No preliminary injunction for plaintiff challenging DACA non-renewal, but APA claim will proceed

Christian Garcia Herrera was brought to the United States from Mexico when he was one year old. In 2013, after graduating from high school and taking a job as a wildland firefighter, he was granted deferred action status under the DACA program.

Mr. Garcia Herrera’s DACA status was renewed in 2015 and 2017. When he applied for a third renewal in 2018, however, his application was denied. The denial letters he received from USCIS did not explain why the application had been denied; they simply stated that USCIS had exercised its discretion not to renew his DACA status.

Mr. Garcia Herrera filed a complaint challenging the non-renewal under the Administrative Procedure Act (APA). His primary contention was that USCIS had summarily denied his application without giving him “case-by-case consideration” (thereby making the decision arbitrary and capricious in violation of the APA). Mr. Garcia Herrera promptly moved for a preliminary injunction barring USCIS from revoking his DACA status.

In an order issued yesterday, Judge Rice declined to issue a preliminary injunction. Central to his decision was the fact that the record was devoid of evidence that the application had been denied in summary fashion. Based on that lack of evidence, Judge Rice ruled that Mr. Garcia Herrera was not likely to succeed on the merits of his APA challenge “at this time.”

The phrase “at this time” is intriguing. It seems to suggest that Mr. Garcia Herrera will be allowed to take discovery to determine precisely how his application was processed. If he discovers that USCIS made a procedural misstep (e.g., by failing to adhere to DHS’s National Standard Operating Procedures for DACA adjudications), he may be in business on his APA claim.

The case is Garcia Herrera v. McAleenan, Case No. 19-CV-0094-TOR. Garcia Herrera is represented by Clayton Cook-Mowery of the Quiroga Law Office. The government is represented by Rudy Verschoor of the U.S. Attorney’s Office.

UPDATE: Judge Rice’s decision has been selected for publication in the Federal Supplement. The Westlaw citation for the decision is Herrera v. McAleenan, — F.Supp.3d —, 2019 WL 2030125 (E.D. Wash., May 8, 2019).