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CALIFORNIA; JANET NAPOLITANO, in Her Official D.C FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT REGENTS OF THE UNIVERSITY No. 18-15068 OF CALIFORNIA; JANET NAPOLITANO, in her official D.C. No. capacity as President of the 3:17-cv-05211-WHA University of California, Plaintiffs-Appellees, v. U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security, Defendants-Appellants. 2 REGENTS OF THE UNIV. OF CAL. V. USDHS STATE OF CALIFORNIA; STATE No. 18-15069 OF MAINE; STATE OF MINNESOTA; STATE OF D.C. No. MARYLAND, 3:17-cv-05235-WHA Plaintiffs-Appellees, v. U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA, Defendants-Appellants. CITY OF SAN JOSE, No. 18-15070 Plaintiff-Appellee, D.C. No. v. 3:17-cv-05329-WHA DONALD J. TRUMP, President of the United States, in his official capacity; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security; UNITED STATES OF AMERICA, Defendants-Appellants. REGENTS OF THE UNIV. OF CAL. V. USDHS 3 DULCE GARCIA; MIRIAM No. 18-15071 GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA D.C. No. CHABOLLA MENDOZA; JIRAYUT 3:17-cv-05380-WHA LATTHIVONGSKORN; NORMA RAMIREZ, Plaintiffs-Appellees, v. UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security, Defendants-Appellants. 4 REGENTS OF THE UNIV. OF CAL. V. USDHS COUNTY OF SANTA CLARA; No. 18-15072 SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL D.C. No. 521, 3:17-cv-05813-WHA Plaintiffs-Appellees, v. DONALD J. TRUMP, in his official capacity as President of the United States; JEFFERSON B. SESSIONS III, Attorney General; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security; U.S. DEPARTMENT OF HOMELAND SECURITY, Defendants-Appellants. REGENTS OF THE UNIV. OF CAL. V. USDHS 5 REGENTS OF THE UNIVERSITY No. 18-15128 OF CALIFORNIA; JANET NAPOLITANO, in her official D.C. Nos. capacity as President of the 3:17-cv-05211-WHA University of California; 3:17-cv-05235-WHA STATE OF CALIFORNIA; STATE 3:17-cv-05329-WHA OF MAINE; STATE OF 3:17-cv-05380-WHA MINNESOTA; STATE OF 3:17-cv-05813-WHA MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ; COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521, Plaintiffs-Appellees, v. UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security, Defendants-Appellants. 6 REGENTS OF THE UNIV. OF CAL. V. USDHS REGENTS OF THE UNIVERSITY No. 18-15133 OF CALIFORNIA; JANET NAPOLITANO, in her official D.C. Nos. capacity as President of the 3:17-cv-05211-WHA University of California; 3:17-cv-05235-WHA STATE OF CALIFORNIA; STATE 3:17-cv-05329-WHA OF MAINE; STATE OF 3:17-cv-05380-WHA MINNESOTA; STATE OF 3:17-cv-05813-WHA MARYLAND; CITY OF SAN JOSE; DULCE GARCIA; MIRIAM GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA CHABOLLA MENDOZA; JIRAYUT LATTHIVONGSKORN; NORMA RAMIREZ, Plaintiffs-Appellants, v. UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security, Defendants-Appellees. REGENTS OF THE UNIV. OF CAL. V. USDHS 7 DULCE GARCIA; MIRIAM No. 18-15134 GONZALEZ AVILA; SAUL JIMENEZ SUAREZ; VIRIDIANA D.C. Nos. CHABOLLA MENDOZA; NORMA 3:17-cv-05211-WHA RAMIREZ; JIRAYUT 3:17-cv-05235-WHA LATTHIVONGSKORN; COUNTY 3:17-cv-05329-WHA OF SANTA CLARA; SERVICE 3:17-cv-05380-WHA EMPLOYEES INTERNATIONAL 3:17-cv-05813-WHA UNION LOCAL 521, Plaintiffs-Appellants, OPINION v. UNITED STATES OF AMERICA; DONALD J. TRUMP, in his official capacity as President of the United States; U.S. DEPARTMENT OF HOMELAND SECURITY; KIRSTJEN NIELSEN, in her official capacity as Acting Secretary of the Department of Homeland Security, Defendants-Appellees. Appeal from the United States District Court for the Northern District of California William Alsup, District Judge, Presiding Argued and Submitted May 15, 2018 Pasadena, California Filed November 8, 2018 8 REGENTS OF THE UNIV. OF CAL. V. USDHS Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, and John B. Owens, Circuit Judges. Opinion by Judge Wardlaw; Concurrence by Judge Owens SUMMARY* Immigration In an action challenging the Department of Homeland Security’s rescission of Deferred Action for Childhood Arrivals (DACA), the panel affirmed the district court’s grant of preliminary injunctive relief, and affirmed in part the district court’s partial grant and partial denial of the government’s motion to dismiss for failure to state a claim. Begun in 2012, DACA allows those noncitizens who unwittingly entered the United States as children, who have clean criminal records, and who meet various educational or military service requirements to apply for two-year renewable periods of deferred action—a revocable decision by the government