In September 2017, the Department of Homeland Security (DHS) issued a memorandum rescinding the Deferred Action for Childhood Arrivals program (DACA), which had protected certain young people who were brought to the U.S. as children from deportation. A variety of plaintiffs—including the Regents of the University of California; several states, counties, and municipalities; and individual program participants—promptly challenged DHS’s decision in the U.S. District Court for the Northern District of California and secured a preliminary injunction blocking DHS from carrying out the rescission. DHS has now appealed that injunction to the U.S. Court of Appeals for the Ninth Circuit.
Our brief, which urges the court to affirm the district court’s injunction, addresses only one issue in the case: DHS’s contention that it had a reasonable basis for rescinding DACA based on the “evident risk” that the program “would at a minimum be the subject of protracted litigation, and very likely be enjoined nationwide.” First, because DHS did not actually articulate this “litigation risk” rationale in its memo rescinding the DACA program, the agency is precluded from defending its action on this basis in court. Second, DHS failed to properly assess the risk that DACA would be enjoined, offering credible estimates of neither the probability that an injunction would be issued nor the magnitude of harm that such an injunction would cause. Finally, DHS failed to weigh the expected benefit of avoiding an injunction against the costs that voluntarily rescinding the DACA program would impose on DHS, program participants, their communities, and the broader economy.
For all of these reasons, DHS could not reasonably rescind DACA on the basis of litigation risk, and the Ninth Circuit should affirm the district court’s preliminary injunction.
In another case, plaintiffs challenged DHS’s decision in the U.S. District Court for the Eastern District of New York. We submitted a brief making the same argument to the U.S. Court of Appeals for the Second Circuit, where DHS has appealed that injunction.