immigration.
Respondents filed five separate briefs with varying degrees of overlap. In general, however, they argued that the decision was not discretionary and thus reviewable and the agency’s action was arbitrary and capricious. First, Respondents argued that this is a reviewable decision not committed to agency discretion because this is (1) a termination decision; (2) a general enforcement policy; and/or (3) a conclusion about the limits of their authority based on the authorizing statutes which is reviewable under the Administrative Procedure Act (“APA”). Second, they argued the agency’s action was arbitrary and capricious, violating the APA because (1) the decision (Duke Memorandum) was based on a wrong legal conclusion that DACA is unlawful; (2) DHS did not consider factors such as reliance interest, significant differences between DACA and DAPA, justification for change in the agency’s stance, costs of the decision, and significant interests affected by the change; (3) rationales newly asserted after the fact (Nielsen Memorandum) cannot cure the inappropriate action; and (4) regardless, DHS’s other rationales (e.g., litigation risk) do not justify the decision. Third, some Respondents argued that the Court needs to require a full administrative record, especially given the evidence of pretext. States’ equal protection claims were mentioned in one of the briefs as well.
This case is set out as an administrative law issue, but examines an immigration policy. It will likely continue to draw considerable attention given the weight of its implications. Whether the Court will directly address the legality of DACA will be another key issue.