not to deport an otherwise removable person from the country. In 2014, Secretary of Homeland Security Jeh Johnson issued a memorandum that announced the related Deferred Action for Parents of Americans and Lawful Permanent Residents program (DAPA), which allowed deferred action for certain noncitizen parents of American citizens and lawful permanent residents, and expanded DACA. All of the policies outlined in the 2014 * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. REGENTS OF THE UNIV. OF CAL. V. USDHS 9 Johnson memorandum were enjoined nationwide in a district court order upheld by the Fifth Circuit and affirmed by an equally divided Supreme Court. After a new presidential administration took office, Acting Secretary of Homeland Security Elaine Duke issued a memorandum in September 2017 rescinding DACA. Suits were filed in the Northern District of California by the Regents of the University of California, a group of states led by California, the City of San Jose, the County of Santa Clara and Service Employees International Union Local 521, and a group of individual DACA recipients led by Dulce Garcia. The cases were consolidated, and the district court ordered the government to complete the administrative record. Seeking to avoid providing additional documents, the government filed a petition for mandamus, which this court denied. The government petitioned the Supreme Court for the same mandamus relief; the Court did not reach the merits of the administrative record dispute, but instructed the district court to rule on the government’s threshold arguments challenging reviewability of its rescission decision. The district court entered a preliminary injunction requiring DHS to adjudicate renewal applications for existing DACA recipients, and the court partially granted and partially denied the government’s motion to dismiss. The panel held that neither the Administrative Procedure Act nor the Immigration and Nationality Act (INA) barred judicial review of the decision to rescind DACA. With respect to the APA, the panel reviewed the cases of Heckler v. Chaney, 470 U.S. 821 (1985), Montana Air Chapter No. 29 v. Federal Labor Relations Authority, 898 F.2d 753 (9th Cir. 1990), and City of Arlington v. FCC, 569 U.S. 290 (2013). The panel concluded that, where the agency’s decision is based not on an exercise of discretion, but instead 10 REGENTS OF THE UNIV. OF CAL. V. USDHS on a belief that any alternative choice was foreclosed by law because the agency lacked authority, the APA’s “committed to agency discretion” bar to reviewability, 5 U.S.C. § 701(a)(2), does not apply. The panel also concluded that the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. Accordingly, the panel determined that the rescission was within the realm of agency actions reviewable under the APA. With respect to the INA, the panel rejected the government’s contention that review was barred by 8 U.S.C. § 1252(g), which precludes judicial review of “any cause or claim by or on behalf of any alien arising from the decision or action of the [Secretary of Homeland Security] to commence proceedings, adjudicate cases, or execute removal orders.” The panel explained that, under Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999), the rescission does not fall within the three discrete actions mentioned in 8 U.S.C. § 1252(g). Having concluded that neither the APA nor the INA precludes judicial review, the panel turned to the merits of the preliminary injunction and considered whether the agency was correct in concluding that DACA was unlawful. The Attorney General’s primary bases for concluding that DACA was illegal were that the program was “effectuated . without proper statutory authority” and that it amounted to “an unconstitutional exercise of authority.” More specifically, the Attorney General asserted that “the DACA policy has the same legal and constitutional defects that the courts recognized as to DAPA” in the Fifth Circuit litigation. The panel considered the DAPA litigation, comparing aspects of DAPA and DACA, and concluded that that DACA was a permissible exercise of executive discretion, REGENTS OF THE UNIV. OF CAL. V. USDHS 11 notwithstanding the Fifth Circuit’s conclusion that the related DAPA program exceeded DHS’s statutory authority. Thus, the panel concluded that, because the Acting Secretary was incorrect in her belief that DACA was illegal and had to be rescinded, plaintiffs are likely to succeed in demonstrating that the rescission must be set aside under the APA as arbitrary and capricious.
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