Judicial Reviewability of Decision to Cancel DACA

"[T]he District Court should have granted [the Government's] motion on November 19 to stay implementation of the challenged October 17 order [requiring the Government to produce documents relating to the cancellation of DACA] and first resolved the Government's threshold arguments (that the Acting Secretary's determination to rescind DACA is unreviewable because it is 'committed to agency discretion,' 5 U.S.C. § 701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction)."

—In re United States, 138 S.Ct. 443, 445 (U.S. Supreme Court, Dec. 20, 2017).

By Catherine Park

Plaintiffs, the Regents of the University of California, et al., filed 5 lawsuits in the Northern District of California seeking nationwide injunctions to stop cancellation of "DACA" (the Deferred Action for Childhood Arrivals program), which in June 2012 conferred lawful presence and benefits upon certain classes of individuals who had entered the United States as children. The lawsuits were filed after the U.S. Department of Homeland Security's ("DHS'") Acting Secretary decided to wind down DACA in September 2017.

The DHS Acting Secretary's decision was influenced by the U.S. Court of Appeals for the Fifth Circuit, which granted a preliminary injunction (which is still in effect) to the state of Texas, holding that Texas was substantially likely to succeed on the merits of its claim that a related program, "DAPA" (Deferred Action for Parents of Americans and Lawful Permanent Residents), was unlawful because, among other things:

The interpretation of [INA, the Immigration and Nationality Act] that the [former] Secretary advances would allow him to grant lawful presence and work authorization to any illegal alien in the United States—an untenable position in light of the INA's intricate system of immigration classifications and employment eligibility. Even with "special deference" to the Secretary, (footnote omitted) the INA flatly does not permit the reclassification of millions of illegal aliens as lawfully present and thereby make them newly eligible for a host of federal and state benefits ….

Presumably because DAPA is not authorized by statute, the United States posits that its authority is grounded in historical practice, but that "does not, by itself, create power," (footnote omitted) and in any event, previous deferred-action programs are not analogous to DAPA. "[M]ost … discretionary deferrals have been done on a country-specific basis, usually in response to war, civil unrest, or natural disasters," (footnote omitted) but DAPA is not such a program. Texas v. United States, 809 F.3d 134, 184 (5th Cir. 2015).

The Fifth Circuit further found that, pursuant to the Administrative Procedure Act ("APA"), DAPA was subject to the notice-and-comment requirements of rulemaking by federal agencies charged with enforcing federal statutes (such as DHS, charged with enforcing INA):

Neither the preliminary injunction nor compliance with the APA requires the Secretary to enforce the immigration laws or change his priorities for removal, which have expressly not been challenged. Nor have the states "merely invited us to substitute our judgment for that of Congress in deciding which aliens shall be eligible to participate in [a benefits program]." Mathews v. Diaz, 426 U.S. 67, 84 (1976). DAPA was enjoined [i.e., halted, through the preliminary injunction] because the states seek an opportunity to be heard through notice and comment, not to have the judiciary formulate or rewrite immigration policy. "Consultation between federal and state officials is an important feature of the immigration system," and the notice-and-comment process, which "is designed to ensure that affected parties have an opportunity to participate in and influence agency decision making," facilitates that communication. Texas v. United States, 809 F.3d 134, 169-70 (5th Cir. 2015).

On June 23, 2016, the U.S. Supreme Court affirmed the Fifth Circuit's decision to grant a preliminary injunction, by an equally divided Court (4-4). United States v. Texas, 136 S.Ct. 2271, 2272 (U.S. Supreme Court, June 23, 2016).

The 5 lawsuits filed in the Northern District of California challenge the DHS Acting Secretary's determination that the Fifth Circuit's reasoning as to DAPA applies equally to DACA. The District Court in the Northern District of California agreed with the Plaintiffs, and entered a nationwide preliminary injunction requiring the Government to maintain the DACA program.

