FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

REGENTS OF THE UNIVERSITY 

OF CALIFORNIA; JANET 

NAPOLITANO, in her official 

capacity as President of the 

University of California,

Plaintiffs-Appellees,

v.

U.S. DEPARTMENT OF 

HOMELAND SECURITY;

KIRSTJEN NIELSEN, in her 

official capacity as Acting 

Secretary of the Department of 

Homeland Security,

Defendants-Appellants.

No. 18-15068

D.C. No.

3:17-cv-05211-WHA
2 REGENTS OF THE UNIV. OF CAL. V. USDHS

STATE OF CALIFORNIA; STATE 

OF MAINE; STATE OF 

MINNESOTA; STATE OF 

MARYLAND,

Plaintiffs-Appellees,

v.

U.S. DEPARTMENT OF 

HOMELAND SECURITY;

KIRSTJEN NIELSEN, in her 

official capacity as Acting 

Secretary of the Department of 

Homeland Security; UNITED 

STATES OF AMERICA,

Defendants-Appellants.

No. 18-15069

D.C. No.

3:17-cv-05235-WHA

CITY OF SAN JOSE,

Plaintiff-Appellee,

v.

DONALD J. TRUMP, President of 

the United States, in his official 

capacity; KIRSTJEN NIELSEN, in

her official capacity as Acting 

Secretary of the Department of 

Homeland Security; UNITED 

STATES OF AMERICA,

Defendants-Appellants.

No. 18-15070

D.C. No.

3:17-cv-05329-WHA
REGENTS OF THE UNIV. OF CAL. V. USDHS 3

DULCE GARCIA; MIRIAM 

GONZALEZ AVILA; SAUL 

JIMENEZ SUAREZ; VIRIDIANA 

CHABOLLA MENDOZA; JIRAYUT 

LATTHIVONGSKORN; NORMA 

RAMIREZ,

Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA;

DONALD J. TRUMP, in his 

official capacity as President of 

the United States; U.S.

DEPARTMENT OF HOMELAND 

SECURITY; KIRSTJEN NIELSEN, 

in her official capacity as 

Acting Secretary of the 

Department of Homeland 

Security,

Defendants-Appellants.

No. 18-15071

D.C. No.

3:17-cv-05380-WHA
4 REGENTS OF THE UNIV. OF CAL. V. USDHS

COUNTY OF SANTA CLARA;

SERVICE EMPLOYEES 

INTERNATIONAL UNION LOCAL 

521,

Plaintiffs-Appellees,

v.

DONALD J. TRUMP, in his 

official capacity as President of 

the United States; JEFFERSON 

B. SESSIONS III, Attorney 

General; KIRSTJEN NIELSEN, in

her official capacity as Acting 

Secretary of the Department of 

Homeland Security; U.S.

DEPARTMENT OF HOMELAND 

SECURITY,

Defendants-Appellants.

No. 18-15072

D.C. No.

3:17-cv-05813-WHA
REGENTS OF THE UNIV. OF CAL. V. USDHS 5

REGENTS OF THE UNIVERSITY 

OF CALIFORNIA; JANET 

NAPOLITANO, in her official 

capacity as President of the 

University of California; 

STATE OF CALIFORNIA; STATE 

OF MAINE; STATE OF 

MINNESOTA; STATE OF 

MARYLAND; CITY OF SAN JOSE;

DULCE GARCIA; MIRIAM 

GONZALEZ AVILA; SAUL 

JIMENEZ SUAREZ; VIRIDIANA 

CHABOLLA MENDOZA; JIRAYUT

LATTHIVONGSKORN; NORMA 

RAMIREZ; COUNTY OF SANTA 

CLARA; SERVICE EMPLOYEES 

INTERNATIONAL UNION LOCAL 

521,

Plaintiffs-Appellees,

v.

UNITED STATES OF AMERICA;

DONALD J. TRUMP, in his 

official capacity as President of 

the United States; U.S.

DEPARTMENT OF HOMELAND 

SECURITY; KIRSTJEN NIELSEN, 

in her official capacity as 

Acting Secretary of the 

Department of Homeland 

Security,

Defendants-Appellants.

No. 18-15128

D.C. Nos.

3:17-cv-05211-WHA

3:17-cv-05235-WHA

3:17-cv-05329-WHA

3:17-cv-05380-WHA

3:17-cv-05813-WHA
6 REGENTS OF THE UNIV. OF CAL. V. USDHS

REGENTS OF THE UNIVERSITY 

OF CALIFORNIA; JANET 

NAPOLITANO, in her official 

capacity as President of the 

University of California; 

STATE OF CALIFORNIA; STATE 

OF MAINE; STATE OF 

MINNESOTA; STATE OF 

MARYLAND; CITY OF SAN JOSE;

DULCE GARCIA; MIRIAM 

GONZALEZ AVILA; SAUL 

JIMENEZ SUAREZ; VIRIDIANA 

CHABOLLA MENDOZA; JIRAYUT 

LATTHIVONGSKORN; NORMA 

RAMIREZ,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA;

DONALD J. TRUMP, in his 

official capacity as President of 

the United States; U.S.

DEPARTMENT OF HOMELAND 

SECURITY; KIRSTJEN NIELSEN, 

in her official capacity as 

Acting Secretary of the 

Department of Homeland 

Security,

Defendants-Appellees.

No. 18-15133

D.C. Nos.

3:17-cv-05211-WHA

3:17-cv-05235-WHA

3:17-cv-05329-WHA

3:17-cv-05380-WHA

3:17-cv-05813-WHA
REGENTS OF THE UNIV. OF CAL. V. USDHS 7

DULCE GARCIA; MIRIAM 

GONZALEZ AVILA; SAUL 

JIMENEZ SUAREZ; VIRIDIANA 

CHABOLLA MENDOZA; NORMA 

RAMIREZ; JIRAYUT 

LATTHIVONGSKORN; COUNTY 

OF SANTA CLARA; SERVICE 

EMPLOYEES INTERNATIONAL 

UNION LOCAL 521,

Plaintiffs-Appellants,

v.

UNITED STATES OF AMERICA;

DONALD J. TRUMP, in his 

official capacity as President of 

the United States; U.S.

DEPARTMENT OF HOMELAND 

SECURITY; KIRSTJEN NIELSEN, 

in her official capacity as 

Acting Secretary of the 

Department of Homeland 

Security,

Defendants-Appellees.

No. 18-15134

D.C. Nos.

3:17-cv-05211-WHA

3:17-cv-05235-WHA

3:17-cv-05329-WHA

3:17-cv-05380-WHA

3:17-cv-05813-WHA

OPINION

Appeal from the United States District Court

for the Northern District of California

William Alsup, District Judge, Presiding

Argued and Submitted May 15, 2018

Pasadena, California

Filed November 8, 2018
8 REGENTS OF THE UNIV. OF CAL. V. USDHS

Before: Kim McLane Wardlaw, Jacqueline H. Nguyen, 

and John B. Owens, Circuit Judges.

Opinion by Judge Wardlaw;

Concurrence by Judge Owens

SUMMARY*

Immigration

In an action challenging the Department of Homeland 

Security’s rescission of Deferred Action for Childhood 

Arrivals (DACA), the panel affirmed the district court’s 

grant of preliminary injunctive relief, and affirmed in part 

the district court’s partial grant and partial denial of the 

government’s motion to dismiss for failure to state a claim. 

Begun in 2012, DACA allows those noncitizens who 

unwittingly entered the United States as children, who have 

clean criminal records, and who meet various educational or 

military service requirements to apply for two-year 

renewable periods of deferred action—a revocable decision 

by the government not to deport an otherwise removable 

person from the country. In 2014, Secretary of Homeland 

Security Jeh Johnson issued a memorandum that announced 

the related Deferred Action for Parents of Americans and 

Lawful Permanent Residents program (DAPA), which 

allowed deferred action for certain noncitizen parents of 

American citizens and lawful permanent residents, and 

expanded DACA. All of the policies outlined in the 2014 

 * This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
REGENTS OF THE UNIV. OF CAL. V. USDHS 9

Johnson memorandum were enjoined nationwide in a district 

court order upheld by the Fifth Circuit and affirmed by an 

equally divided Supreme Court. After a new presidential 

administration took office, Acting Secretary of Homeland 

Security Elaine Duke issued a memorandum in September 

2017 rescinding DACA. 

Suits were filed in the Northern District of California by 

the Regents of the University of California, a group of states 

led by California, the City of San Jose, the County of Santa 

Clara and Service Employees International Union Local 521, 

and a group of individual DACA recipients led by Dulce 

Garcia. The cases were consolidated, and the district court 

ordered the government to complete the administrative 

record. Seeking to avoid providing additional documents, 

the government filed a petition for mandamus, which this 

court denied. The government petitioned the Supreme Court 

for the same mandamus relief; the Court did not reach the 

merits of the administrative record dispute, but instructed the 

district court to rule on the government’s threshold 

arguments challenging reviewability of its rescission 

decision. The district court entered a preliminary injunction 

requiring DHS to adjudicate renewal applications for 

existing DACA recipients, and the court partially granted 

and partially denied the government’s motion to dismiss.

The panel held that neither the Administrative Procedure 

Act nor the Immigration and Nationality Act (INA) barred 

judicial review of the decision to rescind DACA. With 

respect to the APA, the panel reviewed the cases of Heckler 

v. Chaney, 470 U.S. 821 (1985), Montana Air Chapter No. 

29 v. Federal Labor Relations Authority, 898 F.2d 753 (9th 

Cir. 1990), and City of Arlington v. FCC, 569 U.S. 290 

(2013). The panel concluded that, where the agency’s 

decision is based not on an exercise of discretion, but instead 
10 REGENTS OF THE UNIV. OF CAL. V. USDHS

on a belief that any alternative choice was foreclosed by law 

because the agency lacked authority, the APA’s “committed 

to agency discretion” bar to reviewability, 5 U.S.C. 

§ 701(a)(2), does not apply. The panel also concluded that 

the Acting Secretary based the rescission of DACA solely 

on a belief that DACA was beyond the authority of DHS. 

Accordingly, the panel determined that the rescission was 

within the realm of agency actions reviewable under the 

APA.

With respect to the INA, the panel rejected the 

government’s contention that review was barred by 8 U.S.C. 

§ 1252(g), which precludes judicial review of “any cause or 

claim by or on behalf of any alien arising from the decision 

or action of the [Secretary of Homeland Security] to 

commence proceedings, adjudicate cases, or execute 

removal orders.” The panel explained that, under Reno v. 

Am.-Arab Anti-Discrimination Comm., 525 U.S. 471 (1999), 

the rescission does not fall within the three discrete actions 

mentioned in 8 U.S.C. § 1252(g).

Having concluded that neither the APA nor the INA 

precludes judicial review, the panel turned to the merits of 

the preliminary injunction and considered whether the 

agency was correct in concluding that DACA was unlawful. 

The Attorney General’s primary bases for concluding that 

DACA was illegal were that the program was “effectuated . 

. . without proper statutory authority” and that it amounted 

to “an unconstitutional exercise of authority.” More 

specifically, the Attorney General asserted that “the DACA 

policy has the same legal and constitutional defects that the 

courts recognized as to DAPA” in the Fifth Circuit litigation. 

The panel considered the DAPA litigation, comparing 

aspects of DAPA and DACA, and concluded that that 

DACA was a permissible exercise of executive discretion, 
REGENTS OF THE UNIV. OF CAL. V. USDHS 11

notwithstanding the Fifth Circuit’s conclusion that the 

related DAPA program exceeded DHS’s statutory authority. 

Thus, the panel concluded that, because the Acting Secretary 

was incorrect in her belief that DACA was illegal and had to 

be rescinded, plaintiffs are likely to succeed in 

demonstrating that the rescission must be set aside under the 

APA as arbitrary and capricious. 

The panel next concluded that the district court did not 

abuse its discretion in issuing a nationwide injunction, 

noting that such relief is commonplace in APA cases, 

promotes uniformity in immigration enforcement, and is 

necessary to provide the plaintiffs here with complete 

redress.

Finally, addressing the district court’s order granting in 

part and denying in part the government’s motion to dismiss, 

the court concluded that the district court properly dismissed 

plaintiffs’ APA notice-and-comment claim, and their claim 

that the DACA rescission violates their substantive due 

process rights. The panel further concluded that the district 

court also properly denied the government’s motion to 

dismiss plaintiffs’ APA arbitrary-and-capricious claim, their 

claim that the new information-sharing policy violates their 

due process rights, and their claim that the DACA rescission 

violates their right to equal protection.

Concurring in the judgment, Judge Owens wrote that, as 

he believed the Plaintiffs’ Equal Protection claim has some 

likelihood of success on the merits, he concurred in the 

judgment affirming the preliminary injunction. However, 

Judge Owens disagreed with the majority’s conclusion that 

otherwise unreviewable agency action is reviewable when 

the agency justifies its action by reference to its 

understanding of its jurisdiction. Therefore, Judge Owens 

would hold that § 701(a)(2) precludes the court from 
12 REGENTS OF THE UNIV. OF CAL. V. USDHS

subjecting DACA’s rescission to arbitrary-and-capricious 

review. Judge Owens would also affirm the preliminary 

injunction and remand for consideration whether Plaintiffs 

have demonstrated a likelihood of success on the merits of 

their Equal Protection claim.

As for the government’s appeal from the motions to 

dismiss, Judge Owens dissented from the majority’s holding 

to affirm the district court’s denial of the motion to dismiss 

Plaintiffs’ APA arbitrary-and-capricious claim. However, 

he concurred in the majority’s holding to affirm the district 

court’s dismissal of Plaintiffs’ APA notice-and-comment 

claim. He also concurred in the judgment to affirm the 

district court’s ruling on Plaintiffs’ Due Process claims. He 

also agreed with the majority’s decision to affirm the district 

court’s denial of the motion to dismiss the Equal Protection 

claim and hold that the Equal Protection claim offers an 

alternative ground to affirm the preliminary injunction.

COUNSEL

Hashim M. Mooppan (argued), Deputy Assistant Attorney 

General; Thomas Pulham, Abby C. Wright, and Mark B. 

Stern, Appellate Staff; Alex G. Tse, Acting United States 

Attorney; Chad A. Readler, Acting Assistant Attorney 

General; United States Department of Justice, Washington, 

D.C.; for Defendants-Appellants.

Michael J. Mongan (argued), Deputy Solicitor General; 

Samuel P. Siegel, Associate Deputy Solicitor General; 

James F. Zahradka II, Deputy Attorney General; Michael L. 

Newman, Supervising Deputy Attorney General; Edward C. 

DuMont, Solicitor General; Xavier Becerra, Attorney 
REGENTS OF THE UNIV. OF CAL. V. USDHS 13

General; Office of the Attorney General, San Francisco, 

California; for Plaintiff-Appellee State of California.

Susan P. Herman, Deputy Attorney General; Janet T. Mills, 

Attorney General; Office of the Attorney General, Augusta, 

Maine; for Plaintiff-Appellee State of Maine.

Jacob Campion, Assistant Attorney General; Lori Swanson, 

Attorney General; Office of the Attorney General, St. Paul, 

Minnesota; for Plaintiff-Appellee State of Minnesota.

Leah J. Tullin, Assistant Attorney General; Steven M. 

Sullivan, Solicitor General; Brian E. Frosh, Attorney 

General; Attorney General’s Office, Baltimore, Maryland; 

for Plaintiff-Appellee State of Maryland.

Jeffrey Michael Davidson (argued), Breanna K. Jones, 

David S. Watnick, Erika Douglas, and Mónica Ramírez 

Almadani, Covington & Burling LLP, San Francisco,

California; Ivano M. Ventresca, Megan A. Crowley, 

Alexander A. Berengaut, Mark H. Lynch, and Robert A. 

Long, Covington & Burling LLP, Washington, D.C.; for 

Plaintiff-Appellee The Regents of the University of 

California, et al.

Brian Danitz, Tamarah Prevost, and Justin T. Berger, 

Cotchett Pitre & McCarthy LLP, Burlingame, California, for 

Plaintiff-Appellee City of San José.

Mark D. Rosenbaum (argued), Malhar Shah, and Judy 

London, Public Counsel, Los Angeles, California; Haley S. 

Morrisson, Matthew S. Rozen, and Nicole A. Saharsky, 

Gibson Dunn & Crutcher LLP, Washington, D.C.; Kelsey J. 

Helland, Jonathan N. Soleimani, Kirsten Galler, Ethan D. 

Dettmer, and Theodore J. Boutrous Jr., Gibson Dunn & 
14 REGENTS OF THE UNIV. OF CAL. V. USDHS

Crutcher LLP, Los Angeles, California; Luis Cortes 

Romera, Barrera Legal Group PLLC, Kent, Washington; 

Erwin Chemerinsky, Berkeley, California; Laurence H. 

Tribe, Cambridge, Massachusetts; Leah M. Litman, Irvine, 

California; for Plaintiffs-Appellees Dulce Garcia, Miriam 

Gonzalez Avila, Saul Jimenez Suarez, Virdiana Chabolla 

Mendoza, Norma Ramirez, and Jirayut Latthivongskorn.

Andrew Kushner, Eric P. Brown, and Stacey M. Leyton, 

Altshuler Berzon LLP, San Francisco, California, for 

Plaintiff-Appellee County of Santa Clara and Service 

Employees International Union Local 521.

Marcelo Quiñones, Laura S. Trice, Greta S. Hansen, and 

James R. Williams, Office of the County Counsel, County of 

Santa Clara, San Jose, California, for Plaintiff-Appellee

County of Santa Clara.

Jessica Levin, Melissa Lee, Lorraine K. Bannai, and Robert 

S. Chang, Ronald A. Peterson Law Clinic, Seattle University 

School of Law, Seattle, Washington, for Amici Curiae 42 

Historians and the Fred T. Korematsu Center for Law and 

Equality.

Leo Gertner, Deborah L. Smith, and Nicole G. Berner, 

Service Employees International Union, Washington, D.C.; 

Deepak Gupta, Gupta Wessler PLLC, Washington, D.C.; 

David J. Strom, American Federation of Teachers, 

Washington, D.C.; Judith Rivlin, American Federation of 

State, County, and Municipal Employees, Washington, 

D.C.; Patricia M. Shea, Communications Workers of

America, Washington, D.C.; Bradley Raymond, 

International Brotherhood of Teamsters, Washington, D.C.;

Joseph E. Kolick Jr., International Union of Painters and 

Allied Trades, Hanover, Maryland; Mario Martínez, 
REGENTS OF THE UNIV. OF CAL. V. USDHS 15

Martínez Aguilasocho & Lynch APLC, Bakersfield, 

California; for Amici Curiae Service Employees 

International Union; American Federation of Teachers;

American Federation of State, County and Municipal 

Employees; Communications Workers of America;

International Brotherhood of Teamsters; International Union 

of Painters and Allied Trades; and United Farm Workers of 

America.

Geoffrey S. Brounell and Peter Karanjia, Davis Wright 

Tremaine LLP, Washington, D.C., for Amicus Curiae 

United We Dream.

Sean Goldhammer, Lubna A, Alam, Jason Walta, Emma 

Leheny, and Alice O’Brien, National Education Association, 

Washington, D.C.; Andra M. Donovan, San Diego Unified 

School District, San Diego, California; Abhas Hajela, 

Capitol Advisors Group LLC, Sacramento, California; Eric 

E. Stevens, Girard Edwards Stevens & Tucker LLP, 

Sacramento, California; Kathryn M. Sheffield, California 

Faculty Association, Sacramento, California; Glenn 

Rothner, Rothner Segall & Greenstone, Pasadena, 

California; D. Michael Ambrose and Elaine M. YamaGarcia, California School Boards Association Education 

Legal Alliance, Sacramento, California; Jean Shin and Laura 

P. Juran, California Teachers Association, Burlingame, 

California; Vibiana M. Andrade, Los Angeles County Office 

of Education, Downey, California; Devora Navera Reed and 

David Holmquist, Los Angeles Unified School District, Los 

Angeles, California; Sonja H. Trainor and Francisco 

Negrón, National School Boards Association, Alexandria, 

Virginia; Michael L. Smith, Oakland Unified School 

District, Oakland, California; Raoul Bozio, Sacramento City 

Unified School District, Sacramento, California; for Amici

Curiae Public Education Groups.
16 REGENTS OF THE UNIV. OF CAL. V. USDHS

Caryn C. Lederer, Chirag G. Badlani, and Matthew J. Piers, 

Hughes Socol Piers Resnick & Dym Ltd., Chicago, Illinois; 

Daniel B. Rice and Joshua A. Geltzer, Institute for 

Constitutional Advocacy and Protection, Georgetown 

University Law Center, Washington, D.C.; for Amici Curiae 

Current and Former Prosecutors and Law Enforcement 

Leaders.

