The Ninth Circuit U.S. Court of Appeals has affirmed a nationwide preliminary injunction issued in January by a California court that prevented the administration from immediately ending the Deferred Action for Childhood Arrivals (DACA) program, and required the Department of Homeland Security (DHS) to continue accepting renewal applications.

Key points:

  • The ruling keeps in place the current situation in which DHS must continue to accept renewal DACA applications—but not new enrollees—while litigation is pending.
  • This is the first appeals court to rule in the DACA cases. Lower federal courts in California, New York and Washington, D.C. have also ruled that the administration must continue to accept renewal applications while legal challenges play out. A district court in Texas also declined to immediately halt DACA in a lawsuit by several states to end the program, but indicated that DACA was likely unlawful.

Background: In its ruling on Thursday, the Ninth Circuit rejected the administration’s argument that the decision to rescind DACA could not be reviewed by the courts, and agreed with the lower court that the plaintiffs were likely to succeed in their claims. The plaintiffs, including several states led by California and individual DACA recipients, contend that the rescission of DACA was arbitrary and capricious, the administration did not follow the rulemaking process required by the Administrative Procedure Act, and the rescission violated their rights to due process and equal protection.

Earlier this week, before any appellate courts had ruled, the Trump administration sought Supreme Court review of the cases. In February, the Supreme Court denied a previous request by the administration to fast-track the DACA cases.

BAL Analysis: The appeals court ruling does not change the status quo. For now, DHS will continue accepting renewal applications under the DACA program, but not new applications. The administration’s request for Supreme Court review earlier this week seemed unlikely to be granted, given the fact that none of the appeals courts had yet ruled. However, now that the Ninth Circuit has issued a ruling, the Supreme Court could agree to take the case in the spring 2019 term. BAL will continue to provide updates as the DACA litigation progresses.

This alert has been provided by the BAL U.S. Practice group. For additional information, please contact berryapplemanleiden@bal.com.

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