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U.S. Supreme Court Strikes Down Trump Administration's Rescission of DACA in Department of Homeland Security v. Regents of the University of California

Today, in a 5-4 decision, the U.S. Supreme Court upheld three lower court rulings holding that Trump’s 2017 move to rescind the Deferred Action for Childhood Arrivals (DACA) program was unlawful under a federal law known as the Administrative Procedure Act (APA).

DACA allows certain undocumented individuals, who were brought to the U.S. as children, to remain in the U.S. and to obtain employment authorization. It is estimated that there are between 700,000 and 800,000 DACA recipients in the U.S.

The Court held that the decision to rescind DACA was arbitrary and capricious, and thus the rescission must be vacated.

It is important to note that the Court did not hold that the Department of Homeland Security (“DHS”) may not rescind DACA. Instead, the Court held that the procedure the agency followed in doing so was unlawful.

The Supreme Court’s majority decision states:

We do not decide whether DACA or its rescission are sound policies. “The wisdom” of those decisions “is none of our concern.” Chenery II, 332 U. S., at 207. We address only whether the agency complied with the procedural re- quirement that it provide a reasoned explanation for its ac- tion. Here the agency failed to consider the conspicuous is- sues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner. The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.

It is also important to recognize that the Court vacated the rescission because the Attorney General and subsequently DHS did not address the options of lesser modifications to DACA benefits, or consider the hardships to DACA beneficiaries whatsoever. The Court makes it clear that once DHS considers these options/factors, it has wide latitude in deciding how to proceed and the Court would be very limited in its ability to second-guess those decisions.

By virtue of receiving deferred action, the 700,000+ DACA recipients may request work authorization and are eligible for Social Security and Medicare.

In order for a new rescission of DACA to withstand another APA-based legal challenge, it would have to be sufficiently reasoned as detailed by the Court in today’s decision. Until DHS undertakes further action to rescind DACA, Dreamers can continue to enjoy the benefits of DACA.


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Susan J. Cohen

Member / Founder and Chair Emeritus, Immigration Practice

Susan J. Cohen is Chair of Mintz's Immigration Practice and a nationally recognized Immigration lawyer. She helps corporate clients manage immigration challenges. Susan is an American Immigration Lawyers Association (AILA) member and she's contributed to state and federal immigration regulations.

Juan Steevens