The Ninth U.S. Circuit Court of Appeals yesterday upheld a preliminary injunction keeping in place the Deferred Action for Childhood Arrivals program pending judgment in a challenge to the U.S. Department of Homeland Security’s decision to cancel it.
Judge Kim M. Wardlaw wrote the 90-page majority opinion, joined in by Judge Jacqueline H. Nguyen. Judge John B. Owens wrote an opinion in which he concurred in the result.
Since its inception in 2012 by then-President Barack H. Obama, Deferred Action for Childhood Arrivals (“DACA”) has allowed certain illegal immigrants brought to the United States as children to apply for permission to remain in the country and legally work for a two-year, renewable period. The program does not provide a path to citizenship; a similar program, Deferred Action for Parents of American (“DAPA”), was implemented in 2014 for eligible parents of DACA participants.
Shortly after President Donald J. Trump took office last year, the Department of Homeland Security (“DHS”) announced its intent to wind down both programs. In response, several challenges were brought against the DACA rescission in federal courts across the nation.
The cases brought in the Northern District of California were consolidated and assigned to District Judge William Alsup.
The government appealed to the Supreme Court, which declined to address the deficiencies in DHS’s administrative record before Alsup ruled on the government’s argument that its decision was not subject to judicial review. On remand, the district judge in January issued a preliminary injunction against DACA’s rescission.
Central to the administration’s position is the contention that the Administrative Procedure Act (“APA”) bars review by the courts of the decision to cancel the executive-branch program.
At oral argument in May, Wardlaw asked Deputy Attorney General Hashim Mooppan:
“The decision to rescind appears to be based entirely on this letter from [then-]Attorney [Jeff] General Sessions that says basically the Fifth Circuit’s found this DAPA, not even DACA, unlawful, and therefore we must rescind DACA. Now if that is wrong as a matter of law, which is, as Judge Alsup said, a question quintessentially for the courts, can the decision to rescind stand?”
“Yes your honor…if a non-reviewable decision, the reason given for it is otherwise reviewable, that does not render the decision itself reviewable.”
Discretionary Nature Key
Wardlaw, in her opinion, said:
“It is one thing to read the APA’s exception for ‘agency action  committed to agency discretion by law’ as including the Executive’s discretionary decisions to decline enforcement, given a pre-existing legal tradition that had treated those decisions as unreviewable. It would be quite another to say that an agency’s non-discretionary belief that it lacked the power to enforce the law was similarly ‘committed to agency discretion.’ ”
She cited the language used in September 2017 by then-Acting Secretary of DHS Elaine Duke, who wrote:
“In the exercise of my authority in establishing national immigration policies and priorities, except for the purposes explicitly identified below, I hereby rescind the June 15, 2012 memorandum [that established DACA].”
She noted that an earlier memo by Duke’s predecessor, former DHS Secretary John Kelly, rescinding DAPA had used the term “in the exercise of my discretion” rather than the word “authority.”
The jurist went on to say:
“We agree with the district court that the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS.”
Merits of Injunction
This finding was in turn central to the merits of the preliminary injunction.
“[I]t is black letter law that where an agency purports to act solely on the basis that a certain result is legally required, and that legal premise turns out to be incorrect, the action must be set aside, regardless of whether the action could have been justified as an exercise of discretion.”
“With respect to DACA’s alleged ‘legal…defects,’ the district court explained in great detail the long history of deferred action in immigration enforcement, including in the form of broad programs; the fact that the Supreme Court and Congress have both acknowledged deferred action as a feature of the immigration system; and the specific statutory responsibility of the Secretary of Homeland Security for ‘[e]stablishing national immigration enforcement policies and priorities’.…The government does not contest any of these propositions, which themselves go a long way toward establishing DACA’s legality.”
The jurist declared:
“To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion. We hold only that here, where the Executive did not make a discretionary choice to end DACA—but rather acted based on an erroneous view of what the law required—the rescission was arbitrary and capricious under settled law. The government is, as always, free to reexamine its policy choices, so long as doing so does not violate an injunction or any freestanding statutory or constitutional protection.”
Owens disagreed that the courts have the power to review the decision under the APA.
“In deciding to rescind an immigration policy of nonenforcement, DHS thus acts with broad discretion that courts cannot review absent clear congressional authorization. Here, rather than authorize judicial review, the broad, discretion-granting language of the enabling statute reinforces that DHS’s enforcement decision is not subject to APA review….
“Perhaps recognizing that immigration enforcement decisions exhibit the characteristics of unreviewable agency actions, the majority decides that we should nonetheless review the rescission of DACA because these features are not actually at work here: Acting Secretary Duke explained that DACA was rescinded based on DHS’s belief that the program was unlawful.”
Decision Nevertheless Reviewable
“At the same time, as the government concedes, DACA’s rescission may be reviewed for compliance with the Constitution. I would hold that Plaintiffs have plausibly alleged that the rescission of DACA was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment, and that the district court correctly denied the government’s motion to dismiss this claim.”
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