CLIENT ALERT
By: Deniz Harrison
July 10, 2020
On June 18, 2020, in a 5-4 decision written by Chief Justice Roberts, the United States Supreme Court held that the Department of Homeland Security’s (“DHS”) attempt to rescind the Deferred Action for Childhood Arrivals (“DACA”) immigration relief program was unlawful because it failed to provide an adequate explanation for ending the program.
Background
DACA, implemented by the Obama administration in 2012, is an immigration program that allows some individuals who are unlawfully in the United Stated and were brought to the country as children to receive a renewable two-year period of deferred action from deportation and become eligible for a work permit in the U.S. In 2014, DHS expanded DACA eligibility by creating a related program called Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) that would have made 4.3 million parents of US citizens of lawful permanent residents eligible for the same forbearance from removal, work eligibility, and other benefits as DACA recipients.
In June 2017, however, under the Trump administration, DHS rescinded the DAPA Memorandum. In September 2017, the Attorney General advised DHS that DACA should also be rescinded. The next day, DHS terminated the DACA program. DHS’s rescission of the DACA program was challenged as arbitrary and capricious and in violation of the Administrative Procedure Act (“APA”), and infringed on the equal protection guarantee of the Fifth Amendment’s Due Process Clause.
Proponents of the DACA program lodged actions against the rescission of the program. Multiple district courts took up the cases and ruled against DHS’s rescission of DACA. In one case, the United States District Court for the District of Columbia deferred ruling on the equal protection challenge but granted partial summary judgment to the plaintiffs on their APA claim, finding rescission was inadequately explained. The District Court then stayed its order for 90 days to permit DHS to reissue a memorandum rescinding DACA with a fuller explanation. However, two months later, rather than follow the District Court’s guidance, the DHS declined to disturb or replace the rescission decision and instead explained why it concluded that decision was sound. The District Court ruled that the new reasoning failed to elaborate meaningfully on the rationale.
The Government appealed the various decisions to the Second, Ninth, and D.C. Circuits, respectively. While those appeals were pending, the Government submitted three petitions for certiorari before judgment. Following the Ninth Circuit’s affirmance of the lower court’s ruling that the DACA rescission was unlawful, the Supreme Court granted certiorari.
Outcome
The Supreme Court ultimately held that DHS did not provide adequate explanation for the rescission of DACA and that DHS failed to consider the hardship that program rescission would impose on DACA beneficiaries.
Analysis
The APA sets forth the procedures under which federal agencies are held accountable to the public and their actions are subject to review by the courts. One requirement under the APA is that federal agencies engage in reasoned analysis. If an agency’s decision is deemed arbitrary or capricious then it may be set aside.
In its analysis, the Court found that by failing to consider the option to retain deferred action (whereby applicants seeks to obtain work authorization during the two year period in which their potential removal is under review) the DHS failed to provide the reasoned analysis required under the APA. This defect made the DHS’s decision arbitrary and capricious.
Similarly, DHS’s decision to rescind DACA failed to address whether there was legitimate reliance on the DACA Memorandum. Under the APA, when an agency changes course, it must consider the interests of those who have come to rely on a previous policy. While the agency is not required to make accommodations to address that reliance, it must at least assess the “existence and strength” of reliance interests and weigh those interests against competing concerns. Here, the Court found that DHS failed to consider the reliance interests of those who relied on DACA and weigh them against competing policy concerns. Accordingly, failure to address legitimate reliance also rendered DHS’s decision arbitrary and capricious.
Significantly, the Court did not address the legality or constitutionality of the DACA program itself. Therefore, it is still possible and remains to be seen whether the DACA program may be challenged through other efforts.