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. In three of the cases below, plaintiffs 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.
Texas and nine other states have also filed suit and are asking a Texas district court to find that the 2012 DACA program is unlawful. This article summarizes the current litigation.
On January 9, 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. On November 5, 2018, the government made a second request to the Supreme Court for “review before judgement.” On November 8, 2018, the Ninth Circuit upheld the injunction. In doing so, it found that DACA was a permissible exercise of executive discretion and the plaintiffs are likely to succeed in demonstrating its rescission must be set aside under the Administrative Procedures Act.
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 appealed the injunction to the Second Circuit Court of Appeals and oral argument has been scheduled for late January 2019.
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 stayed the order for 90 days to allow the agency an opportunity to better explain its rescission decision. On August 3, the court affirmed its earlier ruling that the government had failed to provide a valid legal reason for terminating DACA. As a result, Judge Bates ordered the original DACA program be fully restored. However, the order has not gone into effect. On August 17, the judge stayed part of his order pending the government’s appeal of his decision to the U.S. Court of Appeals for the D.C. Circuit. The D.C. Circuit has not yet scheduled arguments in the appeal. As long as the stay remains in place, USCIS is not required to re-open the DACA program to initial applicants or DACA recipients seeking advance parole.
Texas, et al. v. Nielsen, et al.
Texas and nine other states are challenging the legality of the 2012 DACA program. The lawsuit was filed on May 1, 2018 and is before the same district court judge who blocked the implementation of DAPA and expanded DACA in a previous lawsuit, Texas v. United States. In a motion for preliminary injunction filed May 2, 2018, the states asked the judge to suspend the 2012 DACA program while the litigation continues. On August 31, the court decided not to block the adjudication of DACA applications, including renewal requests, because the states had delayed in requesting this relief for six years. The court also found that the balance of interests weighed in favor of DACA applicants. The judge stayed his order for 21 days to provide parties an opportunity to file an interlocutory appeal to the Fifth Circuit Court of Appeals. For now, the earlier injunctions from courts in California and New York that ordered USCIS to continue accepting DACA renewals nationwide remain in effect.
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.
 NAACP v. Trump, et al., 1:17-cv-01907 (D.D.C.); Trustees of Princeton University, et al. v. United States of America, et al., 1:17-cv-02325 (D.D.C.)
 Texas, et al. v. Nielsen, et al., 18-cv-00068 (S.D. Tex.)
 CASA de Maryland, et al. v. Dept. of Homeland Security, et al., 8:17-cv-02942 (D.Md.)