The Acting Secretary of the Department of Homeland Security (DHS) announced steps to rescind the Deferred Action for Childhood Arrivals (DACA) program by March 2018, concluding that DACA violates the Administrative Procedure Act and the Due Process Clause. The Ninth Circuit ruled in favor of challengers. The government then moved to stay the district court order requiring completion of the administrative record until after resolution of motions to dismiss and for a preliminary injunction. The court stayed its order for one month. The government petitioned the Supreme Court, which vacated. The district court’s order required the government to turn over all “emails, letters, memoranda, notes, media items, opinions and other materials … actually seen or considered, however briefly, by Acting Secretary … in connection with the … decision … all DACA-related materials considered by persons (anywhere in the government) who thereafter provided … written advice or input … all DACA-related materials considered by persons (anywhere in the government) who thereafter provided … verbal input … all comments and questions propounded … to advisors or subordinates … and their responses, and … all materials directly or indirectly considered by former Secretary of DHS John Kelly leading to his February 2017 memorandum not to rescind DACA. The court should have first resolved the government’s threshold arguments that the decision was unreviewable as “committed to agency discretion,” 5 U.S.C. 701(a)(2), and that the Immigration and Nationality Act deprives the court of jurisdiction. The court may not compel the government to disclose any document that the government believes is privileged without first providing an opportunity to argue the issue. The Court did not consider the merits of the claims or defenses.

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