Zachary Kolodin, Michael N. Fresco, Adeel A. Mangi, and 

Steven A. Zalesin, Patterson Belknap Webb & Tyler LLP, 

New York, New York; Juvaria Khan, Sirine Shebaya, and 

Jonathan Smith, Muslim Advocates, Washington, D.C.; for 

Amici Curiae 119 Religious Organizations.

Jennifer J. Yun, Ishan Bhabha, Lindsay C. Harrison, and 

Thomas J. Perrelli, Jenner & Block LLP, Washington, D.C., 

for Amici Curiae Institutions of Higher Education.

Jennifer B. Sokoler and Anton Metlitsky, O’Melveny &

Myers LLP, New York, New York, for Amicus Curiae 

Eighteen Universities.

Lauren R. Goldman and Karen W. Lin, Mayer Brown LLP, 

New York, New York; Andrew J. Pincus, Mayer Brown 

LLP, Washington, D.C.; Ari Holzblatt, Patrick J. Carome, 

and Seth Waxman, Wilmer Cutler Pickering Hale and Dorr 

LLP, Washington, D.C.; for Amici Curiae 102 Companies 

and Associations.

John-Paul S. Deol and Daniel J. McCoy, Fenwick & West 

LLP, Mountain View, California; Mark S. Ross, James L. 

McGinnis, and Neil A.F. Popović, Sheppard Mullin Richter 

& Hampton LLP, San Francisco, California; for Amicus 

Curiae The Bar Association of San Francisco.
REGENTS OF THE UNIV. OF CAL. V. USDHS 17

Juan P. Valdivieso, Boies Schiller Flexner LLP, Oakland, 

California; Albert Giang, Boies Schiller Flexner LLP, Los 

Angeles, California; J. Wells Harrell and Joshua Riley, 

Boies Schiller Flexner LLP, Washington, D.C.; for Amici 

Curiae Former Federal Immigration and Homeland Security 

Officials.

Kaitland M. Kennelly and William J. Schwartz, Cooley LLP, 

New York, New York, for Amici Curiae Partnership for 

Educational Justice, DelawareCAN: The Delaware 

Campaign for Achievement Now, HawaiiKidsCAN, 

NewMexicoKidsCAN, and Virginia Excels.

Matthew Scherb, Michael Dundas, Valerie L. Flores, Leela 

A. Kapur, James P. Clark, and Michael N. Feuer, City 

Attorney, Office of the City Attorney, Los Angeles, 

California; Donna R. Ziegler, Alameda County Counsel,

Oakland, California; Anne L. Morgan, City Attorney, 

Austin, Texas; Eugene O’Flaherty, City Corporation 

Counsel, Boston, Massachusetts; Cheryl Watson Fisher, 

City Solicitor, Chelsea, Massachusetts; Kimberly M. Foxx, 

States Attorney for Cook County, Chicago, Illinois; Jeremy 

Berry, City Attorney, Atlanta, Georgia; Farimah F. Brown, 

City Attorney, Berkeley, California; Nancy E. Glowa, City 

Solicitor, Cambridge, Massachusetts; Edward N. Siskel, 

City Corporation Counsel, Chicago, Illinois; Larry E. Casto, 

City Attorney, Dallas, Texas; Kristin M. Bronson, City 

Attorney of the City and County of Denver, Denver, 

Colorado; Gregory L. Thomas, City Attorney, Gary,

Indiana; Ronald C. Lewis, City Attorney, Houston, Texas;

Eleanor M. Dilkes, City Attorney, Iowa City, Iowa; Jennifer 

Vega-Brown, City Attorney, Las Cruces, New Mexico; Karl 

A. Racine, Attorney General, District of Colombia, 

Washington, D.C.; Donna Y. L. Leong, Corporation 

Counsel, Honolulu, Hawaii; Aaron O. Lavine, City 
18 REGENTS OF THE UNIV. OF CAL. V. USDHS

Attorney, Ithaca, New York; Daniel T. Satterberg, King 

County Prosecuting Attorney, Seattle, Washington; Charles 

Parkin, City Attorney, Long Beach, California; Margaret L. 

Carter, O’Melveny & Myers LLP, Los Angeles, California;

Susan Segal, City Attorney, Minneapolis, Minnesota; John 

Rose Jr., Corporation Counsel, New Haven, Connecticut;

Barbara J. Parker, City Attorney, Oakland, California; Tracy 

P. Reeve, City Attorney, Portland, Oregon; Michael P. May, 

City Attorney, Madison, Wisconsin; Charles J. McKee, 

Monterey County Counsel, Salinas, California; Zachary W. 

Carter, City Corporation Counsel, New York, New York;

Marcel S. Pratt, Acting City Solicitor, Philadelphia, 

Pennsylvania; Jeffrey Dana, City Solicitor, Providence, 

Rhode Island; Timothy R. Curtin, City Corporation Counsel, 

Rochester, New York; Dennis J. Herrera, City Attorney for 

the City and County of San Francisco, San Francisco, 

California; Lane Dilg, City Attorney, Santa Monica, 

California; Francis X. Wright Jr., City Solicitor, Somerville, 

Massachusetts; Matthew D. Ruyak, Interim City Attorney, 

Sacramento, California; Kelley A. Brennan, City Attorney, 

Santa Fe, New Mexico; Peter S. Holmes, City Attorney; 

Seattle, Washington; Mike Rankin, City Attorney, Tucson, 

Arizona; Michael Jenkins, West Hollywood City Attorney, 

Jenkins & Hogan LLP, Manhattan Beach, California; John 

Daniel Reaves, General Counsel, The U.S. Conference of 

Mayors, Washington, D.C.; for Amici Curiae 40 Cities and 

Counties, The National League of Cities, and The United 

States Conference of Mayors.

Jennifer Chang Newell and Katrina L. Eiland, ACLU 

Foundation Immigrants’ Rights Project, San Francisco, 

California; David Hausman, Michael K.T. Tan, and Lee 

Gelernt, ACLU Foundation Immigrants’ Rights Project, 

New York, New York; Julia Harumi Mass, ACLU 

Foundation of Northern California, San Francisco, 
REGENTS OF THE UNIV. OF CAL. V. USDHS 19

California; Ahilan T. Arulanantham, ACLU Foundation of 

Southern California, Los Angeles, California; David Loy, 

ACLU Foundation of San Diego & Imperial Counties, San 

Diego, California; for Amici Curiae American Civil 

Liberties Union Foundation, ACLU Foundation of Northern 

California, ACLU Foundation of Southern California, and 

ACLU Foundation of San Diego & Imperial Counties.

Claire M. Blakey, Johanna S. Dennehy, and Harry Lee, 

Steptoe & Johnson LLP, Washington, D.C.; Christopher W. 

Smith, Steptoe & Johnson, Los Angeles, California; for 

Amici Curiae Immigration Law Scholars.

Avi Zevin, Jack Lienke, and Richard L. Revesz, Institute for 

Policy Integrity, New York, New York, for Amicus Curiae 

Institute for Policy Integrity at New York University School 

of Law.

Anna-Rose Mathieson and Ben Feuer, California Appellate 

Law Group LLP, San Francisco, California; Daniel Hemel, 

Chicago, Illinois; Seth Davis, Irvine, California; for Amici 

Curiae Twenty-Four Law Professors.

Philicia Hill, Dorian Spence, Dariely Rodriguez, and Jon 

Greenbaum, The Lawyers’ Committee for Civil Rights 

Under Law, Washington, D.C.; Sameer P. Sheikh, Martin L. 

Saad, John F. Cooney, and William D. Coston, Venable 

LLP, Washington, D.C.; for Amici Curiae The Lawyers’ 

Committee for Civil Rights Under Law, Anti-Defamation 

League, and Social Justice Organizations.

Joan R. Li, Kara C. Wilson, Monique R. Sherman, and 

Maureen P. Alger, Cooley LLP, Palo Alto, California, for 

Amici Curiae Legal Services Organizations.
20 REGENTS OF THE UNIV. OF CAL. V. USDHS

Mary Kelley Persyn, Persyn Law & Policy, San Francisco, 

California, for Amici Curiae American Professional Society 

on the Abuse of Children and California Professional 

Society on the Abuse of Children.

Christopher J. Hajec, Immigration Reform Law Institute, 

Washington, D.C., for Amicus Curiae The Immigration 

Reform Law Institute.

OPINION

WARDLAW, Circuit Judge:

It is no hyperbole to say that Dulce Garcia embodies the 

American dream. Born into poverty, Garcia and her parents 

shared a San Diego house with other families to save money 

on rent; she was even homeless for a time as a child. But she 

studied hard and excelled academically in high school. 

When her family could not afford to send her to the top 

university where she had been accepted, Garcia enrolled in 

a local community college and ultimately put herself through 

a four-year university, where she again excelled while 

working full-time as a legal assistant. She then was awarded 

a scholarship that, together with her mother’s life savings, 

enabled her to fulfill her longstanding dream of attending 

and graduating from law school. Today, Garcia maintains a 

thriving legal practice in San Diego, where she represents 

members of underserved communities in civil, criminal, and 

immigration proceedings.

On the surface, Dulce Garcia appears no different from 

any other productive—indeed, inspiring—young American. 

But one thing sets her apart. Garcia’s parents brought her to 

this country in violation of United States immigration laws 
REGENTS OF THE UNIV. OF CAL. V. USDHS 21

when she was four years old. Though the United States of 

America is the only home she has ever known, Dulce Garcia 

is an undocumented immigrant.

Recognizing the cruelty and wastefulness of deporting 

productive young people to countries with which they have 

no ties, the Secretary of Homeland Security announced a 

policy in 2012 that would provide some relief to individuals 

like Garcia, while allowing our communities to continue to 

benefit from their contributions. Known as Deferred Action 

for Childhood Arrivals, or DACA, the program allows those 

noncitizens who unwittingly entered the United States as 

children, who have clean criminal records, and who meet 

various educational or military service requirements to apply 

for two-year renewable periods of deferred action—a 

revocable decision by the government not to deport an 

otherwise removable person from the country. DACA also 

allows recipients to apply for authorization to work in this 

country legally, paying taxes and operating in the aboveground economy. Garcia, along with hundreds of thousands 

of other young people, trusting the government to honor its 

promises, leapt at the opportunity.

But after a change in presidential administrations, in 

2017 the government moved to end the DACA program. 

Why? According to the Acting Secretary of Homeland 

Security, upon the legal advice of the Attorney General, 

DACA was illegal from its inception, and therefore could no 

longer continue in effect. And after Dulce Garcia—along 

with other DACA recipients and affected states, 

municipalities, and organizations—challenged this 

conclusion in the federal courts, the government adopted the 

position that its fundamentally legal determination that 

DACA is unlawful is unreviewable by the judicial branch.
22 REGENTS OF THE UNIV. OF CAL. V. USDHS

With due respect for the Executive Branch, we disagree. 

The government may not simultaneously both assert that its 

actions are legally compelled, based on its interpretation of 

the law, and avoid review of that assertion by the judicial 

branch, whose “province and duty” it is “to say what the law 

is.” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803). 

The government’s decision to rescind DACA is subject to 

judicial review. And, upon review, we conclude that 

plaintiffs are likely to succeed on their claim that the 

rescission of DACA—at least as justified on this record—is 

arbitrary, capricious, or otherwise not in accordance with 

law. We therefore affirm the district court’s grant of 

preliminary injunctive relief.1

I.

A. History of Deferred Action

The central benefit available under the DACA program 

is deferred action. Because much of this dispute revolves 

around the legitimacy of that practice, we begin by 

reviewing the Executive Branch’s historical use of deferred 

action.

The basic concept is a simple one: deferred action is a 

decision by Executive Branch officials not to pursue 

deportation proceedings against an individual or class of 

individuals otherwise eligible for removal from this country. 

See 6 Charles Gordon et al., Immigration Law & Procedure 

§ 72.03[2][h] (2018) (“To ameliorate a harsh and unjust 

outcome, the immigration agency may decline to institute 

proceedings, may terminate proceedings, or may decline to 

 1 We also affirm in part the district court’s partial grant and partial 

denial of the government’s motion to dismiss for failure to state a claim.
REGENTS OF THE UNIV. OF CAL. V. USDHS 23

execute a final order of deportation. This commendable 

exercise in administrative discretion . . . is now designated 

as deferred action.”); Barahona-Gomez v. Reno, 236 F.3d 

1115, 1119 n.3 (9th Cir. 2001) (“Deferred action refers to an 

exercise of administrative discretion by the [immigration 

agency] under which [it] takes no action to proceed against 

an apparently deportable alien based on a prescribed set of 

factors generally related to humanitarian grounds.” (internal 

quotation marks omitted)); Hiroshi Motomura, Immigration 

Outside the Law 29 (2014) (noting that “deferred action is 

usually granted only for limited periods of time and does not 

provide a path to lawful permanent resident status or 

citizenship”).

Unlike most other forms of relief from deportation, 

deferred action is not expressly grounded in statute. It arises 

instead from the Executive’s inherent authority to allocate 

resources and prioritize cases. Cf. 6 U.S.C. § 202(5) 

(charging the Secretary of Homeland Security with 

“[e]stablishing national immigration enforcement policies 

and priorities”). As such, recipients of deferred action 

“enjoy no formal immigration status.” Ariz. Dream Act 

Coal. v. Brewer, 855 F.3d 957, 964 (9th Cir. 2017) (Brewer 

II). But despite its non-statutory origins, Congress has 

historically recognized the existence of deferred action in 

amendments to the Immigration and Nationality Act (INA), 

as well as other statutory enactments. See 8 U.S.C. 

§ 1227(d)(2) (“The denial of a request for an administrative 

stay of removal under this subsection shall not preclude the 

alien from applying for . . . deferred action[.]”); REAL ID 

Act of 2005, Pub. L. No. 109-13, § 202(c)(2), 119 Stat. 231, 

313 (2005) (listing proof of “approved deferred action 

status” as sufficient “evidence of lawful status” for the 

issuance of a driver’s license). The Supreme Court has also 

recognized deferred action by name, describing the 
24 REGENTS OF THE UNIV. OF CAL. V. USDHS

Executive’s “regular practice (which ha[s] come to be 

known as ‘deferred action’) of exercising discretion for 

humanitarian reasons or simply for its own convenience.” 

Reno v. Am.-Arab Anti-Discrimination Comm., 525 U.S. 

471, 483–84 (1999) (AADC). Thus, “it is well settled that 

the Secretary [of Homeland Security] can exercise deferred 

action.” Brewer II, 855 F.3d at 967.

Official records of administrative discretion in 

immigration enforcement date at least back to the turn of the 

twentieth century, not long after the enactment of the 

nation’s first general immigration statute in 1882. See Act 

of Aug. 3, 1882, ch. 376, 22 Stat. 214. A 1909 Department 

of Justice circular regarding statutorily authorized 

denaturalization instructed that “as a general rule, good 

cause is not shown for the institution of proceedings . . .

unless some substantial results are to be achieved thereby in 

the way of betterment of the citizenship of the country.” 

U.S. Dep’t of Justice, Circular Letter No. 107 (Sept. 20, 

1909) (quoted in Memorandum from Sam Bernsen, Gen. 

Counsel, INS, Legal Opinion Regarding Service Exercise of 

Prosecutorial Discretion at 4 (Jul. 15, 1976) (Bernsen 

Memorandum)).

The government’s exercise of deferred action in 

particular first came to light in the 1970s, as a result of 

Freedom of Information Act litigation over the 

government’s efforts to deport John Lennon and Yoko Ono, 

apparently based on Lennon’s “British conviction for 

marijuana possession.” Motomura, supra, at 28; see 

generally Shoba Sivaprasad Wadhia, Beyond Deportation: 

The Role of Prosecutorial Discretion in Immigration Cases 

2–27 (2015). Then known as “nonpriority status,” the 

practice had been observed in secret within the former 

Immigration and Naturalization Service (INS) since at least 
REGENTS OF THE UNIV. OF CAL. V. USDHS 25

the 1950s, but INS officials had publicly denied its 

existence. See Leon Wildes, The Nonpriority Program of 

the Immigration and Naturalization Service Goes Public: 

The Litigative Use of the Freedom of Information Act, 

14 San Diego L. Rev. 42, 52–53 (1976); Wadhia, supra, 

at 16. After the Lennon case revealed the practice, the INS 

issued its first public guidance on the use of deferred action, 

stating that “[i]n every case where the district director 

determines that adverse action would be unconscionable 

because of the existence of appealing humanitarian factors, 

he shall recommend consideration for nonpriority.” 

Immigration and Naturalization Service, Operations 

Instructions § 103.1(a)(1)(ii) (1975) (quoted in Wadhia, 

supra, at 17). Although the 1975 guidance was rescinded in 

1997, DHS officials continue to apply the same 

humanitarian factors in deciding whether to grant an 

individual deferred action. 6 Gordon et al., supra, 

§ 72.03[2][h] & nn.133–34; see also AADC, 525 U.S. at 484 

n.8.

In addition to case-by-case adjudications, the Executive 

Branch has frequently applied deferred action and related 

forms of discretionary relief programmatically, to entire 

classes of otherwise removable noncitizens. Indeed, the 

Congressional Research Service has compiled a list of 

twenty-one such “administrative directives on blanket or 

categorical deferrals of deportation” issued between 1976 

and 2011. Andorra Bruno et al., Cong. Research Serv., 

Analysis of June 15, 2012 DHS Memorandum, Exercising 

Prosecutorial Discretion with Respect to Individuals Who 

Came to the United States as Children 20–23 (July 13, 

2012); see also id. at 9 (“The executive branch has provided 

blanket or categorical deferrals of deportation numerous 

times over the years.”).
26 REGENTS OF THE UNIV. OF CAL. V. USDHS

To take one early example, in 1956 President 

Eisenhower extended immigration parole to over thirty 

thousand Hungarian refugees who were otherwise unable to 

immigrate to the United States because of restrictive quotas 

then in existence. See White House Statement on the 

Termination of the Emergency Program for Hungarian 

Refugees (Dec. 28, 1957). The power to parole—that is, to 

allow a noncitizen physically to enter the country, while 

treating that person as “at the border” for purposes of 

immigration law—is established by statute, but the version 

of the INA in existence when President Eisenhower acted 

did not explicitly authorize programmatic exercises of the 

parole power.2 Immigration and Nationality Act of 1952, 

Pub. L. No. 82-414, § 212(d)(5), 66 Stat. 163, 188. See 

generally 6 Gordon et al., supra, § 62.01. Subsequent 

presidents made use of similar categorical parole initiatives. 

Wadhia, supra, at 30.

Another salient example is the Family Fairness program, 

established by the Reagan Administration and expanded 

under President George H.W. Bush. The Immigration 

Reform and Control Act of 1986 (IRCA) had provided a 

pathway to legal status for hundreds of thousands of 

undocumented noncitizens, but did not make any provision 

for their close relatives unless those individuals separately 

qualified under the Act’s criteria. See generally 3 Gordon et 

al., supra, § 38.06. President Reagan’s INS Commissioner 

interpreted IRCA not to authorize immigration benefits for 

 2 Indeed, there is evidence that “Congress originally intended that 

parole would be used on a case-by-case basis on behalf of individual 

aliens.” Cong. Research Serv., Review of U.S. Refugee Resettlement 

Programs & Policies 8 (1980); see also S. Rep. No. 89-748, at 17 (1965). 

The statute was amended in 1980 to expressly prohibit categorical grants 

of parole. Refugee Act of 1980, Pub. L. No. 96-212, § 203(f), 94 Stat. 

102, 108; see 8 U.S.C. § 1182(d)(5).
REGENTS OF THE UNIV. OF CAL. V. USDHS 27

anyone outside the statutory criteria, but nevertheless 

exercised executive discretion to defer the deportation of the 

minor children of noncitizens legalized under the statute. 

