DOJ Again Asks SCOTUS to Take Up DACA

Was the Ninth Circuit dragging its feet?

By Andrew R. Arthur on November 8, 2018

On November 6, 2018, the U.S. Department of the Justice (DOJ) filed a Petition for Writ of Certiorari Before Judgment in U.S. vs. Regents of the University of California, a case currently pending before the Ninth Circuit Court of Appeals. This is the second such petition that DOJ has filed with the Supreme Court (the first was in January 2018), but has a better chance of getting heard than the first, which the Court dismissed without prejudice to refiling on February 26, 2018, particularly given the fact that the Ninth Circuit finally issued its decision and that matter on October 8, 2018, after months of consideration.

At issue in those cases is whether the government must continue the Deferred Action for Childhood Arrivals Program (DACA) program. As I explained in a post regarding the Supreme Court's dismissal of that first petition:

This denied an attempt by [DOJ] to have the Court review a January 9, 2018, order by Judge William Alsup of the U.S. District Court for the Northern District of California, prior to a full review of that order by the Court of Appeals for the Ninth Circuit.

Judge Alsup had ordered the Department of Homeland Security (DHS) to maintain the [DACA] program "on a nationwide basis on the same terms and conditions as were in effect before the rescission on September 5, 2017, including allowing DACA enrollees to renew their enrollments," with certain exceptions.

DOJ had asserted that immediate review of that order by the Supreme Court is necessary, arguing:

The district court has entered a nationwide injunction that requires DHS to keep in place a policy of non-enforcement that no one contends is required by federal law and that DHS has determined is, in fact, unlawful and should be discontinued. The district court's unprecedented order requires the government to sanction indefinitely an ongoing violation of federal law being committed by nearly 700,000 aliens — and, indeed, to confer on them affirmative benefits (including work authorization) — pursuant to the DACA policy. That policy is materially indistinguishable from the DAPA and expanded DACA policies that the Fifth Circuit held were contrary to federal immigration law in a decision that four Justices of this Court voted to affirm. Without this Court's immediate intervention, the court's injunction will persist at least for months while an appeal is resolved and, if the court of appeals does not reverse the injunction, it could continue for more than a year given the Court's calendar.

It did not, however, request a stay of Judge Alsup's order, asserting:

[A] primary purpose of the Acting Secretary's orderly wind-down of the DACA policy was to avoid the disruptive effects on all parties of abrupt shifts in the enforcement of the Nation's immigration laws. Inviting more changes before final resolution of this litigation would not further that interest. Moreover, a stay would not address the institutional injury suffered by the United States of being embroiled in protracted litigation over an agency decision that falls squarely within DHS's broad discretion over federal immigration policy and that is not even judicially reviewable.

Subsequent to the filing of that petition by DOJ, on February 13, 2018, Judge Nicholas Garaufis of the United States District Court for the Eastern District of New York also issued a preliminary injunction ordering DHS "to maintain the DACA program on the same terms and conditions that existed prior to the issuance of the DACA Rescission Memo," with the same exceptions cited by Judge Alsup.

After the Supreme Court's dismissal of that petition, on August 3, 2018, Judge John D. Bates of the U.S. District Court for the District of Columbia issued an opinion in NAACP v. Trump, ordering a complete restoration of DACA. In an August 2018 post, I stated with respect to Judge Bates's order:

In doing so, he placed [DHS] in the untenable position of continuing a program that it has deemed unlawful, and unsupportable in the face of impending litigation. He also set up the possibility of even more uncertainty for a program that has been limping along in a quasi-legal status for almost a year.

Not every district court judge who heard a DACA case agreed with Judges Alsup, Garaufis, and Bates. Specifically, on March 5, 2018, Judge Roger W. Titus of the United States District Court for the District of Maryland issued an opinion denying a complaint filed by Casa de Maryland and other plaintiffs to enjoin rescission of DACA. As I explained in a March 2018 post detailing that order:

Specifically, the plaintiffs in that case contended that the rescission of DACA by [DHS] was unlawful under the Administrative Procedure Act (APA), both because it was an arbitrary and capricious decision, and because of the government's failure to follow notice and comment procedures. In addition, they alleged that the rescission of DACA violated the Fifth Amendment to the Constitution on procedural due process, substantive due process, and equal protection grounds. Finally, the plaintiffs there sought "injunctive relief on the basis of equitable estoppel both as to the DACA rescission itself and its information sharing policy." Finally, they asked the court to declare that the DACA program was lawful.

