Following the September 5, 2017 issuance of a Department of Homeland Security (DHS) memorandum rescinding DACA and an FAQ addressing elements of the implementation, several states, universities, individuals and NGOs have filed lawsuits challenging the legality of the DACA rescission and termination. This article summarizes current legal challenges to the DHS rescission.
The plaintiffs cases described below are asking the courts to declare that the DHS rescission memo is unlawful and to stop any implementation of the DACA termination from going forward. Each of these cases raises similar administrative and constitutional claims. Generally, plaintiffs argue that the government’s decision to rescind DACA amounts to violations of equal protection and due process rights; that the government failed to provide an opportunity for notice and comment on a policy change that affects substantive rights of DACA beneficiaries, the states in which they reside, academic institutions, and employers; that the rescission was “arbitrary and capricious” since the government has not provided a valid basis for the decision; and that the termination of DACA is fundamentally unfair since applicants came forward and identified themselves to the government, relying on assurances from DHS that DACA was a lawful exercise of discretion and that their personal information would not be used for enforcement.
On January 10, 2018 a federal judge in the Northern District of California ordered a nationwide preliminary injunction – a temporary order that remains in place for the duration of the lawsuit unless it is overturned by a higher court – halting the termination of the DACA program. The order restores the DACA program to the state it was in before its rescission on September 5, 2017, except that it does not require USCIS to accept new initial DACA applications or to grant advance parole to any DACA recipients. In issuing the order, the court held that the plaintiffs are likely to succeed on the merits of their claim that the DHS decision to rescind DACA
was based on a flawed legal premise and must be set aside as “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” The court also held that, absent the preliminary injunction, DACA recipients were likely to suffer irreparable harm.
The preliminary injunction will remain in place while the litigation continues. On January 16, 2018, the Department of Justice (DOJ) filed notice that it would appeal the decision to the Ninth Circuit Court of Appeals and announced it would also request that the United States Supreme Court review the injunction on its merits. However, on February 26, 2018, the Supreme Court declined to hear the government’s appeal. As a result, the case has now returned to the lower courts and the Ninth Circuit will hear oral arguments on May 18, 2018. Any decision from the Ninth Circuit can be appealed to the Supreme Court.
Batalla Vidal, et al. v. Nielsen, et al.
On February 13, 2018 a federal judge in the Eastern District of New York issued a second preliminary injunction ordering USCIS to accept certain DACA applications while litigation continues. The order mirrors the preliminary injunction issued in the Regents case and requires USCIS to resume accepting DACA renewal applications from people who had previously been granted that relief. This injunction similarly requires DHS to maintain DACA on the same terms and conditions that existed before the rescission, with the following exceptions: USCIS need not grant DACA to those who have never before held DACA; DHS is not required to provide advance parole to DACA beneficiaries; and DHS retains the discretion to adjudicate DACA renewal requests on a case-by-case, individualized basis. The government’s appeal of the injunction is currently pending.
This case was originally filed in August 2016 in the Northern District of New York on behalf of DACA recipient Batalla Vidal. The lawsuit challenged the injunction of expanded DACA and the revocation of Mr. Batalla Vidal’s three-year employment authorization document (EAD). On September 5, 2017, Mr. Batalla Vidal and Make the Road New York (MRNY) sought to amend their complaint in light of the DHS memo rescinding DACA. The plaintiffs are now asking the court to find that the DHS memorandum rescinding DACA is unlawful and unconstitutional and to enjoin the federal government from using data gathered for the DACA program in immigration enforcement.
NAACP, et al. v. Trump; Trustees of Princeton University, et al. v. United States of America, et al.
On April 24, 2018, Judge Bates ruled that the government’s decision to rescind DACA was arbitrary and capricious because DHS failed adequately to explain its conclusions that the program was unlawful. The decision to rescind DACA was ordered vacated and remanded to DHS. However, the judge has stayed the order for 90 days to allow the agency an opportunity to better explain its rescission decision. During this 90-day period, DHS may reissue a memorandum to rescind DACA that provides a fuller explanation for its determination that the DACA program lacks statutory and constitutional authority. The government may challenge the order or attempt to reissue a new memo. If the government fails to challenge the decision or comply with the order within 90 days, the rescission memo will be vacated and the original program will be restored in full. In other words, USCIS would then be required to accept first time initial DACA requests as well as renewal requests.
CASA de Maryland, et al. v. Dept. of Homeland Security, et al.
On March 5, 2018, a federal district court judge in Maryland departed from the courts in Regents and Batalla and ruled that the DACA rescission was valid and constitutional. However, the court did enjoin the Trump administration from utilizing the information provided by Dreamers in their DACA applications for enforcement purposes. At this time, neither party has appealed the court’s order.
 Several related cases were consolidated and assigned to federal Judge William Alsup in the Northern District of California: Regents of the University of California v. U.S. Dep’t of Homeland Security, No. 3-17-cv-05211 (N.D. Cal.); State of California, et al. v. U.S. Dep’t of Homeland Security, et al.; City of San Jose v. Trump; Garcia v. United States of America; City of Santa Clara v. Trump.
. Batalla Vidal, et al. v. Nielsen, et al., 1:16-cv-04756 (E.D.N.Y.). This case has been consolidated to include actions brought by the State of New York, fourteen other states and the District of Columbia, as well as Make the Road New York, a nonprofit.