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DHS v. Regents: rescinding DACA requires a reasoned explanation, and the DACA litigation that followedDepartment of Homeland Security v. Regents of the University of California, 591 U.S. 1 (2020)

Wang Law Firm, LLC · David Wang, Managing Attorney · Attorney-reviewed · Updated October 2026

In brief: In 2020, the U.S. Supreme Court held 5–4 that the Department of Homeland Security's (DHS) 2017 decision to rescind DACA was "arbitrary and capricious" in violation of the Administrative Procedure Act (APA), because DHS did not consider keeping only the deferred action portion and did not consider recipients' reliance interests. The decision did not hold that DACA itself is lawful; whether DACA is lawful is being addressed in the later Texas v. United States litigation, which as of October 9, 2026 is still pending in federal district court.

The case at a glance

Item	Details
Case name	Department of Homeland Security v. Regents of the University of California (consolidated with Trump v. NAACP and Wolf v. Batalla Vidal)
Court	Supreme Court of the United States
Citation / docket numbers	591 U.S. 1 (2020); Nos. 18-587, 18-588, 18-589
Argued	November 12, 2019
Decided	June 18, 2020
Vote	5–4. Chief Justice Roberts wrote the majority opinion, joined in full by Justices Ginsburg, Breyer and Kagan, and by Justice Sotomayor except as to Part IV; Part IV (equal protection) was only a four-justice plurality. Justice Thomas wrote an opinion dissenting in part, joined by Justices Alito and Gorsuch; Justices Alito and Kavanaugh each wrote separate opinions dissenting in part
Law involved	Administrative Procedure Act (APA), 5 U.S.C. 706(2)(A); INA 242(b)(9), 242(g); Fifth Amendment (equal protection)
Subject	Reviewability of the DACA rescission and the requirement of a reasoned explanation
Current status	Still a valid precedent (as of October 2026). On whether DACA itself is lawful, see the Texas v. United States litigation below, which is ongoing
Opinion text	Justia, Cornell LII

Background: what DACA is

Deferred Action for Childhood Arrivals (DACA) began with a June 15, 2012 DHS memorandum. Eligible people who came to the United States as children can receive two years of renewable deferred action and, on that basis, apply for work authorization. DACA is not lawful status and cannot be converted directly into a green card. For the specific rules on initial requests and renewals, see Form I-821D explained.

On September 5, 2017, then-Acting Secretary of Homeland Security Elaine Duke, relying on the Attorney General's view that DACA was unlawful, issued a memorandum rescinding DACA and providing for a gradual wind-down. The Regents of the University of California, several states, individual recipients and organizations sued in California, New York, the District of Columbia and elsewhere; several courts blocked the rescission, and the cases were ultimately consolidated in the Supreme Court.

Issues

Is the decision to rescind DACA subject to judicial review?
If so, did the rescission violate the APA's requirement that agency decisions be reasonably explained?
Was the rescission motivated by discrimination, in violation of equal protection?

How the Court ruled

Judicial review is available

The majority held that DACA is not merely a decision "not to enforce" the law but a program for applying, reviewing and conferring benefits (such as work authorization), so rescinding DACA is agency action reviewable under the APA; the INA's provisions limiting judicial review also did not bar review in this case.

The rescission violated the APA

Only the reasons given at the time count: In 2018, Duke's successor, Secretary Nielsen, offered additional reasons, but she did not take new action. The Court treated these as post hoc rationalization, declined to consider them, and reviewed only the Duke memorandum.
Failure to consider keeping only deferred action: The Attorney General's opinion addressed the benefits attached to DACA (such as work authorization). Secretary Duke treated it as a reason to end DACA entirely, without considering whether to keep the deferred action portion and eliminate only the benefits portion. That was an important aspect of the problem, and ignoring it made the decision arbitrary and capricious.
Failure to consider reliance interests: Recipients and their families, employers, schools and others may have made arrangements based on DACA. DHS was not necessarily required to keep DACA, but it had to assess these reliance interests and weigh them against other policy concerns, for example by considering a wider renewal window or a more gradual wind-down.

