U.S. Court of Appeals for the Ninth Circuit affirmed

99 Pages·2017·0.52 MB·English

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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.
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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.
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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.
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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.
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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.
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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.
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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
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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.
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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
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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,