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On Thursday June 18, 2020, the United Supreme Court issued an opinion in Department of Homeland Security v. Regents of University of California, et al., Case No. 18-587.  By way of background, in 2012, the Department of Homeland Security created the Deferred Action for Childhood Arrivals (“DACA”) program for persons who had arrived illegally in the United States as children; the program permitted such persons to apply for a 2-year forbearance of removal.  In 2017, the U.S. Attorney General opined that DACA was illegal in that it unlawfully permitted such persons to receive government benefits.  Subsequently, DHS issued a memorandum rescinding the program.  Several plaintiffs challenged the rescission of DACA, and the rescission was enjoined by several District Courts.  The Ninth Circuit affirmed the injunction, and the Supreme Court granted certiorari.

Roberts wrote the majority opinion, and was joined by Justices Ginsburg, Breyer, Kagan, and also by Justice Sotomayor in all but Part IV of the opinion.  The Supreme Court found that while DHS has authority to rescind DACA, the manner it which it did so violated the Administrative Procedures Act (the “APA”).  Specifically, while DHS was bound to follow the Attorney General’s conclusion that extension of benefits to persons in the United States illegally was unlawful, DHS was left to exercise its own discretion as to forbearance of removal.  It failed to do so.  Moreover, it failed to consider possible legitimate reliance on the DACA program’s forbearance provisions in rescinding the program.  The Court was clear that such reliance by persons who could avail themselves of the program, as well as by others, need not dictate DHS’s decision; nonetheless, DHS was obliged to consider such reliance, even if it decided to give such reliance minimal weight.  For this reason, DHS’s rescission was arbitrary and capricious and therefore violation of the APA.

Note that in reaching this decision, Justices Roberts, Ginsburg, Breyer, and Kagan rejected an equal protection claim alleged below, that is, that rescission violated the Fifth Amendment’s Equal Protection Clause because it targets persons of Mexican origin.  Their conclusion was based on the fact that the majority of persons in the United States illegally are of Mexican origin; thus, any change in policy with respect to persons in the country illegally will, by necessity, disproportionately impact persons of Mexican origin.  Sotomayor, by contrast, concluded that plaintiffs had sufficiently pled an equal protection claim, and would have remanded to permit them to challenge the rescission of DACA on that basis.