The Court emphasized the limited scope of its decision, writing:

“We do not decide whether DACA or its rescission are sound policies.”

On the remedy, the Court wrote:

“The appropriate recourse is therefore to remand to DHS so that it may consider the problem anew.”

The equal protection claim failed

Part IV, a plurality opinion of four justices, concluded that the plaintiffs' allegations were not enough to raise a plausible inference that the rescission was motivated by discrimination. Justice Sotomayor did not join this part, reasoning that the equal protection claim should be allowed to proceed on remand.

Dissents

Justice Thomas (joined by Justices Alito and Gorsuch) argued that DACA was unlawful from the start and that rescinding an unlawful policy requires no further explanation. Justices Alito and Kavanaugh also each wrote separate opinions dissenting in part.

After the decision: developments in the DACA litigation

2020 to 2021

After Regents, then-Acting Secretary of Homeland Security Chad Wolf issued a new memorandum on July 28, 2020 that suspended initial requests and shortened renewal periods. In the Batalla Vidal case, the U.S. District Court for the Eastern District of New York held that Wolf was not lawfully serving as Acting Secretary and, on December 4, 2020, ordered DHS to restore DACA and post a public notice that it would accept initial requests; USCIS then resumed accepting initial requests for a period.
Texas v. United States: On May 1, 2018, Texas and other states sued in the U.S. District Court for the Southern District of Texas, arguing that DACA itself is unlawful; the case is before Judge Andrew Hanen. On July 16, 2021, Judge Hanen held that the 2012 DACA memorandum violated the APA and barred DHS from approving new DACA requests, but stayed that ruling as to current recipients, who could continue to renew.

The 2022 DACA rule

On August 30, 2022, DHS published the DACA final rule in the Federal Register (87 Fed. Reg. 53152), effective October 31, 2022, codifying DACA in federal regulations (8 CFR 236.21 to 236.25).
On October 5, 2022, the Fifth Circuit largely affirmed Judge Hanen's ruling (50 F.4th 498) and remanded the case for the district court to review the new rule.
On September 13, 2023, Judge Hanen held that the 2022 rule was likewise unlawful (691 F. Supp. 3d 763), but continued to allow current recipients to renew.

The Fifth Circuit's January 2025 decision

On January 17, 2025, the Fifth Circuit ruled on the 2022 rule (No. 23-40653, opinion by Judge Jerry E. Smith):

It held that Texas has standing and that the 2022 rule is substantively the same as the 2012 memorandum and violates the Immigration and Nationality Act;
It held that the district court erred by not treating the deferred action portion separately from the work authorization portion, and that, under the rule's severability provision, deferred action should be severed from benefits such as work authorization;
It limited the injunction and vacatur of the rule to the State of Texas;
It kept the stay protecting current DACA recipients in place until further order of the Fifth Circuit or the Supreme Court.

Reportedly, the parties did not seek Supreme Court review, and the case was returned to Judge Hanen for implementation.

District court proceedings on remand (2025 to present)

In the second half of 2025, Judge Hanen asked the parties to file briefs on how to implement the Fifth Circuit's decision; reportedly the issues included the standing of the other plaintiff states, the effect of the Supreme Court's Trump v. CASA decision, and how to limit relief to Texas and to the work authorization portion.
Reportedly, in late September 2025 the federal government filed an implementation plan with the court, the gist of which was: resume processing initial requests outside Texas; Texas residents would receive only deferred action, not DACA-based work authorization. The plan must be approved by the court before it can take effect.
As of October 9, 2026, we have not found a final order from Judge Hanen on the implementation plan; the official USCIS DACA page still states that, under court order, initial requests are accepted but not processed, and renewals are accepted as usual.

