U.S. District Court Judge Nicholas Garaufis of the Eastern District of New York (“EDNY”) issued a decision on February 13, 2017 ordering a nationwide stay of the Trump administration’s attempts to dismantle the Deferred Acton for Childhood Arrivals (“DACA”) program.[1] Judge Garaufis’ memorandum and order is now the second judicial decision to impede the administration’s efforts to halt the protections offered by DACA.[2]
The DACA program, created in 2012 by the Obama administration, provides protections to individuals without lawful immigration status who entered the country as children to obtain discretionary relief from deportation, or deferred action, and authorization to work.[3]
In September 2017, the Department of Homeland Security (“DHS”) issued a memorandum announcing that it would begin slowly shutting down the DACA program.[4] Under the memorandum, DHS would consider pending applications and any applications filed within the subsequent month for individuals whose benefits were set to expire within six months.[5] DHS advised that it would otherwise reject all other applications and renewal requests.[6] In response, Plaintiffs[7] brought this action arguing, inter alia, that the agency decision violated the Administrative Procedures Act (“APA”).[8] On December 15, 2017, Plaintiffs filed a motion for a preliminary injunction barring the Defendants[9] from ending the DACA program until the case has been decided on the merits.[10]
The main issue before the Court on the motion was whether it was likely that DHS’ decision to terminate the DACA program was substantively arbitrary and capricious under the APA.[11] The Court determined that DHS was within its purview to set aside the DACA program, but that it had failed to provide a “legally adequate reason for doing so.”[12] The Court reasoned that: (1) DHS’ decision to end the DACA program relied solely on the erroneous legal conclusion that the program was unconstitutional,[13] (2) that the foregoing erroneous conclusion was further based on the “incorrect factual premise that courts have recognized ‘constitutional defects’ in the somewhat analogous Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program,”[14] and (3) that Defendants’ decision was internally contradictory in that the agency proposed to wind down the program by continuing to process certain applications, while basing its decision to end the program on its alleged unconstitutionality.[15] According to the decision, any of the foregoing was sufficient to find that DHS’ decision was arbitrary and capricious under the APA, and therefore find that Plaintiffs were likely to succeed on the merits of their APA claims.
The Court also found that the remaining factors favored issuing a preliminary injunction. In finding that the Plaintiffs would suffer irreparable harm, the Court, rather than focus on what it characterized as the speculative threat of deportation, cited instead the harm caused by the loss of work authorization by DACA recipients.[16] The result, the Court determined, would be that DACA recipients would be “legally unemployable,” potentially leading to loss of healthcare coverage, homes, and even education.[17] Further, “the DACA rescission [would] result in ‘staggering’ adverse economic impacts, including, by the State Plaintiffs' best lights, $215 billion in lost GDP over the next decade, and $797 million in lost state and local tax revenue.”[18] The ability of DACA recipients to support themselves also weighed the balance of the equities toward the Plaintiffs, as did maintaining the status quo until the matter could be decided on the merits.[19] However, it was the Court’s determination that Defendants failed to establish a compelling interest in rescinding DACA that tipped the balance; an injunction would not impede the governments interest in “the speedy deportation of removable aliens” given that under the program DHS maintained the discretion to revoke deferred action and work authorizations.[20]
The injunction order by Judge Garaufis prohibits DHS from rescinding the DACA program and requires Defendants to continue processing renewal requests under the same terms and conditions that applied as of September 5, 2017. Practically though, the decision changes little. The U.S. Citizenship and Immigration Services is currently accepting requests to renew grants of deferred action; however, in line with the decision, it is not considering requests from individuals who have never been granted deferred action under the program.[21] Tracking the prior decision issued by the United States District Court for the Northern District of California, the EDNY decision requires DHS to continue to processing applications, but DHS will still have the ultimate decision as to whether to grant or revoke deferred action or work authorization.
For now, the administration has petitioned the United States Supreme Court to review the preliminary injunction issued by the USNDC despite there being no judgment entered at the federal appellate court level.[22] Should the Court grant the petition, it would hear the matter on the merits and ultimately issue a decision that could determine the outcome of all of the pending matters involving DACA. However, a petition for writ of certiorari at this stage has rarely been granted. On February 20, 2018, in orders from the prior week’s conference, the Supreme Court did not act[23] on the government’s petition. However, the justices may come to a different determination this week at a conference scheduled for Friday February 23, 2018.
Update: Today the Supreme Court denied the Trump Administration’s petition to review the injunction issued by the United States District Court for the Northern District of California without prejudice. The matter will now proceed before the 9th Circuit Court of Appeals. The Administration will be able to re-file a petition once the 9th Circuit rules on the appeal.