With respect to the APA, Judge Titus first held:

Although a substantial paradigm shift, the DACA Rescission Memo neither curtails DHS's discretion regarding individual immigration reviews, nor does it prevent the agency from granting Dreamers deferred action status again in the future. Hence, DACA and its rescission are more akin to non-binding policy statements, and thus not subject to notice-and comment requirements.

He also rejected the argument that the decision to rescind DACA was arbitrary and capricious, concluding instead that it "was a carefully crafted decision supported by the administrative record." He noted:

DHS's rationale provided in the DACA Rescission Memo was a belief, based on recent court decisions and the advice of the Attorney General, that DACA was unlawful. Assuming that a reasonable basis for that belief exists in the Administrative Record, how could trying to avoid unlawful action possibly be arbitrary and capricious? Quite simply, it cannot. Regardless of whether DACA is, in fact, lawful or unlawful, the belief that it was unlawful and subject to serious legal challenge is completely rational.

With respect to equal protection, the plaintiffs argued that strict scrutiny should apply to the court's review of DHS's rescission of DACA "because the disparate treatment allegedly involves suspect classes — race, alienage, and national origin." As the court noted, "When strict scrutiny applies, the government has the burden to demonstrate a compelling state interest, for which the governmental action is narrowly tailored and the least restrictive means."

The government countered, arguing that the rescission of DACA was analogous to "selective prosecution", and therefore "afforded a presumption of non-discriminatory motives absent 'clear evidence to the contrary.'"

Judge Titus held, however:

Both sides miss the mark. While DACA was promulgated under a theory of prosecutorial discretion, its rescission was not based on an exercise of that discretion. Rather, its rescission was premised on a legitimate belief that DACA was unlawful and should be wound down in an orderly manner, while giving Congress a window to act and adopt an appropriate legislative solution. The Administrative Record — the basis from which the Court must make its judicial review — does not support the notion that it was targeting a subset of the immigrant population, and it does not support any supposition that the decision was derived on a racial animus. That is where the judicial inquiry should end.

In so doing, he rejected plaintiffs' argument that he should rely on statements made by President Trump "to establish an ulterior motive." He distinguished the president's statements on DACA recipients from those under consideration in Int'l Refugee Assistance Project v. Trump, the Fourth Circuit case affirming in part and vacating in part a district court order injunction of section 2(c) of Executive Order 13780, "Protecting the Nation from Foreign Terrorist Entry into the United States," on Establishment Clause grounds.

Specifically, he noted:

The instant case is factually very different. The President certainly made statements of his strong views on immigration policy, including advocacy for the rescission of the DACA program. However, his statements have frequently shifted but have moderated since his election. He has referred to the Dreamers as "terrific people;" he has pledged to "show great heart;" and he has referred to Dreamers as "incredible kids." He referred to the "DACA situation" as a "very difficult thing for me. Because, you know, I love these kids." He added that "the existing law is very rough. It's very, very rough."

Concluding his findings on the plaintiffs' equal protection claims, Judge Titus held:

The rescission of the DACA program merely fulfills the duty of the executive branch to faithfully enforce the laws passed by Congress. Accordingly, no affirmative showing of bad faith can follow. In fact, the President actually urged Congress to pass Dreamer-protection legislation during DACA's wind down period — simply put, this case is wholly dissimilar to the "extraordinary case" regarding the recent "travel ban." As a result, the Court need not go further than the facially legitimate motivation offered in the DACA Rescission Memo and supported by the Administrative Record.

He also rejected the plaintiffs' procedural due process claim, which was premised on the fact that under DACA, beneficiaries "were afforded, and are now being deprived of, a number of protected interests," such as employment authorization, international travel, school attendance, Social Security benefits, the ability to obtain bank account and credit cards, and lawful presence.

Specifically, he found that this claim failed "because procedural due process applies only to individualized deprivations, not policy-based deprivations for an entire class." Even if due process did apply to class-wide policy deprivations, Judge Titus held, that claim would still fail because DACA by its terms did not create an entitlement:

While entitlements are not always self-labeled or created with bright flashing lights, the exercise or restraint of prosecutorial discretion is not traditionally the sort of governmental action that creates substantive rights. The DACA Memo did not guarantee any individual immigrant particular benefits, and the DACA Rescission Memo did not curtail DHS's discretion regarding individual immigration reviews. Therefore, even if due process could attach to DACA, no de facto entitlements were created by the program itself.

With respect to substantive due process, plaintiffs claimed a "denial of fundamental fairness." Judge Titus rejected that that claim as well, noting:

[F]or the "denial of fundamental fairness" to rise to the level of a substantive due process violation, it must be "so egregious" and "so outrageous" as "to shock the contemporary conscience." ... Plaintiffs believe they have met this burden by alleging a discriminatory intent in DACA's rescission — an allegation unsupported by the record before this Court.

The rescission of a policy relating to prosecutorial discretion does not shock the conscience of this Court. Absent congressional action, the benefits given to Dreamers by DACA were in potential violation of congressional immigration laws; the only thing that has changed is that deferred status will expire, and enforcement of immigration laws may recommence in the absence of action by Congress, which the President has requested. There is nothing surprising or unfair about policies, laws, or enforcement thereof changing with an election cycle. Furthermore, the election process, and not federal litigation, is the appropriate method for resolving any fairness implicated in DACA's rescission.

Turning to plaintiffs' estoppel claim, the court noted: "In general, 'equitable estoppel is comprised of three basic elements: (1) a voluntary misrepresentation of one party, (2) that is relied on by the other party, (3) to the other party's detriment.'" He held:

As with Plaintiffs' substantive due process claim, estoppel cannot apply to DACA's rescission. The rescission of a policy relating to prosecutorial discretion does not amount to a misrepresentation by the government. DACA was promulgated with an express disclaimer that it was not conferring any rights. Nothing in the DACA Memo or in DACA's implementation suggested to Dreamers that the program was permanent, and individuals in the program were aware that their protections were subject to renewal every two years. DACA's rescission lacks any serious injustice — let alone, affirmative misconduct by any of the defendants.

As the foregoing excerpts from Judge Titus's order reflect, the administration's rescission of DACA is an issue on which reasonable legal authorities can disagree. This is a fine idea, but unfortunately reviewing circuit courts have not actually done so up to this point.

In its dismissal, the Supreme Court stated: "It is assumed that the Court of Appeals will proceed expeditiously to decide this case." Well, that has not happened. Briefing was completed, and oral argument was held by a three-judge panel of that court, on May 15, 2018.

On October 17, 2018, five months after oral argument was completed, DOJ filed a notice with the Ninth Circuit that it planned to file another petition for a writ of certiorari before judgment to review Judge Alsup's preliminary injunction order and related orders if the Ninth Circuit failed to issue a judgment by October 31, 2018. Respectfully, this was reasonable given the fact that by Halloween the Ninth Circuit would have had the case for consideration for 169 days from oral argument.

If, as a judge, I had waited 169 days to issue a decision in a case, my court administrator, if not my assistant chief immigration judge, would have called (or more likely visited) my chambers to find out what was taking me so long. And that would have been in a case involving one individual alien.

The stakes are much higher in Regents. As DOJ explained in its notice:

The district court has entered a nationwide injunction that requires [DHS] to keep in place a discretionary policy of non-enforcement that no one contends is required by federal law and that DHS has determined is unlawful and should be discontinued. The district court's order requires the government to indefinitely tolerate — and, indeed, affirmatively sanction — an ongoing violation of federal law being committed by nearly 700,000 aliens pursuant to the DACA policy. The district court's injunction has now been in place for more than nine months and, unless either this Court or the Supreme Court promptly intervenes, it could remain in force for at least another year, given the Supreme Court's argument calendar. If this Court's decision is not issued promptly, even if the losing party were to seek certiorari immediately, the Supreme Court would not be able to review the decision in the ordinary course until next Term at the earliest.

