Status of Current DACA Litigation


For information about U.S. Citizenship and Immigration Services’ Jan. 13, 2018, announcement that it is accepting DACA renewal applications, see our FAQ: USCIS Is Accepting DACA Renewal Applications, first posted Jan. 14, 2018.


Status of Current DACA Litigation

Last updated FEBRUARY 2, 2018

On September 5, 2017, U.S. Attorney General Jeff Sessions announced that the government was terminating the Deferred Action for Childhood Arrivals, or DACA, program. That same day, then–Acting Secretary of Homeland Security Elaine Duke issued a memorandum directing the U.S. Department of Homeland Security to reject all initial DACA applications and associated applications for work authorization received after Sep. 5, 2017; to reject all renewal applications after Oct. 5, 2017, from current DACA recipients whose status expires between Sep. 5, 2017, and March 5, 2018; and to reject all other renewal applications from DACA recipients.[1]

In the days and months following, multiple lawsuits challenging the Trump administration’s actions to terminate DACA were filed across the country. This update summarizes the current status primarily of lawsuits filed in federal court in California, collectively known as Regents of the University of California v. Department of Homeland Security.

Regents of the University of California, et al. v. Department of Homeland Security, et al.[2]

On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California issued a preliminary injunction requiring the federal government to maintain the Deferred Action for Childhood Arrivals, or DACA, program on a nationwide basis by allowing individuals to submit applications to renew their enrollment in DACA, subject to a few exceptions.[3] Generally, parties objecting to a district court’s order must wait until the litigation is completed before asking the court of appeals for review.[4] However, a preliminary injunction order is immediately appealable (a process referred to as an “interlocutory appeal”), meaning that the government can ask the Ninth Circuit Court of Appeals to review Judge Alsup’s order immediately.[5]

Direct appeal to Supreme Court via “cert. before judgment.” In this case, however, the government has taken the unusual step of seeking to skip review in the Ninth Circuit and instead appeal directly to the U.S. Supreme Court through a rarely used legal mechanism called “cert. before judgment.”[6] The government filed its request, or petition for certiorari, with the Supreme Court on Jan. 18, 2018.[7] This kind of request is rarely granted, as Supreme Court rules warn that the Court will grant this kind of early review only “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”[8]

The Supreme Court has not yet decided whether to grant the government’s request to consider the appeal. It has directed the plaintiffs in the California cases to file briefs by Feb. 2, 2018, with their arguments for why the Court should not grant the government’s petition. The government has asked the Court to consider hearing the petition for certiorari when it meets on Feb. 16, 2018, in hopes that the Court will hear the appeal during its current term. If the Court decides to grant the petition, it would likely hear oral argument in March or April. If the Court does not grant the petition, the government could file an appeal with the Ninth Circuit.

Government continues to accept DACA renewal applications. Although the government could have sought a stay of Judge Alsup’s preliminary injunction — i.e., while it could have asked the judge or the Supreme Court to allow the government to continue with its process of shutting down DACA[9] — it did not do so. Therefore, for now the government must continue to accept DACA renewal applications in accordance with Alsup’s preliminary injunction.

Other orders subject to appeal. In the order issued on Jan. 9, Judge Alsup also ruled against the government on its claim that the decision to terminate DACA was unreviewable by the courts either under the Administrative Procedure Act, because the decision was within the agency’s discretion, or under the Immigration and Nationality Act. On Jan. 12, Alsup issued an additional order that addresses the issue of whether the plaintiffs had pled enough facts to support additional legal claims. Usually, these kinds of intermediate orders in a case would not be directly appealable to the court of appeals, but Judge Alsup also granted the government’s request to appeal these portions of his January 9 decision and his January 12 decision to the Ninth Circuit through a special appeal mechanism that allows immediate appeals of intermediary orders.[10] The government has filed its appeal, but the Ninth Circuit has discretion to decide whether to hear an appeal under the special mechanism.

Other Litigation

In addition to the consolidated cases brought in California, other court cases challenging the termination of DACA include:

  • Batalla Vidal v. Nielsen, 1:16-cv-04756 (E.D.N.Y)
  • State of New York, et al. v. Donald Trump, 1:17-cv-05228 (E.D.N.Y.)
  • CASA de Maryland, et al. v. Dept. of Homeland Security, et al., 8:17-cv-02942 (D.Md.)
  • NAACP v. Trump, et al., 1:17-cv-01907 (D.D.C.
  • Trustees of Princeton, et al. v. United States of America et al., 1:17-cv-02325 (D.D.C.)
  • Park et al. v. Sessions, et al., 1:17-cv-01332 (E.D. Va.)

