DACA was created in 2012. The program permitted certain young people who were brought to this country illegally as children to apply for a deferral of removal proceedings against them for a period of two years, subject to renewal. In 2014, a Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) was also instituted by DHS. Texas and 25 other States brought suit in the Southern District of Texas to enjoin DAPA and a proposed expansion of DACA deferral from two to three years. The district court issued a nationwide preliminary injunction, finding that DAPA and expansion of DACA was a “substantive rule that should have undergone the notice-and-comment rule making procedure” required by the Administrative Procedure Act (APA), 5 U.S.C. 551. The Fifth Circuit affirmed, holding that DAPA and expanded DACA likely violated both the APA and the Immigration and Nationalty Act (INA), 8 USCA § 1101. The court stated that the policies were substantively contrary to law, on the ground that the INA did not grant the agency such extensive discretion. The Supreme Court affirmed the Fifth Circuit judgment, without opinion.

The Texas plaintiffs amended their complaint in 2017, alleging that the 2012 DACA program was itself unlawful. The Department of Homeland Security decided to rescind DACA completely rather than defend the policy. Individual DACA recipients, sixteen states, and the District of Columbia brought several actions in federal courts challenging rescission of DACA on constitutional and statutory grounds and seeking injunctive relief. These actions are now before the Supreme Court on the administration’s separate petitions for writ of certiorari. The government contends that immediate review is necessary of “the Executive Branch’s authority to revoke a discretionary policy of non-enforcement that is sanctioning an ongoing violation of federal immigration law by nearly 700,000 aliens.”

Regents of the University of California v. U.S. Dep’t of Homeland Sec., 298 F. Supp. 3d 1304 (N.D. Cal. 2018), on remand from In re United States, 138 S. Ct. 371 (2017).. 

NAACP v. Trump, 321 F. Supp. 3d 143 (D.D.C. 2018), app. filed, No. 18-5243 (D.C. Cir. Aug. 10, 2018).

Texas v. United States, 86 F.Supp.3d 591 (S.D.Tex. 2015), stay den. & order aff’d, 809 F.3d 134 (5th Cir. 2016), aff’d, 136 S.Ct. 2271 (2016).

Casa de Maryland v. Department of Homeland Sec., 284 F. Supp. 3d 758 (D. Md. 2018).

U.S. Supreme Court Rule 11: Certiorari to a United States Court of Appeals Before Judgment.