The US Court of Appeals for the Fourth Circuit in Virginia ruled Friday that the decision to rescind DACA (deferred action for childhood arrivals) was “arbitrary and capricious”.
The suit was filed by a number of individuals and organizations to protect the rights of children who were previously granted deferred action under the DACA policy. Under the policy, individuals who came to the US as children and submitted various personal and biometric data to the Department of Homeland Security would be allowed to apply for renewable two-year terms of deferred action to stay in the country.
The program was started under the Obama administration and allowed for the entry and stay of some 800,000 individuals. The Trump administration rescinded the program after taking office in 2017, leading to lawsuits filed across the country including this one.
The Fourth Circuit reviewed the district court decision and ultimately reversed. The appeals court found that while the decision did not require notice-and-comment, it was still subject to judicial review as a form of agency action.
The court ultimately found that the change in policy violated the “arbitrary and capricious” test because the agency did not adequately explain the reversal of policy. The agency failed to demonstrate the laws the policy violated or any substantial flaws in the data or decision-making of the original policy. The court reversed for further proceedings but specifically did not address specific claimed Constitutional violations.
The bulk of the ruling rests on how the administration laid out its decision to rescind the DACA program.
Attorneys for the Trump administration argued that the decision to rescind DACA was an agency decision, and therefore did not have to made available for public comment and other procedures required under the Administrative Procedure Act (APA).
While the court agreed that the decision didn’t have to undergo a public comment period, they said administration officials still violated the federal law by not fully explaining its decision to rescind DACA.
The judges wrote in the majority opinion that then-Acting Homeland Security Secretary Elaine Duke “rescinded a general enforcement policy in existence for over five years and affecting hundreds of thousands of enrollees based on the view that the policy was unlawful.”
“Nor did the Department adequately account for the reliance interests that would be affected by its decision. Hundreds of thousands of people had structured their lives on the availability of deferred action during the over five years between the implementation of DACA and the decision to rescind,” the opinion reads. “Although the government insists that Acting Secretary Duke considered these interests in connection with her decision to rescind DACA, her Memo makes no mention of them.”
The appeals court decision stems from a lawsuit arguing that the decision to end DACA needed to undergo public comment and other APA procedures.
The complaint also alleged that the proposed policy changes on how the personal information of DACA applicants would be shared were similarly unlawful, and violated due process protections guaranteed by the Fifth Amendment.
The court found that while the administration argued that DACA was unlawful in its decision to end the program, the documents used to back up those claims did not “identify any statutory provision with which the DACA policy conflicts.”
The judges noted that then-Attorney General Jeff Sessions wrote in a memo that courts had ruled against the Deferred Action for Parents of Americans (DAPA) program, which was similar to DACA and partly expanded the protections for children.
But they said that DACA and DAPA are still two separate programs, and the administration failed to state exactly how court rulings against one program would impact the other.
The judges also reversed a lower court ruling about blocking information on DACA applicants from being shared for immigration enforcement purposes.
They found that the department had told applicants that policies that protected some of their information from immigration officials “could be ‘modified, superseded, or rescinded at any time without notice’ and were ‘not intended to’ and did not ‘create any right or benefit, substantive or procedural, enforceable at law by any party.’”
Friday’s ruling was not unanimous: In a separate opinion, Judge Julius Richardson wrote that the administration had the authority to “decide to prosecute, or not prosecute, an individual or a group” as long it’s permitted under the Constitution and doesn’t go beyond officials’ duties under federal law.
“Here, the Executive’s proper exercise of that discretion to rescind DACA is judicially unreviewable under the Administrative Procedure Act, regardless of one’s view of the policy questions underlying DACA. To hold otherwise permits the Judicial Branch to invade the province of the Executive and impair the carefully constructed separation of powers laid out in our Constitution,” Richardson, a Trump appointee, wrote.
And while the majority opinion — written by Democratic appointees — did not take up the lawsuit’s constitutional arguments, Richardson stated that he would have ruled against them.
“The plaintiffs may have serious concerns about our nation’s immigration laws and the Department’s policy of enforcing those laws. But an understandable policy concern is not a legally cognizable right. The rescission of DACA simply does not generate a due process claim,” he wrote.
Richardson did agree with the majority’s opinion to vacate an injunction blocking officials from sharing information on DACA applications with immigration enforcement.
The ruling comes as the legal battle over the termination of DACA continues. The Supreme Court is weighing whether to hear several cases over the end of the program.
The Trump administration was dealt a blow last year when the justices declined to take up their challenge to a ruling that temporarily blocked officials from rolling back the Obama-era immigration program.
Friday’s ruling also landed one day after Trump unveiled a new immigration plan to shift the U.S. toward a “merit-based” system that promotes skilled workers over migrants with family living in the nation.