Level 4, 111 Coventry Street, South Melbourne, VIC Australia 3205
Tel: +61 1300 126 400
Fax: +613 9909 7649

Email: john@mcmullan.net

Documents For Download:

Category: US Supreme Court: DACA Dreamers Program

200618 – Judgement: Department of Homeland Security v Regents of the University of California et al

The US Supreme Court has ruled that the Department of Homeland Security (DHS) decision to rescind the Deferred Action for Childhood Arrivals (DACA) program is reviewable under the APA, that DHS’s decision to rescind DACA was arbitrary and capricious within the meaning of the Administrative Procedure Act (APA) in that the relevant decision was the decision made at the time (not later reasoning adopted to validate that decision), that the DHS rescission memorandum failed to consider important aspects of the problem before the agency thereby failing to supply the requisite “reasoned analysis”, and, for good measure, the decision-maker had failed to address whether there was “legitimate reliance” on the DACA Memorandum. Accordingly, the court ruled that the DHS Acting Secretary Duke’s rescission of DACA must be vacated. 

In 2012, DHS (during the Obama administration) announced DACA, a program that would allow young people who had entered the United States as children to apply for a 2 year for­bearance of removal, subject to renewal. Applicants had to be under age 31 in 2012, had continuously resided in the USA since 2007, were current stu­dents, had completed high school, or were honorably dis­charged veterans, had not been convicted of any serious crimes, and did not threaten national security or public safety. DHS said that individuals who met those criteria warranted favorable treatment under the immigration laws because they “lacked the intent to violate the law,” were “productive” contributors to society, and “know only this country as home.” Those granted such relief were also to be eligible for work authorization and various federal benefits.  Around 700,000 aliens applied. But in 2017, DHS (during the Trump administration), in a decision memorandum from DHS Acting Secretary Duke, Based solely on Attorney-General Sessions’ advice that the DACA program was unlawful, announced that DHS was terminating the DACA program. The termina­tion was challenged by multiple groups, principally on the grounds that Acting Secretary Dule violated the APA by failing to adequately address important factors bearing on her decision.

In November 2014, two years after DACA was promul­gated, DHS announced the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program, to expand DACA eligibility by removing the age cap, shifting the date-of-entry requirement from 2007 to 2010, and extending the deferred action and work authorization period to 3 years. That program would have authorized deferred action for up to 4.3 million parents whose children were U. S. citizens or lawful perma­nent residents. These parents were to enjoy the same for­bearance, work eligibility, and other benefits as DACA recipients. Before the DAPA Memorandum was implemented, however, 26 States, led by Texas, sued, arguing that DAPA violated the APA’s notice and comment require­ment, the Immigration and Nationality Act (INA), and the Executive’s duty under the Take Care Clause of the Consti­tution.

Then, in June 2017, following a change in Presidential administrations, DHS rescinded the DAPA Memorandum. In explaining that decision, DHS cited the preliminary in­junction and ongoing litigation in Texas, the fact that DAPA had never taken effect, and the new administration’s immigration enforcement priorities. Three months later, in September 2017, Attorney General Sessions wrote to DHS, advising that DHS should rescind DACA as well. In a rescission memorandum, DHS Acting Secretary Duke summarized the history of the DACA and DAPA programs, the Fifth Circuit opinion and ensuing affirmance, and the contents of the At­torney General’s letter, and concluded that the DACA program should be terminated.

In NAACP, in April 2018, the D. C. District Court granted partial summary judgment to the plaintiffs on their APA claim, holding that Acting Sec­retary Duke’s “conclusory statements were insufficient to explain the change in [the agency’s] view of DACA’s lawful­ness.” The District Court stayed its order for 90 days to permit DHS to “reissue a memoran­dum rescinding DACA, this time providing a fuller expla­nation for the determination that the program lacks statu­tory and constitutional authority.” In June 2018, DHS Secretary Nielsen, set out in a further decision memorandum, three reasons why, in Secretary Nielsen’s estimation, “the decision to rescind the DACA policy was, and remains, sound.” First, Secretary Nielsen said that, “as the Attorney General concluded, the DACA policy was contrary to law.” Second, the agency had “serious doubts about [DACA’s] legality” and, for law enforcement reasons, wanted to avoid “legally questiona­ble” policies. Third, Secretary Nielsen identified multiple policy reasons for rescinding DACA, including (1) the belief that any class-based immigration relief should come from Congress, not through executive non-enforcement, (2) DHS’s preference for exercising prosecutorial discretion on “a truly individualized, case-by-case basis”, and (3) the im­portance of “projecting a message” that immigration laws would be enforced. In her final paragraph, Secretary Nielsen acknowledged the “asserted reliance interests” in DACA’s continuation but concluded that they did not “out­weigh the questionable legality of the DACA policy and the other reasons” for the rescission discussed in her memoran­dum.

Chief Justice Roberts delivered the 5-4 majority judgment (Ginsburg, Breyer, Sotomayor, and Kagan JJ joining, Alito, Thomas, Gorsuch and Kavanaugh JJ dissenting). Hail the (real) Chief.

