Department of Homeland Security v. Regents of the University of California

JUDICIAL REVIEWABILITY OF DHS’S RESCISSION OF DACA

Petitioners DHS and others (the “government”) argue that DHS’s policy decision is not reviewable under the APA’s arbitrary-and-capricious standard. First, the government argues that, under the APA, agency action is unreviewable where the agency’s actions are “committed to agency discretion by law.” According to the government, a policy choice to retain or abandon a nonenforcement policy falls into this category because it entails consideration of multiple factors within the agency’s discretion. The government argues that the text of the INA also precludes judicial review. In particular, the government reads the INA to shield DHS’s discretionary determinations from judicial review unless the determinations are contained in a final removal order. The government contends that DHS’s decision to rescind a policy is not a final order that affects an individual’s removal status, and if an adverse final order is issued because of DACA’s rescission, an individual has the opportunity to then seek judicial review.

Second, the government disagrees with the lower courts’ holding that DHS’s action rested exclusively on the legal determination that DACA was unlawful and, therefore, was subject to judicial review. In particular, the government offers the justifications provided in the Duke Memorandum about Duke’s concerns for the “litigation risk” and argues that there was an independent policy justification for DHS’s decision. Similarly, the government points to a memorandum issued on June 22, 2018 by DHS Secretary Kirstjen Nielsen (“Nielsen Memorandum”), which also explained why DACA should be rescinded. In particular, the government argues that the Nielsen Memorandum’s statement—declaring that DACA’s rescission allowed DHS to “project a message” about the enforcement of U.S. immigration law—provides another independent policy justification. Ultimately, the government argues that even if DHS made legal conclusions on the lawfulness of DACA, where an agency’s decision is presumptively unreviewable, it does not become reviewable because of the agency’s rationale for its action.

Respondents the Regents of the University of California and others (“Regents”) counter that the APA does not preclude judicial review. In particular, the Regents argue that the government’s arguments do not defeat the strong presumption in favor of judicial review, especially because the explanation provided in the Duke Memorandum for the rescission of DACA is an entirely legal one. The Regents contend that DHS’s conclusion that its action was necessitated by law is not an exercise of discretion, but rather a determination that the agency lacked any discretion. Further, Respondents the National Association for the Advancement of Colored People and others (“D.C. Respondents”) argue that, unlike case-by-case decisions made in individual petitions about whether or not to act, changes in broad policies, like the one DHS made, “dramatically alter[] the status quo” and raise different concerns. In response to the government’s reliance on the INA, Respondents the States of California and others (“California and other states”) argue that the INA precludes judicial review in only three limited exceptions: commencing proceedings, adjudicating cases, and executing a removal; none of which apply in DHS’s rescission of DACA.

Respondents the DACA recipients (“DACA Recipients”) argue that different from other executive decisions of prosecutorial discretion, congressional statutes and agency regulations “have added benefits that flow from deferred action,” such as providing work authorization. They argue that because DACA triggers a change in eligibility for federal benefits, DHS’s decision to rescind DACA is more than a discretionary nonenforcement decision—it constitutes the government’s exercise of coercive power over individuals. Therefore, DACA Recipients contend that DHS’s act of rescinding DACA is a reviewable agency action.

LEGALITY OF DACA’S RESCISSION UNDER THE APA

The government argues that, if the agency’s action is reviewable, then DHS’s rescission did not violate the APA because the agency’s decision was not “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law.” The government argues that DHS’s policy decision was reasonable because DHS believed that DACA was likely unlawful and because DHS was concerned about a growing litigation risk if the policy continued. The government also contends that there were other reasonable policy determinations behind the rescission as outlined in the Nielsen Memorandum: first, a “broad-based and controversial” policy like DACA should come from Congress instead of through agency action; second, because agencies have the ability to exercise prosecutorial discretion on an individualized, case-by-case basis and the Secretary of Homeland Security determined DACA was not enforced on a case-by-case basis, DHS should not utilize DACA; third, DACA projects a message of nonenforcement of immigration laws; and fourth, the Secretary of Homeland Security adequately weighed the reliance interests of the individual DACA recipients by permitting existing DACA recipients to avail of their present two-year term and also seek renewal for an additional two years within a limited window. Finally, the government argues that DHS’s decision to rescind DACA was reasonable because DACA is unlawful. The government contends that DHS does not have the authority to implement categorical deferred action policies, and DACA—especially because of its economic and political significance—goes beyond the gap-filling policies that DHS has the authority to implement.

In response, the Regents argue that DHS’s decision was arbitrary and capricious because DHS failed to meaningfully examine all data and provide a “satisfactory explanation” of its action. Specifically, the Regents point to the one-sentence rationale set out in the Duke Memorandum which cited to three sources. The Regents argue that the three sources failed to explain DHS’s decision. DACA Recipients argue that the administrative record is scant and does not demonstrate a meaningful consideration to justify agency action, making DHS’s action arbitrary and capricious. Further, DACA Recipients reject the rationale based in the Nielsen Memorandum, including the litigation-risk rationale, because the Nielsen Memorandum represents the type of “post hoc rationalization” that an agency cannot rely on to justify its decisions. Responding to the government’s argument about DACA’s lawfulness, the Regents argue that the Supreme Court should not even decide this issue. However, if the Supreme Court does go on to decide, the Regents argue, DACA is lawful because it is consistent with historical practices and because Congress has recognized this authority in various statutes. The Regents also explain that DACA does not assure individuals that deferred actions will be granted, but instead it creates a framework for immigration officials to make case-by-case determination about deferred actions for each individual.

DACA’S RESCISSION AND EQUAL PROTECTION

The government argues that its decision to rescind DACA does not violate equal protection. The government first argues that such claims are not cognizable, especially because DHS made a facially neutral policy about prosecutorial discretion. The government argues that here, respondents did not adequately plead their claim because: first, rescinding DACA did not create a disparate impact on a particular ethnic group; second, President Trump’s statements are irrelevant to show discriminatory animus because the relevant decisionmakers were Acting Secretary Duke and Secretary Nielsen; and third, there was nothing unusual about DACA’s rescission or the timing of the policy change to indicate a discriminatory motivation in changing the policy. Additionally, the government argues that the court is not well-suited to consider the motivation behind discretionary enforcement in immigration decisions.

In response, Respondents the State of New York and others (“New York and other states”) argue that they adequately stated their claim that DHS’s rescission was motivated by discriminatory animus and had a discriminatory effect on Latinos from Mexico. New York and other states argue that they sufficiently met the pleading standard that DHS’s actions raised a “plausible inference” that a “motivating factor” in its decision was an “invidious discriminatory purpose.” In particular, New York and other states argue that of the 1,400 individuals DACA’s rescission would impact each day, 1,100 of those individuals are Latinos from Mexico. Additionally, New York and other states argue that DHS’s lack of consideration about data and abrupt policy change raise an inference of discriminatory intent. Finally, they argue that at the pleading stage, President Trump’s statements about immigrants from Mexico are sufficient to raise an inference of discriminatory animus, especially in light of the President’s power over Acting Secretary Duke and Secretary Nielsen, who are subordinate Executive officials.