Alan C. Nelson, Comm’r, INS, Legalization & Family 

Fairness: An Analysis (Oct. 21, 1987). And in 1990, the INS 

instituted “significant liberalizations” of the policy by 

granting one-year periods of extended voluntary departure to 

children and spouses of individuals legalized under IRCA 

who could establish admissibility, continuous residency, and 

a clean criminal record. INS Reverses Family Fairness 

Policy, 67 No. 6 Interpreter Releases 153 (Feb. 5, 1990); see 

also 3 Gordon et al., supra, § 38.06. Contemporary 

estimates by INS officials of the number of people 

potentially eligible ranged as high as 1.5 million.3 See 

Immigration Act of 1989 (Part 2): Hearings Before the 

Subcomm. on Immigration, Refugees & Int’l Law of the H. 

Comm. on the Judiciary, 101st Cong. 49, 56 (1990) 

(testimony of Gene McNary, Comm’r, INS). Extended 

voluntary departure, the mechanism through which these 

individuals were allowed to remain in the United States is, 

like deferred action, a creature of executive discretion not 

specifically authorized by statute. See Hotel & Rest. Emps. 

Union, Local 25 v. Smith, 846 F.2d 1499, 1510 (D.C. Cir. 

1988) (en banc) (opinion of Mikva, J.).

Since then, the immigration agency has instituted 

categorical deferred action programs for self-petitioners 

under the Violence Against Women Act; applicants for T 

 3 There is some controversy surrounding this number. See generally 

Unconstitutionality of Obama’s Executive Actions on Immigration: 

Hearing Before the House Comm. on the Judiciary, 114th Cong. 84–85 

(2015) (written testimony of Professor Stephen H. Legomsky). But even 

the lowest reported contemporary estimate was that 100,000 people 

would actually benefit from the program, indicating a major policy 

initiative. See INS Reverses Family Fairness Policy, supra.
28 REGENTS OF THE UNIV. OF CAL. V. USDHS

and U visas (which are issued to victims of human 

trafficking and of certain crimes, respectively); foreign 

students unable to fulfill their visa requirements after 

Hurricane Katrina; and widowed spouses of United States 

citizens who had been married less than two years. None of 

these deferred action programs was expressly authorized by 

statute at the time they were initiated.

B. The DACA Program

DACA was announced in a June 15, 2012, memorandum 

from Secretary of Homeland Security Janet Napolitano,4

entitled “Exercising Prosecutorial Discretion with Respect 

to Individuals Who Came to the United States as Children.” 

Secretary Napolitano explained that the nation’s 

immigration laws “are not designed . . . to remove 

productive young people to countries where they may not 

have lived or even speak the language,” especially where 

“many of these young people have already contributed to our 

country in significant ways,” and, because they were brought 

here as children, “lacked the intent to violate the law.” She 

therefore determined that “[p]rosecutorial discretion, which 

is used in so many other areas, is especially justified here.”

The Napolitano memorandum thus laid out the basic 

criteria of the DACA program, under which a noncitizen will 

be considered for a grant of deferred action if he or she:

• came to the United States under the age of sixteen;

 4 Napolitano is a party to this appeal in her current capacity as 

President of the University of California.
REGENTS OF THE UNIV. OF CAL. V. USDHS 29

• has continuously resided in the United States for at 

least five years preceding [June 15, 2012] and is 

present in the United States on [June 15, 2012];

• is currently in school, has graduated from high 

school, has obtained a general education 

development certificate, or is an honorably 

discharged veteran of the Coast Guard or Armed 

Forces of the United States;

• has not been convicted of a felony offense, a 

significant misdemeanor offense, or multiple 

misdemeanor offenses, nor otherwise poses a threat 

to national security or public safety; and

• is not above the age of thirty [on June 15, 2012].5

DACA applicants must submit extensive personal 

information to DHS, along with fees totaling nearly $500. 

Applicants also submit to biometric screening in which they 

are photographed and fingerprinted, enabling extensive 

biographical and biometric background checks. If those 

checks come back clean, each application is then evaluated 

for approval by DHS personnel on a case-by-case basis.

If approved into the DACA program, an applicant is 

granted a renewable two-year term of deferred action—

again, “a form of prosecutorial discretion whereby the 

Department of Homeland Security declines to pursue the 

removal of a person unlawfully present in the United States.” 

Brewer II, 855 F.3d at 967. In addition to the deferral of 

removal itself, pre-existing DHS regulations allow all 

deferred-action recipients to apply for employment 

 5 This criterion became known as the “age cap.”
30 REGENTS OF THE UNIV. OF CAL. V. USDHS

authorization, enabling them to work legally and pay taxes. 

8 U.S.C. § 1324a(h)(3) (empowering the Executive Branch 

to authorize the employment of noncitizens); 8 C.F.R. 

§ 274a.12(c)(14) (providing that “[a]n alien who has been 

granted deferred action” is eligible for work authorization 

upon a showing of “economic necessity for employment”). 

Indeed, “DACA recipients are required to apply for 

employment authorization, in keeping with the Executive’s 

intention that DACA recipients remain ‘productive’ 

members of society.” Ariz. Dream Act Coal. v. Brewer, 

757 F.3d 1053, 1062 (9th Cir. 2014) (Brewer I) (emphasis in 

original). Finally, DHS does not consider deferred-action 

recipients, including those benefitting from DACA, to 

accrue “unlawful presence” for purposes of the INA’s reentry bars.6 8 U.S.C. § 1182(a)(9)(B)(ii); see Brewer I, 

757 F.3d at 1059.

 6 8 U.S.C. §§ 1182(a)(9)(B)(i)(I)–(II) establish a three-year and tenyear bar on admission after specified periods of “unlawful presence.” 

Additionally, 8 U.S.C. § 1182(a)(9)(C) provides a permanent bar on 

admission for immigrants who have accrued an aggregate of more than 

one year of “unlawful presence” and who later attempt to cross the border 

clandestinely. As the district court noted below, DHS “excludes 

recipients of deferred action from being ‘unlawfully present’ because 

their deferred action is considered a period of stay authorized by the 

government.” Regents of Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 

1039 (N.D. Cal. 2018). As DHS noted in its DACA Frequently Asked 

Questions (FAQs), “[f]or purposes of future inadmissibility based upon 

unlawful presence, an individual whose case has been deferred is not 

considered to be unlawfully present during the period in which deferred 

action is in effect.” Importantly, however, “deferred action does not 

confer lawful status upon an individual, nor does it excuse any previous 

or subsequent periods of unlawful presence.”

The FAQs are attached as an exhibit to the Regents complaint, and 

are cited pervasively throughout the Garcia complaint. See United 

States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003) (explaining that for 
REGENTS OF THE UNIV. OF CAL. V. USDHS 31

In an attempt to build on the success of the DACA 

program, in 2014 Secretary of Homeland Security Jeh 

Johnson issued a separate memorandum that both announced 

the related Deferred Action for Parents of Americans and 

Lawful Permanent Residents program (DAPA), which 

allowed deferred action for certain noncitizen parents of 

American citizens and lawful permanent residents, and 

expanded DACA by (1) removing the age cap, (2) extending 

the term of deferred-action and related work-authorization 

grants from two to three years, and (3) moving up the cutoff 

date by which an applicant must have been in the United 

States to January 1, 2010. Twenty-six states challenged this 

extension in federal court, arguing that DAPA is 

unconstitutional. All of the policies outlined in the Johnson 

memorandum were enjoined nationwide in a district court 

order upheld by the Fifth Circuit and affirmed by an equally 

divided Supreme Court. See United States v. Texas, 136 S. 

Ct. 2271 (2016); Texas v. United States, 809 F.3d 134 (5th 

Cir. 2015); Texas v. United States, 86 F. Supp. 3d 591 (S.D. 

Tex. 2015); see also Neil v. Biggers, 409 U.S. 188, 192 

(1972) (affirmance by an equally divided court has no 

precedential value). The original DACA program remained 

in effect.

In 2017, a new presidential administration took office, 

bringing with it a change in immigration policy. On 

February 20, 2017, then-Secretary of Homeland Security 

John Kelly issued a memorandum that set out the 

 

purposes of a motion to dismiss, “[c]ertain written instruments attached 

to pleadings may be considered part of the pleading. Even if a document 

is not attached to a complaint, it may be incorporated by reference into a 

complaint if the plaintiff refers extensively to the document or the 

document forms the basis of the plaintiff’s claim.” (internal citation 

omitted)).
32 REGENTS OF THE UNIV. OF CAL. V. USDHS

administration’s new enforcement priorities, stating that “the 

Department no longer will exempt classes or categories of 

removable aliens from potential enforcement.” However, 

the memorandum explicitly left DACA and DAPA in place. 

In a second memorandum issued June 15, 2017, after 

“consider[ing] a number of factors, including the 

preliminary injunction in the [Texas] matter, the ongoing 

litigation, the fact that DAPA never took effect, and our new 

immigration enforcement priorities,” Secretary Kelly 

rescinded DAPA as an “exercise of [his] discretion.”

Then, on June 28, 2017, Texas Attorney General Ken 

Paxton wrote to United States Attorney General Jefferson B. 

Sessions III threatening that if the federal government did 

not rescind DACA by September 5, 2017, Paxton would 

amend the complaint in the Texas litigation to challenge 

DACA as well as DAPA.

On September 4, 2017, the day before Paxton’s deadline, 

Attorney General Sessions sent his own letter to Acting 

Secretary of Homeland Security Elaine Duke. The Attorney 

General’s letter “advise[d] that the Department of Homeland 

Security . . . should rescind” the DACA memorandum based 

on his legal opinion that the Department lacked statutory 

authority to have created DACA in the first place. He wrote:

DACA was effectuated by the previous 

administration through executive action, 

without proper statutory authority and with 

no established end-date, after Congress’[s] 

repeated rejection of proposed legislation that 

would have accomplished a similar result. 

Such an open-ended circumvention of 

immigration laws was an unconstitutional 

exercise of authority by the Executive 

Branch.
REGENTS OF THE UNIV. OF CAL. V. USDHS 33

The Attorney General further opined that “[b]ecause the 

DACA policy has the same legal and constitutional defects 

that the courts recognized as to DAPA, it is likely that 

potentially imminent litigation would yield similar results 

with respect to DACA.”

The very next day, following the Attorney General’s 

directive, Acting Secretary Duke issued a memorandum 

rescinding DACA. The memorandum begins with a 

“Background” section that covers DACA, DAPA, the Texas

litigation, Secretary Kelly’s previous memoranda, Texas 

Attorney General Paxton’s threat, and the Attorney 

General’s letter. Then, in the section titled “Rescission of 

the June 15, 2012 DACA Memorandum,” the Duke 

memorandum states:

Taking into consideration the Supreme 

Court’s and the Fifth Circuit’s rulings in the 

ongoing litigation, and the September 4, 2017 

letter from the Attorney General, it is clear 

that the June 15, 2012 DACA program 

should be terminated. In the exercise of my

authority in establishing national 

immigration policies and priorities, except 

for the purposes explicitly identified below, I 

hereby rescind the June 15, 2012 

memorandum.

The Duke memorandum further states that although DHS 

would stop accepting initial DACA requests effective 

immediately, the agency would provide a one-month 

window in which renewal applications could be filed for 

current DACA beneficiaries whose benefits were set to 

expire before March 5, 2018. It also states that DHS would 

not terminate existing grants of deferred action under DACA 
34 REGENTS OF THE UNIV. OF CAL. V. USDHS

“solely based on the directives in this memorandum.” Thus, 

beginning on March 5, 2018, each DACA recipient’s grant 

of deferred action would be allowed to expire at the end of 

its two-year term. As of September 4, 2017—the day before 

the rescission—approximately 689,800 individuals were 

enrolled in DACA.

C. Procedural History

The rescission of DACA instantly sparked litigation 

across the country, including the cases on appeal here. Suits 

were filed in the Northern District of California by the 

Regents of the University of California, a group of states led 

by California, the City of San Jose, the County of Santa 

Clara and Service Employees International Union Local 521, 

and a group of individual DACA recipients led by Dulce 

Garcia. The complaints included claims that the rescission 

was arbitrary and capricious under the Administrative 

Procedure Act (APA); that it was a substantive rule requiring 

notice-and-comment rulemaking under the APA; that it 

violated the due process and equal protection rights 

protected by the U.S. Constitution; and that DHS was 

equitably estopped from using the information provided on 

DACA applications for enforcement purposes. The cases 

were consolidated before Judge William Alsup in the 

District Court for the Northern District of California and 

proceeded to litigation.

On October 17, 2017, the district court ordered the 

government to complete the administrative record, holding 

that the record proffered by the government was incomplete 

in several respects. Seeking to avoid providing additional 

documents, the government filed a petition for mandamus. 

In arguing its mandamus petition, the government took the 

position that the legality of the rescission should stand or fall 

based solely on the reasons and the record already provided 
REGENTS OF THE UNIV. OF CAL. V. USDHS 35

by the government. We denied the mandamus petition, 

stating that “the notion that the head of a United States 

agency would decide to terminate a program giving legal 

protections to roughly 800,000 people based solely on 256 

pages of publicly available documents is not credible, as the 

district court concluded.” In re United States, 875 F.3d 

1200, 1206 (9th Cir. 2017) (footnotes omitted).

The government next petitioned the Supreme Court for 

the same mandamus relief; the Court did not reach the merits 

of the administrative record dispute, but instead instructed 

the district court to rule on the government’s threshold 

arguments challenging reviewability of its rescission 

decision before requiring the government to provide 

additional documents. In re United States, 138 S. Ct. 443, 

445 (2017). Thus, the administrative record in this case still 

consists of a scant 256 publicly available pages, roughly 

three-quarters of which are taken up by the three published 

judicial opinions from the Texas litigation.

Returning to the district court, the government moved to 

dismiss the consolidated cases on jurisdictional grounds and 

for failure to state a claim, while the plaintiffs moved for a 

preliminary injunction. The district court granted the request 

for a nationwide preliminary injunction, holding that most of 

the plaintiffs had standing;7 that neither the APA nor the 

INA barred judicial review; and that plaintiffs were likely to 

succeed on their claim that the decision to rescind DACA 

was arbitrary and capricious. The district court therefore 

entered a preliminary injunction requiring DHS to adjudicate 

renewal applications for existing DACA recipients.

 7 Two states were dismissed from the case with leave to amend. 

That decision is not challenged on appeal.
36 REGENTS OF THE UNIV. OF CAL. V. USDHS

In a separate order, the court partially granted and 

partially denied the government’s motion to dismiss. The 

court dismissed plaintiffs’ notice-and-comment and 

Regulatory Flexibility Act claims; a due process claim 

premised on an entitlement to deferred action; and the 

equitable estoppel claim. The court denied the motion as to 

plaintiffs’ equal protection claim and a due process claim 

premised on an alleged change in DHS’s informationsharing policy.

The district court certified the issues addressed in both 

its orders for interlocutory review under 28 U.S.C. 

§ 1292(b). We granted the government’s petition for 

permission to appeal the orders. Plaintiffs cross-appealed, 

asserting that the district court erroneously dismissed their 

notice-and-comment and due process claims.

II.

“We review the district court’s decision to grant or deny 

a preliminary injunction for abuse of discretion.” Hernandez 

v. Sessions, 872 F.3d 976, 987 (9th Cir. 2017) (quoting Sw. 

Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 

918 (9th Cir. 2003) (en banc) (per curiam)). Within this 

inquiry, “[w]e review the district court’s legal conclusions 

de novo, the factual findings underlying its decision for clear 

error.” Id. (quoting K.W. ex rel. D.W. v. Armstrong, 

789 F.3d 962, 969 (9th Cir. 2015)). A district court’s 

decision on a motion to dismiss for lack of subject matter 

jurisdiction or for failure to state a claim is also reviewed de 

novo. See, e.g., Davidson v. Kimberly-Clark Corp., 889 F.3d 

956, 963 (9th Cir. 2017).
REGENTS OF THE UNIV. OF CAL. V. USDHS 37

III.

The threshold question in this case is in many ways also 

the most pivotal: is Acting Secretary Duke’s decision to 

rescind the DACA program reviewable by the courts at all? 

The government contends that both the APA and the INA 

bar judicial review; we address each statute in turn.

A. Reviewability under the APA

The APA provides for broad judicial review of agency 

action: “A person suffering legal wrong because of agency 

action, or adversely affected or aggrieved by agency action 

within the meaning of a relevant statute, is entitled to judicial 

review thereof.” 5 U.S.C. § 702. Thus, as a general matter, 

the Supreme Court has consistently articulated “a ‘strong 

presumption’ favoring judicial review of administrative 

action.” Mach Mining, LLC v. EEOC, 135 S. Ct. 1645, 1651 

(2015) (quoting Bowen v. Mich. Acad. of Family Physicians, 

476 U.S. 667, 670 (1986)); see also, e.g., Lincoln v. Vigil, 

508 U.S. 182, 190 (1993) (“[W]e have read the APA as 

embodying a ‘basic presumption of judicial review.’”) 

(quoting Abbott Labs. v. Gardner, 387 U.S. 136, 140 

(1967)).

However, the APA also forecloses judicial review under 

its procedures to the extent that “agency action is committed 

to agency discretion by law.” 5 U.S.C. § 701(a)(2).8 “This 

 8 This bar does not affect a plaintiff’s ability to bring freestanding 

constitutional claims. See Webster v. Doe, 486 U.S. 592, 601–05 (1988); 

Padula v. Webster, 822 F.2d 97, 101 (D.C. Cir. 1987) (“[E]ven where 

agency action is ‘committed to agency discretion by law,’ review is still 

available to determine if the Constitution has been violated.” (quoting 

Doe v. Casey, 796 F.2d 1508, 1517–18 n.33 (1986), aff’d in part, rev’d 

in part on other grounds, Webster v. Doe, 486 U.S. 592 (1988))).
38 REGENTS OF THE UNIV. OF CAL. V. USDHS

is a very narrow exception” that comes into play only “in 

those rare instances where statutes are drawn in such broad 

terms that in a given case there is no law to apply.” Citizens 

to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 

(1971) (internal quotation marks omitted), abrogated on 

other grounds by Califano v. Sanders, 430 U.S. 99 (1977); 

see also Heckler v. Chaney, 470 U.S. 821, 830 (1985) 

(“[R]eview is not to be had if the statute is drawn so that a 

court would have no meaningful standard against which to 

judge the agency’s exercise of discretion.”).

In Heckler v. Chaney, the Supreme Court analyzed this 

exception in considering “the extent to which a decision of 

an administrative agency to exercise its ‘discretion’ not to 

undertake certain enforcement actions is subject to judicial 

review under the [APA].” 470 U.S. at 823. In Chaney, the 

Commissioner of the Food and Drug Administration (FDA) 

declined to take investigatory and enforcement action 

against state prison officials’ use of drugs, which had been 

FDA-approved for medical use, in human executions. Id. at 

823–24. A group of prisoners on death row had petitioned 

the FDA, arguing that using the drugs to execute humans 

was unlawful because they were only approved for medical 

use, and not for executions. Id. Responding to the petition, 

the Commissioner questioned whether the FDA had 

jurisdiction to prohibit the use of drugs in executions, but 

went on to conclude that even if the agency did have 

jurisdiction, it would “decline to exercise it under [the 

agency’s] inherent discretion to” do so. Id. at 824. The 

inmates then sued the FDA, attempting to invoke the APA’s 

framework for judicial review. Id. at 825.

The Supreme Court held that the FDA Commissioner’s 

discretionary decision not to enforce the Food, Drug, and 

Cosmetic Act against state prison officials was unreviewable 
REGENTS OF THE UNIV. OF CAL. V. USDHS 39

under the APA. Chaney, 470 U.S. at 837–38. The Court 

identified a pre-APA “tradition” under which “an agency’s 

decision not to prosecute or enforce . . . is a decision 

generally committed to an agency’s absolute discretion,” and 

concluded that “the Congress enacting the APA did not 

intend to alter that tradition.” Id. at 831–32. As the Court 

summed up its holding, “[t]he general exception to 

reviewability provided by § 701(a)(2) for action ‘committed 

to agency discretion’ remains a narrow one, but within that 

exception are included agency refusals to institute 

investigative or enforcement proceedings, unless Congress 

has indicated otherwise.” Id. at 838 (citation omitted). That 

is, the normal presumption in favor of judicial review is 

reversed when the agency action in question is a refusal to 

enforce the substantive law.

