## Facts

- In 2012, the Department of Homeland Security (DHS) created Deferred Action for Childhood Arrivals (DACA) to grant certain noncitizens who arrived as children temporary forbearance from removal and eligibility for work authorization and related benefits.
- On September 5, 2017, Acting Secretary Elaine Duke issued a memorandum rescinding DACA, relying on the Attorney General’s view that DACA was unlawful, particularly in light of litigation over related programs.
- Universities, states, local governments, labor organizations, and individual DACA recipients sued DHS and federal officials, challenging the rescission.
- The district court rejected broad challenges to judicial review, required completion of an administrative record, and entered a nationwide preliminary injunction.
- The injunction required DHS to continue accepting DACA renewal applications from existing recipients while litigation proceeded.
- DHS appealed the preliminary injunction.

## Issues

1. Whether DHS’s rescission of DACA was reviewable under the Administrative Procedure Act (APA) or was an unreviewable exercise of enforcement discretion.
2. Whether plaintiffs were likely to succeed on the merits of their claim that the rescission was arbitrary and capricious under the APA.
3. Whether plaintiffs plausibly alleged a violation of the equal protection component of the Fifth Amendment based on discriminatory animus.

## Decision

- The Ninth Circuit affirmed the nationwide preliminary injunction.
- The court held the rescission was reviewable because DHS treated termination as compelled by law rather than as a discretionary enforcement choice.
- The court concluded plaintiffs were likely to succeed on the APA claim because the rescission rested on an erroneous legal premise and failed to address important aspects of the problem, including alternatives and reliance interests.
- The court held the equal protection allegations were sufficient to proceed at the pleading stage, though the injunction was principally supported by the APA claim.
- The court treated a later memorandum offering additional reasons for rescission as an impermissible post hoc justification that did not cure deficiencies in the original rescission rationale.

## Legal Principles

- Agency action is reviewable under the APA when the agency bases its decision on a legal determination that it is required to act, rather than on unstructured enforcement discretion.
- Under arbitrary-and-capricious review, an agency must provide a reasoned explanation that addresses important aspects of the problem and does not rest on a mistaken view of the governing law.
- When rescinding a significant policy, an agency must consider reasonable alternatives within its authority, including partial retention or modification of the policy.
- An agency must consider and weigh serious reliance interests created by an existing policy before terminating it.
- Courts review the contemporaneous reasons given for an agency’s decision; later-developed rationales generally cannot supply the required justification.

## Conclusion

The Ninth Circuit held that DHS’s 2017 rescission of DACA was subject to judicial review and that plaintiffs were likely to prove the rescission arbitrary and capricious because DHS relied on a flawed legal premise and failed to consider alternatives and substantial reliance interests, warranting a nationwide injunction requiring continued processing of DACA renewals during the litigation.


Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., 908 F.3d 476 (9th Cir. 2018)