The Government sought immediate review before judgment, filing a petition for a writ of certiorari in the U.S. Supreme Court (DHS v. Regents of the University of California, et al., Docket No. 17-1003). While the Regents of the University of California objected to the request for review before judgment as extraordinary and unusual, etc., the U.S. Supreme Court's order of Dec. 20, 2017 could be interpreted as inviting the Government to do what it did.* In re United States, 138 S.Ct. 443, 445 (U.S. Supreme Court, Dec. 20, 2017) ("[T]he District Court should have granted [the Government's] motion on November 19 to stay implementation of the challenged October 17 order and first resolved the Government's threshold arguments (that the Acting Secretary's determination to rescind DACA is unreviewable because it is 'committed to agency discretion,' 5 U.S.C. § 701(a)(2), and that the Immigration and Nationality Act deprives the District Court of jurisdiction).").

The Government's petition for a writ of certiorari seeks to resolve two issues, which could dispose of the entire controversy: (1) whether the DHS Acting Secretary's decision to wind down DACA is judicially reviewable; and (2) whether the wind-down policy is lawful.

"[A]n agency's decision not to prosecute or enforce, whether through civil or criminal process, is a decision generally committed to an agency's absolute discretion." Heckler v. Chaney, 470 U.S. 821, 831 (1985). In the Fifth Circuit, DACA was defended by the former DHS Secretary as a decision not to enforce INA, and as a presumptively unreviewable act of prosecutorial discretion. See Texas v. United States, 809 F.3d at 167 (describing the Government's argument that "'lawful presence' is not a status and is not something that the alien can legally enforce; the agency can alter or revoke it at any time.")

The Fifth Circuit's decision, which held that DACA is "much more than a nonenforcement policy, which presumptively would be committed to agency discretion," id., at 178 n.156, is neither being challenged nor championed by the Government here—since the Government is now seeking to cancel DACA and therefore the issue of "whether DACA is judicially reviewable" is moot. The only live issue is "whether the decision to cancel DACA is judicially reviewable."

The Fifth Circuit, in 2015, determined that DACA does more than just decline to enforce INA:

Part of DAPA involves the Secretary's decision—at least temporarily—not to enforce the immigration laws as to a class of what he deems to be low-priority illegal aliens. But importantly, the states have not challenged the priority levels he has established, (footnote omitted) and neither the preliminary injunction nor compliance with the APA requires the Secretary to remove any alien or to alter his enforcement priorities.

Deferred action … is much more than nonenforcement: It would affirmatively confer "lawful presence" and associated benefits on a class of unlawfully present aliens. Though revocable, that change in designation would trigger (as we have already explained) eligibility for federal benefits—for example, under Title II and XVIII of the Social Security Act (footnote omitted)—and state benefits—for example, driver's licenses and unemployment insurance (footnote omitted)—that would not otherwise be available to illegal aliens. (footnote omitted) Texas v. United States, 809 F.3d at 166.

The District Court for the Northern District of California, in contrast, found the cancellation of DACA to be judicially reviewable because the Fifth Circuit's entire reasoning (upon which the DHS Acting Secretary based the decision to cancel DACA), according to the Northern District of California, is wrong:

When agency action is based on a flawed legal premise [the Fifth Circuit's reasoning as to DAPA's illegality], it may be set aside as "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law." (citations omitted) This order [of the District Court for the Northern District of California] holds that DACA fell within the agency's enforcement authority. The contrary conclusion was flawed and should be set aside. Regents of the University of California, et al. v. United States Dept. of Homeland Security, __ F.Supp.3d __ (N.D.Cal. Jan. 9, 2018).

The District Court's opinion doesn't pinpoint the ground for the agency's enforcement authority (i.e., whether the agency has enforcement authority because DACA is a rule, a statement of policy, an express command of INA, or etc.), but the omission may have been deliberate. The gist of the District Court's opinion could be that regardless of whether DACA was implemented lawfully or not, the cancellation of DACA implicates reliance interests, and perhaps the reliance interests could be addressed through the Court's equitable powers.