Importantly for present purposes, the Court explicitly 

left open the question whether “a refusal by the agency to 

institute proceedings based solely on the belief that it lacks 

jurisdiction” might be reviewable notwithstanding this 

general rule. Chaney, 470 U.S. at 833 n.4 (“[W]e express no 

opinion on whether such decisions would be unreviewable 

under § 701(a)(2) . . . .”).9 This reservation makes perfect 

 9 Chaney’s footnote 4 reads in its entirety:

We do not have in this case a refusal by the agency 

to institute proceedings based solely on the belief that 

it lacks jurisdiction. Nor do we have a situation where 

it could justifiably be found that the agency has 

“consciously and expressly adopted a general policy” 

that is so extreme as to amount to an abdication of its 

statutory responsibilities. See, e.g., Adams v. 

Richardson, 156 U.S. App. D.C. 267, 480 F.2d 1159 

(1973) (en banc). Although we express no opinion on 

whether such decisions would be unreviewable under 
40 REGENTS OF THE UNIV. OF CAL. V. USDHS

sense. It is one thing to read the APA’s exception for 

“agency action [] committed to agency discretion by law” as 

including the Executive’s discretionary decisions to decline 

enforcement, given a pre-existing legal tradition that had 

treated those decisions as unreviewable. It would be quite 

another to say that an agency’s non-discretionary belief that 

it lacked the power to enforce the law was similarly 

“committed to agency discretion.” 5 U.S.C. § 701(a)(2); see 

Chaney, 470 U.S. at 833 n.4 (“[W]e note that in those 

situations [involving a belief that the agency lacked 

discretion,] the statute conferring authority on the agency 

might indicate that such decisions were not ‘committed to 

agency discretion.’”).

Several years after Chaney, our court directly addressed 

the question that the Supreme Court had left open. In 

Montana Air Chapter No. 29 v. Federal Labor Relations 

Authority, a union representing civilian Air National Guard 

employees filed an unfair labor practice charge against the 

National Guard Bureau, but the Federal Labor Relations 

Authority (FLRA) refused to issue a complaint. 898 F.2d 

753, 755 (9th Cir. 1990). The opinion letters issued by 

FLRA’s general counsel indicated that he had “determined, 

according to his interpretation of the statutes and regulations, 

that he lacked jurisdiction to issue an unfair labor practice 

complaint” under the circumstances. Id. at 757.

Acknowledging Chaney’s rule that “[a]n agency’s 

decision not to take enforcement action . . . is presumed to 

 

§ 701(a)(2), we note that in those situations the statute 

conferring authority on the agency might indicate that 

such decisions were not “committed to agency 

discretion.”

Heckler v. Chaney, 470 U.S. 821, 833 n.4 (emphasis added).
REGENTS OF THE UNIV. OF CAL. V. USDHS 41

be immune from judicial review,” we noted that the Supreme 

Court had nevertheless “suggested that discretionary 

nonenforcement decisions may be reviewable when” the 

refusal to enforce is based on a supposed lack of jurisdiction. 

Id. at 756 (citing Chaney, 470 U.S. at 833 n.4). We took the 

next logical step, holding that Chaney’s presumption of 

nonreviewability “may be overcome if the refusal is based 

solely on the erroneous belief that the agency lacks 

jurisdiction.” Id. at 754. Because “the General Counsel’s 

decision not to issue an unfair labor practice complaint was 

based on his belief that he lacked jurisdiction to issue such a 

complaint,” we proceeded to “examine the General 

Counsel’s statutory and regulatory interpretations to 

determine if his belief that he lacked jurisdiction was 

correct.” Id. at 757.10

The final piece of the APA reviewability puzzle is the 

Supreme Court’s decision in City of Arlington v. FCC, 

569 U.S. 290 (2013). There, the Court was faced with the 

question whether an agency’s determination of its own 

jurisdiction is entitled to the same deference as any other 

agency interpretation under Chevron, U.S.A., Inc. v. Natural 

Resources Defense Council, Inc., 467 U.S. 837 (1984). 

Writing for the Court, Justice Scalia explained in no 

uncertain terms that in the context of administrative 

agencies, “the distinction between ‘jurisdictional’ and 

‘nonjurisdictional’ interpretations is a mirage.” City of 

 10 We reject the government’s reading of Montana Air, under which 

the Chaney presumption would be overcome only if the agency action is 

based on a belief in a lack of jurisdiction, and the refusal to enforce is so 

extreme as to become an abdication of the agency’s statutory 

responsibilities. Both Chaney and Montana Air make clear that these are 

two independent exceptions to the narrow rule of nonreviewability, not 

two elements of a single test. Chaney, 470 U.S. at 833 n.4; Montana Air, 

898 F.2d at 756.
42 REGENTS OF THE UNIV. OF CAL. V. USDHS

Arlington, 569 U.S. at 297. With respect to courts, the 

jurisdictional/nonjurisdictional divide is a real and 

consequential one, because “[a] court’s power to decide a 

case is independent of whether its decision is correct . . . .

Put differently, a jurisdictionally proper but substantively 

incorrect judicial decision is not ultra vires.” Id. But the 

same is not true with respect to agencies: “Both their power 

to act and how they are to act is authoritatively prescribed by 

Congress, so that when they act improperly, no less than 

when they act beyond their jurisdiction, what they do is ultra 

vires.” Id. Thus, the Court concluded, “[t]he reality, laid 

bare, is that there is no difference, insofar as the validity of 

agency action is concerned, between an agency’s exceeding 

the scope of its authority (its ‘jurisdiction’) and its exceeding 

authorized application of authority that it unquestionably 

has.” Id. at 299 (emphasis in original).11

To summarize, Chaney holds that an agency’s refusal to 

enforce the substantive law is presumptively unreviewable 

because that discretionary nonenforcement function is 

“committed to agency discretion” within the meaning of the 

APA. Montana Air builds upon the question left open by 

Chaney’s footnote four, explaining that a nonenforcement 

decision is reviewable notwithstanding Chaney if the 

decision was based solely on the agency’s belief that it 

lacked jurisdiction to act. And City of Arlington teaches that 

there is no difference between an agency that lacks 

 11 The opinion is replete with equally emphatic—and equally 

quotable—formulations of the same point. See, e.g., City of Arlington, 

569 U.S. at 301 (“In sum, judges should not waste their time in the 

mental acrobatics needed to decide whether an agency’s interpretation of 

a statutory provision is ‘jurisdictional’ or ‘nonjurisdictional.’ Once those 

labels are sheared away, it becomes clear that the question in every case 

is, simply, whether the statutory text forecloses the agency’s assertion of 

authority, or not.”).
REGENTS OF THE UNIV. OF CAL. V. USDHS 43

jurisdiction to take a certain action, and one that is barred by 

the substantive law from doing the same; the question “is 

always, simply, whether the agency has stayed within the 

bounds of its statutory authority.” City of Arlington, 

569 U.S. at 297 (emphasis omitted). The rule that emerges 

is this: an agency’s nonenforcement decision is outside the 

scope of the Chaney presumption—and is therefore 

presumptively reviewable—if it is based solely on a belief 

that the agency lacked the lawful authority to do otherwise. 

That is, where the agency’s decision is based not on an 

exercise of discretion, but instead on a belief that any 

alternative choice was foreclosed by law, the APA’s 

“committed to agency discretion” bar to reviewability, 

5 U.S.C. § 701(a)(2), does not apply.

This rule is fully consistent with the Supreme Court’s 

decision in ICC v. Brotherhood of Locomotive Engineers 

(BLE), which rejected the notion that “if the agency gives a 

‘reviewable’ reason for otherwise unreviewable action, the 

action becomes reviewable.” 482 U.S. 270, 283 (1987). We 

have no quarrel with that statement in the abstract, but as 

applied it simply begs the question: is the agency action in 

question “otherwise unreviewable”?

The BLE case concerned the reviewability of the 

Interstate Commerce Commission’s denial of a motion to 

reopen proceedings on grounds of material error. Id. at 280. 

The Supreme Court held that category of agency action 

presumptively unreviewable because it “perceive[d] . . . a 

similar tradition of nonreviewability” to the one it had found 

in Chaney for nonenforcement decisions. Id. at 282. In 

reaching its holding, the Court rejected an argument that 

there was nevertheless “law to apply”—and that therefore 

the action was not committed to agency discretion—as the 

agency’s order had discussed the legal merits at length. Id. 
44 REGENTS OF THE UNIV. OF CAL. V. USDHS

at 280–81. What mattered was that the agency’s “formal 

action” was one for which a tradition of nonreviewability 

was discernable, regardless of how the agency explained its 

action.12 Id.

BLE thus stands for the proposition that if a particular 

type of agency action is presumptively unreviewable, the 

fact that the agency explains itself in terms that are judicially 

cognizable does not change the categorical rule. Fair 

enough. But the categorical rule announced in Chaney does 

not encompass nonenforcement decisions based solely on 

the agency’s belief that it lacked power to take a particular 

course; instead, the Court explicitly declined to extend its 

rule to that situation. Chaney, 470 U.S. at 833 n.4. And in 

Montana Air, we held that such decisions are reviewable. 

898 F.2d at 754. BLE’s statement about “otherwise 

unreviewable” agency decisions, 482 U.S. at 283, therefore 

has no application to the category of agency action at issue 

here.

We believe the analysis laid out above follows 

necessarily from existing doctrine. And, just as importantly, 

 12 The Court gave as an example a prosecutor’s refusal to institute 

criminal proceedings based on her “belief . . . that the law will not sustain 

a conviction.” BLE, 482 U.S. at 283. Such a belief is not equivalent to 

a conclusion that the government lacked the power to institute a 

prosecution in the first place. For one colorful example, in Bond v. 

United States, prosecutors made the “surprising” decision to charge “an 

amateur attempt by a jilted wife to injure her husband’s lover” under the 

federal statute implementing the international Convention on Chemical 

Weapons. 134 S. Ct. 2077, 2083–84 (2014). While the Court ultimately 

interpreted the statute not to encompass the charged conduct, id. at 2093–

94, no one suggested that the government’s aggressive decision to 

institute the prosecution was itself ultra vires.
REGENTS OF THE UNIV. OF CAL. V. USDHS 45

this approach also promotes values fundamental to the 

administrative process.

First, the Montana Air rule does not impermissibly 

encroach on executive discretion; to the contrary, it 

empowers the Executive. If an agency head is mistaken in 

her assessment that the law precludes one course of action, 

allowing the courts to disabuse her of that incorrect view of 

the law does not constrain discretion, but rather opens new 

vistas within which discretion can operate. That is, if an 

administrator chooses option A for the sole reason that she 

believes option B to be beyond her legal authority, a decision 

from the courts putting option B back on the table allows a 

reasoned, discretionary policy choice between the two 

courses of action. And if the agency’s view of the law is 

instead confirmed by the courts, no injury to discretion 

results because the status quo is preserved.

Moreover, allowing judicial review under these 

circumstances serves the critical function of promoting 

accountability within the Executive Branch—not 

accountability to the courts, but democratic accountability to 

the people. Accountability in this sense is fundamental to 

the legitimacy of the administrative system: although they 

are “unelected . . . bureaucrats,” City of Arlington, 569 U.S. 

at 305, the heads of cabinet-level departments like DHS “are 

subject to the exercise of political oversight and share the 

President’s accountability to the people.” Freytag v. 

Comm’r of Internal Revenue, 501 U.S. 868, 886 (1991). 

Indeed, the Constitution’s “Appointments Clause was 

designed to ensure public accountability for . . . the making 

of a bad appointment . . . .” Edmond v. United States, 

520 U.S. 651, 660 (1997); see also Elena Kagan, 

Presidential Administration, 114 Harv. L. Rev. 2245, 2251–

52 (2001) (“[A]ccountability” is one of the two “principal 
46 REGENTS OF THE UNIV. OF CAL. V. USDHS

values that all models of administration must attempt to 

further.”); 1 Richard J. Pierce, Jr., Administrative Law 

Treatise 114 (5th ed. 2010) (“Agencies are politically 

accountable because the President is accountable for the 

actions of agencies.”).

This democratic responsiveness is especially critical for 

agencies exercising prosecutorial functions because, as 

Justice Scalia explained in his oft-cited dissent in Morrison 

v. Olson, “[u]nder our system of government, the primary 

check against prosecutorial abuse is a political one.” 

487 U.S. 654, 728 (1988) (Scalia, J., dissenting). This check 

works because “when crimes are not investigated and 

prosecuted fairly, nonselectively, with a reasonable sense of 

proportion, the President pays the cost in political damage to 

his administration.” Id. at 728–29. In other words, when 

prosecutorial functions are exercised in a manner that is 

within the law but is nevertheless repugnant to the 

sensibilities of the people, “the unfairness will come home 

to roost in the Oval Office.” Id. at 729.

But public accountability for agency action can only be 

achieved if the electorate knows how to apportion the praise 

for good measures and the blame for bad ones. Without 

knowing the true source of an objectionable agency action, 

“the public cannot ‘determine on whom the blame or the 

punishment of a pernicious measure, or series of pernicious 

measures ought really to fall.’” Free Enter. Fund v. Pub. 

Co. Accounting Oversight Bd., 561 U.S. 477, 498 (2010) 

(quoting The Federalist No. 70, at 476 (Alexander Hamilton) 

(Jacob E. Cooke ed. 1961)). In then-Professor Kagan’s 

words, “the degree to which the public can understand the 

sources and levers of bureaucratic action” is “a fundamental 

precondition of accountability in administration.” Kagan, 

supra, at 2332.
REGENTS OF THE UNIV. OF CAL. V. USDHS 47

The Montana Air rule promotes accountability by 

ensuring that the public knows where to place blame for an 

unpopular measure. When an agency justifies an action 

solely with an assertion that the law prohibits any other 

course, it shifts responsibility for the outcome from the 

Executive Branch to Congress (for making the law in 

question) or the courts (for construing it). If the Executive 

is correct in its interpretation of the law, then the public is 

correct to blame the other two branches for any resulting 

problems. But if the Executive is wrong, then it avoids 

democratic accountability for a choice that was the agency’s 

to make all along. Allowing the judiciary—the branch 

ultimately responsible for interpreting the law, see Marbury, 

5 U.S. (1 Cranch) at 177—to review such decisions prevents 

this anti-democratic and untoward outcome. As Judge Bates 

of the District Court for the District of Columbia aptly put 

the point in confronting the very issue we face here, “an 

official cannot claim that the law ties her hands while at the 

same time denying the courts’ power to unbind her. She may 

escape political accountability or judicial review, but not 

both.” NAACP v. Trump, 298 F. Supp. 3d 209, 249 (D.D.C. 

2018).

We therefore must determine whether the Acting 

Secretary’s decision to end DACA was based solely on a 

belief that the program was unlawful, such that the Chaney

presumption does not apply.13

 13 Because we take this doctrinal course, we need not decide whether 

the rescission of DACA would be reviewable absent the exception 

reflected in Montana Air and Chaney’s footnote four. But we do note 

several points. First, a literal reading of Chaney’s language would not 

even encompass the decision to rescind DACA, since Chaney by its own 

terms applies only to “agency decisions not to undertake enforcement 

action.” 470 U.S. at 832 (emphasis added). Nowhere does the opinion 
48 REGENTS OF THE UNIV. OF CAL. V. USDHS

We take Attorney General Sessions literally at his word 

when he wrote to Acting Secretary Duke that “DACA was 

effectuated . . . without proper statutory authority,” and that 

DACA “was an unconstitutional exercise of authority by the 

Executive Branch.” These are the reasons he gave for 

advising Acting Secretary Duke to rescind DACA. We 

 

suggest the broader proposition that any decision simply related to 

enforcement should be presumed unreviewable. Our court’s dicta in 

Morales de Soto v. Lynch, 824 F.3d 822, 827 n.4 (9th Cir. 2016), which 

addressed a completely separate issue of jurisdiction under the INA, is 

not to the contrary. Thus, to the extent that the Montana Air exception 

might not seem a perfect fit for the rescission of DACA—which was not 

exactly a decision not to enforce—the Chaney presumption itself shares 

the same defect. There is no daylight between the Chaney rule and the 

Montana Air exception in terms of the type of agency action to which 

they apply. So if the rescission of DACA were outside the Montana Air 

exception by virtue of not being strictly a nonenforcement decision, it 

would also fall outside the Chaney presumption of unreviewability in the 

first place.

Second, the D.C. Circuit has developed a line of cases explaining 

that while Chaney bars judicial review of a “single-shot nonenforcement 

decision,” on the other hand, “an agency’s adoption of a general 

enforcement policy is subject to review.” OSG Bulk Ships, Inc. v. United 

States, 132 F.3d 808, 812 (D.C. Cir. 1998) (quoting Crowley Caribbean 

Transp., Inc. v. Pena, 37 F.3d 671, 674–75 (D.C. Cir. 1994)); see also

Kenney v. Glickman, 96 F.3d 1118, 1123 (8th Cir. 1996); Nat’l Treasury 

Emps. Union v. Horner, 854 F.2d 490, 496–97 (D.C. Cir. 1988).

Thus, every one of the four courts that has considered the question 

has held that the rescission of DACA is reviewable under the APA, 

although each has employed slightly different reasoning for that 

conclusion. See NAACP v. Trump, 298 F. Supp. 3d 209, 226–34 (D.D.C. 

2018); Casa de Md. v. DHS, 284 F. Supp. 3d 758, 769–70 (D. Md. 2018); 

Regents of Univ. of Cal. v. DHS, 279 F. Supp. 3d 1011, 1029–31 (N.D. 

Cal. 2018) (decision below); Batalla Vidal v. Duke, 295 F. Supp. 3d 127, 

147–52 (E.D.N.Y. 2017).
REGENTS OF THE UNIV. OF CAL. V. USDHS 49

therefore agree with the district court that the basis for the 

rescission was a belief that DACA was unlawful, and that 

the discretionary “litigation risk” rationale pressed by the 

government now is a mere post-hoc rationalization put 

forward for purposes of this litigation.14 Acting Secretary 

Duke’s September 5, 2017, rescission memorandum 

contains exactly one sentence of analysis:

Taking into consideration the Supreme 

Court’s and the Fifth Circuit’s rulings in the 

ongoing litigation, and the September 4, 2017 

letter from the Attorney General, it is clear 

that the June 15, 2012 DACA program 

should be terminated.

In the next sentence, the Acting Secretary went on to 

announce the rescission itself:

In the exercise of my authority in establishing 

national immigration policies and priorities, 

except for the purposes explicitly identified 

below, I hereby rescind the June 15, 2012 

memorandum.

The easy rejoinder to the government’s insistence that 

the Acting Secretary rescinded DACA due to “litigation 

risks” is that the Acting Secretary did not mention “litigation 

risks” as a “consideration.” And both “consideration[s]” 

 14 After hundreds of pages of briefing and over an hour of oral 

argument, it remains less than clear how “litigation risk” differs from a 

substantive belief that DACA is illegal. We take the term to refer to a 

concern that DACA would be abruptly enjoined, regardless of whether 

the program was illegal or not. Of course, such a concern is not 

independent of an on-the-merits assessment of DACA’s legality.
50 REGENTS OF THE UNIV. OF CAL. V. USDHS

actually enumerated by the Acting Secretary are most 

naturally read as supporting a rationale based on DACA’s 

illegality. The “ongoing litigation” referenced is of course 

Texas v. United States, in which the Fifth Circuit upheld a 

preliminary injunction against the related DAPA policy, and 

the Supreme Court affirmed by an equally divided vote.15 

See Texas, 136 S. Ct. 2271 (2016); Texas, 809 F.3d 134 (5th 

Cir. 2015). The “rulings” in that case are propositions of 

law—taken alone, they are more readily understood as 

supporting a legal conclusion (DACA is illegal) than a 

pragmatic one (DACA might be enjoined). The pragmatic 

interpretation requires extra analytical steps (someone might 

sue to enjoin DACA, and they might win) that are entirely 

absent from the list of factors that the Acting Secretary stated 

she was “taking into consideration” in making her decision. 

Acting Secretary Duke easily could have included “the 

prospect of litigation challenging DACA” in her list of 

considerations; had she done so, then perhaps the reference 

to the Texas litigation could be read as supporting a practical 

worry about an injunction.16 Absent that, however, the 

mention of the courts’ “rulings” is best read as referencing 

the courts’ legal conclusions.

