Top of the Ninth: Part two: DACA

This past week, the Ninth Circuit upheld a nationwide injunction enjoining the Trump Administration from rescinding DACA for current DACA holders. On November 5, 2018, the Trump Administration went to the Supreme Court and asked for “cert before judgment” a procedure where the Supreme Court decides a case before the circuit courts have decided the issue. But now the Supreme Court will be able to take up this case using normal procedure, because the Ninth Circuit has issued its decision upholding the lower court’s ruling enjoining the recession of DACA. Of course, the Supreme Court might decide to let the Ninth Circuit holding stand and not grant cert; or, the government might ask for rehearing en banc and not go to the Supreme Court. Anything can happen!

The Ninth Circuit frames its decision in a very interesting way. It starts by talking about Dulce Garcia, one of the named plaintiffs in the lawsuit. Ms. Garcia’s parents brought her to the United States when she was a young child. The family struggled and was, at times, homeless. But Ms. Garcia was an excellent student and managed to put herself through law school. According to the decision, Ms. Garcia maintains a thriving legal practice in San Diego where she represents members of underserved communities in civil, criminal and immigration matters. The Ninth Circuit then discusses the implementation of DACA: “Recognizing the cruelty and wastefulness of deporting young people to countries with which they have no ties, the Secretary of Homeland Security announced a policy in 2012 that would provide relief to individuals like Garcia, while allowing our communities to continue to benefit from their contributions.” U.C. Regents v. US DHS, No. 18-15068, slip op. at *21 (9th Cir. Nov. 8, 2018). So, we know where the judges’ sympathies lie. The Ninth Circuit noted that after Trump Administration was sworn in, the Acting Secretary of Homeland Security, upon the legal advice of the Attorney General, determined that DACA was illegal from its inception, and so could no longer continue in effect. The government adopted the position that its fundamentally legal determination that DACA is unlawful is unreviewable by the judicial branch. Have these people never raised children? Don’t they know that the one sure-fire way to get anyone to do the opposite of what you want is to flat out tell them that they cannot do it? Needless to say, the Ninth Circuit took the dare, and made quick work of the non-reviewability issue. I just love this language, so I am going to quote it in full:

With due respect for the Executive Branch, we disagree. The government may not simultaneously both assert that its actions are legally compelled, based on its interpretation of the law, and avoid review of that assertion by the judicial branch, whose “province and duty” it is “to say what the law is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). The government’s decision to rescind DACA is subject to judicial review. And, upon review, we conclude that plaintiffs are likely to succeed on their claim that the rescission of DACA—at least as justified on this record—is arbitrary, capricious, or otherwise not in accordance with law. We therefore affirm the district court’s grant of preliminary injunctive relief.

U.S. Regents, slip op. at 22. You can stop reading right now, because the rest of the post simply gives the reasoning of the Ninth Circuit. But the paragraph cited above is the take-away from this case.

For those of you who are still here, the Ninth Circuit starts its decision by discussing the history of deferred action. The Ninth Circuit notes that unlike most other forms of relief from deportation, deferred action is not expressly grounded in statute. Instead, it arises from the Executive’s inherent authority to allocate resources and to prioritize cases. Congress has historically recognized the existence of deferred action. In fact, official records of administrative discretion in immigration enforcement date back to the first general immigration statute in 1882. The Ninth then gives a recitation of the history of DACA rescission, memorably retelling how Texas Attorney General Ken Paxton wrote a letter to U.S. Attorney General Jeff Sessions threatening to sue the United States government by September 5, 2017, unless the Trump Administration rescinded DACA. What is wrong with these people???? Have they no soul?

On September 4, 2017, Sessions sent a letter to acting DHS Secretary Elaine Duke advising that DHS rescind DACA based on his legal opinion that DHS lacked legal authority to have created DACA in the first place. On September 5, 2017, (just in time to avoid the Texas lawsuit) Duke rescinded DACA. The plaintiffs sued. Now just to give you a sense of how many plaintiffs there are in this case, the list of counsel and of plaintiffs is eight pages long!! Usually, the list of counsel and plaintiffs is half a paragraph long. The cases were consolidated for review in the Northern District of California.

