June 18, 2020

Supreme Court Decides Department of Homeland Security v. Regents of the University of California

On June 18, 2020, the U.S. Supreme Court decided Department of Homeland Security v. Regents of the University of California, holding that the Department of Homeland Security’s rescission of Deferred Action for Childhood Arrivals (DACA) violated the Administrative Procedures Act (APA) because the decision was arbitrary and capricious. With this decision by the Court, the employment authorizations and other benefits available under the DACA program remain in place.

In June 2012, the Department of Homeland Security (DHS) issued a memorandum announcing the immigration program known as DACA, which has enabled approximately 700,000 qualifying unauthorized aliens who had entered the United States as minors to secure a forbearance of removal in two-year, renewable increments. Successful DACA applicants also became eligible for work authorization and various federal benefits.

In September 2017, the Attorney General advised the DHS Acting Secretary to rescind DACA as unlawful. The Acting Secretary issued a decision memorandum the next day rescinding DACA. Multiple groups challenged the rescission of DACA in three different jurisdictions, alleging that the rescission was arbitrary and capricious in violation of the APA and that it infringed the equal protection guarantee of the Fifth Amendment’s Due Process Clause. All three district courts ruled for the plaintiffs at different stages of the proceedings. One district court invited DHS to provide a fuller explanation for its determination that the program was unlawful but deemed the successor Secretary’s response memorandum inadequate to justify rescission. All three cases were appealed, and the Supreme Court granted certiorari after the Ninth Circuit affirmed a nationwide injunction but before the other two circuits ruled.

As a preliminary matter, the Court held that DHS’s decision to rescind DACA was reviewable under the APA based on the presumption of judicial review. The Court concluded that DACA’s application process, review process, and formal notices were effectively adjudications that led to identifiable interests that judicial review generally protects and that DACA was more than a non-enforcement policy. The Court also held that Sections 1252(b)(9) and 1252(g) of the Immigration and Nationality Act (INA) did not bar review, because the parties were not challenging removal proceedings and the rescission of DACA was not a decision to commence proceedings, adjudicate a case, or execute a removal order.

Upon review, the Court concluded that the Acting Secretary’s decision to rescind DACA was arbitrary and capricious because she failed to provide any reasons for terminating the forbearance provision of DACA. The successor Secretary’s later memo could not be used to provide new post hoc rationalizations for the rescission. The sole justification for rescinding DACA was the Attorney General’s letter stating that DACA had legal flaws, premised on the availability of benefits under DACA, based on an earlier decision by the Fifth Circuit Court of Appeals striking portions of the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) related to benefits. The Court noted that “the Attorney General neither addressed the forbearance policy at the heart of DACA nor compelled DHS to abandon that policy.” While the Acting Secretary was not required to consider all policy alternatives to rescinding DACA — a benefits and forbearance policy — she was required to consider alternatives within the ambit of the existing policy, including the potential for a forbearance-only program. She was also required to address whether there was any legitimate reliance on the DACA Memorandum. Her failures to consider a forbearance-only alternative and to address reliance interests rendered the rescission arbitrary and capricious.

Finally, the Court rejected the plaintiffs’ equal protection claims without a majority opinion.

Chief Justice Roberts delivered the opinion of the Court, except as to Part IV, in which Justices Ginsburg, Breyer, and Kagan joined in full. Justice Sotomayor filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part, in which Justices Alito and Gorsuch joined. Justice Alito filed an opinion concurring in the judgment in part and dissenting in part. Justice Kavanaugh filed an opinion concurring in the judgment in part and dissenting in part.

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