Attorney General Sessions’s September 4, 2017, letter 

likewise focuses on the supposed illegality of DACA, rather 

 15 This conclusion is only bolstered by the fact that the government’s 

production of the “administrative record” in this case includes the 

entirety of the three published judicial opinions in the Texas litigation.

16 The Acting Secretary did reference Texas Attorney General Ken 

Paxton’s threat to amend the Texas suit to include DACA, but she did so 

in the “Background” section of her memorandum. If anything, the 

inclusion of the threat in the background portion renders its omission 

from the list of factors the Acting Secretary was actually “[t]aking into 

consideration” all the more stark.
REGENTS OF THE UNIV. OF CAL. V. USDHS 51

than any alleged “litigation risk.” Its substantive paragraph 

states

DACA was effectuated . . . without proper 

statutory authority and with no established 

end-date, after Congress’[s] repeated 

rejection of proposed legislation that would 

have accomplished a similar result. Such an 

open-ended circumvention of immigration 

laws was an unconstitutional exercise of 

authority by the Executive Branch.

(emphases added).

These sentences unmistakably reflect the Attorney 

General’s belief that DACA was illegal and therefore 

beyond the power of DHS to institute or maintain. The letter 

goes on to opine that “[b]ecause the DACA policy has the 

same legal and constitutional defects that the courts 

recognized as to DAPA [in the Texas litigation], it is likely 

that potentially imminent litigation would yield similar 

results with respect to DACA.” But in the context of the full 

paragraph, the reference to “similar results” is best read not 

as an independent reason for rescinding DACA, but as a 

natural consequence of DACA’s supposed illegality—which 

is the topic of the paragraph as a whole. In the words of 

Judge Garaufis of the District Court for the Eastern District 

of New York, that reference “is too thin a reed to bear the 

weight of Defendants’ ‘litigation risk’ argument.” Batalla 

Vidal v. Nielsen, 279 F. Supp. 3d 401, 429 (E.D.N.Y. 2018).

In any event, the Attorney General’s letter is relevant 

only to the extent it illuminates whether Acting Secretary 

Duke—the official who actually rescinded the DACA 

program—did so as an exercise of her discretion or because 

she understood her hand to be forced by the law. In this 
52 REGENTS OF THE UNIV. OF CAL. V. USDHS

connection, it is helpful to compare the operative language 

used by Acting Secretary Duke to rescind DACA with that 

used by her predecessor, Secretary John Kelly, to rescind 

DAPA just months before. In his June 15, 2017, 

memorandum, Secretary Kelly wrote:

After consulting with the Attorney General, 

and in the exercise of my discretion in 

establishing national immigration 

enforcement policies and priorities, I hereby 

rescind the November 20, 2014 

memorandum [that established DAPA].

(emphasis added). Placed alongside Acting Secretary 

Duke’s language, the parallels—and the differences—are 

stark. Acting Secretary Duke’s memorandum reads:

In the exercise of my authority in establishing 

national immigration policies and priorities, 

except for the purposes explicitly identified 

below, I hereby rescind the June 15, 2012 

memorandum [that established DACA].

(emphasis added).

The obvious similarities between the two passages 

strongly suggest that Acting Secretary Duke modeled her 

language after that of Secretary Kelly’s memo. And indeed, 

we know that the Acting Secretary considered the Kelly 

memorandum in reaching her decision, because the 

government has told us so. See Petition for Writ of 

Mandamus, In re United States, No. 17-72917 (9th Cir. Oct. 

20, 2017) (stating that the government’s proffered 

administrative record in this case, which includes the Kelly 

memorandum, “consist[s] of the non-privileged materials 

considered by the Acting Secretary in reaching her decision 
REGENTS OF THE UNIV. OF CAL. V. USDHS 53

to rescind the DACA policy”); id. at 18 (taking the position 

that only materials personally reviewed by the Acting 

Secretary herself, not by subordinates, are “considered” by 

the Secretary).

Given that Acting Secretary Duke hewed so closely to 

Secretary Kelly’s language in general, it is appropriate to 

draw meaning from the one major difference between the 

two sentences: Secretary Kelly exercised his “discretion” in 

ending DAPA; Acting Secretary Duke merely exercised her 

“authority.” Cf., e.g., Jama v. ICE, 543 U.S. 335, 357 (2005) 

(“[W]hen the legislature uses certain language in one part of 

the statute and different language in another, the court 

assumes different meanings were intended.”). The point is 

that with the example set by the Kelly memorandum in front 

of her, Acting Secretary Duke clearly would have known 

how to express that the rescission was a discretionary act—

if that were indeed the case.17 Furthermore, the nearverbatim language of the two rescission memoranda 

suggests that the Acting Secretary adopted the majority of 

Kelly’s wording, but actively rejected describing the DACA 

rescission as an act of discretion. This difference in 

language cuts strongly against any suggestion that the 

rescission was discretionary.

The government counters that the memorandum 

“focused from beginning to end principally on litigation 

concerns, not the legality of DACA per se.” But as the State 

plaintiffs point out, the memorandum’s references to these 

 17 Secretary Kelly’s references to the factors he considered, which 

included obviously discretionary considerations such as “our new 

immigration enforcement priorities,” provided a further model for how 

to describe a discretionary decision, which Acting Secretary Duke also 

chose not to follow.
54 REGENTS OF THE UNIV. OF CAL. V. USDHS

supposed “litigation concerns” were limited to a simple 

summary of the Texas litigation’s procedural history; 

appeared only in the “Background” section of the 

memorandum; and were not referenced in the Acting 

Secretary’s statement of what she was “[t]aking into 

consideration.” See also note 16, supra.

The government also asserts that because the Acting 

Secretary wrote that DACA “should” rather than must be 

ended, she did not view herself as bound to act. But even on 

its face, “should” is fully capable of expressing obligation or 

necessity. See, e.g., Should, New Oxford American 

Dictionary (3d ed. 2010) (“used to indicate obligation, duty, 

or correctness”); cf. Should, Garner’s Dictionary of Legal 

Usage (3d ed. 2011) (“should . . . is sometimes used to create 

mandatory standards”). The Acting Secretary’s use of 

“should” instead of “must” cannot overcome the absence of 

any discussion of potential litigation or the “risks” attendant 

to it from the rescission memorandum’s statement of 

reasons, and the discrepancy between the rescission of 

DAPA as an act of “discretion” and the rescission of DACA 

as an act of “authority.”

Finally, the government takes a quote from the Supreme

Court to the effect that courts should “uphold a decision of 

less than ideal clarity if the agency’s path may reasonably be 

discerned,” Bowman Transp., Inc. v. Ark.-Best Freight Sys., 

Inc., 419 U.S. 281, 286 (1974), and contorts it into an 

argument that the district court’s “narrow reading of the 

Acting Secretary’s rationale is hardly the only one that ‘may 

reasonably be discerned’ from the Acting Secretary’s 

memorandum.” But Bowman is about finding a reviewable 

rationale in an agency’s action versus finding no articulation 

of that rationale. Bowman does not say—and it certainly 

does not logically follow—that a court must ignore the most 
REGENTS OF THE UNIV. OF CAL. V. USDHS 55

natural reading of an agency’s statement of reasons just 

because it may also be “reasonably susceptible” to a (less 

compelling) reading that the government would prefer. The 

government is in effect asking the court to defer to agency 

counsel’s post-hoc rationalization, as long as there is some 

reading of the rescission memorandum—never mind how 

strained—that would support it. Bowman does not require 

this incongruous result.

We agree with the district court that the Acting Secretary 

based the rescission of DACA solely on a belief that DACA 

was beyond the authority of DHS. Under Montana Air and 

Chaney’s footnote four, this conclusion brings the rescission 

within the realm of agency actions reviewable under the 

APA. Unless the INA itself deprives the courts of 

jurisdiction over this case, we must proceed to evaluate the 

merits of plaintiffs’ arbitrary-and-capricious claim.

B. Jurisdiction under the INA

The government contends that the INA stripped the 

district court of its jurisdiction in a provision that states:

Except as provided in this section [which sets 

out avenues of review not applicable here] 

. . . no court shall have jurisdiction to hear 

any cause or claim by or on behalf of any 

alien arising from the decision or action by 

the [Secretary of Homeland Security] to 

commence proceedings, adjudicate cases, or 

execute removal orders against any alien 

under this chapter.

8 U.S.C. § 1252(g).
56 REGENTS OF THE UNIV. OF CAL. V. USDHS

The Supreme Court has explicitly held that this section 

“applies only to three discrete actions that the [Secretary] 

may take: her ‘decision or action’ to ‘commence 

proceedings, adjudicate cases, or execute removal orders.’” 

AADC, 525 U.S. at 482 (emphasis in original). As the Court 

put it, “[i]t is implausible that the mention of three discrete 

events along the road to deportation was a shorthand way of 

referring to all claims arising from deportation proceedings. 

Not because Congress is too unpoetic to use synecdoche, but 

because that literary device is incompatible with the need for 

precision in legislative drafting.” Id.

The government attempts to expand Section 1252(g) to 

encompass this case in two ways. First, it points out that the 

AADC Court read that provision as Congress’s effort to 

shield executive decisions not to grant deferred action from 

review outside the procedures prescribed by the INA. The 

Court quoted a treatise describing the practice of deferred 

action and the litigation that would result when the 

government declined to grant deferred action: “Efforts to 

challenge the refusal to exercise such discretion on behalf of 

specific aliens sometimes have been favorably considered by 

the courts . . . .” Id. at 484–85 (quoting 6 Charles Gordon et 

al., Immigration Law and Procedure § 72.03[2][h] (1998)). 

Having reviewed these developments, the Court concluded: 

“Section 1252(g) seems clearly designed to give some 

measure of protection to ‘no deferred action’ decisions and 

similar discretionary determinations. . . .” Id. at 485.

The government argues that AADC’s reasoning—and 

therefore Section 1252(g)—applies to the rescission of 

DACA, which is itself in some sense a “no deferred action” 

decision. It seems quite clear, however, that AADC reads 

Section 1252(g) as responding to litigation over individual

“no deferred action” decisions, rather than a programmatic 
REGENTS OF THE UNIV. OF CAL. V. USDHS 57

shift like the DACA rescission. For example, the treatise 

passage AADC quotes to set the scene for Congress’s action 

refers explicitly to “[e]fforts to challenge the refusal to 

exercise [deferred action] on behalf of specific aliens. . . .” 

Id. (emphasis added). And in any case, the holding of AADC

was explicit: “The provision applies only to [the] three 

discrete actions” mentioned in the statute. Id. at 482.

The government’s fallback argument is thus to cast the 

rescission of DACA as an initial “action” in the agency’s 

“commence[ment] [of] proceedings.” 8 U.S.C. § 1252(g). 

But AADC specifically rejected a broad reading of the three 

discrete actions listed in Section 1252(g). “[D]ecisions to 

open an investigation, [or] to surveil the suspected violator” 

are not included in Section 1252(g)’s jurisdictional bar, 

AADC, 525 U.S. at 482, even though these actions are also 

“part of the deportation process,” id., and could similarly be 

construed as incremental steps toward an eventual 

“commence[ment] [of] proceedings,” 8 U.S.C. § 1252(g).

Indeed, in a case closely on point, our court rejected the 

application of Section 1252(g) and allowed to proceed a 

challenge to INS guidance narrowly interpreting the terms of 

a “one-time legalization program” for undocumented 

immigrants. See Catholic Soc. Servs., Inc. v. INS, 232 F.3d 

1139, 1141 (9th Cir. 2000). We noted that “[a]s interpreted 

by the Supreme Court in [AADC], [Section 1252(g)] applies 

only to the three specific discretionary actions mentioned in 

its text, not to all claims relating in any way to deportation 

proceedings,” and held that the challenge was not barred. Id.

at 1150. The panel did not appear concerned by the fact that 

it was possible to conceptualize that policy choice by INS as 

an ingredient in a subsequent decision to commence 

proceedings against particular individuals.
58 REGENTS OF THE UNIV. OF CAL. V. USDHS

The government cites no cases applying the Section 

1252(g) bar to a programmatic policy decision about 

deferred action; the two cases it does cite were challenges to 

individual “no deferred action” decisions—that is, they fall 

exactly within Section 1252(g) as interpreted by the Court in 

AADC. See Vasquez v. Aviles, 639 F. App’x 898 (3d Cir. 

2016); Botezatu v. INS, 195 F.3d 311 (7th Cir. 1999). 

Especially in light of the “‘strong presumption in favor of 

judicial review of administrative action’ governing the 

construction of jurisdiction-stripping provisions of 

IIRIRA,”18 ANA Int’l, Inc. v. Way, 393 F.3d 886, 891 (9th 

Cir. 2004) (quoting INS v. St. Cyr, 533 U.S. 289, 298 

(2001)), we hold that Section 1252(g) does not deprive 

courts of jurisdiction to review the DACA rescission order.19

IV.

Having concluded that neither the APA nor the INA 

precludes judicial review, we turn to the merits of the 

preliminary injunction. The district court held that plaintiffs 

satisfied the familiar four-factor preliminary injunction 

 18 Section 1252(g) is one such provision. See AADC, 525 U.S. at 

475 (describing § 1252(g)’s passage as part of IIRIRA).

19 In its response and reply brief, the government appears to argue 

that another provision of the INA, 8 U.S.C. § 1252(b)(9), also stripped 

the district court of jurisdiction. Although ordinarily an argument not 

raised in the opening brief would be waived, this argument is 

jurisdictional so we must consider it. See, e.g., Embassy of the Arab 

Republic of Egypt v. Lasheen, 603 F.3d 1166, 1171 n.3 (9th Cir. 2010) 

(“[C]hallenges to subject matter jurisdiction cannot be waived[.]”). But 

Section 1252(b)(9) does not bar jurisdiction here, because it “appl[ies] 

only to those claims seeking judicial review of orders of removal.” Singh 

v. Gonzales, 499 F.3d 969, 978 (9th Cir. 2007) (citing St. Cyr, 533 U.S. 

at 313).
REGENTS OF THE UNIV. OF CAL. V. USDHS 59

standard20 with respect to their claim under the APA that the 

rescission of DACA was “arbitrary, capricious, an abuse of 

discretion, or otherwise not in accordance with law.” See

5 U.S.C. § 706(2)(A). The government takes issue with the 

district court’s conclusion on only one of the preliminary 

injunction factors: the likelihood of success on the merits.

In an arbitrary-and-capricious challenge, “[i]t is wellestablished that an agency’s action must be upheld, if at all, 

on the basis articulated by the agency itself.” Motor Vehicle 

Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins., 

463 U.S. 29, 50 (1983); see also, e.g., SEC v. Chenery Corp., 

332 U.S. 194, 196 (1947) (Chenery II) (“[A] reviewing court 

. . . must judge the propriety of [agency] action solely by the 

grounds invoked by the agency.” (citing SEC v. Chenery 

Corp., 318 U.S. 80 (1943) (Chenery I)).

Similarly, it is black letter law that where an agency 

purports to act solely on the basis that a certain result is 

legally required, and that legal premise turns out to be 

incorrect, the action must be set aside, regardless of whether 

the action could have been justified as an exercise of 

discretion. That principle goes back at least as far as the 

Supreme Court’s seminal decision in Chenery I, in which the 

Court stated:

If [agency] action rests upon an 

administrative determination—an exercise of 

judgment in an area which Congress has 

entrusted to the agency—of course it must 

 20 “A plaintiff seeking a preliminary injunction must establish that 

he is likely to succeed on the merits, that he is likely to suffer irreparable 

harm in the absence of preliminary relief, that the balance of equities tips 

in his favor, and that an injunction is in the public interest.” Winter v. 

Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
60 REGENTS OF THE UNIV. OF CAL. V. USDHS

not be set aside because the reviewing court 

might have made a different determination 

were it empowered to do so. But if the action 

is based upon a determination of law as to 

which the reviewing authority of the courts 

does come into play, an order may not stand 

if the agency has misconceived the law.

Chenery I, 318 U.S. at 94 (emphasis added).

This holding of Chenery I remains good law. See, e.g., 

United States v. Ross, 848 F.3d 1129, 1134 (D.C. Cir. 2017) 

(“Where a statute grants an agency discretion but the agency 

erroneously believes it is bound to a specific decision, we 

can’t uphold the result as an exercise of the discretion that 

the agency disavows.”); Safe Air for Everyone v. EPA, 

488 F.3d 1088, 1101 (9th Cir. 2007) (setting aside agency 

action that was justified on a “legally erroneous” basis, and 

remanding for further consideration under other 

justifications). As the D.C. Circuit flatly put it, “An agency 

action, however permissible as an exercise of discretion, 

cannot be sustained where it is based not on the agency’s 

own judgment but on an erroneous view of the law.” SeaLand Serv., Inc. v. DOT, 137 F.3d 640, 646 (D.C. Cir. 1998) 

(internal quotation marks omitted) (quoting Prill v. NLRB, 

755 F.2d 941, 947 (D.C. Cir. 1985)).

Thus, if the DACA rescission was based solely on an 

erroneous legal premise, it must be set aside under 5 U.S.C. 

§ 706(2)(A). We have already concluded, in our discussion 

of reviewability, that the rescission was indeed premised on 
REGENTS OF THE UNIV. OF CAL. V. USDHS 61

the belief that the DACA program was unlawful. We next 

must decide whether that legal conclusion was correct.21

Attorney General Sessions’s September 4, 2017, letter 

expresses several possible bases for the agency’s ultimate 

conclusion that DACA was unlawful. First, the Attorney 

General states that “DACA was effectuated by the previous 

administration through executive action . . . after 

Congress’[s] repeated rejection of proposed legislation that 

would have accomplished a similar result.” But our court 

has already explained that “Congress’s failure to pass the 

[DREAM] Act does not signal the illegitimacy of the DACA 

program,” partly because “the DREAM Act and the DACA 

program are not interchangeable policies because they 

provide different forms of relief”: the DREAM Act would 

have provided a path to lawful permanent resident status, 

while DACA simply defers removal. Brewer II, 855 F.3d at 

976 n.10; see Motomura, supra, at 175 (“DACA is not the 

DREAM Act; as an interim executive measure, it is limited 

in duration and provides no durable immigration status.”) 

(footnote omitted); see also, e.g., DREAM Act of 2011, S. 

952, 112th Cong. (2011). Moreover, there is nothing 

inherently problematic about an agency addressing a 

problem for which Congress has been unable to pass a 

legislative fix, so long as the particular action taken is

properly within the agency’s power. This argument 

therefore provides no independent reason to think that 

DACA is unlawful.

 21 The government does not argue that its conclusion is entitled to 

Chevron deference, likely because “[d]eference to an agency’s 

interpretation of a statute is not appropriate when the agency wrongly 

‘believes that interpretation is compelled by Congress.’” Gila River 

Indian Cmty. v. United States, 729 F.3d 1139, 1149 (9th Cir. 2013) 

(quoting PDK Labs. Inc. v. DEA, 362 F.3d 786, 798 (D.C. Cir. 2004)).
62 REGENTS OF THE UNIV. OF CAL. V. USDHS

The Attorney General’s primary bases for concluding 

that DACA was illegal were that the program was 

“effectuated . . . without proper statutory authority” and that 

it amounted to “an unconstitutional exercise of authority.” 

More specifically, the Attorney General asserted that “the 

DACA policy has the same legal and constitutional defects 

that the courts recognized as to DAPA” in the Texas

litigation.

The claim of “constitutional defects” is a puzzling one 

because as all the parties recognize, no court has ever held 

that DAPA is unconstitutional. The Fifth Circuit and district 

court in Texas explicitly declined to address the 

constitutional issue. See Texas, 809 F.3d at 154 (“We decide 

this appeal . . . without resolving the constitutional claim.”); 

Texas, 86 F. Supp. 3d at 677 (“[T]he Court is specifically not 

addressing Plaintiffs’ likelihood of success on . . . their 

constitutional claims . . . .”). Indeed, the government makes 

no attempt in this appeal to defend the Attorney General’s 

assertion that the DACA program is unconstitutional. We 

therefore do not address it further.