These cases are proceeding in the U.S. district courts in which they were filed. For example, in the Eastern District of New York, Judge Nicholas G. Garaufis heard argument on January 30, 2018, about whether to grant a preliminary injunction in the Batalla Vidal litigation and litigation filed by a coalition of seventeen attorneys general.[11] NILC, Yale Law School’s Worker and Immigrant Rights Advocacy Clinic, and Make the Road New York represent the plaintiffs in Batalla Vidal.

Judge Garaufis — or other courts hearing similar challenges around the country — could issue rulings that are different from Judge Alsup’s. They could, for example, expand the scope of Alsup’s injunction (for example, by requiring U.S. Citizenship and Immigration Services to accept DACA applications from individuals who have never previously received DACA) or grant an injunction for different legal reasons. It is uncertain when Judge Garaufis will issue a decision on whether to issue a preliminary injunction, and whether he would issue an injunction before the Supreme Court decides whether to grant the government’s petition for cert. before judgment.


NOTES

[1] Memorandum from Elaine C. Duke, Acting Secretary, U.S. Dept. of Homeland Security, to James W. McCament, Acting Director, U.S. Citizenship and Immigration Services, et al., re. Rescission of the June 15, 2012 Memorandum Entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children,” Sep. 5, 2017, https://www.dhs.gov/news/2017/09/05/memorandum-rescission-daca.

[2] The California litigation includes five cases that were consolidated before Judge William Alsup in the Northern District of California: Regents of the University of California, et al. v. Dep’t of Homeland Security, et al., No. 3:17-cv-05211; State of California, et al. v. U.S. Dep’t of Homeland Security, et al., No. 3:17-cv-05235; City of San Jose v. Donald J. Trump, et al., No. 3:17-cv-05380; Garcia, et al. v. United States of America, et al., No. 3:17-cv-05380; and Cty. of Santa Clara, et al. v. Donald J. Trump, et al., No. 3:17-cv-05813.

[3] The preliminary injunction is available at www.nilc.org/wp-content/uploads/2018/01/Regents-v-DHS-prelim-injunction-2018-01-09.pdf. For more information on it and its implications for DACA recipients, see FAQ: USCIS Is Accepting DACA Renewal Applications (NILC, last revised Jan. 16, 2018), www.nilc.org/faq-uscis-accepting-daca-renewal-applications/; USCIS and DACA Renewal Applications: What You Need to Know (NILC, Jan. 14, 2018), www.nilc.org/five-things-know-latest-uscis-announcement/; and Alert: Court Orders the Dept. of Homeland Security to Allow Individuals with DACA to Apply to Renew It (NILC, Jan. 10, 2018), www.nilc.org/daca-preliminary-injunction-regents-v-dhs/.

[4] See 28 U.S.C. § 1291, https://www.law.cornell.edu/uscode/text/28/1291.

[5] See 28 U.S.C. § 1292(a), https://www.law.cornell.edu/uscode/text/28/1292.

[6] The petition for certiorari before judgment was filed pursuant to 28 U.S.C. § 2101(e), https://www.law.cornell.edu/uscode/text/28/2101, and 28 U.S.C. § 1254(1), https://www.law.cornell.edu/uscode/text/28/1254. For an explanation of “cert. before judgment,” see Kevin Russell, “Overview of Supreme Court’s Cert. Before Judgment Practice,” SCOTUSblog, Feb. 9, 2011, www.scotusblog.com/2011/02/overview-of-supreme-court%E2%80%99s-cert-before-judgment-practice/.

[7] Petition for writ of certiorari before judgment: https://www.supremecourt.gov/DocketPDF/17/17-1003/28381/20180119100226711_DACA%20Rule%2011%20Petition.pdf.

[8] See Supreme Court Rule 11, https://www.supremecourt.gov/filingandrules/2017RulesoftheCourt.pdf.

[9] See 28 U.S.C. § 2101(f), https://www.law.cornell.edu/uscode/text/28/2101.

[10] See 28 U.S.C. § 1292(b), https://www.law.cornell.edu/uscode/text/28/1292.

[11] The lawsuit is led by New York Attorney General Schneiderman, Massachusetts Attorney General Maura Healey, and Washington Attorney General Bob Ferguson, and filed by attorneys general from New York, Massachusetts, Washington, Colorado, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia. See “A.G. Schneiderman Files Lawsuit to Protect Dreamers and Preserve DACA,” New York State Office of the Attorney General press release, Sep. 6, 2017, https://ag.ny.gov/press-release/ag-schneiderman-files-lawsuit-protect-dreamers-and-preserve-daca, and “AG Coffman Statement on Governor Joining Democrat DACA Lawsuit,” Colorado Attorney General’s Office press release, Sep. 13, 2017, https://coag.gov/press-room/press-releases/09-13-17-0.