District Court Enjoins DACA Phase-Out: Explanation and Takeaways

District Court Enjoins DACA Phase-Out: Explanation and Takeaways

Legal Sidebari

District Court Enjoins DACA Phase-Out:
Explanation and Takeaways
Updated April 26, 2018
Update 2: On April 24, 2018, a federal district court in the District of Columbia held that the rescission
of the Deferred Action for Childhood Arrivals initiative (DACA) violates the Administrative Procedure
Act (APA). The decision, NAACP v. Trump, grants permanent relief that differs from the nationwide
preliminary injunctions granted by district courts in the Northern District of California and the Eastern
District of New York (both analyzed below). Specifically, the NAACP court decided to vacate the DACA
rescission and remand it to the Department of Homeland Security (DHS), the agency responsible for
administering DACA, because the legal reasoning that formed the basis for the rescission was “scant”
and “barebones.” But the district court stayed the vacatur order for 90 days to give DHS “an opportunity
to better explain its rescission decision.”
For the time being, therefore, NAACP does not change the current availability of DACA relief: the
preliminary injunctions issued by the other two district courts continue to require DHS to process DACA
renewal applications but not initial applications. However, if the NAACP vacatur order goes into effect at
the end of the 90-day stay—that is, if DHS does not supply new reasoning that adequately justifies, in the
district court’s opinion, the rescission of DACA—the order will require DHS to process both initial and
renewal applications. The NAACP court expressed doubt as to whether DHS will be able to provide an
adequate justification. The court noted that Trump Administration officials have shown support for the
policy of protecting childhood arrivals from removal, which the court took to suggest “that [DHS] would
not have rescinded DACA but for its supposed illegality.” Further, the court noted that at least one other
federal district court ruling in the District of Columbia had suggested that DACA is not illegal.
Meanwhile, with respect to the other DACA litigation discussed in the Sidebar below, the U.S. Court of
Appeals for the Ninth Circuit is scheduled to hear oral argument in the government’s expedited appeal in
the Northern District of California case on May 15, 2018. An expedited appeal is also pending before the
Second Circuit in the Eastern District of New York case; the appellate docket (No. 18-485) suggests that
the Second Circuit will hear oral argument in late June 2018.
Update 1 (March 7, 2018): Following the publication of this Sidebar, additional developments have
arisen that affect the Trump Administration’s planned phase-out of the DACA program. On February 13,
2018, the U.S. District Court for the Eastern District of New York became the second federal district
court to issue a nationwide preliminary injunction limiting the DACA phase-out to aliens who have not
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yet obtained DACA benefits. The district court’s injunction mirrors the nationwide injunction issued by
the U.S. District Court for the Northern District of California that is discussed in this Sidebar, and the
reasoning behind each injunction was largely similar. Both courts held that plaintiffs were likely to
succeed on the merits of their claims under the Administrative Procedure Act that DHS’s decision to end
DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”
On March 5, 2018, a federal district court in Maryland, in considering yet another lawsuit challenging
the planned rescission of DACA, ruled primarily in DHS’s favor and held that the rescission does not
violate the Administrative Procedure Act or the Constitution. That holding does not impact the two
nationwide injunctions mentioned above, which continue to prohibit DHS from implementing the DACA
rescission in most respects. However, the Maryland federal district court imposed a new restriction on
DHS by enjoining it “from using information provided by [applicants] through the DACA program for
enforcement purposes.” Should DHS seek to use an individual DACA applicant’s information for an
enforcement purpose implicating “national security . . . public safety or public interest,” the injunction
requires DHS to “petition the Court for permission to do so on a case-by-case basis with in camera
review.”
The Department of Justice has been unsuccessful in efforts to bring about a speedy resolution to the
litigation surrounding the DACA phase-out. In addition to filing appeals with the relevant federal courts
of appeals challenging the California and New York injunctions, the Department of Justice petitioned for
Supreme Court review of the California federal district court’s decision (at the time of the petition,
neither the New York nor Maryland injunctions had been issued). On February 26, 2018, the Supreme
Court denied the petition, stating that “[i]t is assumed that the Court of Appeals will proceed
expeditiously to decide this case.” The two nationwide injunctions halting the phase-out of DACA with
respect to persons who have already obtained relief under the initiative will remain in place while the
litigation continues in the federal courts of appeals, unless the Supreme Court or the courts of appeals
order otherwise.
The original post from January 11, 2018, is below.
Since the Trump Administration announced in September 2017 a phase-out of the Deferred Action for
Childhood Arrivals (DACA) initiative, a number of lawsuits have been brought challenging the action as
unconstitutional or contrary to federal laws governing agency rulemaking procedures. The Obama
Administration implemented DACA in 2012 to provide work authorization and administrative relief from
immigration enforcement action to certain unlawfully present aliens who entered the United States as
children. The Trump Administration, however, has taken the position that the Immigration and Nationality
Act (INA) does not authorize DACA and the initiative is not a valid exercise of the Executive’s
independent constitutional authority. On January 9, 2018, the U.S. District Court for the Northern District
of California issued a nationwide preliminary injunction in the case of Regents of University of California
v. U.S. Department of Homeland Security limiting the DACA phase-out to aliens not yet enrolled in
DACA. The decision, which seems likely to be appealed by the Trump Administration, may have
immediate consequences for the disposition of current DACA enrollees and, potentially, broader
consequences regarding the permissibility of the large-scale use of deferred action with respect to
unlawfully present aliens.
Under the Administrative Procedure Act, a court may set aside executive actions that are “arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with law.” Having determined that the
Administration’s decision to phase out DACA was subject to judicial review, the district court reasoned
the plaintiffs were likely to succeed on their APA claim. The district court concluded that the Trump
Administration’s proffered initial reason for ending DACA was not based on a change in policy
preference but instead was grounded upon what the court viewed as a mistaken legal conclusion: the
Administration believed that DACA could not be supported by the Executive’s constitutional and existing
statutory powers, but the district court concluded otherwise.