On October 17, 2017, the district court ordered the government to complete the administrative record. The government, rather than providing additional documents, petitioned for mandamus arguing that the legality of the rescission should stand, or fall based on the reasons and the record already provided. Both the District Court and the Ninth Circuit denied the petition for mandamus. The Ninth Circuit held, “We denied the mandamus petition, stating that “the notion that the head of a United States agency would decide to terminate a program giving legal protections to roughly 800,000 people based solely on 256 pages of publicly available documents is not credible, as the district court concluded.” In re United States, 875 F.3d 1200 (9^th Cir. 2017), cited with approval U.C. Regents, slip op. at *35. The government then petitioned the Supreme Court for the same mandamus relief. The Supreme Court did not reach the merits, but instead instructed the district court to rule on the government’s threshold arguments challenging reviewability of its rescission decision before requiring the government to provide additional documents. In re United States, 138 S. Ct. 443 (2017). As I said, the administrative record in this case is 256 pages, roughly three-quarters of which are three published judicial opinions from the Texas litigation. Hmm, I wonder why the government did not want to release its records…. I wonder if there were any records?

The district court granted a nationwide preliminary injunction holding that most of the plaintiffs had standing; that neither the APA nor the INA barred judicial review and found that the plaintiffs were likely to succeed on their claim that the decision to rescind DACA was arbitrary and capricious. In a separate order, the court dismissed the plaintiff’s notice and comment and regulatory flexibility claims; a due process claim premised on an entitlement to deferred action; and an equitable estoppel claim. The court also denied the motion as to the plaintiff’s equal protection claim and a due process claim premised on an alleged change in DHS’s information sharing policy. The district court certified the issues addressed in both its orders for interlocutory review. Both parties appealed.

Reviewability Under the APA

The Ninth Circuit noted that the APA provides for broad judicial review of agency action for a person suffering legal wrongs because of agency action. However, the APA forecloses judicial review for agency action committed to agency discretion under the law. This bar does not affect a plaintiff’s ability to bring constitutional claims. A plaintiff can always claim that the agency’s action is unconstitutional. In Heckler v. Chaney, 470 U.S. 821 (1985) the Supreme Court analyzed the issue considering the extent to which a decision of an administrative agency to exercise its discretion not to undertake enforcement actions is subject to judicial review. I hear about Chaney all the time, and frankly, I have no idea what this case is about. Fortunately, in U.C. Regents the Ninth Circuit provides a thumbnail sketch of the case. In Chaney the Commission of the Food and Drug Administration declined to take investigatory and enforcement action against state prison officials’ use of drugs, which had been FDA-approved for medical use, in human executions. The plaintiffs in the case (prisoners on death row) argued that using the drugs to execute humans was unlawful because the FDA had only approved the drugs for medical use and not for executions. The Supreme Court held that the FDA Commissioner’s discretionary decision not to enforce the Food, Drug, and Cosmetic Act against state prison officials was unreviewable under the APA. But in Chaney the Supreme Court explicitly left open the question of whether a refusal by an agency to institute proceedings based solely on the belief that it lacks jurisdiction might be reviewable. Several cases went back and forth to the Supreme Court and the final holding is this,

[W]here the agency’s decision is based not on an exercise of discretion, but instead on a belief that any alternative choice was foreclosed by law, the APA’s “committed to agency discretion” bar to reviewability, 5 U.S.C. § 701(a)(2) does not apply.

U.C. Regents, slip op. at *43. If the DHS Secretary’s decision to end DACA was based solely on the belief that the program was unlawful, the Chaney presumption of non-reviewability does not apply. The Ninth Circuit stated:

As Judge Bates of the District Court for the District of Columbia aptly put the point in confronting the very issue we face here, “an official cannot claim that the law ties her hands while at the same time denying the courts’ power to unbind her. She may escape political accountability or judicial review, but not both. NAACP v. Trump, 298 F.Supp. 3d 209, 249 (D.D.C. 2018).

