In an action challenging the Department of Homeland Security’s rescission of Deferred Action for Childhood Arrivals (DACA), the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s grant of preliminary injunctive relief stopping termination of the program.
In 2017, Acting Secretary of Homeland Security Elaine Duke issued a memorandum rescinding DACA. The University of California and others filed lawsuits, which were consolidated. Among other things, the Ninth Circuit concluded that plaintiffs had stated a plausible equal protection claim under the U.S. Constitution.
The court noted that the Supreme Court’s recent decision in Trump v. Hawaii does not foreclose this claim. There, statements by President Trump allegedly revealing religious animus against Muslims were at the heart of the plaintiffs’ case, the court noted. Here, plaintiffs provided “substantially greater evidence of discriminatory motivation, including the rescission order’s disparate impact on Latinos and persons of Mexican heritage, as well as the order’s unusual history. Moreover, our case differs from Hawaii in several potentially important respects, including the physical location of the plaintiffs within the geographic United States,…the lack of a national security justification for the challenged government action, and the nature of the constitutional claim raised,” the court said.
The court said that the rescission of DACA was based “solely on a misconceived view of the law” and is reviewable and that plaintiffs are likely to succeed on their claim that it must be set aside under the Administrative Procedure Act (APA). The court, therefore, affirmed the district court’s entry of a preliminary injunction and said that the district court also correctly dismissed plaintiffs’ APA notice-and-comment claim and their claim that the DACA rescission violates their substantive due process rights. The district court also properly denied the government’s motion to dismiss plaintiffs’ APA arbitrary-and-capricious claim, their claim that the new information-sharing policy violates their due process rights, and their claim that the DACA rescission violates their right to equal protection, the Ninth Circuit said.
The court noted:
“The Executive wields awesome power in the enforcement of our nation’s immigration laws. Our decision today does not curb that power, but rather enables its exercise in a manner that is free from legal misconceptions and is democratically accountable to the public. Whether Dulce Garcia and the hundreds of thousands of other young dreamers like her may continue to live productively in the only country they have ever known is, ultimately, a choice for the political branches of our constitutional government. With the power to make that choice, however, must come accountability for the consequences.”
Judge Owens concurred in the judgment but disagreed with the portion of the majority’s opinion stating that the court may review the rescission of DACA for compliance with the APA. He noted that DACA’s rescission may be reviewed for compliance with the Constitution. “I would hold that Plaintiffs have plausibly alleged that the rescission of DACA was motivated by unconstitutional racial animus in violation of the Equal Protection component of the Fifth Amendment and that the district court correctly denied the government’s motion to dismiss this claim,” he said.
Judge Owens noted that, as the majority detailed, the record assembled at this early stage was promising. “Plaintiffs highlight (1) the disproportionate impact DACA’s rescission has on ‘individuals of Mexican heritage, and Latinos, who together account for 93 percent of approved DACA applications’; (2) a litany of statements by the President and high-ranking members of his Administration that plausibly indicate animus toward undocumented immigrants from Central America; and (3) substantial procedural irregularities in the challenged agency action.”
The Ninth Circuit’s opinion, Regents of the University of California v. U.S. Department of Homeland Security is at http://cdn.ca9.uscourts.gov/datastore/opinions/2018/11/08/18-15068.pdf.