With respect to DACA’s alleged “legal . . . defects,” the 

district court explained in great detail the long history of 

deferred action in immigration enforcement, including in the 

form of broad programs; the fact that the Supreme Court and 

Congress have both acknowledged deferred action as a 

feature of the immigration system; and the specific statutory 

responsibility of the Secretary of Homeland Security for 

“[e]stablishing national immigration enforcement policies 

and priorities,” 6 U.S.C. § 202(5). The government does not 

contest any of these propositions, which themselves go a 

long way toward establishing DACA’s legality. Instead, the 

government argues that the Fifth Circuit’s reasons for 
REGENTS OF THE UNIV. OF CAL. V. USDHS 63

striking down the related DAPA policy would also apply to 

DACA.

The Fifth Circuit concluded that DAPA was unlawful on 

two grounds: first, that DAPA was in fact a legislative rule 

and therefore should have been promulgated through noticeand-comment rulemaking; and second, that DAPA was 

substantively inconsistent with the INA. See Texas, 

809 F.3d at 171–78, 178–86.

With respect to the first holding, notice-and-comment 

procedures are not required where the agency 

pronouncement in question is a “general statement[] of 

policy.” 5 U.S.C. § 553(b)(3)(A). “The critical factor to 

determine whether a directive announcing a new policy 

constitutes a rule or a general statement of policy is the 

extent to which the challenged [directive] leaves the agency, 

or its implementing official, free to exercise discretion to 

follow, or not to follow, the [announced] policy in an 

individual case.” Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 

1013 (9th Cir. 1987) (alterations in original) (internal 

quotation marks omitted).

On its face, DACA obviously allows (and indeed 

requires) DHS officials to exercise discretion in making 

deferred action decisions as to individual cases: Secretary 

Napolitano’s memorandum announcing DACA specifically 

states that “requests for relief pursuant to this memorandum 

are to be decided on a case by case basis.” The Fifth Circuit 

in Texas held that DAPA was a substantive rule 

notwithstanding similar discretionary language, based 

primarily on statistics regarding the approval rates of DACA 

applications. The court read those statistics as revealing that 

DACA was discretionary in name only—that is, that DHS 

personnel had no discretion to deny deferred action if the 

DACA criteria were met. Texas, 809 F.3d at 172–73.
64 REGENTS OF THE UNIV. OF CAL. V. USDHS

But as the dissenting judge in Texas pointed out, 

DACA’s (then) 5% denial rate—which did not include 

applications rejected for administrative deficiencies—is 

consistent with a discretionary program given that applicants 

self-select: “It should be expected that only those highly 

likely to receive deferred action will apply; otherwise, 

applicants would risk revealing their immigration status and 

other identifying information to authorities, thereby risking 

removal (and the loss of a sizeable fee).” Texas, 809 F.3d at 

210 (King, J., dissenting).

Moreover, the denial rate has risen as the DACA 

program has matured. DHS statistics included in the record 

reveal that in fiscal year 2016, for example, the agency 

approved 52,882 initial DACA applications and denied 

11,445; that is, 17.8% of the applications acted upon were 

denied.22 As Judge King concluded, “Neither of these 

numbers suggests an agency on autopilot.” Texas, 809 F.3d

at 210 n.44 (King, J., dissenting); see also Arpaio v. Obama, 

27 F. Supp. 3d 185, 209 n.13 (D.D.C. 2014) (noting that 

these same statistics “reflect that . . . case-by-case review is 

in operation”).23 In light of these differences, we do not 

 22 U.S. Citizenship & Immigration Services, Number of Form I821D, Consideration of Deferred Action for Childhood Arrivals, by 

Fiscal Year, Quarter, Intake, Biometrics and Case Status Fiscal Year 

2012–2017 (March 31, 2017). The number of initial applications is the 

relevant metric because renewal applications are by definition limited to 

the pool of those already approved for DACA at least once. Therefore, 

one would expect an even lower denial rate for renewals.

23 Judge King’s dissent also makes the critical observation that, 

according to the declarations filed in that case, the reason DHS could not 

point to specific instances in which DACA applicants met the program 

criteria but were denied as a matter of discretion was that DHS did not 

have the ability to track and sort the reasons for DACA denials. Texas, 

809 F.3d at 211 (King, J., dissenting).
REGENTS OF THE UNIV. OF CAL. V. USDHS 65

agree that DACA is a legislative rule that would require 

notice-and-comment rulemaking.

As to the substantive holding in Texas, the Fifth Circuit 

concluded that DAPA conflicted with the INA largely for a 

reason that is inapplicable to DACA. Specifically, the Fifth 

Circuit reasoned that the INA provides “an intricate process 

for illegal aliens to derive a lawful immigration classification 

from their children’s immigration status” but that “DAPA 

would allow illegal aliens to receive the benefits of lawful 

presence solely on account of their children’s immigration 

status without complying with any of the requirements . . .

that Congress has deliberately imposed.” Texas, 809 F.3d at 

179–80. As the district court in this case noted, there is no 

analogous provision in the INA defining how immigration 

status may be derived by undocumented persons who arrived 

in the United States as children. One of the major problems 

the Fifth Circuit identified with DAPA is therefore not 

present here.

In resisting this conclusion, the government flips the 

Fifth Circuit’s reasoning on its head, arguing that “[i]nsofar 

as the creation of pathways to lawful presence was relevant, 

the fact that Congress had legislated only for certain 

individuals similarly situated to DAPA beneficiaries—and 

not DACA recipients—would make DACA more 

inconsistent with the INA than DAPA.” To the extent the 

government meant to draw on the Texas court’s analysis, it 

gets it exactly backwards: the whole thrust of the Fifth 

Circuit’s reasoning on this point was that DHS was without 

authority because “Congress has ‘directly addressed the 

precise question at issue.’” Texas, 809 F.3d at 186 (quoting 

Mayo Found. for Med. Educ. & Research v. United States, 

562 U.S. 44, 52 (2011)). There is no argument that Congress 

has similarly occupied the field with respect to DACA; as 
66 REGENTS OF THE UNIV. OF CAL. V. USDHS

the Attorney General himself noted, Congress has repeatedly 

rejected Dreamer legislation.

The second major element of the Fifth Circuit’s analysis 

on the substantive issues was that the INA itself “prescribes 

. . . which classes of aliens can achieve deferred action and 

eligibility for work authorization.” Texas, 809 F.3d at 186. 

The court drew the implication that the statute must therefore 

preclude the Executive Branch from granting these benefits 

to other classes. Id. (pairing this notion with the pathwayto-lawful-presence argument as the keys to its conclusion).

But “[t]he force of any negative implication . . . depends 

on context.” Marx v. Gen. Revenue Corp., 568 U.S. 371, 381 

(2013). Indeed, “[w]e do not read the enumeration of one 

case to exclude another unless it is fair to suppose that 

Congress considered the unnamed possibility and meant to 

say no to it.” Barnhart v. Peabody Coal Co., 537 U.S. 149, 

168 (2003). Here, the express grants of deferred action cited 

by the Fifth Circuit were not passed together as part of the 

original INA; rather, they were added to the statute books 

piecemeal over time by Congress. See Violence Against 

Women Act of 2000, Pub. L. No. 106-386, div. B, sec. 1503, 

§ 1154(a)(1)(D)(i), 114 Stat. 1491 (codified at 8 U.S.C. 

§ 1154(a)(1)(D)(i)) (specifying deferred action for certain 

VAWA self-petitioners); USA PATRIOT Act of 2001, Pub. 

L. No. 107-56, § 423(b), 115 Stat. 272, 361 (same, for family 

members of lawful permanent residents killed by terrorism); 

National Defense Authorization Act for Fiscal Year 2004, 

Pub. L. No. 108-136, § 1703(c)–(d), 117 Stat. 1392, 1694–

95 (same, for relatives of noncitizens killed in combat and 

posthumously granted citizenship).

Given this context, we find it improbable that Congress 

“considered the . . . possibility” of all other potential uses for 

deferred action “and meant to say no” to any other 
REGENTS OF THE UNIV. OF CAL. V. USDHS 67

application of that tool by the immigration agency. 

Barnhart, 537 U.S. at 168. We think the much more 

reasonable conclusion is that in passing its seriatim pieces of 

legislation, instructing that this and that “narrow class[]” of 

noncitizens should be eligible for deferred action, Texas, 

809 F.3d at 179, Congress meant to say nothing at all about 

the underlying power of the Executive Branch to grant the 

same remedy to others. We do not read an “and no one else” 

clause into each of Congress’s individual express grants of 

deferred action.

Another element in the Fifth Circuit’s analysis was that 

“DAPA would make 4.3 million otherwise removable aliens 

eligible for lawful presence, employment authorization, and 

associated benefits, and ‘we must be guided to a degree by 

common sense as to the manner in which Congress is likely 

to delegate a policy decision of such economic and political 

magnitude to an administrative agency.’” Id. at 181 (quoting 

FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 

133 (2000)). DACA, on the other hand, had 689,800 

enrollees as of September 2017. The government asserts that 

this difference in size is “legally immaterial,” but that 

response is unconvincing. If the point is that the “economic 

and political magnitude” of allowing 4.3 million people to 

remain in the country and obtain work authorization is such 

that Congress would have spoken to it directly, then surely 

it makes a difference that one policy has less than one-sixth 

the “magnitude” of the other. Id. As the district court 

laconically put it, “there is a difference between 4.3 million 

and 689,800.”

Finally, the government finds “an insurmountable 

obstacle to plaintiffs’ position” in that “the district court’s 

injunction affirmed by the Fifth Circuit covered both DAPA 

and expanded DACA.” It is true that the Texas court also 
68 REGENTS OF THE UNIV. OF CAL. V. USDHS

enjoined the expansions of DACA that were announced in 

the same memorandum as the DAPA program. See Texas, 

809 F.3d at 147 n.11 (“The district court enjoined 

implementation of the following three DACA expansions, 

and they are included in the term ‘DAPA’ in this opinion 

. . . .”). But no analysis was devoted to those provisions by 

either the Fifth Circuit or the Texas district court, and one of 

the keys to the Fifth Circuit’s reasoning—that Congress had 

supposedly occupied the field with respect to obtaining 

immigration benefits through one’s children—does not

apply to either the original DACA program or its expansions. 

Under these circumstances, we do not find the Texas courts’ 

treatment of the DACA expansions to be strong persuasive 

authority, much less an “insurmountable obstacle.” Cf. 

Bryan A. Garner et al., The Law of Judicial Precedent 170 

(2016) (“An authority derives its persuasive power from its 

ability to convince others to go along with it.”).

In sum, the reality is (and always has been) that the 

executive agencies charged with immigration enforcement 

do not have the resources required to deport every single 

person present in this country without authorization. 

Compare Bernsen Memorandum, supra, at 1 (stating, in 

1976, that “[t]here simply are not enough resources to 

enforce all of the rules and regulations presently on the 

books”), with Memorandum from John Morton, Assistant 

Secretary, DHS, Civil Immigration Enforcement: Priorities 

for the Apprehension, Detention, and Removal of Aliens, at 

1 (June 30, 2010) (estimating that ICE has enough resources 

to deport only 4% of the undocumented population in any 

given year, and concluding that “ICE must prioritize the use 

of its . . . removal resources to ensure the removals the 

agency does conduct promote the agency’s highest 

enforcement priorities”) and Motomura, supra, at 26 (“The 

letter of the law creates a large removable population, but 
REGENTS OF THE UNIV. OF CAL. V. USDHS 69

whether an individual is actually targeted for removal has 

long depended on government discretion and bad luck.” 

(footnote omitted)). Recognizing this state of affairs, 

Congress has explicitly charged the Secretary of Homeland 

Security with “[e]stablishing national immigration 

enforcement policies and priorities.” 6 U.S.C. § 202(5).

It is therefore no surprise that deferred action has been a 

feature of our immigration system—albeit one of executive 

invention—for decades; has been employed categorically on 

numerous occasions; and has been recognized as a practical 

reality by both Congress and the courts. See, e.g., Brewer II, 

855 F.3d at 967 (“[I]t is well settled that the Secretary [of 

Homeland Security] can exercise deferred action” as part of 

her statutory authority “to administer and enforce all laws 

relating to immigration and naturalization.”). In a world 

where the government can remove only a small percentage 

of the undocumented noncitizens present in this country in 

any year, deferred action programs like DACA enable DHS 

to devote much-needed resources to enforcement priorities 

such as threats to national security, rather than blameless and 

economically productive young people with clean criminal 

records.

We therefore conclude that DACA was a permissible 

exercise of executive discretion, notwithstanding the Fifth 

Circuit’s conclusion that the related DAPA program 

exceeded DHS’s statutory authority. DACA is being 

implemented in a manner that reflects discretionary, caseby-case review, and at least one of the Fifth Circuit’s key 

rationales in striking down DAPA is inapplicable with 

respect to DACA. With respect for our sister circuit, we find 

the analysis that seemingly compelled the result in Texas

entirely inapposite. And because the Acting Secretary was 

therefore incorrect in her belief that DACA was illegal and 
70 REGENTS OF THE UNIV. OF CAL. V. USDHS

had to be rescinded, plaintiffs are likely to succeed in

demonstrating that the rescission must be set aside. Chenery 

I, 318 U.S. at 94; Safe Air for Everyone, 488 F.3d at 1101–

02.

To be clear: we do not hold that DACA could not be 

rescinded as an exercise of Executive Branch discretion. We 

hold only that here, where the Executive did not make a 

discretionary choice to end DACA—but rather acted based 

on an erroneous view of what the law required—the 

rescission was arbitrary and capricious under settled law. 

The government is, as always, free to reexamine its policy 

choices, so long as doing so does not violate an injunction or 

any freestanding statutory or constitutional protection.24

V.

Having concluded that the district court was correct in its 

APA merits holding, we now turn to the question of the 

appropriate remedy. The district court preliminarily 

 24 The government has submitted a letter pursuant to Federal Rule 

of Appellate Procedure 28(j), informing us that the current Secretary of 

Homeland Security, Kirstjen Nielsen, issued a new memorandum 

regarding the DACA rescission on June 22, 2018. In the memorandum, 

Secretary Nielsen “provide[d] additional explanation of the basis for the 

DACA rescission,” in response to an order filed in a parallel lawsuit. 

The government’s letter does not argue that the Nielsen memorandum 

represents fresh agency action that could possibly moot this appeal. We 

therefore leave it to the district court in the first instance to determine the 

admissibility of Secretary Nielsen’s letter given that it cannot possibly 

be a part of the administrative record in this case, and its impact, if any, 

on this case. And to the extent the Nielsen memorandum is offered as 

an additional justification of the original DACA rescission, we do not 

consider it in our review of Acting Secretary Duke’s decision because it 

is well-settled that “we will not allow the agency to supply post-hoc 

rationalizations for its actions . . . .” San Luis & Delta-Mendota Water 

Auth. v. Jewell, 747 F.3d 581, 603 (9th Cir. 2014).
REGENTS OF THE UNIV. OF CAL. V. USDHS 71

enjoined the rescission of DACA with respect to existing 

beneficiaries on a nationwide basis. The government asserts 

that this was error, and that a proper injunction would be 

narrower.

The general rule regarding the scope of preliminary 

injunctive relief is that it “should be no more burdensome to 

the defendant than necessary to provide complete relief to 

the plaintiffs before the court.” L.A. Haven Hospice, Inc. v. 

Sebelius, 638 F.3d 644, 664 (9th Cir. 2011) (internal citation 

omitted). But “[t]here is no general requirement that an 

injunction affect only the parties in the suit.” Bresgal v. 

Brock, 843 F.2d 1163, 1169 (9th Cir. 1987); see also id. at 

1170–71 (“[A]n injunction is not necessarily made overbroad by extending benefit or protection to persons other 

than prevailing parties in the lawsuit—even if it is not a class 

action—if such breadth is necessary to give prevailing 

parties the relief to which they are entitled.”) (emphasis in 

original).

It is also important to note that the claim underlying the 

injunction here is an arbitrary-and-capricious challenge 

under the APA. In this context, “[w]hen a reviewing court 

determines that agency regulations are unlawful, the 

ordinary result is that the rules are vacated—not that their 

application to the individual petitioners is proscribed.” Nat’l 

Mining Ass’n v. U.S. Army Corps of Eng’rs, 145 F.3d 1399, 

1409 (D.C. Cir. 1998) (internal citation omitted). As Justice 

Blackmun explained while “writing in dissent but apparently 

expressing the view of all nine Justices on this question,” id.:

The Administrative Procedure Act permits 

suit to be brought by any person “adversely 

affected or aggrieved by agency action.” In 

some cases the “agency action” will consist 

of a rule of broad applicability; and if the 
72 REGENTS OF THE UNIV. OF CAL. V. USDHS

plaintiff prevails, the result is that the rule is 

invalidated, not simply that the court forbids 

its application to a particular individual. 

Under these circumstances a single plaintiff, 

so long as he is injured by the rule, may 

obtain “programmatic” relief that affects the 

rights of parties not before the court.

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 913 (1990) 

(Blackmun, J., dissenting) (citation omitted).

A final principle is also relevant: the need for uniformity 

in immigration policy. See Hawaii v. Trump, 878 F.3d 662, 

701 (9th Cir. 2017), rev’d on other grounds, 138 S. Ct. 2392 

(2018) (“Because this case implicates immigration policy, a 

nationwide injunction was necessary to give Plaintiffs a full 

expression of their rights.”). As the Fifth Circuit stated when 

it affirmed the nationwide injunction against DAPA, “the 

Constitution requires an uniform Rule of Naturalization; 

Congress has instructed that the immigration laws of the 

United States should be enforced vigorously and uniformly; 

and the Supreme Court has described immigration policy as 

a comprehensive and unified system.” Texas, 809 F.3d at 

187–88 (emphases in original) (citations and internal 

quotation marks omitted). Allowing uneven application of 

nationwide immigration policy flies in the face of these 

requirements.

In its briefing, the government fails to explain how the 

district court could have crafted a narrower injunction that 

would provide complete relief to the plaintiffs, including the 

entity plaintiffs. Cf. Washington v. Trump, 847 F.3d 1151, 

1167 (9th Cir. 2017) (“[T]he Government has not proposed 

a workable alternative form of the TRO . . . that would 

protect the proprietary interests of the States at issue here 
REGENTS OF THE UNIV. OF CAL. V. USDHS 73

while nevertheless applying only within the States’ 

borders.”). Nor does it provide compelling reasons to 

deviate from the normal rule in APA cases, or to disregard 

the need for uniformity in national immigration policy. The 

one argument it does offer on this latter point—that 

“[d]eferred action is itself a departure from vigorous and 

uniform enforcement of the immigration laws,” and that 

“enjoining the rescission of DACA on a nationwide basis . . .

increases rather than lessens that departure”—is a red 

herring. DACA is national immigration policy, and an 

injunction that applies that policy to some individuals while 

rescinding it as to others is inimical to the principle of 

uniformity.

We therefore conclude that the district court did not 

abuse its discretion in issuing a nationwide injunction. Such 

relief is commonplace in APA cases, promotes uniformity in 

immigration enforcement, and is necessary to provide the 

plaintiffs here with complete redress.

VI.

We turn next to the district court’s treatment of the 

government’s motion to dismiss for failure to state a claim. 

The government moved to dismiss all of plaintiffs’ claims; 

the district court dismissed some claims and denied the 

government’s motion as to others. We take each claim in 

turn.25

 25 Plaintiffs do not challenge the district court’s dismissal of their 

equitable estoppel claim.
74 REGENTS OF THE UNIV. OF CAL. V. USDHS

A. APA: Arbitrary-and-Capricious 

For the reasons stated above in discussing plaintiffs’ 

likelihood of success on the merits, the district court was 

correct to deny the government’s motion to dismiss 

plaintiffs’ claim that the DACA rescission was arbitrary and 

capricious under the APA. See 5 U.S.C. § 706(2)(A).

B. APA: Notice-and-Comment 

Plaintiffs also assert that the rescission of DACA is in 

fact a substantive rule under the APA, and that it therefore 

could not be validly accomplished without notice-andcomment procedures.

As touched on above with respect to DACA itself, an 

agency pronouncement is excluded from the APA’s 

requirement of notice-and-comment procedures if it 

constitutes a “general statement[] of policy.” 5 U.S.C. 

§ 553(b)(3)(A). General statements of policy are those that 

“advise the public prospectively of the manner in which the 

agency proposes to exercise a discretionary power.” MadaLuna, 813 F.2d at 1012–13 (quoting Attorney General’s 

Manual on the Administrative Procedure Act 30 n.3 (1947)). 