U.C. Regents, slip op. at *47. Attorney General Sessions had stated in his letter to Acting Secretary Duke that DACA was effectuated without proper statutory authority and was an unconstitutional exercise of executive power. The district court and the Ninth Circuit found that the basis for rescission was because of the Attorney General’s and acting Secretary of DHS’s beliefs that DACA was unlawful. Therefore, under the APA, the courts have jurisdiction to review the rescission of DACA.

Jurisdiction Under the INA

The next issue was whether the courts have jurisdiction to review this case under the INA. The Ninth Circuit held that the jurisdiction stripping provisions of INA § 242(g) only apply to three discrete actions: the decision or action to commence proceedings, the decision to adjudicate cases, and the decision to execute removal orders. The Ninth Circuit held:

Except as provided in this section and notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to hear any cause or claim by or on behalf of any alien arising from the decision or action by the Attorney General to commence proceedings, adjudicate cases, or execute removal orders against any alien under this chapter.

INA § 242(g). This statute does not deprive the courts of jurisdiction to review the DACA rescission order. U.C. Regents, slip op. at *58.

Preliminary Injunction

Having determined that it has jurisdiction to review the case, the Ninth Circuit then looked at the merits of the preliminary injunction. The government only challenged the district court’s conclusions on one of the preliminary injunction factors: the likelihood of success on the merits. The Ninth Circuit analyzed the Fifth Circuit’s decision in striking down Deferred Action for Parents of Americans (DAPA) and distinguished DAPA from DACA. Texas v. United States, 809 F. 3d 134 (5th Cir. 2015). First, the Ninth Circuit noted that the Fifth Circuit found DHS was without authority to enact DAPA because Congress had directly addressed this precise issue by allowing parents of U.S. citizens to immigrate to the United States. However, Congress has not similarly occupied the field with DACA. Second, the Fifth Circuit held that the INA itself lists which classes of noncitizens can get deferred action including VAWA recipients, and family members of lawful permanent residents killed by terrorism. The Ninth Circuit held that it did not believe that this listing means that the executive branch is precluded from adding other groups of noncitizens who may qualify for deferred action. Third, DAPA would have made 4.3 million otherwise removable noncitizens eligible for employment authorization and associated benefits. The Fifth Circuit did not believe that Congress would have delegated a policy decision of such economic and political magnitude to an administrative agency. By contrast, DACA only had 689,800 enrollees as of September 2017.

The Ninth Circuit noted that the bottom line is that the agencies charged with immigration enforcement do not have the resources required to deport every single person present in this county without authorization. The Ninth cited the Memorandum from John Morton, Assistant Secretary, DHS Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens, at 1 (June 30 2010) (estimating that ICE has enough resources to deport only 4% of the undocumented population in any given year and concluding that ICE must prioritize the use of its resources to promote the agency’s enforcement priorities). U.C. Regents, slip op., at *68. As the Ninth Circuit put it:

In a world where the government can remove only a small percentage of the undocumented noncitizens present in this country in any year, deferred action programs like DACA enable DHS to devote much-needed resources to enforcement priorities such as threats to national security, rather than blameless and economically productive young people with clean criminal records.

U.C. Regents, slip op. at *69. The Ninth Circuit concluded that DACA was a permissible exercise of executive discretion, despite the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s statutory authority. The Ninth Circuit held:

To be clear: we do not hold that DACA could not be rescinded as an exercise of Executive Branch discretion. We hold only that here, where the Executive did not make a discretionary choice to end DACA—but rather acted based on an erroneous view of what the law required—the rescission was arbitrary and capricious under settled law. The government is, as always, free to reexamine its policy choices, so long as doing so does not violate an injunction or any freestanding statutory or constitutional protection.

U.C. Regents, slip op. at *70.

Appropriate Remedy

Having concluded that the district court was correct on the APA merits holding, the Ninth Circuit now turned its attention to crafting the appropriate remedy. The general rule is that the scope of the preliminary injunction should be no more burdensome to the defendant than necessary to provide complete relief to the plaintiffs. The government wanted the scope of the injunction limited to the Ninth Circuit at the most. The Ninth Circuit noted that where there is an arbitrary and capricious challenge under the APA the ordinary result is that the rules are vacated; not that their application to the individual petitioners is proscribed. Moreover, there is a need for uniformity in immigration policy, so a nationwide injunction was necessary for relief.

