Dep't of Homeland Sec. v. Regents of the Univ. of Cal.

Under the Administrative Procedure Act (APA), the Department of Homeland Security’s (DHS) decision to terminate Deferred Action for Childhood Arrivals (DACA) was arbitrary and capricious because there were no reasons offered for terminating the forbearance policy, DHS did not consider alternatives within the ambit of the existing forbearance policy, and it did not address whether there was legitimate reliance on the prior DACA memorandum.

Petitioner, announced that the Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) and DACA programs would be stopped because of a pending state lawsuits challenging both programs and new policy priorities, among other reasons. Respondents challenged the ending of these programs, arguing the decision was arbitrary and capricious, violating the APA, and violating equal protection. The district court ruled for the Respondents and rejected arguments that the claims were not reviewable under the APA and thus the courts lacked jurisdiction under the Immigration and Nationality Act (INA). Petitioner moved for reconsideration but the district court denied the motion, holding the new reasoning did not elaborate on the illegality rationale. The Ninth Circuit affirmed. On review, the Supreme Court first held that DHS’s decision was judicially reviewable because the decision created a program bestowing affirmative immigration relief and was not passive non-enforcement policy. Second, because the case lacked challenge to any removal proceedings, 8 U.S.C.S. § 1252(b)(9) did not bar review. Third, because termination of DACA did not commence a proceeding, adjudicate a case, or execute a removal order, 8 U.S.C.S. § 1252(g) did not bar review. Finally, under the APA, DHS’s decision was arbitrary and capricious because there were no reasons offered for terminating the forbearance policy, DHS did not consider alternatives “within the ambit of the existing” forbearance policy, and did not address whether there was legitimate reliance on the prior DACA memorandum created when DACA was first announced. REMANDED.