Administration Petitions Supreme Court for Writs of Certiorari Before Judgment in DACA Cases

Late Monday, November 5, the U.S. government filed three extraordinary petitions for writ of certiorari before judgment to the Supreme Court in cases in New York, San Francisco, and Washington, D.C. The petitions ask the Court to find in each case that, because the Deferred Action for Childhood Arrivals (DACA) program is likely to be held unlawful, the Department of Homeland Security’s current program to “wind down” and rescind DACA is justified, and pending injunctions against rescission should be lifted.

[On November 8, a unanimous three-judge panel in the California case ruled that the administration cannot immediately end the DACA program].

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.”

Batalla-Vidal v. Nielsen291 F.Supp.3d 260 (E.D.N.Y. 2018).

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).

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