District Court’s Treatment of the Government’s Motion to Dismiss for Failure to State a Claim

APA: Arbitrary and Capricious

The district court was correct to deny the government’s motion to dismiss the plaintiffs’ claim that DACA rescission was arbitrary and capricious under the APA.

APA: Notice and Comment

The district court was correct to dismiss the plaintiffs’ claim that rescission of DACA could not be validly accomplished without notice and comment procedures. The Ninth Circuit noted that DACA itself was excluded from the APA’s requirement of notice and comment procedures because it constituted a general statement of policy. General statements of policy are those which advise the public prospectively of how an agency proposes to exercise a discretionary power. Since DACA itself did not need notice and comment, similarly rescission of DACA does not need notice and comment.

Due Process: Deferred Action

The Garcia plaintiffs (individual DACA recipients) brought a substantive due process claim alleging that rescission deprived them of protected interests in their DACA designation, including renewal of benefits. The district court dismissed this claim holding that there is no protected entitled in either the initial grant of deferred action under DACA or the renewal of benefits for existing DACA enrollees. The Ninth Circuit sustained the district court’s holding finding that no mutually explicit understandings existed between the government and DACA recipients for the renewal of DACA benefits. While the Ninth Circuit agreed that ending the program was cruel, they did not believe that they have plausibly alleged a mutually explicit understanding regarding DACA.

Due Process: Information Sharing

The district court found, and the Ninth Circuit agreed that the plaintiffs had a protected interest based on the government’s representations that the personal information that they submitted with their DACA applications would not be used for enforcement purposes. The government violated this interest by changing its policy to allow this use. The plaintiffs plausibly alleged that DHS changed its policy about information sharing for enforcement purposes. In fact, the Ninth Circuit cited George Orwell, Nineteen Eighty-Four, to highlight the agency’s double-speak. However, to establish a substantive due process claim, the plaintiffs must allege conduct that “shock[s] the conscience and offend[s] the community’s sense of fair play and decency.” U.C. Regents, slip op. at *85 (citations omitted).

Equal Protection Claims

The district court held, and the Ninth Circuit agreed that the plaintiffs stated a viable equal protection claim by plausibly alleging that DACA rescission disproportionately affected Latinos and individuals of Mexican descent and was motivated by discriminatory animus. The Ninth Circuit noted that 93% of DACA recipients are of either Latino or Mexican heritage. The complaints allege a history of animus toward persons of Hispanic descent evidence by both pre-presidential and post-presidential statements by President Trump. In one of my favorite parts of all decisions on Trump’s animus, the Ninth Circuit cited some of the president’s tweets. The plaintiffs provide evidence of discriminatory motivation and the rescission order’s disparate effect on Latinos and on persons of Mexican heritage.

The Ninth Circuit ends the decision with this observation:

The Executive wields awesome power in the enforcement of our nation’s immigration laws. Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public. Whether Dulce Garcia and the hundreds of thousands of other young dreamers like her may continue to live productively in the only country they have ever known is, ultimately, a choice for the political branches of our constitutional government. With the power to make that choice, however, must come accountability for the consequences.

U.C. Regents, slip op. at *90.

Judge Owens concurred in part and dissented in part holding that he believed that the plaintiffs’ Equal Protection Claim had some likelihood of success on the merits. Judge Owens dissented from the majority’s holding to affirm the district court’s denial of the motion to dismiss the Plaintiffs’ APA arbitrary and capricious claim. He concurred with their decision to affirm the district court’s dismissal of the Plaintiffs’ APA notice and comment claim. He concurred in judgment to affirm the district court’s ruling on the Plaintiffs’ due process claims. Finally, he agreed with the majority’s decision to affirm the Equal Protection claim. Judge Owens would have issued a broader decision. If you are interested in reading the entire 99-page decision, please click on the link below.

U.C. Regents v. US DHS, No. 18-15068 (9th Cir. Nov. 8, 2018).

If you have any comments about the blog, please contact me at mkahn@immigration-defense.com. I look forward to hearing from you.

Please refer to part one of this week’s blog here.