In Re United States

FILED FOR PUBLICATION NOV 16 2017 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT In re: UNITED STATES OF AMERICA; No. 17-72917 DONALD J. TRUMP; U.S. DEPARTMENT OF HOMELAND D.C. Nos. 3:17-cv-05211-WHA SECURITY; ELAINE C. DUKE, 3:17-cv-05235-WHA ______________________________ 3:17-cv-05329-WHA 3:17-cv-05380-WHA UNITED STATES OF AMERICA; 3:17-cv-05813-WHA DONALD J. TRUMP; U.S. Northern District of California, DEPARTMENT OF HOMELAND San Francisco SECURITY; ELAINE C. DUKE, in her official capacity as Acting Secretary of the Department of Homeland Security, ORDER Petitioners, v. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA, SAN FRANCISCO, Respondent, 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; VIRIDIANA CHABOLLA MENDOZA; NORMA RAMIREZ; COUNTY OF SANTA CLARA; SERVICE EMPLOYEES INTERNATIONAL UNION LOCAL 521; JIRAYUT LATTHIVONGSKORN; SAUL JIMENEZ SUAREZ, Real Parties in Interest. Petition for Writ of Mandamus Argued and Submitted November 7, 2017 Pasadena, California Before: WARDLAW, GOULD, and WATFORD, Circuit Judges. WARDLAW and GOULD, Circuit Judges: On September 5, 2017, the Acting Secretary of the Department of Homeland Security (“DHS”), Elaine Duke, announced the end of DHS’s Deferred Action for Childhood Arrivals policy (“DACA”), effective March 5, 2018. Begun in 2012, DACA provided deferred action for certain individuals without lawful immigration status who had entered the United States as children. Several sets of plaintiffs sued to enjoin the rescission of DACA under the Administrative Procedure Act (“APA”) and under various constitutional theories not relevant here. The merits of those claims are not before us today. The only issue is a procedural one, raised by the government’s petition for a writ of mandamus. The 2 government asks us to permanently stay the district court’s order of October 17, 2017, which required it to complete the administrative record.1 See Order re Motion to Complete Administrative Record, Regents of the Univ. of Cal. v. U.S. Dep’t of Homeland Sec., No. C 17-05211 WHA, 2017 WL 4642324 (October 17, 2017) (“Order”). We have jurisdiction pursuant to the All Writs Act, 28 U.S.C. § 1651. Because the district court did not clearly err by ordering the completion of the administrative record, we hold that the government has not met the high bar required for mandamus relief. One note at the outset: We are not unmindful of the separation-of-powers concerns raised by the government. However, the narrow question presented here simply does not implicate those concerns. We consider only whether DHS failed to comply with its obligation under the APA to provide a complete administrative record to the court—or, more precisely, whether the district court clearly erred in so holding. See Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 420 (1971) (“[R]eview is to be based on the full administrative record that was before the Secretary at the time he made his decision.”). This obligation is 1 Issues regarding supplementation—as ...

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