The Supreme Court has determined that the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (DACA) program was arbitrary and capricious. In so doing, the Court relied only on the reasons given by Acting Secretary of Homeland Security (DHS) Elaine Duke in her original rescission memo, and not on the subsequent post hoc justifications presented by Secretary Kirstjen Nielsen. The Court further rejected Duke’s reliance on the Fifth Circuit’s decision finding that expanded DACA and Deferred Action for Parents of Americans (DAPA) were unlawful, insomuch as the Fifth Circuit had relied on the eligibility for benefits accorded to those who would qualify for expanded DACA and DAPA, and not on the forbearance of removal that would be accorded to these individuals. Thus, the Court concluded, Secretary Duke, if she was truly motivated by concerns that DACA was illegal given the Fifth Circuit’s decision, could have left the removal forbearance piece of DACA in place, while only removing the eligibility for certain benefits, such as work authorization, Social Security benefits, and Medicare. The Court also faulted Duke for not considering what reliance DACA recipients and their families, employers, and schools may have had on the original memo creating the DACA program. “Acting Secretary Duke should have considered those matters but did not. That failure was arbitrary and capricious in violation of the APA.”
The Court remanded the case to allow the agency to consider the issue anew. As such, the DHS could again try to rescind DACA using a more thoughtful and comprehensive decision-making process.
The full text of DHS v. Regents of University of CA can be found here:
https://www.supremecourt.gov/opinions/19pdf/18-587_5ifl.pdf
