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Law School Case Brief

Dep't of Homeland Sec. v. Regents of the Univ. of Cal. - Nos. 18-587, 18-588, 18-589, 2020 U.S. LEXIS 3254 (June 18, 2020)


The APA sets forth the procedures by which federal agencies are accountable to the public and their actions subject to review by the courts. It requires agencies to engage in reasoned decisionmaking and directs that agency actions be set aside if they are arbitrary or capricious, 5 U.S.C.S. § 706(2)(A). Under this narrow standard of review, a court is not to substitute its judgment for that of the agency, but instead to assess only whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment.


In the summer of 2012, the Department of Homeland Security (DHS) announced an immigration program known as Deferred Action for Childhood Arrivals, or DACA. That program allows certain unauthorized aliens who entered the United States as children to apply for a two-year forbearance of removal. Those granted such relief are also eligible for work authorization and various federal benefits. Some 700,000 aliens have availed themselves of this opportunity.

Five years later, the Attorney General advised DHS to rescind DACA, based on his conclusion that it was unlawful. The Department’s Acting Secretary issued a memorandum terminating the program on that basis. The termination was challenged by affected individuals and third parties who alleged, among other things, that the Acting Secretary had violated the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision.


Did the Acting Secretary of the Department of Homeland Security (DHS)  violate the Administrative Procedure Act (APA) by failing to adequately address important factors bearing on her decision to terminate the immigration program known as Deferred Action for Childhood Arrivals (DACA)?




The Supreme Court of the United States consolidated several cases, with the issues raised: (1) whether the APA claims are reviewable, (2) if so, whether the rescission was arbitrary and capricious in violation of the APA, and (3) whether the plaintiffs have stated an equal protection claim. The dispute before the Court was not whether DHS may rescind DACA. All parties agreed that it may. The dispute was instead primarily about the procedure the agency followed in doing so.

The Court found that DHS's rescission of the DACA program was subject to judicial review under the APA because DACA did not announce a passive non-enforcement policy. Rather, it created a program conferring affirmative immigration relief given the benefits attendant to deferred action. 8 U.S.C.S. § 1252(b)(9) did not bar review as the parties were not challenging any removal proceedings. 8 U.S.C.S. § 1252(g) did not bar review because rescission of DACA was not a decision to commence proceedings, adjudicate a case, or execute a removal order. Rescission of DACA was arbitrary and capricious under the APA because the Acting Secretary offered no reason for terminating the forbearance policy, did not consider alternatives that were within the ambit of the existing forbearance policy, and failed to address whether there was legitimate reliance on the DACA memorandum. The Court did not decide whether DACA or its rescission were sound policies. 

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