The U.S. Supreme Court, in 2009, spoke about reliance interests that may be implicated when an agency revokes a policy:

[O]f course the agency must show that there are good reasons for the new policy. But it need not demonstrate to a court's satisfaction that the reasons for the new policy are better than the reasons for the old one; it suffices that the new policy is permissible under the statute, that there are good reasons for it, and that the agency believes it to be better …. Sometimes [the agency] must—when, for example, its new policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account. Smiley v. Citibank (South Dakota), N.A., 517 U.S. 735, 742 (1996). It would be arbitrary or capricious to ignore such matters. In such cases it is not that further justification is demanded by the mere fact of policy change; but that a reasoned explanation is needed for disregarding facts and circumstances that underlay or were engendered by the prior policy. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 515-16 (2009).

Reliance is based on equitable principles:

"Estoppel is an equitable doctrine invoked to avoid injustice in particular cases…. (citation omitted) [T]he party claiming the estoppel must have relied on its adversary's conduct 'in such a manner as to change his position for the worse,' (footnote omitted) and that reliance must have been reasonable in that the party claiming the estoppel did not know nor should have known that its adversary's conduct was misleading.' (footnote omitted) See Wilber National Bank v. United States, 294 U.S. 120, 124-25 (1935). Heckler v. Community Health Services of Crawford County, Inc., et al., 467 U.S. 51, 39 (1984).

One of the key principles of equity is that "he who seeks equity must do equity." See, e.g., Pan-America Petroleum & Transport Co. v. U.S., 273 U.S. 456, 505 (1927); Manufacturers' Finance Co. v. McKey, 294 U.S. 442, 449 (1935); Koster v. (American) Lumbermens Mut. Cas. Co., 330 U.S. 518, 522 (1947).

The U.S. Supreme Court explained the principle in detail:

"The equitable powers of this court can never be exerted in behalf of man who has acted fraudulently, or who by deceit or any unfair means has gained an advantage. To add a party in such a case would make this court the abetter of iniquity." Bein v. Heath, 12 L.Ed. 416. And again: "A court of equity acts only when and as conscience commands; and, if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses, and whatever use he may make of them in a court of law, he will be held remediless in a court of equity." Deweese v. Reinhard, 165 U.S. 386, 390.

But courts of equity do not make the quality of suitors the test. They apply the maxim requiring clean hands only where some unconscionable act of one coming for relief has immediate and necessary relation to the equity that he seeks in respect of the matter in litigation. They do not close their doors because of plaintiff's misconduct, whatever its character, that has no relation to anything involved in the suit, but only for such violations of conscience as in some measure affect the equitable relations between the parties in respect of something brought before the court for adjudication. Story's Equity Jurisprudence (14th Ed.) § 100; Pomeroy, Equity Jurisprudence (4th Ed.) § 399. They apply the maxim, not by way of punishment for extraneous transgressions, but upon considerations that make for the advancement of right and justice. They are not bound by formula or restrained by any limitation that tends to trammel the free and just exercise of discretion. Keystone Driller Co. v. General Excavator Co. v. General Excavator Co., 290 U.S. 240, 245-46 (1933).

The U.S. Supreme Court, in Holland v. Florida, 560 U.S. 631 (2010), said that equity might be inappropriate to apply on a class-wide basis:

[W]e have … made clear that often the 'exercise of a court's equity powers … must be made on a case-by-case basis.' Baggett v. Bullitt, 377 U.S. 360, 375 (1964)…. The "flexibility" inherent in "equitable procedure" enables courts "to meet new situations [that] demand equitable intervention, and to accord all the relief necessary to correct … particular injustices." Hazel-Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. 238, 248 (1944) (permitting post deadline filing of bill of review). Taken together, these cases recognize that courts of equity can and do draw upon decisions made in other similar cases for guidance. Such courts exercise judgment in light of prior precedent, but with awareness of the fact that specific circumstances, often hard to predict in advance, could warrant special treatment in an appropriate case. Holland, supra, at 649-50.

Back to the question of judicial reviewability, the Fifth Circuit described what types of agency decisions are unreviewable:

"The mere fact that a statute grants broad discretion to an agency does not render the agency's decisions completely unreviewable under the 'committed to agency discretion by law' exception unless the statutory scheme, taken together with other relevant materials, provides absolutely no guidance as to how that discretion is to be exercised." Perales v. Casillas, 903 F.2d 1043, 1051 (5th Cir. 1990) (quoting Robbins v. Reagan, 780 F.2d 37, 45 (D.C. Cir. 1985) (per curium)).

