DACA: Litigation Status Update
Legal Sidebari
DACA: Litigation Status Update
November 14, 2018
This Legal Sidebar provides a status update for various lawsuits concerning the Deferred Action for
Childhood Arrivals initiative (DACA) and the decision by the Department of Homeland Security (DHS)
to rescind that initiative.
As things currently stand under federal court orders in three cases, DHS must process
applications for DACA relief from individuals who have obtained DACA relief in the
past, but not from individuals who would be first-time DACA enrollees.
This status quo likely will remain in place at least until the Supreme Court issues a
decision in one of the cases. The High Court has yet to grant review in any of the three
cases. Assuming the Court does grant review in at least one case, it probably would not
issue a definitive ruling until late spring or early summer of 2019 at the earliest.
An earlier Legal Sidebar analyzed some of the primary legal issues in the lawsuits. Future CRS products
may supplement that analysis to address subsequent court decisions and other legal developments.
Litigation Overview
On September 5, 2017, the Department of Homeland Security (DHS) issued a memorandum announcing
its decision to rescind DACA, which the Obama Administration implemented in 2012 to provide
temporary relief from removal and work authorization, among other benefits, to certain unlawfully
present aliens who arrived in the United States as children. As justification for the rescission, DHS relied
upon a letter from then-Attorney General Sessions concluding that DACA was illegal—specifically, that it
lacked “proper statutory authority,” was “an unconstitutional exercise of authority by the Executive
Branch,” and would likely be enjoined in “potentially imminent litigation.”
Following this announcement, litigation ensued at cross purposes. DACA recipients and other parties,
including states and universities, filed lawsuits in four federal district courts challenging the rescission as
unlawful. Two of those district courts have issued nationwide preliminary injunctions that currently
require DHS to continue processing applications for DACA relief from individuals who have obtained
DACA relief in the past (renewal applicants), but not applications from individuals who would be first-
time DACA enrollees. The U.S. Court of Appeals for the Ninth Circuit upheld one of those injunctions on
November 8, 2018; the government’s appeal of the other injunction is pending before the Second Circuit.
The order of a third district court would require DHS to process both first-time and renewal applications
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for DACA relief, but the district court has stayed the relief for first-time applicants pending the outcome
of the government’s appeal to the D.C. Circuit. Thus, DHS currently must process applications for DACA
relief only from individuals who have obtained DACA relief in the past.
Even if the government wins its appeals in the Second and D.C. Circuits, the preliminary injunction
affirmed by the Ninth Circuit would preserve this status quo (barring legislative action or a rehearing in
the Ninth Circuit). Thus, the status quo will likely remain in place at least until the Supreme Court issues
a decision in one of the rescission cases, which could occur in late spring or early summer of 2019 if the
Court agrees to hear an appeal of one of the cases. In an effort to ensure Supreme Court review before the
Court’s current term ends in June 2019, the government filed petitions on November 5, 2018, asking the
Court to grant certiorari before judgment in all three cases. Supreme Court rules provide that such
petitions will be granted only in cases of “imperative public importance,” and the Supreme Court already
rejected one earlier government petition that sought review before judgment in the Ninth Circuit case.
Now that the Ninth Circuit has issued its decision, however, the government will likely file a reformulated
certiorari petition, and it is possible the government could obtain Supreme Court review in that case
before the end of the current term.
On the flip side, Texas and six other states filed a separate lawsuit arguing that DACA is unlawful and
seeking to bar DHS from continuing to grant DACA relief. The case is before a federal district judge in
Texas who in 2015 barred the Obama Administration from implementing both an expansion of DACA’s
coverage and a different deferred action initiative—the Deferred Action for Parents of Americans and
Lawful Permanent Residents initiative (DAPA)—which would have protected certain unlawfully present
aliens with U.S. citizen or lawful permanent resident children. (The Fifth Circuit upheld that district court
ruling, and an equally divided, eight-member Supreme Court affirmed without opinion in June 2016). On
August 31, 2018, the district court held that the states were likely to succeed on the merits of their claims.
