Second Federal Court Orders DHS to Maintain DACA with Certain Exceptions; U.S. Supreme Court Denies DOJ’s Request for Direct Review

02.27.2018

On February 13, 2018, Judge Nicholas Garaufis of the United States District Court for the Eastern District of New York issued a preliminary injunction in Batalla-Vidal v. Nielsen requiring the Department of Homeland Security (DHS) to maintain the Deferred Action for Childhood Arrivals (DACA) program with certain exceptions.  Like the January 9 injunction issued by a district court in the Northern District of California in Regents of the University of California v. DHS (see AALRR alert, dated January 19, 2018), the February 13 injunction requires DHS to maintain DACA on a nationwide basis on the same terms and conditions as were in effect before the program’s rescission on September 5, 2017.  The injunction temporarily remains in place until the matter is decided on the merits.

The scope of the February 13 injunction is similar to the order issued by Judge William Alsup on January 9: both injunctions allow DACA enrollees/recipients to renew their enrollments, including individuals whose DACA status has already expired. DHS, however, is not required to accept first-time DACA applicants. The New York district court clarified that DHS indisputably has the authority to end the DACA program; the question to be adjudicated is whether the agency offered legally adequate reasons for doing so.

Background
On September 5, 2017, DHS rescinded the DACA program and initiated the program’s phase-out.  Under its phase-out plan, DHS would process pending DACA initial requests accepted by United States Citizenship and Immigration Services (USCIS) as of September 5, 2017; pending DACA renewal requests accepted as of September 5, 2017; and pending DACA renewal requests from DACA recipients whose status was set to expire between September 5, 2017 and March 5, 2018 that were accepted by USCIS before October 5, 2017.

In response, federal lawsuits were filed by state attorneys general, among other litigants (DACA recipients, public institutions, and nonprofit organizations) challenging the rescission of the DACA program on a number of grounds, including that the decision to rescind DACA violated the Administrative Procedure Act (APA) (5 U.S.C. §§ 551 et seq.).

Judge Garaufis’s February 13 order noted that Congress passed the APA “to ensure that government agencies follow constraints even as they exercise their powers,” and highlighted that “[o]ne of these constraints is the duty of agencies to find and formulate policies that can be justified by neutral principles.” The district court explained that the APA authorizes parties harmed by federal agencies to obtain judicial review of agency decisions, and a reviewing court must set aside “action, findings, [or] conclusions that are among other things, arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The district court found the reasons advanced by DHS for rescinding the DACA program were erroneous, specifically that the DACA program was unconstitutional and violated the APA and the Immigration and Nationality Act (8 U.S.C. § 1101 et seq.) and that the courts had recognized “constitutional defects” in the somewhat analogous Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) program.  The district court also concluded that the decision reached by DHS to rescind DACA appeared to be internally contradictory in that the federal government’s chosen means for “winding down” DACA (by continuing to adjudicate certain DACA renewal applications) cannot be reconciled with its stated rationale for ending the program (that DACA was unconstitutional).

Does the February 13 Court Order Reinstate DACA?
No. The district court in New York stated that the scope of the February 13 preliminary injunction conformed to the injunction issued by the District Court for the Northern District of California on January 9. Thus, both orders grant a nationwide stay on the rescission of DACA and require DHS to continue processing DACA renewal requests under the same terms and conditions that applied before the 2017 rescission of the program, subject to specified limitations. The advance parole feature, which allowed DACA recipients to travel outside of the United States and return lawfully, was eliminated, and new applications from persons who have never received deferred action need not be processed. (See AALRR alert, dated January 19, 2018.)

Does the February 13 Court Order Resolve the Debate over DACA?
The February 13 decision does not resolve the debate surrounding DACA. The district court was careful to state that the order (1) is not a ruling that rescission of DACA was unlawful; (2) does not hold that DHS may not rescind DACA; (3) does not require DHS to grant any particular DACA applications or renewal requests; and (4) does not prevent DHS from revoking individual DACA recipients’ deferred action or work authorization. Thus, the order leaves the status of the DACA program essentially unchanged since the January 9 preliminary injunction.

Evolving Legal Battles Ahead
On January 16, 2018, the U.S. Department of Justice (DOJ) appealed to the U.S. Court of Appeals for the Ninth Circuit to review the January 9 preliminary injunction. Additionally, in a relatively rare action, the DOJ filed a petition for a writ of certiorari before judgment, seeking direct review of the January 9 ruling by the U.S. Supreme Court even before the Ninth Circuit hears the matter. On February 26, 2018, the U.S. Supreme Court denied without prejudice the federal government’s extraordinary request and noted it “was assumed that the Court of Appeals will proceed expeditiously to decide this case.” For now, the nationwide injunctions issued by the district courts in New York and California remain in effect.  

AALRR will continue to monitor closely and keep you advised of any judicial developments as this matter works its way through our federal appellate courts. We will also keep you informed of any federal legislation or actions taken by the White House that impact the DACA program or its recipients.


This AALRR publication is intended for informational purposes only and should not be relied upon in reaching a conclusion in a particular area of law. Applicability of the legal principles discussed may differ substantially in individual situations. Receipt of this or any other AALRR publication does not create an attorney-client relationship. The Firm is not responsible for inadvertent errors that may occur in the publishing process. ©2018 Atkinson, Andelson, Loya, Ruud & Romo.

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