Regents of the Univ. of Cal. v. U.S. Dep't of Homeland Sec., 908 F.3d 476

Background

DACA (2012) allowed certain people brought to the U.S. as children to receive two‑year renewable deferred action and work authorization; applicants submitted biometrics and paid fees.
In 2017 Attorney General Sessions advised DHS that DACA lacked statutory authority and should be rescinded; Acting Secretary Duke rescinded DACA on September 5, 2017, citing that advice and Texas litigation.
Multiple suits followed; the Northern District of California granted a nationwide preliminary injunction requiring DHS to continue adjudicating renewals for current DACA recipients.
Government argued the rescission was unreviewable (APA §701(a)(2) and INA §1252(g)) and alternatively defended the rescission as discretionary based on litigation risk and enforcement priorities.
The Ninth Circuit panel (majority) held the rescission is judicially reviewable under the APA, concluded the rescission was premised solely on the agency’s (erroneous) legal view that DACA was unlawful, and affirmed the preliminary injunction; it also upheld dismissal of certain claims and allowed others (information‑sharing due process and equal protection) to proceed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the DACA rescission reviewable under the APA (§701)?	Rescission is reviewable because agency acted based on legal conclusion, not pure discretion.	Chaney/agency nonenforcement decisions are presumptively unreviewable.	Reviewable: agency based rescission solely on belief DACA was unlawful (Montana Air exception applies).
Does INA §1252(g) strip jurisdiction over the challenge?	§1252(g) covers only three discrete actions; programmatic rescission is not barred.	§1252(g) shields nonenforcement/deferred‑action decisions from court review.	Not barred: §1252(g) applies only to commencing, adjudicating, or executing removal proceedings.
Was the rescission arbitrary and capricious under APA §706(2)(A)?	Rescission relied on erroneous legal premise (DACA illegal); thus arbitrary.	Rescission was a permissible discretionary policy decision based on litigation risk and priorities.	Likely to succeed: rescission premised on incorrect legal conclusion and must be set aside unless justified as discretionary (which it was not here).
Were plaintiffs’ constitutional and other claims adequately pleaded (due process, info‑sharing, equal protection, notice‑and‑comment)?	Info‑sharing change and equal protection alleged plausibly; no property interest in indefinite renewal so substantive due process claim on entitlement fails; rescission need not have notice‑and‑comment.	Government: discretionary program; FAQs disclaim enforceable promises; equal protection claims foreclosed by AADC or require heightened pleading.	Mixed: notice‑and‑comment and substantive due process entitlement dismissed; information‑sharing due process and equal protection claims plausibly pleaded and survive motion to dismiss.

Key Cases Cited

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (U.S. 1803) (judiciary’s duty to say what the law is)
Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (U.S. 1999) (§1252(g) limits and deference to immigration enforcement discretion)
Heckler v. Chaney, 470 U.S. 821 (U.S. 1985) (presumption of nonreviewability for agency nonenforcement decisions)
ICC v. Brotherhood of Locomotive Engineers, 482 U.S. 270 (U.S. 1987) (tradition of nonreviewability for certain agency actions)
Montana Air Chapter No. 29 v. FLRA, 898 F.2d 753 (9th Cir. 1990) (refusal to enforce based solely on belief of lack of jurisdiction is reviewable)
City of Arlington v. FCC, 569 U.S. 290 (U.S. 2013) (no meaningful distinction between jurisdictional and nonjurisdictional agency interpretations)
Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (U.S. 1983) (arbitrary and capricious review requires agency rationale be the one actually relied upon)
Chevron U.S.A., Inc. v. NRDC, 467 U.S. 837 (U.S. 1984) (framework for reviewing agency statutory interpretations)