At a glance
The situation
Today the Ninth Circuit Court of Appeals upheld a nationwide injunction requiring the Department of Homeland Security (DHS) to continue to accept Deferred Action for Childhood Arrivals (DACA) application renewals while a lawsuit challenging the Trump Administration’s termination of DACA continues. In the first Court of Appeals ruling on the DACA program, the Ninth Circuit found that the lower federal court did not abuse its discretion in issuing a nationwide injunction against the program’s termination, and that plaintiffs are likely to succeed in demonstrating that DHS’s rescission of DACA is unlawful. Notably, in affirming the lower court ruling, the Ninth Circuit expressed its belief that the creation of the DACA program itself was lawful, stating “DACA was a permissible exercise of executive discretion.” The case is Regents of the University of California et al. v USDHS. DHS is expected to appeal the decision to the U.S. Supreme Court.
Plaintiff UC California is challenging DHS’s termination of DACA as an arbitrary and capricious agency action under the Administrative Procedures Act (APA). In January 2018, the U.S. District Court for the Northern District of California issued a preliminary injunction requiring maintenance of DACA renewals under the program. District courts in New York, and Washington DC made similar rulings in separate cases, with the DC court taking the additional step of ordering full reinstatement of the DACA program, meaning acceptance of even new DACA applications. However, the DC court also stayed the portion of its ruling requiring full reinstatement of the program. Separately, a federal district court in Texas has denied the State of Texas’s request to halt the DACA program while that lawsuit challenging DACA continues. As a result, all existing court rulings currently require DHS to only accept renewal DACA applications.
Today’s ruling follows DHS's unusual request of the U.S. Supreme Court, filed November 5, 2018, asking the Court to hear the consolidated California, New York and Washington DC cases even before the lower courts rule on the cases, to determine the legality of DACA’s termination. Either by granting a writ of certiorari in this manner, or through the standard appeals process, the Supreme Court is expected to take up the DACA issue in 2019.
What it means
Today’s decision means that DHS will continue to accept DACA renewal applications until further notice, but is still not required to accept applications from those who have not previously received DACA benefits. The decision also means that legal challenges to the program’s termination will continue.
This alert is for informational purposes only. If you have any questions, please contact the immigration professional with whom you work at Fragomen.