In Perales, 903 F.2d at 1051, we held that the INS' decision not to grant pre-hearing voluntary departures and work authorizations to a group of aliens was committed to agency discretion because "[t]here are no statutory standards for the court to apply…. There is nothing in the [INA] expressly providing for the grant of employment authorization or pre-hearing voluntary departure to [the plaintiff class of aliens]. Although we stated that "the agency's decision to grant voluntary departure and work authorization has been committed to agency discretion by law," id. at 1045, that case involved a challenge to the denial of voluntary departure and work authorization.

Under those facts, Perales faithfully applied Chaney's presumption against judicial review of agency inaction "because there are no meaningful standards against which to judge the agency's exercise of discretion." Id. at 1047. But where there is affirmative agency action—as with DAPA's issuance of lawful presence and employment authorization—and in light of the INA's intricate regulatory scheme for changing immigration classifications and issuing employment authorization, (footnote omitted) "[t]he classification at least can be reviewed to determine whether the agency exceeded its statutory powers." Chaney, 470 U.S. 821, 832 (1985).

Texas v. United States
, 809 F.3d at 168.

If there is no express Congressional mandate, a federal program is vulnerable to cancellation. For example, in holding that the Indian Health Service (an agency with the Public Health Service of the Department of Health and Human Services) had unreviewable discretion to terminate a national mental health program for Indian children and adolescents, the U.S. Supreme Court held in Lincoln v. Vigil, 508 U.S. 182 (1993):

Like the decision against instituting enforcement proceedings [i.e., a decision not to enforce], then, an agency's allocation of funds from a lump-sum appropriation requires "a complicated balancing of a number of factors which are peculiarly within its expertise": whether its "resources are best spent" on one program or another; whether is "is likely to succeed" in fulfilling its statutory mandate; whether a particular program "best fits the agency's overall policies"; and, "indeed, whether the agency has enough resources" to fund a program "at all." Heckler v. Chaney, 470 U.S. at 831.

…. The Service's decision to discontinue the Program is accordingly unreviewable under § 801(a)(2). As the Court of Appeals recognized, the appropriations Acts for the relevant period do not so much as mention the Program, and both the Snyder Act and the Improvement Act likewise speak about Indian health only in general terms. It is true that the Service repeatedly apprised Congress of the Program's continued operation, but, as we have explained, these representations do not translate through the medium of legislative history into legally binding obligations. The reallocation of agency resources to assist handicapped Indian children nationwide clearly falls within the Service's statutory mandate to provide health care to Indian people, see (citation omitted), and respondents, indeed, do not seriously contend otherwise. The decision to terminate the Program was committed to the Service's discretion. Lincoln v. Vigil, 508 U.S. 182, 193-94 (1993).

The Government's cert. petition contends the District Court's recent order in the Northern District of California requiring the Government to produce DACA-related documents is unnecessary to resolving the controversy in its entirety:

Challenges to the rescission [i.e., cancellation] of the DACA policy are currently pending before courts in the Second, Fourth, Ninth, Eleventh, and District of Columbia Circuits, and the plaintiffs in nearly all of them are seeking similar nationwide injunctions. There can be no reasonable question that, as in Texas, this Court's review will be warranted. The Court is already familiar with the relevant issues in light of its consideration of the Texas case. Additional burdensome discovery, vast expansions of the administrative record, and privilege disputes would only burden the courts and parties without bringing any additional clarity to these issues. And given that the Fifth Circuit's decision in Texas held DAPA and DACA expansion unlawful, and … that court's reasoning applies to DACA as well, only this Court can resolve the conflict in the lower courts and provide much-needed clarity to the government and DACA recipients alike. See Mistretta v. United States, 488 U.S. 361, 371 (1989) (granting certiorari before judgment where constitutionality of sentencing guidelines presented question of "'imperative public importance'" and had resulted in "disarray among the Federal District Courts") (citation omitted).

Given the Supreme Court's order of Dec. 20, 2017, the issue of the reviewability of DACA's cancellation may be decided soon.*

*Feb. 26, 2018: The Supreme Court just denied expedited review.