“To qualify as a general statement of policy . . . a directive 

must not establish a binding norm and must leave agency 

officials free to consider the individual facts in the various 

cases that arise and to exercise discretion.” Id. at 1015 

(internal quotation marks omitted); see also id. at 1013 (“The 

critical factor to determine whether a directive announcing a 

new policy constitutes a rule or a general statement of policy 

is the extent to which the challenged [directive] leaves the 

agency, or its implementing official, free to exercise 

discretion to follow, or not to follow, the [announced] policy 

in an individual case.” (alterations in original) (internal 

quotation marks omitted)).
REGENTS OF THE UNIV. OF CAL. V. USDHS 75

The district court held that because DACA itself was a 

general statement of policy that did not require notice and 

comment, it could also be rescinded without those 

procedures. This proposition finds support in Mada-Luna, 

in which “we conclude[d] that [a deferred-action Operating 

Instruction] constituted a general statement of policy, and 

thus could be validly repealed and superseded without 

notice-and-comment proceedings.” Id. at 1017. Plaintiffs 

contest this conclusion, arguing that the DACA rescission

was a binding rule, even though DACA’s adoption was a 

general statement of policy. They provide two bases for this 

assertion.

First, plaintiffs argue that the rescission is binding 

because it requires DHS officials to reject new DACA 

applications and (after a certain date) renewal applications. 

It is true that Acting Secretary Duke’s rescission 

memorandum makes rejections of DACA applications 

mandatory. But the relevant question under the rescission 

memorandum is not whether DHS officials retained 

discretion to accept applications for a program that no longer 

existed; instead, the question is whether DHS officials 

retained discretion to grant deferred action and collateral 

benefits outside of the (now-cancelled) DACA program.

For its part, the government asserts that the rescission 

memorandum made clear that, despite the rescission, “future 

deferred action requests will be ‘adjudicat[ed] . . . on an 

individual, case-by-case basis.’” Mildly put, this assertion 

mischaracterizes the memorandum. The quoted language 

refers to the treatment of only (a) initial applications pending 

on the date of the rescission, and (b) renewal applications 

filed within the one-month wind-down period. It does not

refer to how future requests for deferred action outside the 

DACA program would be handled. Still, the rescission 
76 REGENTS OF THE UNIV. OF CAL. V. USDHS

memorandum also did not forbid the agency from granting 

such requests, and it acknowledged the background principle 

of deferred action as “an act of prosecutorial discretion 

meant to be applied only on an individualized case-by-case 

basis.” And the memorandum closed by stating that “no

limitations are placed by this guidance on the otherwise 

lawful enforcement or litigation prerogatives of DHS”—

presumably including granting deferred action on a case-bycase basis to some people who would have been eligible for 

DACA.

If allowed to go into effect, the rescission of DACA 

would undoubtedly result in the loss of deferred action for 

the vast majority of the 689,800 people who rely on the 

program. But the rescission memorandum does not mandate 

that result because it leaves in place the background 

principle that deferred action is available on a case-by-case 

basis.26 Plaintiffs’ primary argument against this conclusion 

is a citation to United States ex rel. Parco v. Morris, 426 F. 

Supp. 976 (E.D. Pa. 1977), which is said to be “the only other 

decision to address an Executive Branch decision to 

terminate a deferred-action program without undergoing 

notice-and-comment rulemaking.” But as the district court 

noted, the key factor in that case was the contention that 

under the policy at issue, “‘discretion’ was exercised 

favorably in all cases of a certain kind and then, after repeal 

of the regulation, unfavorably in each such case.” Parco, 

 26 The Regents argue that “the agency’s discretion to grant deferred 

action on the basis of the DACA criteria has been eliminated.” This is 

not quite right either. DHS’s authority to grant deferred action under the 

DACA program has been eliminated, but the DACA criteria themselves 

are some of those that have traditionally guided immigration 

enforcement discretion. See Wadhia, supra, at 57 (“DHS used traditional 

humanitarian factors to outline the parameters for the DACA program, 

such as tender age and longtime residence in the United States.”).
REGENTS OF THE UNIV. OF CAL. V. USDHS 77

426 F. Supp. at 984. DACA, by contrast, explicitly 

contemplated case-by-case discretion, and its rescission 

appears to have left in place background principles of 

prosecutorial discretion.

Plaintiffs also argue that the DACA rescission is not a 

general policy statement because it is binding as a legal 

interpretation that a DACA-like program would be illegal. 

But again, this argument answers the wrong question. The 

Acting Secretary’s legal conclusion that a DACA-like 

program is unlawful does not constrain the discretion of linelevel DHS employees to grant deferred action on a case-bycase basis, and those employees lack authority to institute 

such an agency-wide program in the first place. And 

plaintiffs do not point to any reason why this Acting 

Secretary’s legal conclusion about DACA would bind 

subsequent Secretaries if they were to disagree with its 

reasoning—just as Acting Secretary Duke reversed course 

from previous Secretaries who concluded DACA was legal. 

This is not a “new ‘binding rule of substantive law,’” MadaLuna, 813 F.2d at 1014, affecting the rights of the people and 

entities regulated by the agency; it is an interpretation of the 

agency’s own power, and plaintiffs do not explain why it 

should be read as binding future DHS Secretaries. The 

district court correctly dismissed plaintiffs’ notice-andcomment claims.

C. Due Process: Deferred Action

The Garcia plaintiffs—individual DACA recipients—

have brought a substantive due process claim alleging that 

the rescission deprived them of protected interests in their 

DACA designation, including the renewal of their benefits. 

The district court dismissed this claim, holding that there is 

no protected entitlement in either the initial grant of deferred 

action under DACA or the renewal of benefits for existing 
78 REGENTS OF THE UNIV. OF CAL. V. USDHS

DACA enrollees. On appeal, the Garcia plaintiffs challenge 

this ruling only as it applies to the renewal of DACA 

benefits, not as to the initial grant.

“A threshold requirement to a substantive or procedural 

due process claim is the plaintiff’s showing of a liberty or 

property interest protected by the Constitution.” 

Wedges/Ledges of Cal., Inc. v. City of Phoenix, 24 F.3d 56, 

62 (9th Cir. 1994). It is possible to have a property interest 

in a government benefit, but “a person clearly must have 

more than an abstract need or desire for [the benefit]. He 

must have more than a unilateral expectation of it. He must, 

instead, have a legitimate claim of entitlement to it.” Bd. of 

Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). 

Although “a benefit is not a protected entitlement if 

government officials may grant or deny it in their 

discretion,” Town of Castle Rock v. Gonzales, 545 U.S. 748, 

756 (2005), a legitimate claim of entitlement may exist 

where there are “rules or mutually explicit understandings 

that support [a plaintiff’s] claim of entitlement to the benefit 

. . . .” Perry v. Sindermann, 408 U.S. 593, 601 (1972); see 

also, e.g., Gerhart v. Lake Cty., 637 F.3d 1013, 1020 (9th 

Cir. 2011). The dispute here focuses on whether such 

“mutually explicit understandings” existed between the 

government and DACA recipients with respect to the 

renewal of DACA benefits.

The Garcia plaintiffs assert that they and the government 

“‘mutually’ understood that DACA recipients would be able 

to renew their benefits and protection on an ongoing basis so 

long as they fulfilled the program’s criteria.” But this 

argument is undercut by the DACA FAQs published by 

DHS, which explicitly state that “USCIS retains the ultimate 

discretion to determine whether deferred action is 

appropriate in any given case even if the [renewal] 
REGENTS OF THE UNIV. OF CAL. V. USDHS 79

guidelines are met.” The FAQs also state that any 

individual’s “deferred action may be terminated at any time, 

with or without a Notice of Intent to Terminate, at DHS’s 

discretion,” and Secretary Napolitano’s DACA 

memorandum claims that it “confers no substantive right, 

immigration status or pathway to citizenship.” Whether or 

not these provisions are legally operative, they do not 

indicate that the government shared plaintiffs’ expectation 

of presumptive renewal.

Attempting to overcome this facially discretionary 

language, plaintiffs emphasize several factors. First, they 

say, the very nature of the DACA project was such that 

presumptive renewal was required to encourage people to 

participate; a two-year term with no presumption of renewal 

would not have been attractive enough to outweigh the risks 

to the applicants. Moreover, Secretary Napolitano’s DACA 

memorandum itself states that grants of deferred action 

under DACA will be “subject to renewal,” and the actual 

criteria for renewal were “nondiscretionary” in nature.27 

Finally, the plaintiffs point to a more than 99% approval rate 

for adjudicated DACA renewal applications. This, they 

assert, is powerful evidence of a mutual understanding of 

presumptive renewal.

 27 DHS’s DACA FAQs state that “[y]ou may be considered for 

renewal of DACA if you met the guidelines for consideration of Initial 

DACA (see above) AND you: [1] Did not depart the United States on or 

after Aug. 15, 2012, without advance parole; [2] Have continuously 

resided in the United States since you submitted your most recent request 

for DACA that was approved up to the present time; and [3] Have not 

been convicted of a felony, a significant misdemeanor, or three or more 

misdemeanors, and do not otherwise pose a threat to national security or 

public safety.”
80 REGENTS OF THE UNIV. OF CAL. V. USDHS

All these points might have revealed a question of fact as 

to whether a mutually explicit understanding of presumptive 

renewal existed—thereby avoiding dismissal on the 

pleadings—if plaintiffs were bringing a claim that, for 

example, their individual DACA renewals were denied for 

no good reason. But it is hard to see how an expectation of 

renewal within the confines of the existing DACA policy 

could have created a mutually explicit understanding that the 

DACA program itself would not be terminated wholesale. 

That is, a 99% renewal rate under DACA provides no 

evidence that the government shared an understanding that 

the DACA program would continue existing indefinitely to 

provide such renewals. None of plaintiffs’ cited authorities 

appear to address this kind of claim.

While we may agree with much of what plaintiffs say 

about the cruelty of ending a program upon which so many 

have come to rely, we do not believe they have plausibly 

alleged a “mutually explicit understanding” that DACA—

created by executive action in a politically polarized policy 

area and explicitly couched in discretionary language—

would exist indefinitely, including through a change in 

presidential administrations. See Gerhart, 637 F.3d at 1020 

(“A person’s belief of entitlement to a government benefit, 

no matter how sincerely or reasonably held, does not create 

a property right if that belief is not mutually held by the 

government.”). On that basis, we affirm the district court’s 

dismissal.

D. Due Process: Information-Sharing

Several of the complaints allege a different due process 

theory: DACA recipients had a protected interest based on 

the government’s representations that the personal 

information they submitted with their applications would not 

be used for enforcement purposes, and the government 
REGENTS OF THE UNIV. OF CAL. V. USDHS 81

violated this interest by changing its policy to allow such 

use. The district court held that the plaintiffs had plausibly 

alleged facts that state a claim under this theory.

As with their other due process claim, the question 

whether DACA recipients enjoy a protected due process 

right protecting them from having the government use their 

information against them for enforcement purposes turns on 

the existence of a “mutually explicit understanding[]” on that 

point between the government and DACA recipients. Perry,

408 U.S. at 601; see also Gerhart, 637 F.3d at 1020. The 

DACA FAQs published by DHS state the following 

information-use policy:

Information provided in this request is 

protected from disclosure to ICE and CBP for 

the purpose of immigration enforcement 

proceedings unless the requestor meets the 

criteria for the issuance of a Notice to Appear 

or a referral to ICE under the criteria set forth 

in USCIS’ Notice to Appear guidance 

(www.uscis.gov/NTA). Individuals whose 

cases are deferred pursuant to DACA will not 

be referred to ICE. The information may be 

shared with national security and law 

enforcement agencies, including ICE and 

CBP, for purposes other than removal, 

including for assistance in the consideration 

of DACA, to identify or prevent fraudulent 

claims, for national security purposes, or for 

the investigation or prosecution of a criminal 

offense. The above information sharing 

policy covers family members and guardians, 

in addition to the requestor. This policy, 

which may be modified, superseded, or 
82 REGENTS OF THE UNIV. OF CAL. V. USDHS

rescinded at any time without notice, is not 

intended to, does not, and may not be relied 

upon to create any right or benefit, 

substantive or procedural, enforceable by law 

by any party in any administrative, civil, or 

criminal matter.

(emphasis added). The statement that applicant information 

“is protected from disclosure” to the enforcement arms of 

DHS is a strong commitment, and plaintiffs plausibly allege 

that DACA recipients reasonably relied on it.

The government of course points to the express caveat 

that the information-sharing policy “may be modified, 

superseded or rescinded at any time.” But as the district 

court held, this qualifier is ambiguous as to whether it allows 

the government to change its policy only prospectively, or 

also with respect to information already received—and this 

ambiguity presents a fact question not amenable to 

resolution on the pleadings. Plaintiffs’ interpretation that a 

policy change would only apply prospectively is a plausible 

one, given that the policy is written in terms of what will 

happen to “[i]nformation provided in this request,” rather 

than DACA-derived information generally. (emphasis 

added). It is at least reasonable to think that a change in the 

policy would apply only to those applications submitted after 

that change takes effect. And while the government also 

relies on the language stating that the policy does not create 

enforceable rights, such a disclaimer by an agency about 

what its statements do and do not constitute as a legal matter 

are not dispositive. See, e.g., Appalachian Power Co. v. 

EPA, 208 F.3d 1015, 1022–23 (D.C. Cir. 2000) (declining to 

give legal effect to agency statement that its guidance did 

“not represent final Agency action, and cannot be relied 

upon to create any rights . . . .”). Plaintiffs have plausibly 
REGENTS OF THE UNIV. OF CAL. V. USDHS 83

alleged a mutually explicit understanding that DACA 

applicants’ information would be protected from disclosure.

The government argues in the alternative that plaintiffs 

have failed to plausibly allege that DHS actually changed its 

policy. Plaintiffs’ allegations rest on a set of FAQs about the 

DACA rescission that DHS published the same day it issued 

the rescission memorandum, September 5, 2017. In those 

rescission FAQs, the previous language stating that personal 

information “is protected from disclosure” has been replaced

with the following:

Information provided to USCIS in DACA 

requests will not be proactively provided to 

ICE and CBP for the purpose of immigration 

enforcement proceedings, unless the 

requestor meets the criteria for the issuance 

of a Notice to Appear or a referral to ICE 

under the criteria set forth in USCIS’ Notice 

to Appear guidance (www.uscis.gov/NTA).

(emphasis added).

The government’s first response—that the differing 

language in the two FAQs does not actually reflect a 

difference in policy—is hard to swallow. It does not take 

much parsing of the text to see the significant difference 

between “protect[ing]” something from “disclosure” on the 

one hand, and merely declining to “proactively provide[]” it 

on the other. This is especially so when the entities in 

question (and to which USCIS presumably would now 

provide information reactively) are fellow components of 

the same umbrella agency.
84 REGENTS OF THE UNIV. OF CAL. V. USDHS

Changing gears, the government also points to yet a third 

set of FAQs, published months after the rescission and not

part of the record in this case, which state:

Information provided to USCIS for the 

DACA process will not make you an 

immigration priority for that reason alone. 

That information will only be proactively 

provided to ICE or CBP if the requestor 

meets the criteria for the issuance of a Notice 

To Appear or a referral to ICE under the 

criteria set forth in USCIS’ Notice to Appear 

guidance (www.uscis.gov/NTA). This 

information-sharing policy has not changed 

in any way since it was first announced,

including as a result of the Sept. 5, 2017 

memo starting a wind-down of the DACA 

policy.

USCIS, Guidance on Rejected DACA Requests: Frequently 

Asked Questions (Nov. 30, 2017) (emphases added). The 

government notes that a district court relied on FAQs 

containing this language in parallel litigation to dismiss a 

nearly identical information-use due process claim. See 

Batalla Vidal v. Nielsen, 291 F. Supp. 3d 260, 279–81 

(E.D.N.Y. 2018).

But this case is critically different because in Batalla 

Vidal the plaintiffs had attached the new version of the FAQs 

to their complaint. As the court there explained, “Plaintiffs 

. . . have effectively pleaded themselves out of court by 

relying on a document that contradicts their otherwiseunsupported allegation of a change to DHS’s informationuse policy.” Id. at 280. By contrast, here the most recent 

FAQs were not attached to or referenced in any of the 
REGENTS OF THE UNIV. OF CAL. V. USDHS 85

complaints—indeed, they postdate the filing of the 

complaints. Therefore, the normal rule applies: materials 

outside the complaint cannot be considered on a motion to 

dismiss. See United States v. Ritchie, 342 F.3d 903, 908 (9th 

Cir. 2003).

Even if it could be considered, this newest FAQ would 

not conclusively resolve the question of fact surrounding 

DHS’s current information-sharing policy because it still 

contains the language that suggests a change from the prerescission policy. See USCIS, Guidance, supra

(“[I]nformation will only be proactively provided to ICE or 

CBP if the requestor meets the criteria for the issuance of a 

Notice To Appear[.]”) (emphasis added).28 Plaintiffs have 

plausibly alleged that DHS has changed its policy.

Finally, in order to state a substantive due process claim, 

plaintiffs must allege conduct that “shock[s] the conscience 

and offend[s] the community’s sense of fair play and 

decency.” Sylvia Landfield Tr. v. City of L.A., 729 F.3d 

1189, 1195 (9th Cir. 2013) (quoting March v. Cty. of San 

Diego, 680 F.3d 1148, 1154 (9th Cir. 2012)). The 

government makes a passing argument that this standard is 

not satisfied because the information-sharing policy has 

always contained some exceptions, but as the Garcia

plaintiffs put it, “[a]pplicants accepted those limited, 

acknowledged risks when they applied for DACA. They did 

not accept the risk that the government would abandon the 

other assurances that were ‘crucial’ to ‘inducing them to 

 28 Astonishingly, this sentence—which appears to represent a 

change from the prior policy of affirmatively protecting information 

from disclosure—is immediately adjacent to DHS’s assurance that 

nothing has changed. Cf. George Orwell, Nineteen Eighty-Four (1949), 

at 175 (“Oceania was at war with Eastasia: Oceania had always been at 

war with Eastasia.”).
86 REGENTS OF THE UNIV. OF CAL. V. USDHS

apply for DACA.’” (alterations incorporated). We agree. 

Cf. Raley v. Ohio, 360 U.S. 423, 437–39 (1959) (holding that 

“convicting a citizen for exercising a privilege which the 

State had clearly told him was available to him” was “the 

most indefensible sort of entrapment by the State” and 

violated due process); Cox v. Louisiana, 379 U.S. 559, 568–

71 (1965) (due process violation where defendant was 

convicted for leading a demonstration in a location where the 

police chief had given him permission to do so). Plaintiffs 

have stated a due process claim based on the alleged change 

in DHS’s information-sharing policy.

E. Equal Protection

The district court also held that plaintiffs stated a viable 

equal protection claim by plausibly alleging that the DACA 

rescission disproportionately affected Latinos and 

individuals of Mexican descent and was motivated by 

discriminatory animus. See Arce v. Douglas, 793 F.3d 968, 

977 (9th Cir. 2015) (holding a facially neutral action 

unconstitutional where “its enactment or the manner in 

which it was enforced were motivated by a discriminatory 

purpose,” and reviewing the Arlington Heights factors for 

assessing discriminatory purpose) (citing Vill. of Arlington 

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 265–66 

(1977)).

Because the district court denied the government’s 

motion to dismiss plaintiffs’ equal protection claim at the 

pleading stage, we take all of the complaints’ allegations as 

true, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), and 

construe them in the light most favorable to the plaintiffs, 

Knievel v. ESPN, 393 F.3d 1068, 1072 (9th Cir. 2005). We 

agree with the district court that plaintiffs plausibly alleged 

an equal protection claim.
REGENTS OF THE UNIV. OF CAL. V. USDHS 87

Most significantly, plaintiffs allege that the rescission of 

DACA disproportionately impacts Latinos and individuals 

of Mexican heritage, who account for 93% of DACA 

recipients. See Arlington Heights, 429 U.S. at 266. The 

complaints also allege a history of animus toward persons of 

Hispanic descent29 evidenced by both pre-presidential and 

post-presidential30 statements by President Trump, who is 

alleged to have decided to end DACA, even though the 

directive to the Acting Secretary was issued from Attorney 

General Sessions. Finally, the district court properly 

considered “the unusual history behind the rescission,” all 

of which appeared in the record submitted by the 

government. See Arlington Heights, 429 U.S. at 267. As the 

district court noted, “DACA received reaffirmation by the 

agency as recently as three months before the rescission, 

only to be hurriedly cast aside on what seems to have been a 

contrived excuse (its purported illegality). This strange 

 29 The government argues that the statements by the President cited 

in the complaints do not provide sufficient evidence to plausibly allege 

discriminatory intent. The government first submits that nationality, as 

opposed to ethnicity, is not an invidious classification, and that many of 

the cited comments go only to Mexican nationality. “Often, however, 

the two are identical as a factual matter: one was born in the nation whose 

primary stock is one’s own ethnic group.” St. Francis Coll. v. AlKhazraji, 481 U.S. 604, 614 (1987) (Brennan, J., concurring). And 

plaintiffs allege discriminatory intent not only toward “Mexican 

nationals,” but also toward “individuals of Mexican heritage, and 

Latinos.”