But the court declined to issue a preliminary injunction barring DHS from continuing to grant DACA
relief because, in the court’s view, neither public nor private interests favor a preliminary injunction
against an initiative that is now six years old. Still, given its positive assessment of the merits of the
states’ claims, the court may well grant the states permanent injunctive relief against DACA when the
case is ready for final resolution. It is difficult to estimate when the case could reach that stage. The
district court contemplated in one order that the case could require an “expensive” trial that will come
only after a “protracted delay.”
Collectively, the lawsuits to preserve DACA and to force its termination raise the related issues of
whether DHS offered an adequate justification for the DACA rescission and whether DHS lacks, as
former Attorney General Sessions concluded, statutory and constitutional authority to administer DACA.
Enactment of statutory protections for certain childhood arrivals would likely moot the lawsuits in
substantial part or entirely, but a range of legislative proposals to this effect—including those considered
during open debate on the Senate floor in February 2018 in the wake of a government shutdown over the
childhood arrivals issue—have not resulted in new law. According to some reports, Members of the 115th
Congress continue to discuss similar proposals.
Tables of Ongoing Cases
Cases Challenging DACA Rescission
Case
Federal
Relief Granted
Status (including judicial
District Court
developments as of the
date of this Sidebar)
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Regents of the
Northern
Jan. 9, 2018: Nationwide preliminary
The Ninth Circuit affirmed
University of
District of
injunction requiring DHS to continue
the preliminary injunction
California v.
California
processing DACA renewal
on November 8, 2018.
DHS, No. C
(N.D. Cal.)
applications.
Three days earlier, on
17-05211
November 5, the
WHA
government petitioned the
Supreme Court to grant
certiorari before judgment
by the circuit court.
Batalla Vidal v. Eastern District Feb. 13, 2018: Nationwide preliminary DHS appeal pending before
Nielsen, 16-
of New York
injunction requiring DHS to continue
the Second Circuit. The
CV-4756
(E.D.N.Y.)
processing DACA renewal
docket shows a proposed
(NGG) (JO)
applications.
oral argument date for the
week of January 22, 2019.
On November 5, the
government filed a petition
asking the Supreme Court
to grant certiorari before
judgment by the circuit
court.
Casa de
District of
March 5, 2018: The court ruled
Cross-appeals pending
Maryland v.
Maryland (D.
primarily in DHS’s favor, denying
before the Fourth Circuit.
DHS, RWT-17-
Md.)
plaintiffs’ request for a preliminary
Oral argument is set for
2942
injunction against the DACA phase-out December 11, 2018.
but granting them an injunction that
bars DHS from using DACA
application information for
enforcement purposes.
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NAACP v.
District of
April 24, 2018: The court granted
DHS appeal pending before
Trump, 17-
Columbia
summary judgment substantially in
the D.C. Circuit, where
1907 (JDB)
(D.D.C.)
plaintiffs’ favor, vacating the DACA
briefing is scheduled to
rescission memo and remanding it to
conclude on January 22,
DHS. The court stayed the vacatur
2019. On November 5, the
order to give DHS “an opportunity to
government filed a petition
better explain its rescission decision.”
asking the Supreme Court
On August 3, 2018, the court held that
to grant certiorari before
a second explanation by DHS also
judgment by the circuit
failed to provide adequate justification court.
for the rescission, and the court
declined to give DHS further
opportunity to remedy the defects in its
explanation. The vacatur order remains
stayed with respect to first-time DACA
applications, pending DHS’s appeal to
the D.C. Circuit.
Case Challenging DACA Implementation
Texas v. United Southern
August 31, 2018: The Court denied the
Initial conference
States, 1:18-cv- District of
plaintiff states’ request for a preliminary before magistrate judge
00068
Texas (S.D.
injunction against further grants of
held on Nov. 14, 2018.
Tex.)
DACA relief, but concluded that the
states were likely to succeed on the
merits of challenges to DACA’s
legality.
Author Information
Ben Harrington
Legislative Attorney
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