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In ruling that DACA was a lawful exercise of executive authority, the district court relied heavily on a
2014 legal opinion of the Department of Justice’s Office of Legal Counsel (OLC) included in the
administrative record. That OLC opinion characterized certain kinds of large-scale deferred action
initiatives including DACA as consistent with longstanding executive policies that were (1) premised on
authorities expressly or impliedly granted by Congress; (2) never formally disapproved by Congress,
despite the Executive’s use of deferred action for many decades (albeit to address a more limited
population than covered by DACA); and (3) supported by language in Supreme Court opinions
recognizing a broad degree of discretion given to the Executive in enforcing immigration laws. In 2015,
the U.S. Court of Appeals for the Fifth Circuit ruled that the Obama Administration’s intended 2014
expansion of DACA to additional persons, along with the creation of a new programmatic deferred action
initiative for unlawfully present alien parents of U.S. citizens or lawful permanent residents, was
unlawful. Specifically, the Fifth Circuit reasoned that the “specific and intricate” INA provisions
concerning immigration classifications and work authorization precluded broad-based deferred action
initiatives akin those at issue in the litigation. Ultimately, an equally divided Supreme Court affirmed that
ruling without issuing an opinion. However, the California district court reasoned that the 2014 deferred
action initiatives struck down by the Fifth Circuit were sufficiently distinct in terms of their tether to
governing immigration statutes and their scope of coverage, so that the judicial decision did not provide
adequate grounds for the Trump Administration to view the 2012 DACA initiative as unlawful. The
district court also rejected a related justification raised by the government concerning the potential
litigation costs associated with the program as an impermissible and unpersuasive ad hoc justification.
While DACA does not provide enrolled aliens with legal immigration status, enrollees have been granted
certain relief from immigration enforcement action and, generally, work authorization for renewable two-
year periods. The district court injunction provides that aliens enrolled in DACA may seek renewal of
DACA coverage once their current coverage period ends. The injunction does not bar the executive
branch from ending DACA eligibility for those aliens who had never before enrolled in DACA. The
injunction also does not prevent the Executive from limiting the exercise of advance parole that would
otherwise enable DACA enrollees traveling abroad to return to the United States, notwithstanding their
lack of legal immigration status.
A more detailed discussion of the issues raised by the DACA litigation may be the subject of future CRS
products, but the district court’s ruling has a few immediate takeaways. Some observers have criticized
the district court’s reasoning, contending among other things that the district court failed to apply the
correct standard of review when considering an APA challenge to the DACA phase-out. The merits of
such arguments seem likely to be considered on appeal. But absent further judicial action in favor of the
government’s position, the status quo for current DACA enrollees largely remains unchanged: once their
current period of DACA relief expires, they are allowed to seek renewal of their enrollment. Some
observers have suggested the preliminary injunction may have implications for ongoing federal budget
negotiations, for which the status of DACA recipients has been a point of contention. Regardless of
whether Congress and the President ultimately agree on legislation addressing DACA recipients’ status,
the district court ruling, while recognizing possible limitations to the scope of permissible deferred action
initiatives, arguably represents the strongest judicial opinion recognizing the lawfulness of employing
deferred action in a large-scale, programmatic fashion to aliens without legal immigration status.
Regardless of whether legislation is enacted to specifically address DACA and its enrollees, the district
court opinion might be cited in legal support of future deferred action initiatives by the executive branch.
Accordingly, the ultimate disposition of the DACA litigation, including whether the district court’s
reasoning is endorsed or rejected on appeal, could have wide-reaching implications for the use of deferred
action.
For more detailed explanation of DACA and recent activities relating to it, see CRS Report R44764,
Deferred Action for Childhood Arrivals (DACA): Frequently Asked Questions, by Andorra Bruno and

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CRS Legal Sidebar LSB10052, UPDATE: The End of the Deferred Action for Childhood Arrivals
Program: Some Immediate Takeaways, by Hillel R. Smith.

Author Information

Hillel R. Smith, Coordinator
Ben Harrington, Coordinator
Legislative Attorney
Legislative Attorney

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