30 The district court took judicial notice of one such statement by the 

President: “[o]n December 29, 2017, President Trump tweeted: ‘The 

Democrats have been told, and fully understand, that there can be no 

DACA without the desperately needed WALL at the Southern Border 

and an END to the horrible Chain Migration & ridiculous Lottery System 

of Immigration etc. We must protect our Country at all cost!’” There 

were many similar statements made by the President after he took the 

oath of office leading up to the DACA rescission on September 5, 2017.
88 REGENTS OF THE UNIV. OF CAL. V. USDHS

about-face, done at lightning speed, suggests that the normal 

care and consideration within the agency was bypassed.”

The government contends that the equal protection claim 

is foreclosed by AADC, in which the Supreme Court stated 

that “as a general matter . . . an alien unlawfully in this 

country has no constitutional right to assert selective 

enforcement as a defense against his deportation.” 525 U.S. 

at 488. But in the context of this case, the challenge to the 

rescission of DACA is not raised “as a defense against [] 

deportation,” and is not a claim of “selective enforcement.” 

Id. Rather, it is a freestanding claim that the Executive 

Branch, motivated by animus, ended a program that 

overwhelmingly benefits a certain ethnic group. Thus, the 

equal protection claim does not implicate the concerns 

motivating the Court in AADC and underscored by the 

government: inhibiting prosecutorial discretion, allowing 

continuing violations of immigration law, and impacting 

foreign relations. The two cases cited by the government do 

not support its position, as both of them involved an 

individual noncitizen making an equal protection argument 

in an attempt to avoid his own deportation. See Kandamar 

v. Gonzales, 464 F.3d 65, 72–74 (1st Cir. 2006); Hadayat v. 

Gonzales, 458 F.3d 659, 665 (7th Cir. 2006). Plaintiffs’ 

challenge to the rescission of DACA—which is itself 

discretionary—is not such a case.

The government also contends that even if not totally 

barred by AADC, plaintiffs’ claims must be subject to the 

heightened pleading standard applied to selectiveprosecution claims in the criminal context. See United States 

v. Armstrong, 517 U.S. 456, 463–65 (1996). But this 

argument meets the same objection: as the district court held, 

plaintiffs’ challenge is not a selective-prosecution claim. 
REGENTS OF THE UNIV. OF CAL. V. USDHS 89

We are therefore not persuaded by the government’s 

arguments.

The Supreme Court’s recent decision in Trump v. 

Hawaii, 138 S. Ct. 2392 (2018), does not foreclose this 

claim. There, statements by the President allegedly 

revealing religious animus against Muslims were “[a]t the 

heart of plaintiffs’ case . . . .” Hawaii, 138 S. Ct. at 2417. 

The Court assumed without deciding that it was proper to 

rely on the President’s statements, but nevertheless upheld 

the challenged executive order under rational basis review. 

Id. at 2420, 2423. Here, by contrast, plaintiffs provide 

substantially greater evidence of discriminatory motivation, 

including the rescission order’s disparate impact on Latinos 

and persons of Mexican heritage, as well as the order’s 

unusual history. Moreover, our case differs from Hawaii in 

several potentially important respects, including the physical 

location of the plaintiffs within the geographic United States, 

see Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 781 (9th Cir. 

2014) (en banc), the lack of a national security justification 

for the challenged government action, and the nature of the 

constitutional claim raised.

Therefore, we conclude that plaintiffs have stated a 

plausible equal protection claim.

VII.

The rescission of DACA—based as it was solely on a 

misconceived view of the law—is reviewable, and plaintiffs 

are likely to succeed on their claim that it must be set aside 

under the APA. We therefore affirm the district court’s entry 
90 REGENTS OF THE UNIV. OF CAL. V. USDHS

of a preliminary injunction.31 The district court also 

properly dismissed plaintiffs’ APA notice-and-comment 

claim, and their claim that the DACA rescission violates 

their substantive due process rights. The district court also 

properly denied the government’s motion to dismiss 

plaintiffs’ APA arbitrary-and-capricious claim, their claim 

that the new information-sharing policy violates their due 

process rights, and their claim that the DACA rescission 

violates their right to equal protection.

* * *

The Executive wields awesome power in the 

enforcement of our nation’s immigration laws. Our decision 

today does not curb that power, but rather enables its 

exercise in a manner that is free from legal misconceptions 

and is democratically accountable to the public. Whether 

Dulce Garcia and the hundreds of thousands of other young 

dreamers like her may continue to live productively in the 

only country they have ever known is, ultimately, a choice 

for the political branches of our constitutional government. 

With the power to make that choice, however, must come 

accountability for the consequences.

AFFIRMED.

 31 We do not disagree with the reasoning of Judge Owens’s 

concurring opinion that the likelihood of success on plaintiffs’ equal 

protection claim is a second, alternative ground for affirming the entry 

of the injunction.
REGENTS OF THE UNIV. OF CAL. V. USDHS 91

OWENS, Circuit Judge, concurring in the judgment:

As I believe that Plaintiffs’ Equal Protection claim has 

some “likelihood of success on the merits,” I concur in the 

judgment affirming the preliminary injunction. The 

extraordinary practical impact of allowing DACA’s 

rescission to take effect before a final adjudication of its 

legality far outweighs the minimal practical impact of 

keeping the program in place a bit longer. For that reason, it 

is better now to risk incorrectly preserving the status quo 

than to risk incorrectly disrupting it.1 However, I disagree 

with the portion of the majority’s opinion that we may 

review the rescission of DACA for compliance with the 

APA.2

Under 5 U.S.C. § 701(a)(2), “agency action [that] is 

committed to agency discretion by law” is not subject to 

judicial review for compliance with the APA. Since Heckler 

 1 The government appears to share this view. In its petition for 

certiorari before judgment, the government asserted that “a primary 

purpose of the Acting Secretary’s orderly wind-down of the DACA 

policy was to avoid the disruptive effects on all parties of abrupt shifts 

in the enforcement of the Nation’s immigration laws. Inviting more 

changes before final resolution of this litigation would not further that 

interest.”

2 As for the government’s appeal from the motions to dismiss, I 

dissent, for reasons stated here, from the majority’s holding to affirm the 

district court’s denial of the motion to dismiss Plaintiffs’ APA arbitraryand-capricious claim (Part VI-A). However, I concur in the majority’s 

holding to affirm the district court’s dismissal of Plaintiffs’ APA noticeand-comment claim (Part VI-B). I also concur in the judgment to affirm 

the district court’s ruling on Plaintiffs’ Due Process claims (Part VI-C; 

Part VI-D). And, as explained here as well, I agree with the majority’s 

decision to affirm the district court’s denial of the motion to dismiss the

Equal Protection claim (Part VI-E) and hold that the Equal Protection 

claim offers an alternative ground to affirm the preliminary injunction.
92 REGENTS OF THE UNIV. OF CAL. V. USDHS

v. Chaney, courts read § 701(a)(2) to preclude judicial 

review of certain types of administrative action that are 

“traditionally . . . ‘committed to agency discretion.’” 

470 U.S. 821, 832 (1985) (holding unreviewable the 

decision not to institute enforcement proceedings); Lincoln 

v. Vigil, 508 U.S. 182, 192 (1993) (same for the allocation of 

funds from a lump-sum appropriation); Webster v. Doe, 

486 U.S. 592, 599–600 (1988) (same for decisions of the 

Director of the Central Intelligence Agency to terminate an 

employee due to national security interests); ICC v. Bhd. of 

Locomotive Eng’rs, 482 U.S. 270, 281–82 (1987) (BLE) 

(same for an agency’s refusal to grant reconsideration of an

action due to material error).

An agency decision to rescind a non-enforcement policy 

in the immigration context is this type of administrative 

action. From Heckler, we know that agency actions that 

“involve[] a complicated balancing of a number of factors,” 

like allocating agency resources and prioritizing agency 

policies, “are peculiarly within [the agency’s] expertise,” 

and are therefore “general[ly] unsuitab[le] for judicial 

review.” 470 U.S. at 831. And in Reno v. American-Arab 

Anti-Discrimination Committee, 525 U.S. 471 (1999) 

(AADC), the Supreme Court made clear that Executive 

Branch decisions that implicate enforcement priorities in the 

context of immigration are among those that judges are least 

equipped to review. Id. at 489–90. In AADC, the Court 

explained that the concerns necessitating the Executive’s 

“broad discretion” in criminal prosecutions are “greatly 

magnified in the deportation context.” Id. (citing United 

States v. Armstrong, 517 U.S. 456, 464 (1996)).

In deciding to rescind an immigration policy of nonenforcement, DHS thus acts with broad discretion that courts 

cannot review absent clear congressional authorization. 
REGENTS OF THE UNIV. OF CAL. V. USDHS 93

Here, rather than authorize judicial review, the broad, 

discretion-granting language of the enabling statute 

reinforces that DHS’s enforcement decision is not subject to 

APA review. See 6 U.S.C. § 202(5) (“The Secretary shall be 

responsible for . . . [e]stablishing national immigration 

enforcement policies and priorities.”); see also Webster, 

486 U.S. at 599–600.

Perhaps recognizing that immigration enforcement 

decisions exhibit the characteristics of unreviewable agency 

actions, the majority decides that we should nonetheless 

review the rescission of DACA because these features are 

not actually at work here: Acting Secretary Duke explained 

that DACA was rescinded based on DHS’s belief that the 

program was unlawful. The majority points to Heckler’s 

footnote 4, where the Court left open the question whether 

courts may review agency action if “a refusal by the agency 

to institute proceedings [is] based solely on the belief that it 

lacks jurisdiction.” Heckler, 470 U.S. at 833 n.4 (“[W]e 

express no opinion on whether such decisions would be 

unreviewable under § 701(a)(2) . . . .”). The majority 

concludes that the Supreme Court has not yet answered this 

question, and that our court, in Montana Air Chapter No. 29 

v. FLRA, 898 F.2d 753, 756–57 (9th Cir. 1990), has 

answered it in the affirmative: that otherwise unreviewable 

agency action is reviewable when the agency justifies its 

action by reference to its understanding of its jurisdiction. I 

respectfully disagree.

In Montana Air, we confronted the question left open in 

Heckler’s footnote 4. Specifically, we held that a decision 

by the Federal Labor Relations Authority’s General Counsel 

not to issue an unfair labor practice complaint was 

reviewable only because his decision was “based solely on 

his belief that he lacks jurisdiction to issue such a 
94 REGENTS OF THE UNIV. OF CAL. V. USDHS

complaint.” Id. at 756. But what we held reviewable were 

the General Counsel’s “statutory and regulatory 

interpretations to determine if his belief that he lacked 

jurisdiction was correct.” Id. at 757. Applying Chevron, we 

found “impermissible” the General Counsel’s interpretations 

of the statute under which he acted. Id. at 758.

Here, by contrast, Plaintiffs do not ask that we apply 

Chevron to review whether Acting Secretary Duke 

impermissibly interpreted 6 U.S.C. § 202(5) in concluding 

that the statute authorized the rescission of DACA.3 Instead, 

Plaintiffs ask that we review for arbitrariness and 

capriciousness the procedures the agency used to rescind 

DACA. But nothing in Montana Air suggests that Heckler’s 

footnote 4 authorizes arbitrary-and-capricious, rather than 

Chevron, review of agency action simply because the agency 

acted based on its understanding of its enabling statute. And, 

despite Plaintiffs’ arguments to the contrary, BLE plainly 

prohibits us from doing so.

In BLE, the Supreme Court held that an agency’s refusal 

to reconsider a prior adjudicative decision was unreviewable 

even where the agency based its refusal on its interpretation 

of its enabling statute. 482 U.S. at 278–84. In so holding, 

the Court explained that the agency’s refusal to reconsider 

was unreviewable because it was the type of action that “has 

traditionally been ‘committed to agency discretion,’” id. at 

282 (quoting Heckler, 470 U.S. at 832); thus any inquiry into 

its reasons for acting was inappropriate, id. at 280–81. “It is 

 3 This is not surprising: § 202(5) makes the Secretary “responsible 

for . . . [e]stablishing national immigration enforcement policies and 

priorities.” If we accept that this broad, discretion-granting statute 

authorized DACA’s implementation, it surely also sanctions DACA’s 

termination.
REGENTS OF THE UNIV. OF CAL. V. USDHS 95

irrelevant that the [agency’s] order refusing reconsideration 

discussed the merits of the unions’ claim at length,” the 

Court explained, as “[i]t would hardly be sensible to say that 

the [agency] can genuinely deny reconsideration only when 

it gives the matter no thought.” Id. BLE thus makes clear 

that when determining the scope of permissible judicial 

review, courts consider only the type of agency action at 

issue, not the agency’s reasons for acting.

Finally, Plaintiffs argue that even if BLE precludes 

review of some types of agency action regardless of the 

agency’s reason for acting, that rule only applies to singleshot enforcement decisions, not to general statements of 

policy. See NAACP v. Trump, 298 F. Supp. 3d 209, 227–36 

(D.D.C. 2018) (discussing Crowley Caribbean Transp., Inc. 

v. Pena, 37 F.3d 671, 676 (D.C. Cir. 1994), and permitting 

APA review on this ground). In other words, Plaintiffs 

would have us hold that general statements of policy—but 

not single-shot enforcement decisions—are subject to APA 

review when the agency’s sole reason for acting is its 

understanding of its jurisdiction. While the majority 

acknowledges Plaintiffs’ argument without reaching its 

merits, I believe that such a distinction collapses Heckler on 

its head: In deciding whether agency action is reviewable, 

the first question we ask is what type of agency action is 

before us—whether it is agency action that courts typically 

review or agency action “traditionally . . . ‘committed to 

agency discretion.’” Heckler, 470 U.S. at 832. This initial 

inquiry includes consideration of whether the action is a 

single-shot non-enforcement decision or a general statement 

of policy. It would beg the question to conclude that 

unreviewable agency action is in fact reviewable because it 

is the type of action that courts typically review.
96 REGENTS OF THE UNIV. OF CAL. V. USDHS

I would therefore hold that § 701(a)(2) precludes us from 

subjecting DACA’s rescission to arbitrary-and-capricious 

review.

At the same time, as the government concedes, DACA’s 

rescission may be reviewed for compliance with the 

Constitution. I would hold that Plaintiffs have plausibly 

alleged that the rescission of DACA was motivated by 

unconstitutional racial animus in violation of the Equal 

Protection component of the Fifth Amendment, and that the 

district court correctly denied the government’s motion to 

dismiss this claim.

Notably, Plaintiffs did not seek a preliminary injunction 

on their Equal Protection claim, instead relying solely on 

their APA argument. Nonetheless, this court may affirm a 

preliminary injunction on any basis supported by the record. 

Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1021 (9th Cir. 

2013). And because a preliminary injunction preserves the 

court’s power to render a meaningful decision on the merits, 

we can affirm an injunction issued on legally erroneous 

grounds where remand for consideration of alternative 

grounds is warranted. See Gerling Global Reinsurance 

Corp. of Am. v. Low, 240 F.3d 739, 754 (9th Cir. 2001) (“It 

is possible that [the challenged law] violates the Due Process 

Clause, but the district court did not reach that issue, and it 

is not fully developed in the record or in the briefs presented 

to this court. We leave the preliminary injunction in place 

in order to give the district court an opportunity to consider 

whether Plaintiffs are likely to succeed on the merits.”); see 

also United States v. Hovsepian, 359 F.3d 1144, 1157 (9th 

Cir. 2004) (en banc) (holding that the district court erred in 

entering an injunction but leaving “the injunction in place 

. . . pending the conclusion of all proceedings in this case, in 

aid of the court’s jurisdiction”). Accordingly, I would affirm 
REGENTS OF THE UNIV. OF CAL. V. USDHS 97

the preliminary injunction and remand for consideration 

whether Plaintiffs have demonstrated a likelihood of success 

on the merits of their Equal Protection claim.

As the majority details, the record assembled at this early 

stage is promising. Plaintiffs highlight (1) the 

disproportionate impact DACA’s rescission has on 

“individuals of Mexican heritage, and Latinos, who together 

account for 93 percent of approved DACA applications”; 

(2) a litany of statements by the President and high-ranking 

members of his Administration that plausibly indicate 

animus toward undocumented immigrants from Central 

America;4 and (3) substantial procedural irregularities in the 

challenged agency action.

Such evidence—plus whatever additional evidence 

Plaintiffs muster on remand—may well raise a presumption 

that unconstitutional animus was a substantial factor in the 

rescission of DACA. See Vill. of Arlington Heights v. Metro. 

Hous. Dev. Corp., 429 U.S. 252, 266–68 (1977); see also

Hawaii, 138 S. Ct. at 2420 (holding that courts “may 

consider plaintiffs’ extrinsic evidence” as permitted by the 

applicable level of scrutiny). If the government fails to rebut 

that presumption, Plaintiffs will have demonstrated a 

likelihood of success on the merits. See Arlington Heights, 

429 U.S. at 270 & n.21 (noting that proof that an action was 

motivated by a discriminatory purpose shifts to the 

government the burden of establishing that the same decision 

would have resulted without the impermissible purpose); 

 4 Like the majority, I do not interpret Trump v. Hawaii, 138 S. Ct. 

2392 (2018), to preclude review of the President’s statements when 

applying the Arlington Heights standard. At the merits stage, the district 

court can still decide whether, or to what degree, the President’s 

statements betray a discriminatory animus behind DACA’s rescission.
98 REGENTS OF THE UNIV. OF CAL. V. USDHS

Gonzales v. O Centro Espirita Beneficente Uniao do 

Vegetal, 546 U.S. 418, 429 (2006) (affirming the injunction 

where the government failed to meet its burden at 

preliminary injunction stage, because “the burdens at the 

preliminary injunction stage track the burdens at trial”). As 

such, I believe that Plaintiffs have plausibly alleged an Equal 

Protection violation and that the district court should decide

whether it is an alternative ground to grant the preliminary 

injunction.

Moreover, the balance of equities here weighs heavily in 

favor of affirming the preliminary injunction. A merits 

decision from the district court concluding that the Executive 

rescinded DACA because of unconstitutional racial animus 

would be little more than an advisory opinion if by that time 

thousands of young people had lost their status due to the 

lack of an injunction preserving it. Preliminary injunctive 

relief exists precisely for circumstances like these: “The 

purpose of a preliminary injunction is merely to preserve the 

relative positions of the parties until a trial on the merits can 

be held.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 

(1981). Thus, on these facts, the district court was correct to 

issue a preliminary injunction. See Ashcroft v. ACLU, 

542 U.S. 656, 670 (2004) (affirming injunction where “the 

potential harms from reversing the injunction outweigh 

those of leaving it in place by mistake”); Doran v. Salem Inn, 

Inc., 422 U.S. 922, 932 (1975) (granting preliminary relief 

because “otherwise a favorable final judgment might well be 

useless”); Brown v. Chote, 411 U.S. 452, 457 (1973); cf. 

Winter v. NRDC, Inc., 555 U.S. 7, 26 (2008) (reversing 

injunction without addressing likelihood of success on the 

merits where “the balance of equities and consideration of 

the overall public interest in this case tip strongly in favor of 

[defendants]”).
REGENTS OF THE UNIV. OF CAL. V. USDHS 99

Accordingly, while I would remand for the district court 

to evaluate the Plaintiffs’ likelihood of success on the merits 

of their Equal Protection claim as an alternative basis for 

preliminary relief in the first instance, I join the majority in 

affirming the preliminary injunction to preserve the status 

quo while Plaintiffs attempt to prove up that claim.