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Regents of the University of California, et al. v. Department of Homeland Security, et al.[2]
On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California issued a preliminary injunction requiring the federal government to maintain the Deferred Action for Childhood Arrivals, or DACA, program on a nationwide basis by allowing individuals to submit applications to renew their enrollment in DACA, subject to a few exceptions.[3] Generally, parties objecting to a district court’s order must wait until the litigation is completed before asking the court of appeals for review.[4] However, a preliminary injunction order is immediately appealable (a process referred to as an “interlocutory appeal”), meaning that the government can ask the Ninth Circuit Court of Appeals to review Judge Alsup’s order immediately.[5]
Supreme Court denies government’s request for unusual “cert. before judgment” review. In this case, however, the government took the unusual step of seeking to skip review in the Ninth Circuit and instead appeal directly to the U.S. Supreme Court through a rarely used legal mechanism called “cert. before judgment.”[6] The government filed its request, or petition for certiorari, with the Supreme Court on Jan. 18, 2018.[7] This kind of request is rarely granted, as Supreme Court rules warn that the Court will grant this kind of early review only “upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination in this Court.”[8]
On Feb. 26, 2018, the Supreme Court announced that it had “denied cert.,” meaning that it declined to hear the government’s direct appeal from the district court. Therefore, the case will return to the lower courts, and appeals will be heard first by the Ninth Circuit Court of Appeals.[9] In other words, although the Supreme Court could hear the case eventually, the appeals process will be the normal one, beginning with the court of appeals.
Government continues to accept DACA renewal applications. Although the government could have sought a stay of Judge Alsup’s preliminary injunction — i.e., while it could have asked the judge or the Supreme Court to allow the government to continue with its process of shutting down DACA[10] — it did not do so. Therefore, the government must continue to accept DACA renewal applications in accordance with the preliminary injunction.
Read full report from the National Immigration Law Center