The dispute before the Court was not whether DHS could rescind DACA, all parties agree that it may, rather the substantive dispute was whether DHS had followed the required procedure within the meaning of the APA. The Chief Justice wrote:

The APA “sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts.” …. It requires agencies to engage in “reasoned decisionmaking” …. and di­rects that agency actions be “set aside” if they are “arbi­trary” or “capricious,” …. Under this “narrow standard of review, . . . a court is not to substitute its judgment for that of the agency,” …. but instead to assess only whether the de­cision was “based on a consideration of the relevant factors and whether there has been a clear error of judgment,” …

The majority first concluded that DHS’ decision was reviewable under the APA:

The APA establishes a “basic presumption of judicial review [for] one ‘suffering legal wrong because of agency ac­tion….  That presumption can be rebutted by a showing that the relevant statute “preclude[s]” review,  …  or that the “agency action is committed to agency discretion by law,” …. The latter exception is at issue here…

The Government contends that a general non-enforcemen tpolicy is equivalent to the individual non-enforcement decision at issue in Chaney. In each case, the Government argues, the agency must balance factors peculiarly within its expertise, and does so in a manner akin to a criminal prosecutor. Building on that premise, the Government ar­gues that the rescission of a non-enforcement policy is no different—for purposes of reviewability—from the adoption of that policy. While the rescission may lead to increased enforcement, it does not, by itself, constitute a particular enforcement action. Applying this logic to the facts here, the Government submits that DACA is a non-enforcement policy and that its rescission is therefore unreviewable.

But we need not test this chain of reasoning because DACA is not simply a non-enforcement policy. For starters, the DACA Memorandum did not merely “refus[e] to insti­tute proceedings” against a particular entity or even a par­ticular class. …. Instead, it directed USCIS to “establish a clear and efficient process” for identifying individuals who met the enumerated criteria. …. Based on this directive, USCIS solicited applications from eligible aliens, instituted a standardized review process, and sent formal notices indicating whether the alien would receive the two-year forbearance. These proceedings are ef­fectively “adjudicat[ions].” ….. And the result of these adjudications—DHS’s decision to “grant deferred ac­tion,” …. is an “affirmative act of ap­proval,” the very opposite of a “refus[al] to act,” ….. In short, the DACA Memorandum does not announce a passive non-enforcement policy; it created a program for conferring affirmative immigration relief. The creation of that program—and its rescission—is an “ac­tion [that] provides a focus for judicial review.”….

The benefits attendant to deferred action provide further confirmation that DACA is more than simply a non-enforcement policy. As described above, by virtue of receiving deferred action, the 700,000 DACA recipients may request work authorization and are eligible for Social Secu­rity and Medicare. …. Unlike an agency’s re­fusal to take requested enforcement action, access to these types of benefits is an interest “courts often are called upon to protect.” ….

Because the DACA program is more than a non-enforce­ment policy, its rescission is subject to review under the APA.

The majority then concluded that the June 2018 DHS decision memorandum could not justify the September 2017 DHS decision (“It is a “foundational principle of administrative law” that judicial review of agency action is limited to “the grounds that the agency invoked when it took the action.”)

Finally, the majority concluded that the September 2017 DHS decision to rescind the DACA program was arbitrary and capricious within the meaning of the APA.

…. Duke did not appear to appreciate the full scope of her discretion, which picked up where the Attorney Gen­eral’s legal reasoning left off. ….

In short, the Attorney General neither addressed the for­bearance policy at the heart of DACA nor compelled DHS to abandon that policy. Thus, removing benefits eligibility while continuing forbearance remained squarely within the discretion of Acting Secretary Duke, who was responsible for “[e]stablishing national immigration enforcement poli­cies and priorities.” …. But Duke’s memo offers no reason for terminating forbearance. She instead treated the Attorney General’s conclusion re­garding the illegality of benefits as sufficient to rescind both benefits and forbearance, without explanation.

.… Even if it is illegal for DHS to extend work authori­zation and other benefits to DACA recipients, that conclu­sion supported only “disallow[ing]” benefits. …. It did “not cast doubt” on the legality of forbearance or upon DHS’s original reasons for extending forbearance to child­hood arrivals. Ibid. Thus, given DHS’s earlier judgment that forbearance is “especially justified” for “productive young people” who were brought here as children and “know only this country as home,” …. the DACA Memorandum could not be re­scinded in full “without any consideration whatsoever” of  a forbearance-only policy, ….

The Government acknowledges that “[d]eferred action coupled with the associated benefits are the two legs upon which the DACA policy stands.” ….. It insists, however, that “DHS was not required to consider whether DACA’s illegality could be addressed by separating” the two. Ibid. According to the Government, “It was not arbi­trary and capricious for DHS to view deferred action and its collateral benefits as importantly linked.” Ibid. Perhaps. But that response misses the point. The fact that there maybe a valid reason not to separate deferred action from ben­efits does not establish that DHS considered that option or that such consideration was unnecessary.

…. For its part, the Government does not contend that Duke considered potential reliance interests; it counters that she did not need to. In the Government’s view, shared by the lead dissent, DACA recipients have no “legally cognizable reliance interests” because the DACA Memorandum stated that the program “conferred no substantive rights” and pro­vided benefits only in two-year increments. Reply Brief 16–17; App. to Pet. for Cert. 125a. See also post, at 23–24 (opin­ion of THOMAS, J). But neither the Government nor the lead dissent cites any legal authority establishing that such fea­tures automatically preclude reliance interests, and we are not aware of any. These disclaimers are surely pertinent in considering the strength of any reliance interests, but that consideration must be undertaken by the agency in the first instance, subject to normal APA review. There was no such consideration in the Duke Memorandum.

Respondents and their amici assert that there was much for DHS to consider. They stress that, since 2012, DACA recipients have “enrolled in degree programs, embarked on careers, started businesses, purchased homes, and even married and had children, all in reliance” on the DACA pro­gram. …. The conse­quences of the rescission, respondents emphasize, would “radiate outward” to DACA recipients’ families, including their 200,000 U. S.-citizen children, to the schools where DACA recipients study and teach, and to the employers who have invested time and money in training them. …. (estimating that hiring and training replacements would cost employers $6.3 billion).

The majority concluded:

We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” …. We address only whether the agency complied with the procedural re­quirement that it provide a reasoned explanation for its ac­tion. Here the agency failed to consider the conspicuous is­sues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew …..