June 18, 2020
Decided June 18, 2020
Department of Homeland Security, et al., v. Regents of the University of California, et al. and related cases, Nos. 18-587, 18-588, and 18-589
Today, in a 5-4 decision, the Supreme Court held that DHS’s decision to terminate the Deferred Action for Childhood Arrivals policy is unlawful.
Since 2012, the Deferred Action for Childhood Arrivals (“DACA”) policy has enabled undocumented individuals who arrived in the United States as children—including nearly 700,000 current recipients—to live and work here without fear of deportation, so long as they qualify and remain eligible for the policy. In September 2017, Acting Secretary of Homeland Security Elaine Duke terminated DACA based on the Attorney General’s determination that the policy was unlawful.
Respondents challenged DHS’s action, contending that the decision to rescind DACA was “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in violation of the Administrative Procedure Act (“APA”), 5 U.S.C. § 706(2)(A), because DHS failed to explain or consider the costs of its policy change, and relied on an incorrect legal premise, i.e., that DACA is unlawful.
Gibson Dunn represented six individual DACA recipients in obtaining and defending on appeal the first nationwide preliminary injunction halting the termination of DACA. The Supreme Court granted certiorari to review the Ninth Circuit’s decision affirming that injunction and two other district court decisions enjoining or vacating DHS’s action. Gibson Dunn partner Ted Olson represented DACA recipients, businesses, and nonprofits challenging the policy in presenting oral argument before the Supreme Court.
Does the APA or the Immigration and Nationality Act (“INA”) preclude judicial review of the Secretary’s decision to terminate DACA? If the decision is reviewable, was it “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law,” in violation of the APA?
The Court held that DHS’s decision to terminate DACA is subject to judicial review and violated the APA.
“[W]hen so much is at stake, . . . the Government should turn square corners in dealing with the people.”
Chief Justice Roberts, writing for the Court
Gibson Dunn Represented Respondents:
Miriam Gonzalez Avila;
Saul Jimenez Suarez;
Viridiana Chabolla Mendoza;
What It Means:
The Court’s opinion is available here.
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Appellate and Constitutional Law Practice
|Theodore J. Boutrous, Jr.
|Stuart F. Delery
|Allyson N. Ho
|Mark A. Perry
|Theodore B. Olson
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