Ninth Circuit Affirms Nationwide Preliminary Injunction Requiring Trump Administration to Keep Deferred Action for Childhood Arrivals (DACA) in Place for Current Recipients

On November 8, 2018, the Ninth Circuit issued a decision affirming a preliminary injunction issued by the United States District Court for the Northern District of California requiring the Trump administration to accept renewal applications from individuals previously granted  Deferred Action for Childhood Arrivals (DACA) status.  The Trump administration had sought to end the DACA program through a September 2017 memorandum rescinding DACA.  The Ninth Circuit majority held that the plaintiffs were likely to succeed in arguing that the rescission memorandum violated the Administrative Procedures Act (APA) because it was based on an erroneous legal premise – that DACA was unlawful.  The Ninth Circuit further held that neither the APA nor the Immigration and Nationality Act barred federal court review of the rescission, and that the federal district court had properly refused to dismiss the plaintiffs’ equal protection challenge to the DACA rescission, based on evidence of racial animus, procedural irregularities, and disproportionate racial impact, and due process challenge to the Trump administration’s apparent backsliding on assurances given to DACA recipients that the information they provided in applying for DACA would not be used for immigration enforcement purposes.

One member of the panel would have upheld the preliminary injunction based on the plaintiffs’ equal protection claim, but concluded that the rescission memorandum could not be challenged under the APA because deferred action was a decision conferred to the federal agency’s discretion.  The panel upheld the district court’s dismissal of the plaintiffs’ due process and procedural APA challenges to the DACA rescission.

Altshuler Berzon LLP represents the plaintiffs in one of the five cases that were before the Ninth Circuit: the County of Santa Clara, also represented by Santa Clara County Counsel, and Service Employees International Union Local 521.  The Ninth Circuit decision can be found here.