On June 18, 2020, the Supreme Court blocked the Trump Administration’s plan to rescind the Deferred Action for Childhood Arrivals (DACA) program, preserving immigration protections for approximately 650,000 current DACA recipients and opening the door for at least 130,000 new applicants to seek the protections afforded by DACA.
In a 5-4 ruling with the majority opinion written by Chief Justice Roberts, the Court found that the U.S. Department of Homeland Security’s decision to terminate the DACA program was reviewable by the courts, and that the decision was “arbitrary” and “capricious” under the Administrative Procedure Act and therefore unlawful.
Cohen Milstein represented the National Association for the Advancement of Colored People (NAACP), the United Food & Commercial Workers International Union (UFCW) and the American Federation of Teachers (AFT) in one of three cases consolidated before the Supreme Court. Cohen Milstein’s case (which was consolidated at the district court level with a similar case brought on behalf of The Trustees of Princeton University, Microsoft Corporation, and Maria De La Cruz Perales Sanchez, sought and obtained partial summary judgment, while the companion cases in the Supreme Court sought only preliminary injunctions. The Supreme Court’s ruling upheld the judgment in Cohen Milstein’s case, resulting in the vacatur of the rescission memo and established requirements that will be difficult to satisfy in the event the Trump Administration tries again to remove these young immigrants, which it has already indicated an intent to do. The Opinion states that the Court’s affirmance of the NAACP order vacating the rescission made it unnecessary to examine the propriety of the nationwide scope of the injunctions” that were issued in the consolidated cases.
Cohen Milstein represented the NAACP, the AFT, and the UFCW in: National Association for the Advancement of Colored People, et al. v. Donald J. Trump, in his official capacity as President of the United States, et al., No. 1:17-cv-01907, U.S. District Court, District of Columbia, which was subsequently consolidated with and styled: Trustees of Princeton University et al. v. U.S. et al., No. 1:17-cv-02325, U.S. District Court, District of Columbia
The Supreme Court case is styled: Department of Homeland Security, et al. v. Regents of the University of California, et al., No. 18-587
In 2012, the Department of Homeland Security (DHS), under the Obama Administration, issued a memorandum announcing an immigration relief program known as Deferred Action for Childhood Arrivals (DACA), which allows certain unauthorized aliens who arrived in the United States as children to apply for a two-year forbearance of removal. Those granted such relief become eligible for work authorization and various federal benefits.
In June 2017, following a change in Presidential administrations, DHS rescinded the DACA program for based on the Attorney General’s conclusion that it was unlawful.
On September 18, 2017, The National Association for the Advancement of Colored People (NAACP), the country’s original civil rights organization, filed a lawsuit against President Trump, then Attorney General Jeff Sessions, Department of Homeland Security Acting Secretary Elaine Duke, U.S. Citizenship and Immigration Services (“USCIS”), U.S. Immigration and Customs Enforcement (“ICE”) the Department of Homeland Security (“DHS”), and the United States of America, in defense of young, undocumented immigrants of color eligible for DACA.
The NAACP, the AFT, and the UCWF brought this action on behalf of their members throughout the country who are currently enrolled in, and who applied to enroll in, the DACA program.
There are approximately 650,000 DACA recipients across the country, and two million who are eligible for the program had it not been unnecessarily and unconstitutionally cancelled. The vast majority of DACA registrants and those eligible for DACA are people of color. More than 80% of registrants are of Mexican origin according to The Migration Policy Institute. Additionally, about 36,000 immigrants of African origin and over 20,000 youth from Caribbean nations of the Dominican Republic and Jamaica were also eligible for DACA.
The lawsuit alleges that the defendants unlawfully reneged on their promise to protect young, undocumented immigrants of color living in the United States. The Amended Complaint alleges that the Trump Administration violated the Due Process Clause of the Fifth Amendment, the Administrative Procedure Act and the Regulatory Flexibility Act.
On March 14, 2018, Cohen Milstein argued three issues before the Honorable John Bates, U.S. District Judge for the District of Columbia: 1) against the motion to dismiss the case, as the Government has requested, 2) seeking summary judgment for the entire case, as requested by the plaintiffs, or, alternatively3) for a preliminary injunction to block the rescission of DACA and/or the Government’s use of information provided by DACA registrants until the case was heard on the merits.
On April 24, 2018, the Court found the memorandum issued by the DHS terminating DACA program legally insufficient, holding that DHS’s rescission of DACA was “virtually unexplained” and as such “unlawful.” As such, Judge Bates granted partial summary judgement and vacated the rescission memorandum unless DHS could offer a stronger basis for ending the program affecting hundreds of thousands of undocumented immigrants, and allowed the Government ninety (90) days from the entry of his Order to provide such an explanation.
Judge Bates’s decision represents the first time that any court had vacated DHS’s “Rescission Memorandum,” thus potentially allowing new enrollees to participate in the program for the first time since DACA was terminated, as well as possibly allowing for advance parole again. Subsequently, the Government issued a new memorandum, but on August 2, 2018, the Court upheld its April 24 decision.
There were two similar cases among those heard by the Supreme Court, which had individually made their way through the courts. Notably, only the case led by Cohen Milstein and co-counsel had sought and achieved partial summary judgment. Judge Alsup, in the Northern District of California, had entered a preliminary injunction allowing current DACA registrants to renew their status, but this injunction did not allow for advance parole or new registrants, until the case proceeded to judgment. A similar injunction was entered in the Eastern District of New York by Judge Garafis, and an appeal of that injunction was slated to occur before the Second Circuit.
The Government appealed the various District Court decisions to the D.C., Ninth, and Second Circuits, respectively. In November 2018, while those appeals were pending, the Government simultaneously filed three petitions for certiorari before the Supreme Court. After the Ninth Circuit affirmed the nationwide injunction in Regents, see 908 F. 3d 476 (2018), but before rulings from the other two Circuits, the Supreme Court granted the petitions and consolidated the cases for argument.