On Oct. 5, 2017, the Inland Empire Immigrant Youth Collective and one of its members sued the U.S. Department of Homeland Security (DHS) and its components U.S. Citizenship and Immigration Services (USCIS) and U.S. Customs and Border Protection (CBP). Represented by the American Civil Liberties Union of Southern California and the ACLU's national Immigrants' Rights Project, plaintiffs filed their complaint in the U.S. District Court for the Central District of California.

The organizational plaintiff is a grassroots association led by immigrant youth. The individual plaintiff, a 23-year-old three-time Deferred Action for Childhood Arrivals (DACA) recipient, is one of its members. In Feb. 2017, Immigration and Customs Enforcement (ICE) arrested him and placed him into removal proceedings, on grounds that he had smuggled undocumented immigrants. However, the Immigration Judge rejected this allegation and plaintiff was never charged with any crime. Nevertheless, defendants revoked his DACA status, including his work authorization, and he could not have it reinstated.

Plaintiffs alleged that in addition to this one incident, defendants were revoking other DACA recipients' status based not on disqualifying convictions, but on minor incidents in criminal records or unsubstantiated suspicions of criminal conduct, including arrests and charges later resolved in the applicants' favor. These status terminations lacked advance notice, a hearing, or an opportunity for reinstatement. Plaintiffs sought injunctive and declaratory relief, as well as certification of a nationwide class of people whose DACA status had been unlawfully revoked. Plaintiff argued that, in terminating DACA status without notice and hearing, defendants violated the Due Process Clause of the Fifth Amendment and the Administrative Procedures Act (APA).

On Oct. 6, this case was assigned to Judge Michael W. Fitzgerald.
Plaintiffs moved for a preliminary injunction on Oct. 18. They argued they were likely to succeed on the merits and that the individual plaintiff would suffer irreparable harm without reinstatement of his DACA status. Plaintiffs pointed to two recent preliminary injunctions of revocation of DACA status without due process, in Gonzales Torres and Colotl Coyotl.

On Oct. 30, defendants responded, opposing plaintiffs' preliminary injunction motion. Defendants argued that plaintiffs were unlikely to succeed on the merits, first because the District Court lacked jurisdiction over immigration removal proceedings, and also because DACA was a discretionary DHS program not protected by the Constitution. Plaintiffs replied on Nov. 6. The case was transferred to Judge Philip S. Gutierrez on Nov. 14.

After a Nov. 20 motion hearing, Judge Gutierrez granted plaintiffs' preliminary injunction motion. Judge Gutierrez first held that the individual plaintiff had demonstrated a likelihood of success on the merits of his APA claim that defendants' revocation of his DACA, based solely on his deportation proceedings, was arbitrary and capricious. The individual plaintiff had also demonstrated the existence of irreparable harm due to loss of income and job opportunities. Further, neither a balancing of hardships nor the public interest favored defendants. Judge Gutierrez enjoined USCIS's decision to terminate the individual plaintiff's DACA status and accompanying work authorization. 2017 WL 5900061.

On Dec. 21-29, plaintiffs filed an amended complaint, motion for class certification, and motion for preliminary injunction. The amended complaint added two more individual plaintiffs who had also lost DACA status after ICE initiated removal proceedings against them. Plaintiffs sought to certify two nationwide classes of DACA recipients lacking disqualifying criminal convictions: a "notice class" (whose status was revoked without notice), and an "enforcement priority class" (whose status was revoked after being classified as an enforcement priority). In the preliminary injunction motion, plaintiffs asked the Court to enjoin DHS's revocation of the individual plaintiffs' and proposed class members' DACA and work permits.

Defendants opposed plaintiffs' amended complaint and motions on Feb. 1-14. Regarding the class certification motion, defendants argued that they had discretion to revoke DACA without notice once enforcement proceedings started and without court intervention, making class certification instead of individual evaluation improper. As for the preliminary injunction motion and amended complaint, defendants argued that plaintiffs lacked standing and ripeness, the Court lacked jurisdiction, or plaintiffs were unlikely to succeed on the merits, because defendants' discretion in revoking DACA was unconstrained by the Immigration and Nationality Act (INA), APA, or Constitution. Plaintiffs responded on Feb. 12 and later on Mar. 26; defendants replied on Apr. 2. The Court will hold a hearing on Apr. 16.

