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DHS Urges Justices To Take Up DACA Rollback Case

Law360 (May 24, 2019, 8:06 PM EDT) -- The U.S. Department of Homeland Security is pushing the U.S. Supreme Court to put the planned rescission of the Deferred Action for Childhood Arrivals program back on course, saying Friday that the justices should take up the issue before going on summer break.

DHS is appealing a split Fourth Circuit panel's ruling this month that the agency's decision to terminate DACA, which has provided deportation relief for 800,000 young people brought to the U.S. as children, was "arbitrary and capricious" in violation of administrative law. The panel reversed part of a lower court's ruling upholding DHS' decision.

Noting that three other decisions on the DACA rescission's legality have been pending before the Supreme Court since late last year, DHS urged the justices to quickly grant all petitions, including the present one, before the court’s summer session starts next month. Because the cases involve the same main challenges, the high court should also combine the appeals, the agency said.

“To ensure an adequate vehicle for the timely and definitive resolution of this dispute, the government respectfully submits that the court should expedite consideration of this petition to permit consideration before the court’s summer recess, alongside the pending petitions in Regents, Batalla Vidal and NAACP,” the agency said in its petition, referring to the other cases.

The Trump administration's announcement that it would begin rolling back DACA had sparked a slew of lawsuits brought by states and advocates around the country, challenging the rescission on both administrative and constitutional grounds.

The policy has since been held in limbo, after federal courts in California and New York handed down nationwide injunctions forcing the administration to continue the policy while litigation is pending. A D.C. federal judge also found in a summary judgment ruling in April 2018 that the administration had not sufficiently explained its reasoning for ending DACA in violation of the Administrative Procedure Act.

The first appeals court to weigh in on the deferred action policy's legality was the Ninth Circuit, which upheld the California court's nationwide injunction in November. The government petitioned the Supreme Court to review that decision later that month. The Second and D.C. circuits could also hand down rulings soon on the issue, as oral arguments in two appeals challenging the DACA rescission were delivered in January and February.

The current suit was filed by immigrant advocacy groups, led by nonprofit Casa de Maryland, and a group of DACA recipients in Maryland federal court in October 2017, the month after then-Attorney General Jeff Sessions announced the program's termination. The groups argued that the rescission violated administrative law on two counts — by not undergoing the APA’s notice-and-comment periods and by lacking sufficient explanation — as well as the U.S. Constitution's due process protections.

In March 2018, the Maryland federal court parted ways with the other courts' findings and upheld the DACA rescission as lawful. While the decision could be reviewed by the courts, the judge found, it was not subject to the notice-and-comment requirements, nor was it arbitrary and capricious or unconstitutional.

But while allowing the DACA rescission to continue, the lower court also said that Trump's DHS could not use information from people previously covered under DACA for immigration enforcement purposes.

Both sides had then appealed to the Fourth Circuit, which ruled in a May 17 opinion that the decision was arbitrary and capricious. The panel majority also found that neither a memo by former acting DHS Secretary Elaine Duke explaining that the administration believed DACA was illegal and would be vulnerable to legal challenges, nor Sessions' accompanying letter announcing the policy rollback, "identif[ied] any statutory provision with which the DACA policy conflicts."

"The point is that the department had before it at the time it rescinded DACA a reasoned analysis from the office tasked with providing legal advice to all executive branch agencies that supported the policy's legality. Yet the department changed course without any explanation for why that analysis was faulty," the appeals court said.

While the panel majority agreed the rescission was judicially reviewable though not subject to the notice-and-comment requirements, it had left constitutional claims untouched.

U.S. Circuit Judge Julius N. Richardson had disagreed in part, writing in a dissent that he believed that the government's decision to end DACA should have been shielded from judicial review.

"To hold otherwise permits the judicial branch to invade the province of the executive and impair the carefully constructed separation of powers laid out in our Constitution," he wrote.

Representatives for DHS and Casa de Maryland did not immediately respond to requests for comment Friday.

DHS is represented by Noel J. Francisco, Joseph H. Hunt, Jeffrey B. Wall, Hashim M. Mooppan, Jonathan Y. Ellis, Mark B. Stern, Abby C. Wright and Thomas Pulham of the U.S. Department of Justice.

Casa de Maryland and immigration advocacy groups were represented at the Fourth Circuit by John A. Freedman and Emily Newhouse Dillingham of Arnold & Porter, Elizabeth J. Bower, Kevin B. Clark and Priya R. Aiyar of Willkie Farr & Gallagher LLP, Dennis A. Corkery of the Washington Lawyers' Committee for Civil Rights and Urban Affairs, and Ajmel Ahsen Quereshi of the Howard University School of Law.

The case is U.S. Department of Homeland Security et al. v. Casa de Maryland et al., case number 18-1469, before the U.S. Supreme Court.

--Additional reporting by Suzanne Monyak. Editing by Aaron Pelc.

https://www.law360.com/immigration/a...on&read_more=1

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@lauradfrancis
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The #DACA cases have disappeared into some kind of black hole at #SCOTUS. Perhaps they'll reemerge now that we have two appeals court decisions saying the administration was wrong to end it. Two more appeals courts have the issue before them and have yet to issue decisions.

@JoshMBlackman
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16/ On a somewhat-related note, I still expect a GVR on the day after the last day of the term in the DACA case, based on the census case: the lower court erred by not affording enough deference to the administration's position. The Indiana case increases the odds of such a punt.