Status as of October 9, 2026

Issue	Status (as of October 9, 2026)
Renewals	USCIS continues to accept and process renewals and accompanying work permit applications nationwide (including Texas)
Initial requests	USCIS accepts but does not process them, and they cannot be approved. If the district court approves the relevant plan, initial requests outside Texas may resume processing; no such order has been seen so far
Work permits for Texas recipients	Existing work permits generally remain valid through their original expiration date and can be renewed; the Fifth Circuit decision means Texas recipients may in the future lose DACA-based work authorization, with the manner and timing depending on Judge Hanen's order
Deferred action	The Fifth Circuit held that the deferred action portion can be kept separately from work authorization
The litigation itself	Still pending in the U.S. District Court for the Southern District of Texas; further appeals remain possible

DACA's status can change at any time. Before filing anything, rely on the latest information on the official USCIS DACA page.

What it means for applicants

Current DACA recipients: Renewing on time matters most. If your DACA has been expired for more than one year, you must file as an initial request, and initial requests cannot currently be approved.
Recipients living in Texas: You can still renew and your work permit remains valid for now, but you should follow the court orders and plan ahead for the possibility that work authorization is affected. If you are thinking of moving to Texas from another state, learn about the risks first.
People who have never had DACA: Initial requests cannot currently be approved. Whether to file now, and how the information in a filing may be used, should be assessed by an attorney based on your individual situation.
All recipients: DACA is not lawful status and cannot be converted directly into a green card. If you qualify, assess other paths, such as family-based or employment-based immigration, as early as possible. Travel abroad requires advance parole (I-131) obtained beforehand, and you should consult an attorney before traveling.

The lasting significance of Regents

It confirmed that rescinding a program like DACA, which sets up an application process and confers benefits, is subject to judicial review.
It requires agencies changing a policy to consider feasible alternatives and the reliance interests of those affected, and to stand on the reasons given when the decision was made, without adding reasons after the fact.
It did not prevent the government from rescinding or modifying DACA again through proper procedures, nor did it hold that DACA is lawful. A long-term resolution for DACA ultimately still depends on the courts or on Congress.

Practical tips

File renewals within the window USCIS recommends (120 to 150 days before expiration), and keep your receipts and work permits.
If you have any arrests or criminal charges, consult an attorney before renewing.
If you live in Texas or are considering moving there, follow USCIS announcements and court orders and watch for changes to work authorization.
Assess as early as possible whether you have another path to a green card, for example family-based immigration through a U.S. citizen spouse or adult child.

Frequently asked questions

Did Regents hold that DACA is lawful?

No. The Supreme Court decided only whether the 2017 rescission was carried out lawfully, finding that DHS failed to give a reasoned explanation. Whether DACA itself is lawful is the question in the Texas v. United States litigation; in 2025 the Fifth Circuit held that the 2022 DACA rule violates the Immigration and Nationality Act, but limited relief to Texas.

Can I file an initial DACA request now?

As of October 9, 2026, USCIS still accepts but does not process initial requests, and they cannot be approved. Reportedly, the federal government proposed in 2025 a plan to resume processing initial requests outside Texas, but it requires court approval, and we have not found such an order. Rely on the official USCIS DACA page.

I live in Texas. Will my work permit be canceled?

As of October 9, 2026, Texas recipients can still renew, and existing work permits remain valid until they expire. The Fifth Circuit decision means DACA in Texas may in the future no longer come with work authorization; when and how that is implemented depends on Judge Hanen's order.

Can the government rescind DACA again?

Regents did not prohibit rescission; it only required a reasoned explanation under the APA that considers alternatives and reliance interests. DACA is now codified in federal regulations, and amending or repealing a regulation generally also requires the corresponding rulemaking process.

Can DACA lead to a green card?

DACA itself cannot be converted into a green card, but it does not prevent you from applying through other paths. Whether you can adjust status inside the United States depends mainly on factors such as how you entered, and requires a case-by-case assessment.