Argument Date: November 12, 2019

Issue(s) in the Case: 

(1) Whether the decision of the Department of Homeland Security (“DHS”) to terminate the Deferred Action for Childhood Arrivals (“DACA”) policy is judicially reviewable; and if so (2) whether DHS’s decision to terminate DACA is lawful.



In 2012, during the Obama Administration, DHS implemented DACA to allow undocumented immigrants who had been brought to the United States as children to apply for protection from deportation and permission to work in the United States (among other things). In September 2017, there were nearly 700,000 active DACA beneficiaries, with an average age of just under 24 years old.[51] More than 90 percent of DACA recipients are employed, and 45 percent are in school.[52] On September 5, 2017, then-Attorney General Jefferson B. Sessions III announced the Trump Administration’s decision to end DACA, stating that it was unlawful.[53] As justification, he cited the Supreme Court’s decision in Texas v. United States, which upheld an injunction against Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”), a related but distinct policy.[54]


This is a consolidated case from three district courts (the Northern District of California, the District of Columbia, and the Eastern District of New York) where plaintiffs challenged DHS’s decision to terminate DACA. The case presents claims based on the Administrative Procedure Act (“APA”), 5 U.S.C. § 500 et seq., and on equal protection and due process grounds. In November 2018, the district courts either enjoined or vacated DHS’s decision on a nationwide basis. The Ninth Circuit Court of Appeals affirmed the California district court’s preliminary injunction in November 2018.[55]

Key Issues: 

The first issue is judicial reviewability under the APA. The Ninth Circuit ruled that DHS’s decision to rescind DACA is reviewable.[56] While the Supreme Court held in Heckler v. Chaney that certain types of discretionary administrative action are not subject to judicial review under the APA, the Ninth Circuit distinguished this case because DHS claimed its decision was non-discretionary, based on its belief that it lacked the power to enforce DACA.[57] The question whether non-discretionary agency action is judicially reviewable was explicitly left open in Chaney.[58] The Ninth Circuit also rejected DHS’s argument that the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., precludes judicial review of the decision to rescind DACA because the INA provision that bars judicial review (8 U.S.C. § 1252(g)) only applies to decisions to commence proceedings, adjudicate cases, or execute removal orders, and not to a programmatic shift (like the termination of DACA).[59]


On the merits, there is a question as to whether DHS’s decision to terminate DACA was arbitrary and capricious because it was based on an erroneous conclusion by DHS that DACA is unlawful. The Supreme Court must also decide whether there is a viable intentional discrimination claim under Village of Arlington Heights v. Metropolitan Housing Development Corp. Applying the Arlington Heights factors, the Ninth Circuit found that a viable discrimination claim existed based on plaintiffs’ allegations that (1) there was a disproportionate adverse impact of the termination decision, given that 93 percent of persons affected by the decision are Latinxs and persons of Mexican heritage; (2) various statements made by President Trump showed animus toward persons of Latinx descent; and (3) the unusual process behind the sudden decision to terminate DACA “suggests that the normal care and consideration within the agency was bypassed.”[60] DHS had argued that Arlington Heights should not apply, and instead the court should apply a heightened pleading standard applicable to selective-prosecution cases.[61] The Ninth Circuit rejected this argument, finding that plaintiffs’ claim was not related to selective prosecution.[62]

Importance as a Matter of Civil Rights: 

LDF filed an amicus brief in this case, agreeing with the Ninth Circuit decision that the Arlington Heights framework, and not a heightened selective enforcement prosecution standard, is appropriate in cases challenging changes to immigration programs as racially discriminatory. In addition, LDF’s brief reiterates why the Arlington Heights framework is important for smoking out discrimination that may underly facially neutral laws—including in the immigration context—and therefore the Ninth Circuit decision should be upheld.     


[51] Brief in Opposition for the States of California, Maine, Maryland, and Minnesota at 2, Dep’t of Homeland Sec’y v. Regents of the Univ. of California, 138 S. Ct. 942 (Dec. 17, 2018) (No. 18-587),

[52] Id.

[53] U.S. Dep’t of Justice, Attorney General Sessions Delivers Remarks on DACA (Sept. 5, 2017),

[54] Id.

[55] Dep’t of Homeland Sec’y v. Regents of the Univ. of California, 908 F.3d 476 (9th Cir. 2018).

[56] Id. at 503. 

[57] Id. at 495.

[58] Id. (citing Heckler v. Chaney, 470 U.S. 821, 833 n.4 (1985)).

[59] Id. at 503.

[60] Id. at 519-20.

[61] Id. at 519.

[62] Id.