On Feb. 26, Judge Gutierrez granted plaintiffs' motions for class certification and a class-wide preliminary injunction. Regarding the class certification motion, Judge Gutierrez held that because plaintiffs committed no disqualifying criminal convictions, they were entitled to notice and opportunity to respond, and so they were properly class members. The class was certified as:

All recipients of Deferred Action for Childhood Arrivals ("DACA") who, after January 19, 2017, have had or will have their DACA grant and employment authorization revoked without notice or an opportunity to respond, even though they have not been convicted of a disqualifying criminal offense.

Regarding the preliminary injunction motion, Judge Gutierrez first held that the Court had jurisdiction. Next, he held that plaintiffs were likely to succeed on the merits of their APA claim (that automatic termination was arbitrary and capricious) and would suffer irreparable without an injunction (because of loss of earnings, job opportunities, and drivers' licenses without DACA). 2018 WL 1061408.

A Mar. 26 order clarified that the class consisted of DACA recipients, not subject to certain disqualifying categories, who have had or will have their DACA and employment authorization terminated without notice or opportunity to respond. The rest of the order specified the procedures by which defendants had to identify and notify the class.

On Apr. 19, Judge Gutierrez denied defendants' motion to dismiss. First, he held that the organizational and individual plaintiffs had standing, and that the INA did not bar jurisdiction. Next, he held that plaintiffs had stated valid claims under the APA (i.e., that the applicable regulations do not allow automatic DACA revocation on the basis of a removal order, rendering it arbitrary and capricious) and under the due process doctrine (i.e., that the DACA grant is a conferred benefit that requires procedural safeguards before termination).

Defendants then, on Apr. 26, appealed the preliminary injunction order to the Ninth Circuit, which opened a new docket (No. 18-55564).

As the parties prepared to file their respective motions for summary judgment and the plaintiffs prepared to file a motion for permanent injunction, on Dec. 21, 2018, Judge Guitierrez ordered the defendants to certify the administrative record (AR) in this case. On Feb. 8, 2019, the plaintiffs filed a motion requesting the court to order the defendants to complete the AR. The plaintiffs asserted that the AR that the defendants provided was incomplete and did not include all documents directly or indirectly considered by agency decision-makers. The defendants asserted that these "predecisional documents regarding the policy of terminating DACA with notice were properly withheld from the termination AR because they are protected by deliberative process privilege." On Apr. 8, 2019, Judge Guiterrez ordered that the defendants either add these "predecisional documents" to the AR or provide a privilege log. The court concluded that the plaintiffs' argument was "more in line with the Ninth Circuit’s
instruction that the administrative record should consist all documents directly or indirectly considered by agency decision-makers.'"

On June 28, 2019, a Ninth Circuit panel (Circuit Judges Kim Wardlaw, Jay Bybee, and John Owens) issued an order staying the appeal proceedings pending resolution by the Supreme Court in Regents of University of California v. U.S. Department of Homeland Security.

Following the stay of the appeal proceedings, on July 25, 2019, the plaintiffs filed a motion to stay further district court proceedings pending the Ninth Circuit's resolution of the preliminary injunction appeal. The defendants opposed this motion, arguing that the plaintiffs would not suffer any irreparable harm absent a stay and requested instead that the court enter an order setting a briefing schedule on cross-motions for summary judgment. Judge Gutierrez granted the plaintiffs' motion on November 7, 2019, concluding that the court cannot properly decide the legal questions here without guidance from the Ninth Circuit in this case and the Supreme Court in Regents. Judge Gutierrez also found that the defendants did not establish that a stay would cause them any damage. 2019 WL 8011739.

As of Mar. 4, 2020, both the district court and Ninth Circuit proceedings are stayed pending resolution in Regents. The Supreme Court heard oral argument in Regents on Nov. 12, 2019, on the issues of whether the DHS's decision to wind down the DACA policy is judicially reviewable and whether DHS’s decision to wind down the DACA policy is lawful. The decision of the Court should be released sometime in summer 2020.

Ava Morgenstern - 05/05/2018
Aaron Gurley - 03/04/2020


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