As a preliminary matter, as a citizen of a free republic (not a phrase I use often or lightly), I am saddened by the fact that many of the most important decisions facing our country are left up to (and all-too-often dependent on) nine unelected judges.

Second, DOJ's points are well taken. Imagine if three separate district court judges were to find that a population of 700,000 people in the United States did not have to pay taxes because of fundamental fairness, or statements made by the president, notwithstanding the tax code. How long would a court (let alone three separate circuits) allow the Treasury to forgo payments by almost a million people before it stepped in and made a decision as to whether those three district court judges were correct? In a similar vein, would courts really wait for Congress to resolve the issue of whether those tax payments were due?

I am loath to ascribe improper motivations, or to cast aspersions, on a judge, no matter how much I disagree with his or her opinions. It would be tough, however, to differ with any individual who was arguing that a court had failed to do its duty for 169 days because it viewed a particular population as sympathetic, or because it did not like the legitimate policies of a president with whom it did not agree.

Finally, 177 days after oral argument (and two days after DOJ filed its petition for writ of certiorari), the Ninth Circuit issued its decision. Perhaps not surprisingly, it affirmed the decision of the district court.

Specifically, the circuit court held that neither the APA nor the Immigration and Nationality Act (INA) barred its judicial review of the decision to end DACA. It next held that Acting Secretary of Homeland Security Elaine Duke "was incorrect in her belief that DACA was illegal and had to be rescinded," and that therefore the plaintiffs in that matter were likely to succeed in their argument that the rescission of DACA must be set aside under the APA as arbitrary and capricious.

It next held that the district court did not err in issuing a nationwide injunction. Finally, the circuit court held that the court below had 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."

As the court described that latter argument: "[I]t is a freestanding claim that the Executive Branch, motivated by animus, ended a program that overwhelmingly benefits a certain ethnic group." The court explained:

[P]laintiffs allege that the rescission of DACA disproportionately impacts Latinos and individuals of Mexican heritage, who account for 93% of DACA recipients. The complaints also allege a history of animus toward persons of Hispanic descent evidenced by both pre-presidential and post-presidential statements by President Trump, who is alleged to have decided to end DACA, even though the directive to the Acting Secretary was issued from Attorney General Sessions. Finally, the district court properly considered "the unusual history behind the rescission," all of which appeared in the record submitted by the government. ... As the district court noted, "DACA received reaffirmation by the agency as recently as three months before the rescission, only to be hurriedly cast aside on what seems to have been a contrived excuse (its purported illegality). This strange about-face, done at lightning speed, suggests that the normal care and consideration within the agency was bypassed."

Respectfully, under the standard, it would be impossible for the Trump administration to ever rescind the DACA, unless the chief executive officer of the United States recused himself from a significant policy decision, a point of questionable constitutional validity.

One judge, finding that the plaintiffs' claim based on equal protection "has some 'likelihood of success on the merits,'" concurred in the judgment of the court. Almost comically, he concluded:

The extraordinary practical impact of allowing DACA's rescission to take effect before a final adjudication of its legality far outweighs the minimal practical impact of keeping the program in place a bit longer. [Emphasis added.]

One might question how Judge John Owens defines the term "a bit longer", and perhaps in geological terms he is correct. In terms of continuing a policy that the government has concluded is illegal, and the time that it took from the filing of the initial district court claim to the circuit court's decision (as well as the amount of time that it will take from a final district court decision to a decision by the Supreme Court), however, an objective observer might question whether this statement is tongue in cheek.

Judge Owens disagreed, however, with the findings of the circuit court decision that the court could review the rescission of DACA in terms of compliance with the APA.

In any event, now that the Ninth Circuit has issued its decision, the path would appear to be clear for the Supreme Court to grant DOJ's petition for certiorari, notwithstanding the pendency of circuit court decisions in the D.C. and Second Circuits on the issue of the legality of the rescission of DACA. Notably, DOJ filed petitions for certiorari involving both the Second Circuit case and the D.C. Circuit case, requesting consolidation of the three matters. It is time for the Supreme Court to act on this issue, once and for all.