Immigration: Ninth Circuit Ruling Affirms Injunction Maintaining DACA

On September 5, 2017, then-U.S. Attorney General Jeff Sessions announced that the government was terminating the Deferred Action for Childhood Arrivals (DACA) program. That same day, then–Acting Secretary of Homeland Security Elaine Duke issued a memorandum confirming the change. Multiple lawsuits challenging the Trump administration’s actions to terminate DACA were filed across the country. On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California issued a preliminary injunction requiring the federal government to maintain the DACA program on a nationwide basis.

On November 8, 2018, the Ninth Circuit issued a decision (hereafter DACA II) affirming the lawfulness of the preliminary injunction. The Ninth Circuit first ruled that Acting Secretary Duke’s decision to rescind the DACA program is reviewable under the APA, because the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. It also ruled that INA Section 1252(g) does not deprive courts of jurisdiction to review the DACA rescission order.

The court then reasoned that the plaintiffs in the case were likely to prevail on their claim that the termination of DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The Attorney General claimed that DACA was illegal because the program was “effectuated . . . without proper statutory authority” and that it amounted to “an unconstitutional exercise of authority.” More specifically, the Attorney General asserted that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA” in the Texas litigation in the 5th Circuit. (DACA II, at 62.) The court determined that “DACA was a permissible exercise of executive discretion, notwithstanding the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s statutory authority. DACA is being implemented in a manner that reflects discretionary, case-by-case review, and at least one of the Fifth Circuit’s key rationales in striking down DAPA is inapplicable with respect to DACA. And because the Acting Secretary was therefore incorrect in her belief that DACA was illegal and had to be rescinded, plaintiffs are likely to succeed in demonstrating that the rescission must be set aside.” (DACA II, at 69.)

The court concluded that “the district court did not abuse its discretion in issuing a nationwide injunction. Such relief is commonplace in APA cases, promotes uniformity in immigration enforcement, and is necessary to provide the plaintiffs here with complete redress.” (DACA II, at 73.)